Class 8- Bribery, Extortion, & Theft of Government Funds:

Interpretation of "Public Official":

Includes private actors & state & local employees if they have any responsibilities relating to federal matters

"Things of Value":

Includes tangible & intangible goods (ex: tips, gifts, perks, favors, sex, discounts, waived fees, kickbacks, contracts, etc.)

Public Official:

Liberally interpreted; includes persons who aren't Federal employees, but who have the power to allocate & expend Federal monies under grant programs (Dixon Test)

William "Dollar Bill" Jefferson:

Louisiana congressman who had corruption charges against him & he got the longest sentence handed down to a congressman for any crime yet (13 years)

What §666 is trying to accomplish:

Most of the crimes prosecuted under it are local in nature, but local conduct can effect how federal funds are spent, even if indirecly

To qualify as a "payment" under color of official right:

Payments must be made in return for an explicit promise or undertaking by the official to perform (or not perform) an official act -Government must generally show a quid pro quo

18 U.S.C. §666:

Punishes bribery in the form of bribes to agents of federal programs & punishes theft from programs receiving general funds

18 U.S.C. §201(a)- Bribery:

Requires a showing that something of value was corruptly given/offered/promised to a public official or corruptly demanded/sought/received/accepted by a public official w/ intent to "influence any official act" or in return for "being influenced in the performance of any official act" *Public Official must solicit or accept a thing of value in return for being influenced*

18 U.S.C. §201(b)- Illegal Gratuity:

Requires a showing that something of value was given/offered/promised to a public official or demanded/sought/received/accepted by a public official "for or because of any official act performed or to be performed by such public official *Can after be disqualified from holding any office of "honor, trust, or profit" under the US government"

Proof for *Bribery*:

Requires proof of a *quid pro quo*- an intent on the part of the public official to perform acts on his payor's behalf

Bribery:

The act of accepting or offering something of value in return for a certain action or influence on a government official

Moeller/Subdivision Theory Applied:

The agency/subdivision element is interpreted broadly as long as the agent exercises control over funds in some meaningful way

Federal Funds Nexus:

The bribes need not affect, or be tied to, federal funds -What qualifies as "federal benefits" depends on the facts of the case; not clear if it applies to gratuities as well

"Agent":

The defendant must have control over funds (no requirement that funds that agent controls are federal funds- can be local)

Extortion:

The obtaining property from another induced by wrongful use of actual or threatened force, violence or fear. Can be threats of physical harm, accusation of criminal offense or threat to expose a secret or info that may be harmful

"Under Color of Official Right":

The taking or attempted taking by a public official of property not due to him or his office -Defendant need not have induced (requested) the payment

Low Chance of Getting Caught:

Uncovering bribes often require inside info from someone involved or suspicion by someone close to the incident (often secret & between close parties)

Punishment for Federal Program Bribery:

Up to 10 years in prison

Kwame Kilpatrick:

Was the youngest mayor of Detroit, had lots of charges against him over the years that he mostly avoided, but ended up going to jail in the end. He didn't pay his restitution payments & then was jailed again for evasion & corruption

1) Defendant is an agent:

a) Does the agency/department/etc. exercise control over the subdivision where the agent works? b) Does the agent represent the interests of the "big" department when they work for the "little" department? c) Can the agent's actions somehow have an effect on federal $$? (can be v indirect)

Examples of what "Public Official" can Extend to:

a) Employees of a private corporation who acts on behalf of the federal government pursuant to a contract b) State Deputy Sheriff (who oversees federal & state prisoners- EXAMPLE) c) Director of city housing authority (receives federal funds) d) Supervisory cook at a federal correctional facility

How court looked at "Official Act" in McDonnell (the new definition):

a) Gov must *identify* a "question, matter, et.c" that may at any time be pending or may by law be brought before a public official (must connote *formal exercise of power*, NOT everyday tasks) b) Gov must prove that the public official *made a decision or took an action* on that question, etc. or agreed to do so

Bribe vs. Extortion:

a) Payment to receive *benefit* = *bribe* b) Payment to *avoid loss* = *extortion* (Ex: paying to obtain fair treatment or a threat to withhold access to a level playing field)

Dixon Test:

"Whether the person occupies a position of public trust w/ official federal responsibilities"

"Corruptly":

"With a bad or evil purpose" -Frequently defined to mean same thing as "willfully" & thus to connote *specific intent*

Rod Blagojevich: *READ THIS ONE*

*Add info from supplement* Gov of Illinois charged w/ pretty much trying to sell Obama's Senate seat; charged w/ honest services, fraud, corrupt usage of funds Lawyers tried to argue some issues w/ the jury instructions (like in McDonnell), & some charges were thrown out, but on appeal he got the same sentence anyway

Sentencing differences:

*Bribery:* Max of 15 years *Illegal Gratuity:* Max of 2 years

*Hypothetical:* *KNOW* *LOOK AT*

*LOOK UP*

Additional Elements under §666(a)(1)(A):

1) Agency (other elements are easier to prove w/ sufficient evidence) 2) The department receives >$10,000 in federal funds 3) Defendant embezzles/steals/knowingly converts property 4) Property's valued @ >$5,000

Government's alleged 5 categories of McDonnell's actions that constituted "Official Acts":

1) Arranging meetings for Williams w/ Virginia government officials 2) Hosting & attending events designed to promote Williams' companies, etc. 3) Contacting other governmental officials to promote Williams' companies, etc. 4) Promoting Williams' products 5) Recommending other senior government officials meet w/ Williams

Theft from a Program Receiving Federal Funds, 18 USC §666(a)(1)(A) Elements:

1) Defendant is an agent of any subdivision of the executive, legislative, judicial, or other branch of government (including a department or agency) 2) The department, agency, etc. receives $10,000 or more in federal funds 3) The defendant embezzles, steals, obtains by fraud, or otherwise w/o authority knowingly converts property 4) The property's valued @ >$5,000

Elements of 18 U.S.C. §666:

1) Defendant solicited/received/offered/gave a thing of value 2) The thing of value was solicited,etc. in order to benefit an agent of an organization or of a government or agency thereof 3) The defendant *acted corruptly* 4) The entity for which the defendant acted as an agent received *>$10,000/year* in federal assistance (Timing: measured from the date of the offense; Money/benefits must have been given *before* the offense*)

Hobbes Act- 18 U.S.C. §1951/52 (Extortion) Elements:

1) Defendant's act affected interstate commerce (very broad, includes de minimis effects) 2) Defendant obtained/conspired/attempted to obtain another person's property to which the defendant wasn't entitled (includes inchoate offenses) 3) The property was obtained w/ the other person's consent 4) The defendant acted w/ the required mens rea (either specific intent or general) 5) The property was obtained by (a) wrongful use of force, violence or fear or (b) under color of official right

Extortion must be designed to:

1) Injure the victim, & 2) Benefit the defendant

Impact of McDonnell:

1) Narrower definition of "official act" (a "formal exercise of governmental authority") -Gov will need to show evidence of *intent to exert pressure or provide advice in order to influence* in cases where bribed official is removed from governmental action in question 2)Fewer federal prosecutions of state officials? 3) Broader concern about fed involvement in state matters? 4) Extension to prosecution of public officials (esp. state) under other areas of law? (fraud?)

Why people do it:

1) Opportunity 2) Low chance of getting caught 3) Incentive 4) Greed (monetary or other reward) 5) Desire to gain power or position 6) Disregard for law

Factors that went into TFIS subdivision decision:

1) TFIS performed discretionary functions on behalf of TDA 2) TFIS enforced regulations promulgated by TDS 3) the funds collected for those regulatory functions were remitted directly to the state treasury

Giving/Offering to Give a *Bribe*:

1) The defendant gave/offered to give something of value 2) The recipient/offeree was a federal public official *3) The defendant acted w/ corrupt intent, and 4) The scheme was designed to (a) influence the public official in an official act, (b) influence the PO to commit a fraud on the US, or (c) induce the PO to act in violation of a lawful duty*

Giving/Offering to Give an *Illegal Gratuity*:

1) The defendant gave/offered to give something of value 2) The recipient/offeree was a federal public official, & *3) The defendant intended that the thing of value be given as compensation for an official act ALREADY performed or to be performed other than as provided by law for the proper discharge of an official duty*

Receiving or Agreeing to Receive an *Illegal Gratuity*:

1) The defendant received/agreed to receive something of value 2) The defendant was a federal public official *3) The defendant received/agreed to receive the thing of value as compensation for an official act ALREADY performed or to be performed other than as provided by law for the proper discharge of official duty*

Receiving or Agreeing to Receive a *Bribe*:

1) The defendant received/agreed to receive something of value 2) The defendant was a federal public official *3) The scheme was designed to : (a) influence the public official in an official act, (b) influence the PO to commit a fraud on the US, or (c) induce the PO to act in violation of a lawful duty*

Why We Care:

1) Undermines democracy & the rule of law 2) Can lead to violation of human rights 3) Can distort markets & restrict open-market competition 4) Can result in less effective, inefficient, or harmful government practices 5) Can erode the quality of life 6) Allows organized crime, terrorism, & other threats to human security to flourish 7) Can be harmful to organizational, employee, or citizen morale 8) Damage to reputation of governmental offices & private companies 9) Can erode confidences & trust in the operation of governmental officials

For "Fear" element, government must show:

1) Victim feared harm (physical or economic) 2) Defendant intended to take advantage of the victim's fear *Do NOT need to show the defendant created the fear

2 Types of Extortion:

1)Through the use of force, violence or fear (physical &/or economic) 2) Under color of official right (when a public official uses the power of a public office to obtain payment from a victim)

United States v. Phillips:

A parish tax assessor was engaged in a kickback scheme. LA law stated tax assessment districts were independent of parish governments & tax assessors weren't parish officers & weren't controlled by parishes Ruling: Even though §666 is interpreted broadly,it didn't apply to the statutorily-independent local agency (hard to argue w/ a law that states they're separate entities); thus the tax accessor was NOT an agent of the parish

Corruption:

Act done w/ intent to give some advantage inconsistent w/ official duty & the rights of others. -The act of an official or fiduciary person who unlawfully uses his station to procure some benefit for himself/another person, contrary to the duty & rights of others

"Official Act" - Section 201(a):

Any decision or action on any question, matter, suit, etc., which may at any time be pending, or which may be law that may be brought before any public official, in such official's official capacity, or in such official's place of trust

Bribe:

Any money, goods, right in action, property, thing of value, or any preferment, advantage, privilege or any promise or undertaking asked, given or accepted with a *corrupt intent* to induce or influence action, vote, or opinion of a person in any *public or official capacity*

Solicitation of Bribe:

Asking/enticing/requesting of another to commit the crime of bribery

Who can be charged w/ offense of Bribery:

Both the recipient & provider of the bribe; can be found guilty of the crime *independently* of the other

Did the District Court Correctly define "Official Act" in its jury instruction? Can a routine act be official?

Court said that by this broad definition, pretty much anything an official does would be considered bribery, so the previous definition (that was standing at the time of this) was too broad

Federal Program Bribery (18 U.S.C. §666):

Created to extend federal prosecutions beyond federal public officials, to areas where federal money is involved (state/local entities) -Makes it a crime to *solicit* and *offer* a bribe -More frequently used than Section 201 (but there's considerable overlap)

To be guilty of Bribery:

Crime occurs once the *offer is made or there's an agreement to accept the offer* -The thing of value does NOT necessarily have to be exchanged/received to be convicted -When *public officials* are involved, a bribe does NOT need to be harmful to public interest in order to be illegal

United States v. Brown:

Defendants were part of a scheme to file fraudulent claims to the city of Garland, Texas, argued the payouts on the claims may've come from a fund that was separate from the city's federal funds (& thus wouldn't impact federal funds) -Rule: Funds do NOT need to be purely federal (focus on whether gov entity received requisite federal funding & whether the agent was authorized to act on behalf of the entity or its subdivision w/ respect to its funds -Defendants were authorized to act on behalf of the city w/ respect to its funds by issuing checks in response to their bogus claims, so were guilty

United States v. Moeller:

Defendants worked for the Texas Federal Inspection Service (TFIS), supervised by Texas Department of Agriculture (TDA) & the USDA. Defendants improperly awarded TFIS contracts, but TFIS didn't receive federal funds directly *Ruling:* TFIS was a subdivision of TDA, which was a subdivision of the executive branch of Texas & received >$10,000 in federal grant money

Proof for *Illegal Gratuity*:

Does NOT require proof of specific intent to influence/be influenced -The gratuity is a reward for an action that a public official has already taken, or for an action that the public official has committed to take in the future

Impact- Sheldon Silver:

Guilty of schemes under §261 & §666, but his lawyers argued McDonnell had changed the laws so their client shouldn't be guilty anymore. Court let him stay out on bond pending his appeal (still pending), which is pretty rare

Distinction from bribery/illegal gratuity:

In bribery/gratuity, both the payer & the payee can be criminally liable (they share corrupt intent); In *extortion*, the payer is an innocent victim, NOT culpable party