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|Following national concern surrounding corruption in corporate institutions, scrutiny for wrong-doing swept from the private to the public sector. Attorney General John Ashcroft announced a campaign against corruption, and an expansion of the role of federal law-enforcement agencies. This campaign has engulfed well-known public figures like Vincent "Buddy" Cianci, and demonstrated that the government will use its resources to punish acts of public corruption.
The fight against corruption is not new, yet the federal government's statutory breadth and discretionary power have grown an immeasurable extent in recent years. The line between bribery and extortion has begun to blur, as multiple federal statutes have emerged to describe the same acts with inconsistent elements and punish them with inconsistent sentencing.
When public officials are charged with public corruption, they are generally charged with having committed either bribery or extortion offenses. Before understanding how those charges are codified in federal legislative statutes and how they have been interpreted by the judiciary, it is first essential to take a look at who precisely can be considered a "public official". According to statute, a public official is defined as a "person acting for or on behalf of the United States."1 In 1979, the 96th Congress further clarified the definition of "public official" within the context of public corruption. Congress recognized that federal jurisdiction lies where: 1) the corruption involves public officials in federal institutions; 2) the corruption obstructs or utilizes a facility in interstate commerce; or 3) the corruption is so pervasive, as in organized crime or labor racketeering, that local enforcement needs to be supplemented by federal power.2 "In all other cases, there is a 'fundamental assumption' that the basic responsibilities for prosecuting these criminal cases remains with the states themselves, not with the federal government."3 In February 1984, in an opinion by Associate Justice Thurgood Marshall in Dixson v. United States, the Supreme Court held broadly that,
"[T]he proper inquiry is not simply whether the person ha[s] 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." 4
This expansion in the definition of a public official has warranted the federal government to enlarge its role in prosecuting public corruption offenses, provoking federalist concerns about how much power it has over the states.
In addition to significant jurisdicitional discretion supported by judicial interpretation, Congress has given federal prosecutors a wide range of statutes to choose from in charging individuals with public corruption offenses. The three most prominent federal statutes that are found in Title 18, the area of federal law describing most criminal offenses include sections 201 (solicitation, acceptance, or offering of bribe to public officials and witnesses), 666 (solicitations, acceptance, or offering of bribe concerning programs receiving federal funds), and a portion of 1951 (interference with interstate commerce through coercive extortion and undue influence of public office).
To a lesser degree, many other statutes address similar issues. Sections 208 (official acts done in personal interest), 210 (offering to procure appointive public office), 211 (acceptance of solicitation to obtain appointive public office), 606 (public official threatening or lowering another official in rank for not giving campaign contributions), 645 (court officers misusing public money), 872 (extortion by public officials or employees of the federal government), 874 (kickbacks from public works employees), and section 302 of Title 31 (improper use of public money), among others, also apply to public corruption.
Since so many statutes appear to cover similar behavior, the fine distinctions fade, allowing the prosecutor an incredible amount of discretion on how a person is charged. This can be seen in the tension between sections 201 and 1951 which cover the differences between bribery and extortion.
18 U.S.C. & 201, which is sometimes referred to inappropriately as the public corruption statute, consists of several parts and is the predominant bribery statute. Subsection (a) of the statute defines a public official as a "person acting for or on behalf of the United States," while subsections (b) and (c) describe specific bribery offenses. According to section 201, the government must prove "a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given."5 An "official act" requires that the act is within the realm of an official function (a duty imposed by law), in other words, "a charge of crime cannot be predicated upon an act not made an official function, obligation or duty by express command of law."6
Under section 201, any individual working on behalf of the government is considered to be carrying out an official function, which allows him to be prosecuted as long as his actions fall under the responsibilities, privileges and duties that have been conferred upon him by the government.
A discussion of the interpretation of section 201 is best exemplified in a lively banter between Robert Ray, a deputy independent counsel out of Alexandria, Virginia, and a few of the Justices:
"Question: Suppose a - a group of farmers asks the Secretary of Agriculture to come and talk to us. They say, we'd like you to tell us about the Department's policies that affect us. Here is the ticket, or we'll buy you lunch. It's a banquet. Bring your wife to the banquet. In your view, is that a federal crime?"
Ray: We don't believe - -
Question: And if not, why not?
Ray: We don't believe there's a sufficient showing of motivation, based on the facts.
Question: No, no. What they want is they definitely want him to come out indeed, what they want him to do is talk about price supports. They're in favor of price supports. They want him to talk at lunch.
Ray: If it's completely untethered to the prospect of official action, that would not be a sufficient showing.
Question: What do you mean 'untethered'? They want him to talk about official action. They want him to talk about his policies as Secretary of Agriculture. I give you the example, and I want to know, in your opinion, how does this statute apply?
Ray: On those facts as you've just added them, that would appear to suggest a motivation involving some capacity to act.
Question: It's a federal crime, in your opinion?
Ray: There would have to be additional facts that were not present in your hypothetical... Did they have any matters before that official?
Question: Yes, yes. Of course, farmers do. They all do. That's what the Secretary of Agriculture does. He decides things that affect farmers.
Ray: And - - and under those circumstances, if that motivation were shown that it was for or because of that position, we believe that would be within the four corners of this statute, yes.
Question: And therefore, if farmers who ask the Secretary to speak, to come to lunch, to talk about his policies, are all committing federal crimes? I would have thought that was fairly common. I may not understand...Do you think any public officials in Washington will be surprised by your interpretation?
" Ray: We're not saying that we're trying to bar access. There's no question that farmers have a right to appear before these individuals, these officials, and - - and advance their position. The question is buying access. I mean, the official can appear as long as the official pays his own way. The problem is when the official is in a relationship with someone who prospectively has action before them and takes these gifts and takes them on the nickel of the - - the person who has an interest."7
While section 201 covers bribery, section 1951 is an interesting case-study in the expansion of government power. 18 U.S.C. & 1951 is also known as the Hobbs Act. Section 1951 is rooted in the Anti-Racketeering Act of 1934,8 which was created to obstruct organized crime entities and stood as the foundation for current RICO statutes. &1951 is most directly targeted at prohibiting the obstruction of interstate commerce by extortion or robbery. Extortion, according to the statute, is defined as "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."9 In other words, when one robs another of property, uses or threatens to use undue force against another, or a public official using his office improperly or coercively for his own benefit, may be charged under the statute. As far as public corruption is concerned, however, only extortion under the color of official right, committed only when "a public officer makes wrongful use of his office to obtain money not due to him or his office... which, by itself, supplies proof of the necessary element of coercion,"10 is relevant.
For all types of extortion, an element of inducement is required. It must be proven that the person committing the act of extortion, the extortionor, is inducing, or demanding, that the victim, extortionee, perform certain acts under fear that they might be harmed physically, politically, or financially, if they do not perform the act. This element provides an important distinction: "Bribery is a corrupt benefit given or received to influence official behavior so as to afford the giver better than fair treatment,"11 while “extortion can refer to any illegal use of a threat or fear to obtain property or advantages from another, short of violence that would be robbery."12 This general distinction between bribery and extortion continued up until the early 1970's, when a federal prosecutor, Herbert Stern, convinced a federal district court that there were two types of extortion covered under 1951 (coercive and official right), and that any distinction between bribery and extortion under color of office was not necessary.13 This argument flourished in the courts.
On December 9, 1991, a Georgian attorney by the name of C. Michael Abbott rose from his seat in the cool marble Supreme Court, his heavy stack of prepared notes and background information resting on the sturdy old wooden table. A crowd was gathered behind him, and he faced a row of nine justices who seemed to sit high above the lawyers and the world. Abbott was there to argue the distinction between bribery and extortion on behalf of his client John Evans Jr., who had been charged under 1951 for misusing his elected office as a member of the DeKalb County Board of Commissioners in Georgia. As the justices fired questions at him, Abbott deflected them, eventually coming to the ultimate statement that stands in the chronicles of federal criminal law as the last effort to maintain the distinction between bribery and extortion. In response to a hypothetical situation of a man who had solicited money as a public official without ever using a threat, Abbot argued,
"I think it depends on what you believe that he means when he [solicits the money]. If what he means is if you want to deal with me, then you must pay me money in advance, if he's conditioning his performance, yes, I think it’s extortion. If you're not conditioning his performance, I think it's a bribe. I think that is the distinction. It's a distinction that's not required under the majority rule, but I think it's a distinction that's present in all the extortion statutes, and certainly in the title 18, 1951 (b) (2)... The course of extortion part says force, violence or fear. And what we say is it has to be a demand or a threat under color of official right, which comports with the common understanding of extortion. Why they would put that, under color of official right, in an extortion statue, if they didn't intend to comport with the basic understanding of extortion, will certainly remain a mystery, I think."14
Five months and seventeen days later, Associate Justice Justice John Paul Stevens wrote the majority opinion (which was joined by Justices White, Blackmun, and Souter and joined in part by Justices O'Connor and Kennedy). In an attempt to return to common law, Stevens argued that no inducement is necessary for extortion under color of office. Extortion, Stevens argued, originally was reserved for public officials who misused their office. In addition, the mere fact that an official had the powers granted to him by his office provided a sufficiency for inducement itself.
In other words, a public official who received money not due to him as a result of his office, generally considered bribery, would qualify under the extortion statute, because the mere wrongful acceptance of an undue payment constituted all the inducement required under the statute. All inference of coercion is presupposed by the mere fact that the public official holds public office, relying upon the 11th Circuit Court of Appeals view that "[t]he coercive nature of the official office provides all the inducement necessary."15 Interestingly, in the late May prior to this case, The Court held in McCormick v. United States, in an opinion by the liberal Justice Byron White, that quid pro quo, giving a gift with the direct intent to receive some sort of benefit as in bribery cases, is not a necessary element that has to be proven to find someone guilty under & 1951, as it is under & 201, although it is very helpful and may often be present.
The federal extortion statute, & 1951, is satisfied when a public official receives a thing of value, because of his office, with the general intent, although not a required element, that the gift will encourage the official to act favorably, or less harshly, towards the extortionee. The federal statute for bribery, &201, however, is satisfied when a public official receives a thing of value with the direct understanding that by receiving this gift, the official will act favorably towards the briber. In essence, the walls between extortion and bribery have begun to fall, allowing the federal prosecutor enormous power to charge a public official. Additionally, one who is charged with & 1951 has a statutory maximum sentencing of 20 years, while the bribery statute carries up to 10 years. Although these two statutes do not act as transparencies, easily matching each other, consider a circumstance where the ambiguity of circumstance brings forth in great force the discretionary power of the Assistant United States Attorney, prosecutor for the government. "Indeed, if a police officer suggested to a prostitute that he might forget about arresting her if she paid him off every week, it would be difficult to say which was the more common way to characterize the behavior, extortion or the solicitation of a bribe."16 Thus, the prosecutor has the ability, aided by the broad scope of definitions provided by The Court in Evans v. United States, to prosecute the same crime with one of two, or both, statutes that carry different sentencing provisions. In addition, 18 U.S.C. & 872 makes it a crime for a public official or employee of the government to commit extortion, carrying up to three years. 18 U.S.C. & 666, one of the most common statutes used to combat public corruption, could feasibly be brought in as well, as that it prohibits solicitations, acceptance, or offering of a bribe concerning programs receiving federal funds. In whole, one act could be covered by four different statutes, & 201, & 666, & 872, and & 1951, one carrying up to 3 years, another up to 10 years, another up to 15 years, and the last up to 20 years respectively. The prosecutor has the right to utilize any combination of these statutes, and the judge may sentence and individual convicted to serve either concurrent or consecutive terms in prison for each offense. In theory, however unlikely in practice, a public official who accepts a gift and returns the favor with an official act could be sentenced up to 48 years in prison per wrongful act.
Although the most common statutes have been described above, other statutes could be applied to the unlawful act. For instance, officials might be charged under section 211 for accepting money to secure an appointed office for another, section 645 if they are court officials misusing public money,& 874 for kickbacks from public works, or under section 302 of Title 31's improper use of public money.
As mentioned above, 18 U.S.C. & 666 is a common statute used to charge an official. Because it attacks bribes to officials connected with federal funding, it allows the federal government to become involved in the affairs generally considered state-centric, given the enormous distribution of federal funds. A city official in Illinois may be charged under the federal statute because his endeavors are funded, at least in part, by the federal government. Section 666 in essence allows the United States government to charge most any official in the nation with bribery as long as he is involved in some way with federal funding. According to Justice Charles Hughes in United States v. Birdsall, when reviewing Sec. 117 of the criminal code, the direct ancestor of & 666, "in numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the above-mentioned statutes against bribery."17 If official duties are not required to be in writing, but can be described as those that fall under "common practice," the prosecution has a broad standard that may be used against those whom it wants to prosecute.
Justice Thomas in his dissenting opinion in Evans v. United States cautions,
"Our criminal justice system runs on the premise that prosecutors will respect, and courts will enforce, the boundaries on criminal conduct set by the legislature. Where, as here, those boundaries are breached, it becomes impossible to tell where prosecutorial discretion ends and prosecutorial abuse, or even discrimination begins. The potential for abuse, of course, is particularly grave in the inherently political context of public corruption prosecutions."18
Judicial interpretation of the three primary and other supplemental public corruption statutes has expanded definitions and relaxed jurisdictional requirements. The federal government may use discretion in prosecuting public corruption when it involves federal funding or institutions, a threat to interstate commerce, or is so insidious that state efforts must be supplemented.19 In the face of such broad governmental discretion, maintaining the quintessential vitality of the defense lies in the hands of the experienced to negotiate, advocate, and secure the rights of those who have been charged.
The articles and material on this web site are made available for informational purposes only and are not legal advice. The transmission and receipt of information contained on this web site or any other web site operated by McNabb Associates, P.C. do not form or constitute an attorney-client relationship. McNabb Associates, P.C. accepts no liability in relation thereto. The areas of law discussed are particularly fast moving, and legal issues develop rapidly. Therefore up-to-date information should always be checked. Anyone receiving information on or from this web site should not act upon the information without seeking professional legal counsel. For additional information concerning pending criminal matters, please contact McNabb Associates, P.C.
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1 Currently codified in: 18 U.S.C. & 201(a) Back to article.
2 Kenneth R. Feinberg, "The Federal Law of Bribery and Extortion: Expanding Liability." Chp. 3 in White Collar Crime: Business and Regulatory Offenses, ed. Obermaier, Otto G. and Morvillo, Robert G., Law Journal Seminars-Press 1996 (originally published in 1990). p. 3-2 Back to article.
3 Id. Back to article.
4Dixson v. United States, 465 U.S. at 494, 104 S. Ct. 1172, 79 L.Ed.2d 458 (1984) Back to article.
5 Sun Diamond Growers v. United States 526 U.S. 398, 9 (1999) Back to article.
6 Haas v. Henkel 216 U.S. 462, 5 (1910) Back to article.
7 United States v. Sund-Diamond Growers of California 526 U.S. 398 (1999) Oral Arguments. Robert W. Ray. March 2, 1999. Back to article.
8 Act of June 18, 1934, ch. 569, 48 Stat. 979 Back to article.
9 18 U.S.C. 1951 (b)(2) Back to article.
10 McCormick v. United States 500 U.S. 257, 6 (1991) Back to article.
11 James Lindgren, The Elusive Distinction Between Bribery and Extortion: From Common Law To The Hobbs Act, 35 UCLA L. Rev. 815 at 5 Back to article.
12 Id. 6 Back to article.
13 Id. 2 Back to article.
14 Evans v. United States 504 U.S. 255 (1992), Oral Arguments. C. Michael Abbott. Dec. 9, 1991. Back to article.
15 Feinburg supra at 3-31 Back to article.
16 Lindgren supra at 7 Back to article.
17 United States v. Birdsall 233 U.S. 223, 3 (1914) Back to article.
18 Evans v. United States 504 U.S. 255, 18 (Thomas, J. Dissenting Opinion with Rehnquist, J. and Scalia, J. joining) Back to article.
19 Feinberg supra 3-42 Back to article.
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