When the FBI Comes Calling…®
PUBLIC CORRUPTION (Continued)
18 U.S.C. § 666 (2007)
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 U.S.C. § 1951 (2007)
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.
McNabb Associates has also written a white paper on this subject. To view it, click here.