The terms "public official" and "person who has been selected to be
a public official" are defined in section 201(a). "Public official"
includes any garden-variety Federal employee, regardless of the branch of
government involved, employees of the District of Columbia, Members of
Congress, and Federal jurors. The breadth of the definition should be
noted, for it includes any "person acting for or on behalf of the United
States, or any department, agency, or branch of government thereof,
including the District of Columbia, in any official function, under or by
authority of any such department, agency, or branch of government." 18
U.S.C. § 201(a)(1). The Supreme Court has liberally interpreted this
language to include persons who are not Federal employees, but who have the
power to allocate and expend Federal monies under grant programs. Dixson
v. United States, 465 U.S. 482 (1984).
PRACTICE TIP: Even if the broad definition of "public
official" under § 201 cannot be met, a charge under 18 U.S.C.
may nonetheless be appropriate if the solicitor or intended recipient of the
bribe is a person who acts as an agent of an organization that receives in
one year $10,000 or more in Federal grant, loan, contract, or insurance
The term "thing of value" is used throughout Title 18, and includes
intangible as well as tangible things. See United States v.
Girard, 601 F.2d 69, 71 (2d Cir.), cert. denied, 444 U.S. 871
(1979). It has been broadly construed to focus on the worth attached to the
bribe by the defendant, rather than its commercial value. United States
v. Williams, 704 F.2d 603, 622-23 (2d Cir.), cert. denied, 464
U.S. 1007 (1983).
"Official act" for the purposes of Section 201(b) and (c) is defined
"Any decision or action on any question, matter, cause,
or controversy, which may at any time be pending, or which may by law be
brought before any public official, in such official's official capacity, or
in such official's place of trust or profit."
18 U.S.C. § 201(a)(3). In order for an act to fall within this
definition, it need not be specified by statute, rule, or regulation;
established practice within the department is sufficient to prove official
action. United States v. Birdsall, 233 U.S. 223 (1914).
- Authority or Power to Do the Official Act
It is not essential to a bribery charge against a public official
that he or she have the authority to make a final decision on an
official matter. When the advice and recommendation of the public
official would be influential, a violation of Section 201(b) may be
established. United States v. Heffler, 402 F.2d 924 (3d Cir.
1968), cert. denied, 394 U.S. 946 (1969); Wilson v. United
States, 230 F.2d 521 (4th Cir.), cert. denied, 351 U.S. 931
(1956); Krogmann v. United States, 225 F.2d 220 (6th Cir. 1955).
It is also possible in some circuits to convict either the giver or
the taker of a bribe (or both) even if the public official does not have the
power to bring about the result that prompted the bribe. It is sufficient
as to a charge against the public official that the public official
represented that the official act in question was within his or her power,
United States v. Arroyo, 581 F.2d 649 (7th Cir. 1978), cert.
denied, 439 U.S. 1069 (1979); or as to the giver of the bribe that the
giver believed the recipient had the power to bring about the desired
result. United States v. Hsieh Hui Mei Chen, 754 F.2d 817 (9th
Cir.), cert. denied, 471 U.S. 1139 (1985); United States v.
Gjieli, 717 F.2d 968 (6th Cir. 1983), cert. denied, 465 U.S. 1101
(1984). If, however, the public official has no authority at all to act in
the matter and his or her acts in response to the payment of a bribe are
unauthorized and illegal, it has been held that the "official act" component
is lacking. Blunden v. United States, 169 F.2d 991 (6th Cir. 1948).
Such a case could nonetheless be charged as an effort to induce a public
official to commit a fraud on the United States or to do an act in violation
of official duty. United States v. Gjieli, supra.
Under section 201(b), the offender must have acted "corruptly."
This is, properly speaking, the intent element of the offense. The word
"corruptly" simply means "with a bad or evil purpose." It is also
frequently defined to mean the same thing as "willfully," and thus to
connote "specific intent." See, e.g., 1 Devitt & Blackmar, Federal
Jury Practice and Instructions, §§ 14.03, 14.06, 34.08. A number
cases speak of section 201(b) as a specific intent crime; however, this
reference is sometimes not to "intent" in the strict sense of criminal
intent or mens rea, but to the purpose or reason for the act - namely,
intent to influence or be influenced. The statute is a little confusing in
this respect, since it does speak of the briber-giver acting "with intent to
influence." That phrase refers, however, to what the briber expects to
accomplish, not to his level of "criminal intent." Accordingly, take care
to specify this clearly when communicating with a court about "intent" in
Section 201(c) lacks the word "corruptly" and has no corresponding
specification of a particular level of criminal intent. Some courts seem to
have taken the phrase "otherwise than as provided by law for the proper
discharge of official duties" to be parallel to section 201(b)'s
"corruptly," and therefore to be an intent provision. The Public Integrity
Section does not believe this to be correct. The "otherwise than as
provided by . . ." phrase simply ensures that authorized payments will be
construed as illegal gratuities. Rather the intent requirement for section
201(c), lacking any other specification, is simply that the defendant acted
"knowingly and purposefully" and not by mistake or inadvertence, as opposed
to "corruptly" or willfully." United States v. Evans, 572 F.2d 455,
480-81 (5th Cir.), cert. denied, 439 U.S. 870 (1978).
- Purpose: Causal Connection Between Payment and Act
Section 201(b) requires that the offender have acted with the intent
(as to the giver of a bribe) to influence or (as to the taker of a bribe) to
be influenced. Thus, the bribery statute requires proof of an actual or
intended quid pro quo: one thing given in exchange for another. It
specifies a bargained-for exchange, like a contract. E.g., United
States v. Strand, 574 F.2d 993 (9th Cir. 1978); United States v.
Brewster, 506 F.2d 62 (D.C. Cir. 1974). This requirement can be met by
proof of a pattern of payments and official acts flowing between the giver
and the taker of bribes. See United States v. Campbell, 684
F.2d 141 (D.C. Cir. 1982).
This direct exchange of "quid pro quo" requirement is the factor
that chiefly distinguishes bribery from the lesser offense, a gratuity
violation. E.g., United States v. Hsieh Hui Mei Chen,
supra. Under section 201(c), the thing of value must be given or
received "for or because of any official act performed or to be performed"
by the public official. This requirement under the gratuity statute has
been interpreted not to require proof of a quid pro quo as for the bribery
statute, but rather of a lesser connection between the payment and an
official act. United States v. Niederberger, 580 F.2d 63 (3d Cir.),
cert. denied, 439 U.S. 980 (1978); United States v. Alessio,
528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948 (1976);
United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974). Indeed,
under the most liberal interpretation of the gratuity statute, the link is
really between the payment and the official position of the recipient.
United States v. Evans, 572 F.2d 455 (5th Cir.), cert. denied,
439 U.S. 870 (1978). Under this interpretation, it is unnecessary to show
that the payments were "earmarked for a particular matter then pending"
before the public official and over which the public official had authority.
Id. at 481. Thus, if the motivating factor for the payment is even
"to keep [the public official] 'happy,'" id., or to "create a better
working atmosphere" with a public official, the payment can form the basis
of a gratuity charge. United States v. Standefer, 452 F. Supp. 1178,
1183 (W.D. Pa. 1978), aff'd, 610 F.2d 1076 (3d Cir. 1979),
aff'd, 447 U.S. 10 (1980); United States v. Niederberger;
United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied,
396 U.S. 832 (1969).
PRACTICE TIP: There must be some connection between the receipt of
the thing of value and the official position of the public official.
In United States v. Muntain, 610 F.2d 964 (D.C. Cir. 1979), the court
held the proof insufficient to establish a gratuity charge when the
defendant public official accepted commissions from a private company to
steer business to that company. The official's efforts to profit from his
contacts as a government official with potential customers of the company
were held not to constitute a gratuity violation because these acts were
"totally unrelated to his official duties." 610 F.2d at 970.
An aphorism sometimes used to sum up the distinction between a bribe
and a gratuity is that a bribe says "please" and a gratuity says "thank
you." Remember, though, that a gratuity can precede the official action
that prompted it, as the "to be performed" language in the statute attests.
Such pre-act "gratuities" are customarily made for a generalized purpose to
"curry official favor" with the recipient. Another way of looking at it is
that a bribe purchases a service (or at least is intended to do so) and is
therefore bargained-for; a gratuity is more in the nature of a tip (hence
the name) because it is not bargained-for.
This is easy to say, but not so easy to see. Suppose, for example,
there is a contract proposal pending before a Government contracting
officer, and the prospective contractor takes the contracting officer on an
all-expense paid cruise the week before the contract is to be awarded.
Assuming that the prospective contractor and the contracting officer do not
otherwise know each other, this looks suspiciously like a bribe or a
gratuity. But which? Absent direct evidence of an agreement between the
prospective contractor and the contracting officer, the answer will probably
depend on such factual circumstances as the following:
Did the prospective contractor get the contract?
- Did the contracting officer have the power to decide who received
the contract? If not, what role did the contracting officer play in making
- What is the value of the cruise?
- How much competition did the prospective contractor have?
- How qualified was the prospective contractor to get the contract? How
did the contractor rank in relation to the competitors?
- How important financially or otherwise was the contract to the
- How important was the cruise to the contracting officer?
- Are there contemporaneous admissions from either the contracting
officer or the prospective contractor or both regarding the purpose of the
Absent good proof of incriminating admissions, or the lack of
qualifications of the prospective contractor, or the essential nature of the
contract to the business of the prospective contractor, this scenario will
likely end up charged as a gratuity. However, the addition of one or more
of the above facts may convince a jury that the intent of the donor was to
influence official action, or that the intent of the donee was to be
influenced, and thus sustain a bribery charge.
[cited in USAM 9-85.101]