- Bribery and Conspiracy
- Wharton's Rule does not preclude a charge under 18 U.S.C. § 371
of conspiring to commit bribery. For one thing, the agreement may involve
more participants than were necessary for the commission of the substantive
offense. See, e.g., United States v. Benter, 457 F.2d 1174
(2d Cir.), cert. denied, 407 U.S. 842 (1972). Moreover, the Rule has
been held not to apply in any event because the gratuity provision (in this
particular case, but the observation is also true of the bribery provisions)
does not require the culpable participation of two persons. United
States v. Previte, 648 F.2d 73 (1st Cir. 1981).
- Economic coercion is a factor that bears on the existence of
specific intent under the bribery provisions. United States v.
Barash, 365 F.2d 395 (2d Cir. 1966). It is irrelevant to a gratuity
charge. United States v. Barash, 412 F.2d 26 (2d Cir.), cert.
denied, 396 U.S. 832 (1969).
- Knowledge of Federal Status
- It is not necessary to prove that the offender knew he was paying a
Federal official. Although the Government must prove that the payee was a
Federal official and that the offender believed the person he attempted to
bribe had official authority to act in a particular matter, it is not
necessary to prove that the offender believed the official was exercising
Federal authority. United States v. Jennings, 471 F.2d 1310
(2d Cir.), cert. denied, 411 U.S. 935 (1973) (FBI agents posing as
local police officers bribed by defendant, who did not know they were
- Campaign Contributions
- A bribery charge can be premised on a campaign contribution. But
be careful. It is problematical that a gratuity charge under 201(c) can
rest on a bona fide campaign contribution, unless the
contribution was a ruse that masqueraded for a gift to the personal benefit
of the public officer as was the case in Brewster, supra.
This is because campaign contributions represent a necessary feature of the
American political process, they normally inure to the benefit of a campaign
committee rather than directly to the personal benefit of a public officer,
and they are almost always given and received with a generalized expectation
of currying favor with the candidate benefitting therefrom. For these
reasons, recent Federal jurisprudence on the subject suggests substantial
judicial reluctance to extend the Federal crime of gratuities under section
201(c) to bona fide campaign donations.
- PRACTICE TIP: Where the transaction represents a bona
fide campaign contribution, prosecutors must normally be prepared to
prove that it involved a quid pro quo understanding and
thereby constituted a "bribe" offense actionable under section 201(b).
- COMMENT: This same distinction between bribes, gratuities and
lawful campaign contributions has recently been applied to some of the
Federal prosecutive theories that are currently used to address bribery and
corruption by state and local public officials. For example, in
McCormick v. United States, 500 U.S. 257 (1991) the Supreme Court
held that the Hobbs Act (18 U.S.C. § 1951) did not apply to a series
campaign contributions that were made with a general intent to curry favor
with a state senator and to thank him for his support. Noting that campaign
contributions are a necessary part of the American political process, the
Court held that when an allegedly corrupt payment represents a bona
fide campaign contribution, the prosecution must prove the existence
of a quid pro quo. This principle was thereafter
affirmed shortly thereafter in Evans v. United States, 504 U.S. 255
- The Speech and Debate Clause
- The Federal offenses of bribery and gratuities apply to payments
made in consideration for, or to thank or curry favor with, Members of
Congress and their legislative staffs. However, where an official of the
Legislative Branch is the intended recipient, the task of proving the
"official act" element can present prosecutors with unique challenges
rooted in the Speech and Debate Clause of the U.S..Constitution. U.S.
Constit. Art I, sec 6, cl 1.
- The Speech and Debate Clause provides the "legislative acts" of a
Senator or a Representative "shall not be questioned in any place." It
applies in criminal as well as civil litigation involving the Senator or
Representative, and provides absolute immunity to United States Senators and
Representatives while they are engaged in legislative acts. United
States v. Brewster, 408 U.S. 501 (1972); United States v.
Helstoski, 442 U.S. 477 (1976). Its purpose is to assure the Congress a
wide and unfettered latitude of freedom of speech in the deliberative
process surrounding enacting legislation, and to shield that process from
potential intimidation from the Executive and Judicial Branches. Gravel
v. United States, 408 U.S. 606 (1972); Powell v. McCormick, 395
U.S. 486 (1969).
- While the Speech and Debate Clause has been expressly held not to
shield Senators or Representatives against bribery charges, Johnson v.
United States, 383 U.S. 169 (1964), it does impose significant limits on
the type of evidence that can be used to prove such an offense. The Clause
broadly protects members of Congress "against inquiry into acts that occur
in the regular course of the legislative process and into the motivation for
those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and
"precludes any showing of how [a member of Congress], acted, voted, or
decided." Id. at 527. The Supreme Court has declared that "past
legislative acts of a Member cannot be admitted without undermining the
values protected by the Clause," including speeches in committee as well as
those on the Floor of the Chamber, the Senator or Representative's votes,
and his or her explanations for them. A somewhat wider latitude has been
allowed insofar as the admissibility of activities that took place occurred
prior to a legislative act. United States v. Helstoski, 442 U.S.
477, 489 (1979). However, the parameters of what constitutes a "legislative
act" are quite broad, and can severely impair the ability of prosecutors to
prove bribery and gratuity cases where the recipient is an elected Member of
the Legislative Branch.
- When evidence embraced by this privilege is introduced--either in
trial or in grand jury proceedings--the effect can be as troubling to the
prosecution as introducing the fruits of an illegal search. See
United States v. Durenburger, 1993 WL 738477 (D.Minn 1993);
Helstoski, supra; compare Johnson.
- In addition, both the House and the Senate consider that the Speech
and Debate Clause gives them an institutional right to refuse requests for
information that originate in the Executive or the Judicial Branches
that concern the legislative process. Thus, most requests for
information and testimony dealing with the legislative process must be
presented to the Chamber affected, and that Chamber permitted to vote on
whether or not to produce the information sought. This applies to grand
jury subpoenas, and to requests that seek testimony as well as
documents. The customary practice when seeking information from the
Legislative Branch which is not voluntarily forthcoming from a Senator
or Member is to route the request through the Clerk of the House or the
Secretary of the Senate. This process can be time-consuming. However,
bona fide requests for information bearing on ongoing
criminal inquiries have been rarely refused.
- PRACTICE TIP: The Public Integrity Section of Criminal Division has
significant expertise in addressing and overcoming Speech and Debate issues.
Prosecutors are encouraged to contact Public Integrity when the official
acts of an elected Member of the Legislative Branch become the focus of a
criminal inquiry. Public Integrity can be reached at (202) 514-1412 (phone)
or (202) 514-3003 (fax).
- Included offenses
- The offense of soliciting, giving, accepting and receiving a
gratuity is a lesser included offense within the greater crime of
soliciting, giving, accepting or receiving a bribe. See United
States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974); and United States
v. Anderson, 509 F.2d 312 (D.C. Cir. 1974).
[cited in USAM 9-85.101]