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Criminal Resource Manual

2046. Other Issues

  • 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).

  • Coercion

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 Federal officials).

  • 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 of 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 (1992).

  • 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]