Due to the lapse in appropriations, Department of Justice websites will not be regularly updated. The Department’s essential law enforcement and national security functions will continue. Please refer to the Department of Justice’s contingency plan for more information.

2424. Form Indictment -- Offer And Gift Of Bribery And Graft Payments Affecting Employee Pension Or Welfare Plan In The Private Sector -- (18 U.S.C. 1954)

THE GRAND JURY CHARGES:

  1. At all times material to this Indictment (recipient-offeree) , was (a)n [administrator/officer/trustee/custodian/ counsel/agent/employee of the (name of affected plan) ] [officer/counsel/agent/employee of (name of sponsoring employer) , an employer whose employees were covered by (name of affected plan),] [officer/counsel/agent/employee of the (name of sponsoring union , an employee organization, whose members were covered by the (name of affected plan) ,] [person who provided benefit plan services to the (name of affected plan),] [officer/counsel/agent/employee of (name of service provider), an organization which provided benefit plan services to the (name of affected plan) ], an employee [pension/welfare] benefit plan subject to Title I of Employee Retirement Income Security Act.*
  2. That on or about (date) in the ____________District of ______________ the defendant _________________ did directly and indirectly give, offer, and promise to give and offer a fee, kickback, commission, gift, loan, money and thing of value, that is, (thing of value or approximate amount of money) to (name of recipient-offeree) [because of] [and][with intent to influence]** the actions, decisions, and other duties of (recipient-offeree) relating to [a] question[s] and matter[s] concerning the (name of affected plan) , that is, (plan matter connected to bribery or graft payment) .

All in violation of Title 18, United States Code, Sections 1954 and 2.

* 29 U.S.C. 1001-1169; see definitions at 29 U.S.C. 1002 and 1003; certain employee benefit plans are omitted from coverage including plans which federal or state governments fund or administer for their employees.

** The phrase "intent to influence" does not expressly appear in the statute. However, there is precedent for charging the offerer -- maker of a payment "prohibited by this section" in such terms. See United States v. Provenzano, 615 F.2d 37, 43-44 (2d Cir. 1980). But compare United States v. Boylan, 620 F.2d 359, 361-362 (2d Cir.1980), concerning the similar statutory construction in an analogous "bribery" statute. Although the "bribery," or "intent to be influenced" provision, has a more difficult burden of proof than the "graft," or "because of" provision, it carries no higher penalty. Omission of the "bribery" language should not affect the admissibility of evidence indicating a "quid pro quo" inasmuch as a connection between the prohibited payment and the recipient's actions affecting plan matters is required for "graft." See United States v. Soares, 998 F.2d 671, supra.

[cited in JM 9-134.010]

Updated September 19, 2018