834. Intent of the Parties

Section 215 of Title 18, United States Code, requires that the act be done "corruptly" and with "the intent to influence or reward" or the intent "to be influenced or rewarded."

"Corruptly" is not new to the criminal code. Its most common use occurs with those statutes proscribing public employee bribery, 18 U.S.C. §  201(b) and (c), and obstruction of justice, 18 U.S.C. §§ 1503 and 1505. "Corruptly" also occurs in the Foreign Corrupt Practices Act, 15 U.S.C. §  78dd-1 & dd-2. While "corruptly" denotes a specific intent to do the proscribed act, it signifies, generally, nothing more than one acting "with bad purpose" to achieve some unlawful end. For example, the standard Devitt and Blackmar jury instruction for public employee bribery, 18 U.S.C. § 201(b) and (c), provides: "An act is "corruptly" done, if done voluntarily and intentionally, and with the bad purpose of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means."

The motive to act "corruptly" is ordinarily a hope or expectation of either financial gain or other benefit to one's self, or some aid or profit or benefit to another. Devitt E. and Blackmar C., 2 Federal Jury Practice and Instructions § 34.08 (1977), at 110; see also FIF Manual at 199.

The concept of either influencing or rewarding an individual in connection with one's official activity goes back to 1962 when Congress, concerned about public employee corruption, proscribed illegal gratuities as well as simple bribery. In essence, a bribe requires a quid pro quo, a gratuity does not. More often than not, receiving a gratuity is a lesser included offense of receiving a bribe.

The public employee bribery statutes provide a useful analogy. Subsections (b) and (c) of 18 U.S.C. § 201, which prohibit the offering or soliciting of bribes to or by Federal officials, require a showing of an intended quid pro quo. Subsections (f) and (g) of 18 U.S.C. § 201, on the other hand, prohibit the giving or receipt of unlawful gratuities. Subsections (f) and (g) of Section 201 do not require proof of a quid pro quo or unlawful influence, but require the government to prove merely that something of value was given to a public official for or because of an official act that the official performed or will perform. See United States v. Niederberger, 580 F.2d 63, 68-69 (3d Cir.), cert. denied, 439 U.S. 980 (1978); United States v. Evans, 572 F.2d 455, 481 (5th Cir.), cert. denied, 439 U.S. 870 (1978); United States v. Brewster, 506 F.2d 62, 82 (D.C. Cir. 1974). In essence, a gratuity is given either before or after the f act, not to influence a decision but to reward a person for making or having made a decision that would have been made in any event. See United States v. Previte, 648 F.2d 73, 82 (1st Cir. 1981).

In the banking context, a bribery occurs when a loan officer solicits something of value for him/herself with the impression that favorable treatment is conditioned upon an actual or promised receipt of the bribe. A gratuity occurs when the loan officer accepts something of value from the borrower, knowing that the borrower has given him/her the thing of value, not out of friendship or disinterested generosity, but primarily as a form of compensation or reward for what he/she has done or will do as a loan officer. Generally, all payments to influence are also payments to reward, but not all payments to reward are payments to influence.

Therefore, while the Congress intended to limit the statute to "corrupt" transactions, it did not choose to limit the statute to the simple quid pro quo bribe. If a gratuity is a corrupt reward, either given, offered or solicited in connection with bank business, then the statute is violated.

[cited in JM 9-40.000]

Updated September 19, 2018