THE GRAND JURY CHARGES:
- 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.*
- 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 USAM 9-134.010]