Public Corruption

What is Public Corruption?

There is no single statute in the United States Criminal Code that deals exclusively with “public corruption.”  Instead, public corruption is broad term that covers a vast and wide range of conduct and crimes.  At its core, however, public corruption simply involves a breach of public trust by a government official, employee, individual or private sector company. 

It is considered a federal offense when a government official, whether elected, appointed or hired, demands, accepts, solicits or agrees to receive anything of value in return for being influenced in the performance of his or her official duties.

Public corruption can include offenses such as federal bribery, federal gratuity, mail, wire and honest services fraud, robbery, extortion, prison corruption, border corruption, kleptocracy, election crimes, antitrust violations, embezzlement, kickbacks, and many more crimes involving breaches of public trust.   

Common Forms of Public Corruption

Bribery – Bribery occurs when someone gives or offers a federal elected or appointed government official anything of value with the intent of influencing him or her to perform an official act or to commit fraud.  Public officials can also be charged under the federal bribery statute if they accept anything of value for this purpose as well. The federal statute also prohibits “illegal gratuities”, which are gifts or payments given to federal public officials because of some official act they performed.

Border Corruption – The federal government protects and patrols nearly 7,000 miles of U.S. border land, almost 95,000 miles of U.S. shoreline and more than 300 official ports of entry. Common acts involving border corruption include drug trafficking, drug smuggling and alien smuggling by U.S. officials. Law enforcement officials who accept bribes and gratuities in exchange for smuggling people or items of contraband across the border can be charged with public corruption and face serious charges.

Prison Corruption – Similar to border corruption, prison corruption is when a federal corrections officer or prison official smuggles contraband in or out of the prison facilities in exchange for a bribe or gratuity.

Election Crimes – One of the bedrock features of American government is the right to free and fair elections. Election crimes can also cover a wide range of activities, but most commonly involve campaign finance violations, civil rights violations, or voter/ballot fraud.  While most election crimes are handled at the state level, these crimes can become federal cases when the ballot includes one or more federal candidates, the crime involves an election official abusing his or her duties, the crime involves fraudulent voter registration, or it involves voters who are not United States citizens.

Kleptocracy – A word literally meaning “ruled by thieves,” a kleptocracy occurs when the ruling government seeks personal gain and elevated status, at the expense of its constituents.  Kleptocracies are often formed through the embezzling of state and public funds by corrupt public officials, who then use this money to create mass amounts of personal wealth. In order to do this without easy detection, there is often may international banking transactions involved. When these transfers are made in U.S. dollars, or these funds enter the U.S. banking system, it triggers the federal money laundering statutes, which can then be used to bring down the corrupt government.

Federal Laws Against Public Corruption

●         The Federal Bribery Statute:  18 U.S.C. § 201(b) is entitled “Bribery of public officials and witnesses.”  This felony statute is most commonly used to prosecute those who offer bribes and those who accept them.  The statute requires the government to prove the defendants acted with corrupt intent to engage in a quid pro quo, meaning a specific intent to give or receive “anything of value” in exchange for an official act.  The term “anything of value” has been construed broadly.  The statute applies to all federal public officials, including any officer or employee or person acting for or on behalf of the United States.  This can include government contractors.     

●          The Federal Gratuity Statute:  18 U.S.C. § 201(c) is entitled “Gratuities.”  This felony statute is most commonly used to prosecute those who offer gratuities and those who accept them.  A gratuity is a thing of value given for or because of any official act performed or to be performed by a public official.  A gratuity, unlike a bribe, does not require proof of a quid pro quo or a corrupt intent to influence an official act.  A gratuity, whether offered or accepted, is a lesser included offense of bribery.  The main difference between a gratuity and a bribe is one of timing.  When a thing of value is offered after an official act, it is more likely a gratuity than a bribe, unless there is evidence to prove that the official act was taken in exchange for the thing of value.  Unlike a bribe, a gratuity, to be a criminal act, must be paid to the official personally.  The best way to think of a gratuity is that it is something of value given after the fact as a way of saying “thanks” or currying favor with a public official.  For example, giving a government official Super Bowl tickets after being awarded a government contract would more likely be viewed as a gratuity than a bribe. 

●          Federal Program Bribery:  18 U.S.C. § 666  is entitled “Theft or bribery concerning programs receiving Federal funds.”  This felony criminal statute is intended to target agents or employees of state and local government entities that receive over $10,000 in federal funds in a given year.  The law prohibits bribery and embezzlement.  As a threshold matter, this crime can only be charged if the value of the bribe or amount stolen is at least $5,000.  To meet this requirement, the government can aggregate a number of transactions that total at least $5,000. 

●          Hobbs Act Extortion:  18 U.S.C. § 1951 is entitled “Interference with commerce by threats or violence.”  In the public corruption context, the Hobbs Act makes it a federal crime to obtain property from another person, even though with their consent, under the color of official right in a manner that affects interstate commerce.  As discussed elsewhere Hobbs Act extortion can also occur through the use or threat of force, violence or fear.  In Evans v. United States, the United States Supreme Court defined Hobbs Act extortion (a felony offense) this way:  “the government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”  A good example of a Hobbs Act extortionate act would be a highway patrol officer who accepts a cash payment (i.e. bribe) from a driver in exchange for not giving him a ticket.        

●          Mail Fraud:  18 U.S.C. § 1341 is entitled “Frauds and swindles.” This felony statute makes it a crime to use the mail to execute a scheme to defraud.  To obtain a conviction under the mail fraud statute, the government must prove: (1) defendant devised or intended to devise a scheme to defraud (or to perform specified fraudulent acts) and (2) he used the mail for the purpose of furthering, executing or attempting to execute the scheme to defraud (or specified fraudulent acts).      

●          Wire Fraud:  18 U.S.C. § 1343 is entitled “Fraud by wire, radio or television.”  To prove wire fraud, the government must prove (1) that defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money, (2) that the defendant did so with the intent to defraud, (3) that it was reasonably foreseeable that interstate wire communications would be used and (4) that interstate wire communications were in fact used.  This felony statute is similar to the mail fraud statute except it covers electronic methods for perpetrating the fraud.  This statute was enacted in 1952 when there was tremendous technological change occurring in America with television, radio and the telephone.  Today, this statute captures criminal acts perpetrated through the internet or any other electronic means. 

●          Honest Services Fraud:  18 U.S.C. § 1346 is entitled “Definition of ‘scheme or artifice to defraud.’”  This felony statute further clarifies the mail and wire fraud statutes’ employment of the term “scheme or artifice to defraud” to include depriving another of the intangible right to honest services.  In the public sector context, this type of crime is premised on the theory that a public official acts as a trustee for the citizens and the government and thus owes them fiduciary duties (e.g. honesty and loyalty).  Breach of those duties through a showing of bribes or kickbacks violates the citizens right to the official’s honest services.  After the landmark decision by the United States Supreme Court in Skilling v. United States the government must prove (1) a fiduciary duty (e.g. relationship of trust) was breached and (2) deprivation of honest services by showing either bribes or kickbacks.       

●          False Statements:  18 U.S.C. § 1001 is entitled “Statements or entries generally.”  This felony statute criminalizes any false statement “in any matter within the jurisdiction of the executive, legislative or judicial branch of the Government of the United States.”  Thus, lying to a federal agent or during a Congressional hearing or during a court proceeding or on a government form for benefits can potentially constitute a violation of this statute.   

●          RICO:  18 U.S.C. § 1962 et. seq. is a powerful federal felony statute that makes it a crime “to conduct or participate” in the affairs of an enterprise “through a pattern of racketeering activity.”  This statute also criminalizes a conspiracy to engage in such conduct.  Racketeering activity includes acts of extortion, bribery and mail/wire fraud.  An enterprise is defined as any individual, partnership, corporation, association or other legal entity and any union or group of individuals associated in fact though not a legal entity.  To prove a “pattern” of racketeering activity, the government need only show two qualifying acts. 

●          Theft Statutes:  18 U.S.C. §§ 641 and 654 are both statutes that make it an offense to steal government property.  Section 641 makes it a felony offense if anyone steals, embezzles or otherwise purloins government property exceeding $1,000 in value.  Section 654 applies only to government officers and employees who steal from the government.  Similarly, Section 654 makes it a felony offense if anyone steals, embezzles or otherwise purloins government property exceeding $1,000 in value.   

●          The Travel Act:  18 U.S.C. § 1952 makes it a felony crime to use a “facility in interstate or foreign commerce” with the intent to promote “any unlawful activity” and thereafter to perform “any unlawful activity.”  This is another example of a federal statute that is written so broadly that it can be applied to a number of different types of conduct.  Some have observed, this law “federalizes” state crimes.  In recent years, the government has begun using The Travel Act to prosecute health care providers by relying upon state laws.  While traditionally this statute was limited to targeting commercial bribery, it’s reach and use has expanded to ensnare a wider section of defendants.  The Travel Act is a powerful tool in the government’s arsenal of criminal statutes. 

THE KEY TO A FIVE STAR DEFENSE

The law is very nuanced. Federal prosecutors have almost unlimited advantages and resources at their disposal. Having attorneys on your team that understand the law, keep abreast of legal developments in the law, have the experience dealing with the complexities of federal statutes and, finally, possess the skills to stand before a jury to make a compelling case on behalf of a client are not just important qualities, they’re critical. At The Federal Defenders. we pride ourselves on being advocates for our clients. With decades of experience with all variety and manner of federal criminal issues and defenses, we understand what it takes to put our clients in a winning position. For a free and confidential consultation, call us today at (800) 712-0000. Just like our toll-free number, we operate nationwide.