Thursday, October 4, 2007

Bribery: A Primer

Before we look at U.S. District Judge Henry Wingate and his numerous strange rulings in the Paul Minor case, let's examine the subject of bribery.

Bribery is one of those words that is easy to throw around without really knowing what it means. At the risk of stepping into a social minefield, I would compare it to the way people sometimes say, "Abortion is murder."

Regardless of how one feels about the abortion-rights debate, the above statement is demonstrably incorrect. Murder is a legal term that involves specific elements that must be present in order to add up to a criminal act. Those elements are not present in abortion.

But back to the question at hand: What is bribery at the federal level?

First, a little history. Prior to 1984, the primary federal bribery statute was 18 U.S. Code 201. That statute came to be viewed by many courts as prohibiting only the bribery of federal officials. So Congress enacted 18 U.S. Code 666, which is titled "Theft or bribery concerning programs receiving federal funds."

With the new statute on the books, federal prosecutors could tackle corruption cases that did not involve federal officials. The case could involve state and local officials--governors, judges, mayors--as long as it involved a program receiving a certain level of federal funds.

The authors of one article referred to 666 as "the mark of the devil in the federal criminal code." Many who side with the defense bar consider 666 to be dangerously, and perhaps unconstitutionally, vague. But the statute has held up, becoming a potent weapon for prosecutors in corruption cases.

The 666 statute was at the heart of both the Don Siegelman prosecution in Alabama and the Paul Minor prosecution in Mississippi.

So how do we come to grips with this little booger? In a nutshell, the four elements of bribery under 666 are:

1. A corrupt act;

2. The offering of something of value;

3. The intent to influence or be influenced in a transaction "involving anything of value of $5,000 or more;" and

4. Federal funding to the entity involved exceeding $10,000 within the year surrounding the corrupt act.

Numbers 2, 3, and 4 don't sound so hard. I imagine those are pretty easily proved in most cases. But the toughie is Number 1.

I'm not a lawyer, but I have learned this: When the statutory language gets murky--and it often does--turn to the case law. And what do we find there?

One of the best cases I've found is United States v. Mariano, 983 F. 2d 1150 (1993). First, it notes that the fundamental elements in the two bribery statutes--201 and 666--virtually mirror one another. And it states that corruptly giving anything of value involves "the intent of 'influencing any official act' or 'inducing the official to violate his or her lawful duty.'"

So there you have it: Giving an official "anything of value" can only be a bribe if it is done in exchange for the official being influenced in his or her duty.

This is what legal types call a "quid pro quo." And it must be present for an act to constitute federal bribery.

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