Public corruption is prosecuted under both state law, and federal law. Federal prosecutors will frequently handle the case if federal jurisdiction can be found – and it usually can. Below, we will discuss some common examples of public corruption and each of the federal statutes that defendants may be prosecuted under.
What Type of Behavior is Unacceptable for a Public Official?
“Public corruption” can include taking money from the state or federal government, corrupting the political process, or using political power or authority improperly. Public officials cannot use their public authority or influence to give jobs, promotions or raises in exchange for votes, political influence or action. Public corruption can also include using your public office to take state or federal property through larceny or a scheme to defraud.
What is Bribery?
The most obvious example of public corruption is the bribery of a public official. “Bribery” is conferring or soliciting any benefit on a public servant with the understanding that it will influence the public servant’s vote, opinion, judgment, action, decision or exercise of discretion. Basically, it is the giving or receiving of money by a politician to act in a particular way.
What is Extortion?
The opposite hand of bribery is extortion. The politician can be given money to take action in a particular way – bribery; or the politician can demand money to take action in a particular way – extortion. If a public official takes a bribe or is corruptly using his influence, he may face fines and imprisonment.
What Can Be Used as Bribery Aside from Money?
What constitutes a “benefit” or “anything of value,” the “quid” of the “quid pro quo,” is often an issue. It is established that it does not have to be money, or even tangible. It can be something which provides political or other types of advantage.
Public Corruption Under Federal Law
Under federal law, it is corrupt for a federal public official to offer or receive, anything of value with intent to influence an official act, to commit any fraud on the United States, or to induce a public official to do or omit to do something in violation of their lawful duty. The Federal Bribery statute applies to federal public officials.
The Gratuities Statute
Prohibits giving anything of value to a federal public official for or because of an official act performed by the public official, or demanding or seeking anything of value for such an act.
The Hobbs Act
Says it is extortion for a public official to demand payment for which he’s not entitled, in exchange for official acts. The Hobbs Act applies to federal and state officials, where there is an effect on interstate commerce. This is a low threshold requirement.
It is a federal crime for a state or local government agent to embezzle, steal or obtained by fraud any property worth more than $5000, or to solicit or demand anything of value, intending to be influenced in connection with a transaction with government, in a value of $5000 or more.
The Federal Program Bribery Statute
Requires that the bribe be valued at $5000 or more and that the government or organization must receive in excess of $10,000 annually under a federal program.
The Honest Services Mail and Wire Fraud statutes
Make it a federal crime to defraud anyone of money while using the post office or any private or commercial interstate carrier, or any wire, radio or television communication. This covers bribery and kickback schemes, not other “honest services.”
The honest services jurisdiction is the easiest of the federal bribery statutes to meet. It is not limited to federal public officials; it covers public officials and non-public officials. It does require establishing that the person charged owed a fiduciary duty. Private employees owe a fiduciary duty to their private employer.
E-mail communications and text messages constitute interstate wires as long as they go through servers located outside the state where the message was sent. Most bank transaction constitutes interstate wires.
So honest services fraud is often used when a state or local official is charged, but the jurisdictional elements of the other federal laws are difficult to establish. It is often not difficult to establish a wire, mailing, e-mailing or text message was done in furtherance of the scheme.
The RICO statutes make it a crime to conduct or participate in an enterprise engaged in racketeering activity, like extortion, bribery, or mail and wire fraud. An “enterprise” is a group of persons with a common purpose. There must be a pattern of racketeering activity, meaning at least two acts.
What is the Travel Act?
The Travel Act makes it a crime to use a facility in interstate or foreign commerce to promote “any unlawful activity.” This covers extortion or bribery in violation of state law or federal law.
The Travel Act is used to prosecute bribery in violation of state law, as long as the defendant used an interstate facility – meaning any phone call, e-mail, text message, mailing, or wire transmission of a facility in interstate commerce – even if the mail or wire did not actually cross state lines.
The Travel Act’s jurisdictional elements are easier to prove that Section 666 or honest services fraud. Thus it is clear that bribery or corrupt use of influence under state law can readily be prosecuted in state or federal courts.
Political Corruption in the News
Example #1: Joseph Percoco
The first element of proof is that some valuable “consideration” was exchanged. “Consideration” can be anything of tangible or intangible value. Usually, the payments are kept indirect.
For instance, Joseph Percoco, Gov. Cuomo’s former executive deputy secretary, was convicted in 2018 of accepting $320,000 from companies in exchange for helping them with their business before the state.
The jury found the bribe was funneled through Percoco’s wife; she was given a job by one of the companies with an annual salary of $90,000 to teach children about energy, received a salary for three years, and did very little.
The proof that the money was paid in exchange for favors from Percoco came from a co-conspirator, who cooperated with prosecutors for more lenient sentencing. This lobbyist testified he engineered the bribe to help one of his companies avoid a costly union requirement on a development project, and to get an executive’s son a pay raise at his government job.
The case was prosecuted by the federal government. Mr. Percoco was found guilty of conspiracy to commit honest services fraud, and of soliciting bribes.
Example #2: Alain Kaloyeros
Also in 2018, Alain Kaloyeros was convicted in federal court of steering lucrative contracts to two firms whose executives were big donors to Mr. Cuomo’s campaign. Kaloyeros was placed in charge of the Buffalo Billion project by the Governor’s office.
A former company officer, cooperating with the government for a reduced sentence, testified that he had customized a “request for proposals” to fit the specific qualifications of the two companies they wanted to steer the contracts to, and those companies received contracts worth over $850 million. There was no bribe to Kaloyeros, nor proof the government lost money through the rigged bids.
The companies had been significant contributors to Cuomo’s election campaigns, and they said to develop a relationship with the governor’s office that might later help to obtain state-funded contracts. The contributions were legal, and the government did not allege that they were part of a bribe.
Example #3: Dean Skelos
Dean Skelos, the former leader of the Senate’s Republican majority, and one of New York State’s most powerful politicians were convicted in 2018 of bribery, extortion, and conspiracy in federal court.
He was convicted of pressuring business executives to pay his son $300,000 for no-show or low show jobs, in exchange for not killing legislation the companies needed. Skelos testified he was only being a good father, helping his son get a job, and never threatened to use his influence in Albany for or against the businesses.
The US Attorney said the powerful public official abused his power, threatening the businesses if they didn’t pay his son. This was found by the jury to be extortion and accepting bribes.
Example #4: Sheldon Silver
Sheldon Silver, formerly the most powerful Democratic speaker of the New York State Assembly, was also found guilty of federal corruption charges in 2018. In that case, the connection between the payment and official action was also circumstantial.
The prosecutors proved that Silver arranged for the Health Department to award two grants of $500,000 each to a doctor who ran a clinic dedicated to mesothelioma research. In exchange, the doctor recommended that his patients use Mr. Silver as their attorney; Silver then referred the case is to a firm specializing in mesothelioma.
That law firm then paid Mr. Silver a referral fee. In other words, Mr. Silver was found to have gotten the legislature to fund the doctor’s clinic, and the doctor, in turn, referred cases to him, resulting in over $4 million in fees to Mr. Silver.
Skelos v. Silver: Cases Compared
In both the Silver and Skelos cases, their initial convictions were overturned when the Supreme Court decided McDonnell v. the United States. New juries heard their cases again and convicted them again.
But both cases were watched very carefully because the McDonnell case changed much of the law about when a public official can be found to have committed an official act in exchange for a bribe.
Of course, not all public corruption cases involve high-level politicians. Cases are prosecuted in state court for bribes to police officers, judges, witnesses, court employees for referral of arrestees to attorneys, municipal code enforcement inspectors, and on and on.
Crimes Related to Corruption
Rewarding official misconduct
The felony of conferring a benefit on a public servant for violating his duty.
“Unlawful gratuities” refers to the conferring of a benefit on a public servant for official conduct he is not entitled to additional compensation for. It is also a bribe to confer a benefit on a party officer to get appointed to public office, or nominated as a candidate. 18 U.S.C. § 666.