Our White Collar Criminal Division defends public officials and government employees accused of having accepted money or other things in exchange for preferential treatment in the performance of their duties.
We also assist civilians accused of making any such payments or gratuities to government employees.
We help our clients deal with all government investigations into alleged bribery schemes and personally deal with investigators and prosecutors as needed.
What is “Bribery?”
Bribery can take many different forms and often a bribery charge may be accompanied by charges of money laundering and tax evasion and other similar offenses.
Many of us tend to think of bribery in a narrow way, such as the passing of an envelope of currency to a safety inspector to look the other way for an inconsequential safety violation.
But that is just the tip of the iceberg.
Often what would appear to be an innocent act, such as giving tickets to a show or a ballgame to a building inspector or a gift card at the holidays to the trash collector, may be interpreted as bribery under certain circumstances.
And it is worth noting that it is not just the recipient of the thing of value that is susceptible of being charged, you and your employees, and even your company may face charges for simply attempting to bribe an official whether or not the gratuity is accepted.
Allegations of bribery are serious and cannot be ignored.
Your reputation, your company’s reputation, and your freedom are at stake. A bribery conviction will almost certainly result in jail time and may also include substantial fines.
The Legal Definition of “Bribery” and “Gratuity”
Bribery of Public Officials and Witnesses is the title of Section 201 of Title 18 of the US Code.
The Federal Bribery statute comprises two distinct offenses:
- the giving or accepting of anything of value to or by a public official with the intent to influence an official act[1]; and
- the acceptance of a gratuity by a public official for or because of any official act. The key language is “with the intent to influence” an official act or “in return for being influenced.” [2]
So What’s the Difference?
The same statute covers two very distinct acts and provides two vastly different penalties. We will discuss both situations together and then show how they differ.
For Example…
Let’s say your business needs some special license in order to operate and the normal procedure is to go through a lengthy application process, then extensive bureaucratic review and then, even in the best of circumstances, your approval is not always assured. You stand to lose a lot of money if the approval process takes too long and even more if the process results in your being denied the license.
Word has it that if you have your Congressman intervene on your behalf, you can shave months off the review process. So you write your Congressman, explain the situation and ask for assistance.
He or she sends a letter to the Department Head, explains the benefit your business will be to the Congressional District and asks for her intervention to cut through the red tape. The Department Head pulls the file and after review, puts it at the top of the pile. Your business gets approved for the license in a matter of weeks rather than months.
In that scenario, there is no offense!
No crime has been committed. Why not?
Didn’t your company get special treatment and wasn’t it considered for licensing before other applicants that did not have a letter from their Congressman?
The answer to those questions is “Yes” but there is no offense because no money changed hands, nothing of value was given or received in order to secure the license, and nothing was given or exchanged after the fact to reward the Congressman for his assistance.
Now let’s change the facts.
Your Congressman sends the letter to the Department Head asking for assistance. A week later the Department Head contacts you and says that in order for “special consideration” in the application process there is a rather substantial “additional filing fee” which can only be paid in cash at the Department office to her, personally.
While substantial, the additional filing fee pales in comparison to the potential profit your company will make once approved for a license. So you pay the additional filing fee in the manner requested and your new license issues in three weeks rather than six months.
You are so grateful that you send the Congressman two all-expense paid tickets to Hawaii. A month later he sends you a pineapple from Maui.
It is easy to see how the second scenario differs from the first, and it should be just as easy to see why and how the bribery statutes have been violated.
Bribery of a Public Official
When the Department Head contacted you about the “additional filing fee” she was soliciting a bribe. The Department Head was seeking something of value to be provided for the performance of a public duty.
There is no such thing as a clandestine cash payment for “special consideration” in the Department regulations to expedite a licensing application. Plainly and simply, the Department Head was in violation of the bribery statute when she asked for the payment, and you also violated the statute when you made the payment.
The “Additional Filing Fee” was a “Thing of Value”
Clearly the “additional filing fee” was a thing of value being given to influence a public official. Equally as clear, the expedited granting of the license was being accomplished in return for being influenced – a quid pro quo to use the Latin terminology.
These acts constitute the elements of the crime of bribery because under Section 201(b), the giving or accepting of anything of value to or by a public official, with the intent to influence an official act, constitutes bribery.
It is important to note that under the statute, a payment is considered a “bribe” regardless of to whom it is paid.[3]
The object of value doesn’t necessarily have to go to the public official. The “payment” may be anything (it can be money, goods and services, etc.) and may include campaign contributions.
Bribery by Illegal Gratuity
After the license issued, you violated the Federal Bribery statute when you sent the Congressman the trip to Hawaii, and he violated the same provision when he accepted the tickets and went on the trip.
In this case, you offered the Congressman, also a public official, a thing of value as a reward for an official act (his letter requesting assistance).
What is significantly different is the fact that the Congressman did not request the Hawaii vacation in exchange for writing the letter.
- In the first case, the money was given to the Department Head essentially to purchase or ensure an official act.
- In this second case, there is no causal connection between the letter and the vacation as there was in the first.
By accepting the vacation, the elements of bribery by illegal gratuity have been fulfilled.[4]
The vacation was given after the fact as thanks for the letter of assistance, but not in exchange for it. It wasn’t something demanded in advance as a condition of writing the letter, but rather something given improperly after the fact as a reward to the Congressman for doing something he was already obligated to do.
Penalties for “Bribery” versus “Gratuity”
Admittedly, sometimes the distinction between the offenses blur, depending on the facts.
There is, however, a great difference between the penalties.
- Bribery. A bribery conviction can carry a sentence of up to 15 years in prison because the acts were before the fact and money changed hands before the corrupt activity. A fine may also be assessed in an amount not to exceed three times the value of the amount of the bribe.
- Gratuity. A gratuity conviction permits only a maximum 2-year sentence. What’s more, persons convicted under the statute can be disqualified from holding any government office of honor, position of trust, or profit.
Bribery of a Witness
The Federal Bribery statute also provides for penalties for eliciting false or misleading testimony from a fact witness or an expert witness at trial, in exchange for the payment of money, goods or services.
However, the statute does not prohibit the payment of witness fees as provided by law nor reasonable fees paid to an expert witness in connection with the expert’s testimony.
High Profile Bribery Headlines
Pick up a newspaper or watch the evening news and corruption and bribery make the headlines quite often. The offense is seen globally and runs the gamut from politics to business to the international drug and arms trade and even to terrorism.
For example:
- The Wedtech Corp. Scandal. Some very well known politicians got caught up in a large-scale bribery and corruption scandal in New York City in the 1980’s known as Wedtech. The Wedtech Corp scandal resulted in the arrest and conviction under the Federal bribery laws of several New York City Congressmen, the Borough President of the Borough of the Bronx, elected officials in several other states and several White House aides, former cabinet members and Washington lobbyists.[5]
- New Jersey Senator Robert Menendez. In more recent times, in 2017, US Senator Robert Menendez, from New Jersey was tried for accepting gratuities in exchange for influence on behalf of a friend. The trial resulted in a hung jury prompting the Federal judge to declare a mistrial.[6] The Menendez mistrial may have been brought about, in large part, by a US Supreme Court decision which came down between the time of the filing of charges against the Senator and the time of trial, McDonnell v. United States.[7]
Supreme Court Definition of an “Official Act.”
In the McDonnell case discussed above, the US Supreme Court updated the interpretation of what constitutes an ‘official act” as set forth in the bribery statute. ‘
The statute provides that an official act is:
any decision or action on any question, matter,
cause, suit, proceeding or controversy, which may at any
time be pending, or which may by law be brought before
any public official, in such official’s official capacity, or in
such official’s place of trust or profit.”[8]
The Supreme Court held that the pertinent “question, matter, cause, suit, proceeding or controversy” must be something specific and focused that is “pending” or “may by law be brought before any public official” in order for the public official’s conduct to be an “official act under the statute.[9]
As a result of the narrower interpretation of the McDonnell case, the likelihood of convictions in the Menendez case and others like it is doubtful.
Our White Collar legal team is well versed on all of the recent decisions involving bribery and gratuity cases and is available to answer all your questions.
Who Handles Bribery and Gratuity Investigations?
All Federal law enforcement will be involved in these types of investigations. Prosecutions are handled by the Department of Justice and the US Attorneys Offices for the various Districts around the country.
Looking for a Criminal Attorney Skilled in the Defense of Bribery Offenses?
Bribery or gratuity charges can have a devastating impact on your family, your business and your future.
That is why you need an experienced defense attorney at your side.
Our attorneys have analyzed the most recent decisions and can help you understand the charges that are being brought against you. We can appear on your behalf and ensure that your rights are not violated. We will handle all negotiations with law enforcement and prosecutors to be certain you are treated fairly.
We have the knowledge and background to successfully defend anyone prosecuted for bribery and/or illegal gratuity charges in both federal and State criminal and civil proceedings.
If you or someone you love has been charged with bribery or illegal gratuity offense, call our attorneys for a free legal consultation.
[1] 18 USC 201(b)
[2] 18 USC §201(c)
[3] See Bribery of a Witness, infra.
[4] The same would be true if the thing of value was given with a non-specific intent to curry favor with the public official. However, it is important to note that an alleged gratuity must go to the personal benefit of the public official and, by statute, cannot include campaign donations.
[5] See “Who’s Who in the Wedtech Scandal” at https://www.washingtonpost.com/archive/politics/1987/07/18/whos-who-in-the-wedtech-scandal/2a50ae38-60f3-4bd7-b0a6-865472d29599/?utm_term=.932220a955d7
[6] See “Corruption Case Against Senator Menendez Ends in Mistrial” https://www.nytimes.com/2017/11/16/nyregion/senator-robert-menendez-corruption.html
[7] 579 U.S. ____ (2016)
[8] 18 USC 201(c)
[9] 579 U.S. ____ (2016) slip opinion at p. 26
