Bribery and Gratuities

United States v. Sun-Diamond Growers of California, 119 S.Ct. 1402 (1999)

In order to violate the federal gratuity statute, 18 U.S.C. § 201(c)(1)(A), the government must prove that the gratuity was given to the official because of his performance of a specific act. It is not enough to merely prove that the gratuity was given because of the official's position generally. In short, the gratuity statute does not outlaw all gift-giving, just gifts that are linked to specific action on the part of the official.

Sabri v. United States, 541 U.S. 600 (2004)

Affirming the decision of the Eighth Circuit, the Supreme Court held that the government is not required to prove in a § 666 case that a bribe to a person who is an employee of a local government agency affected any federal program or federal funds. It is sufficient if the local agency receives federal funds and the employee is bribed to influence some official conduct.

Salinas v. United States, 118 S.Ct. 469 (1997)

In a §666 gratuity prosecution, there is no requirement that the government prove that the corrupt payment affected federal funds.

United States v. Blagojevich, --- F.3d --- (7th Cir. 2015)

Though many of his convictions were affirmed, the Seventh Circuit reversed Blagojevich’s convictions on certain bribery counts. Those counts involved what was described as “logrolling”: The defendant asked for a cabinet appointment in exchange for appointing a particular person to the United States Senate, for example. A proposal to trade one public act for another is not the same as swapping an official act for a private payment.

United States v. Hawkins, 777 F.3d 880 (7th Cir. 2015)

Though 18 U.S.C. § 666 covers both bribes and gratuities, in order to violate § 1346, the payment must amount to a bribe, not a gratuity.

United States v. Fernandez, 722 F.3d 1 (1st Cir. 2013)

In this lengthy discussion of the elements of a § 666 offense, the First Circuit concludes that a §666 prosecution requires proof of a bribe, not just a gratuity. The essential difference between a bribe and a gratuity is the quid quo pro requirement. If the payment is made after the official act occurs, this is generally typical of a gratuity (though not conclusive).

United States v. Terry, 707 F.3d 607 (6th Cir. 2013)

Thorough discussion of the law regarding bribes vs. campaign contributions. The former requires a quid pro quo.

United States v. Owens, 697 F.3d 657 (7th Cir. 2012)

The defendant was a housing inspector who twice received $600 bribes to issue permits for units he did not actually inspect. But § 666 requires proof that the thing obtained in exchange for the bribe must be worth $5,000.00. There was insufficient evidence in this case that the permits were worth $5,000.00. The fact that the houses or the units were worth more than $5,000 is not sufficient.

United States v. Dean, 629 F.3d 257 (D.C. Cir. 2011)

The defendant received license fees from people in D.C. She told some of the applicants that they had to pay certain license fees in cash, which she then pocketed. The citizens were not aware of her theft. This does not constitute bribery under § 201, because there was no quid pro quo. This did not amount to a Hobbs Act violation for the same reason. Clearly, she had committed a theft, but the citizen who paid the money was never told that the money had to be paid to her personally for some reason other than to have the license issued in exchange for the proper amount of the fee. In fact, the citizens had no idea that she was pocketing the money.

United States v. Langston, 590 F.3d 1226 (11th Cir. 2009)

The government failed to prove that the defendant who stole state money under his control was actually a state “agent” as that term is defined in § 666. The defendant was an employee of a state commission, not of the state.

United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009)

The defendants were state judges who accepted bribes in connection with their judicial decision-making. The only federal funds received by the judiciary involved grants given to the administrative office of the courts, which was not involved in judicial decision-making. The purpose of the administrative office of the courts is to “assist in the efficient administration of the nonjudicial business of the courts of the state.” The Fifth Circuit held that § 666 did not cover the judges.

United States v. Hoffman, 556 F.3d 871 (8th Cir. 2009)

The Eighth Circuit provides a thorough primer on the elements of a 18 U.S.C. § 201(c) illegal gratuity case. In particular the court focuses on the element of the offense that requires that the “gift” be given “because of” an official act. The court ultimately concludes that the evidence was sufficient in this case and though the jury instruction defining the relationship between the gift and the official act was not correct, the conviction was affirmed, because other instruction properly explained the law.

United States v. Ganim, 510 F.3d 134 (2nd Cir. 2007)

The Second Circuit extensively reviews the bribery / gratuity / honest services offenses in the context of a mayor who accepted money with the understanding that at some point in the future he would engage in future official acts that favored the payor. The court, reviewing the Evans, McCormick and Sun-Diamond decisions held that an agreement to perform some unspecified act in the future in exchange for the money violated federal bribery and honest services laws.

United States v. Abu-Shawish, 507 F.3d 550 (7th Cir. 2007)

In order to violate § 666, the defendant’s fraud must affect the program that employs the defendant. Thus, it is not enough that the defendant commit a fraud while employed by a covered organization (i.e., recipient of federal funds). The fraud must impact the organization. The indictment in this case failed to allege that the defendant defrauded the organization for which he worked. Though he was alleged to have defrauded the City of Milwaukee, he was not employed by Milwaukee. Thus, the indictment failed to allege that he defrauded the entity for which he worked and was fatally defective.

United States v. Thompson, 484 F.3d 877 (7th Cir. 2007)

An honest services fraud prosecution may not be predicated on proof that the defendant made decisions about awarding contracts for state work based on the contractor’s political affiliation or alliance with the political party in power. The court reversed not only the § 1346 honest services conviction, but also the § 666 bribery/gratuity/misapplication conviction. The defendant did not “misapply” the money by making a procurement decision based in part on political considerations, even if her decision was not completely in accordance with state procurement rules. With regard to the honest services conviction, even though the defendant received a raise, based in part on her work on this contract, this did not convert her state regulatory violation into a federal mail fraud offense.

United States v. Ford, 435 F.3d 204 (2d Cir. 2006)

In this § 666 prosecution, the defendant, who was running for a leadership position in a union, allowed another person to perform volunteer work for the campaign, supposedly in exchange for being awarded a contract by the union for work in the future. The trial court’s jury instruction failed to adequately explain that the volunteer work must have represented a quid pro quo for a contract to be awarded in the future. The essential problem with the instruction was that it focused on what the person paying the gratuity (i.e., performing the volunteer work) intended, as opposed to what the recipient intended. The fact that the volunteer expected to be rewarded with a contract is admissible evidence of the understanding between the parties, but it is not, in itself, all that is required to be proven by the government. The government must prove that the defendant/recipient accepted the volunteer work in exchange for the future benefit. Even if the recipient knows of the other person’s intent, this is not sufficient. Thus, even if the defendant knew that the volunteer expected to be rewarded, this would not be sufficient; the defendant must have accepted the volunteer work with the intent to provide the quid pro quo.

Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007)

An informant paid a detective to run license plate numbers through a law enforcement data base. The D.C. Circuit, en banc, concluded that this did not amount to the payment of an unlawful gratuity, because the detective’s acts did not qualify as “an official act” under 18 U.S.C. § 201(c)(1)(B). To qualify under that provision, the act of the defendant must be something more than simply an act that he can perform within the scope of his official duties. Rather, the act must have some influence on the outcome of some public question. In other words, the act that the government employee undertakes must “directly affect a formal government decision made in fulfillment of the government’s public responsibility.”

United States v. Evans, 344 F.3d 1131 (11th Cir. 2003)

The court reversed the defendants’ § 201 convictions because the recipient of the “bribe” did not qualify as a federal official, or a person who had some degree of official responsibility for carrying out a federal program or policy. The recipient was an employee of an agency that owned housing units that received Section 8 housing assistance grants from the federal government. In this capacity, he was not a federal official and had no authority for carrying out a federal program or policy.

United States v. Ceballos, 340 F.3d 115 (2d Cir. 2003)

The defendant was convicted of conspiracy to distribute drugs and conspiracy to bribe a public official. The evidence was insufficient to establish his knowing participation in a conspiracy to bribe the public official. The government used undercover agents posing as drug purchasers who were capable of producing phony green cards through their supposed connection with a corrupt INS agent. The undercover agents would buy drugs from a middleman and pay partly in cash and partly in phony green cards which they (and the undercover INS agent) would manufacture for the middleman. As the operation continued, the undercover agents eventually convinced the middleman to introduce them to their drug supplier, the defendant in this case. This evidence did not establish the defendant’s participation in the bribery conspiracy. Even if he knew that the money owed to him, as the drug supplier, was obtained by the purchaser from the proceeds of another crime committed by the purchaser, this does not make him a member of the purchaser’s conspiracy.

United States v. Choy, 309 F.3d 602 (9th Cir. 2002)

The defendant participated in a scheme to influence a food inspector, but the only thing of value that he gave the inspector was a computer with which he could carry out the fraudulent inspections. This was insufficient, the Ninth Circuit held, to satisfy the “thing of value” element of 18 U.S.C. § 201(b)(1).

United States v. Mills, 140 F.3d 630 (6th Cir. 1998)

In order to violate § 666, the value of the property obtained through the bribe, or gratuity, must be worth at $5,000.00. Bona fide wages, salary, fees, or other compensation cannot be included in the $5,000.00 amount. In this case, people paid the Sheriff money in exchange for being hired as a deputy sheriff. The government relied on the deputies' salaries to reach the threshold amount. The Sixth Circuit affirmed the decision of the trial court dismissing the indictment. The salaries were not shown to be other than bona fide and therefore, the value of the property obtained by virtue of the bribe, not including bona fide salary, did not exceed $5,000.00

United States v. Copeland, 143 F.3d 1439 (11th Cir. 1998)

Title 18 U.S.C. § 666 makes it a crime to offer or receive anything of value of $5,000 or more, if the person taking the bribe is an agent of an organization or agency that receives in any one year, benefits in excess of $10,000 from the federal government involving a grant, contract, subsidy, loan, guarantee, insurance of other form of federal assistance. Lockheed, which is a prime Defense Department contractor does not qualify as such an organization. Though organizations that receive money pursuant to a “contract” qualify, according to the terms of the contract, the law only applies where the money is received in the form of federal assistance; it does not apply to organizations that provide goods or services to the government in exchange for the money.

United States v. Phillips, 219 F.3d 404 (5th Cir. 2000)

The defendant, who was charged with a §666 offense, was the tax assessor for a local parish that received food stamps. In this case, the government employee misappropriated purely local funds that had nothing to do with food stamps. The court held that the question of whether he is an agent turns on whether he, as tax assessor, was authorized to act on behalf of the parish with respect to federal funds. The court held the tax assessor is not an agent of the parish for § 666 purposes.

United States v. Jennings, 160 F.3d 1006 (4th Cir. 1998)

The court discusses at some length the difference between a bribe and a gratuity under 18 U.S.C. § 201. A bribe requires a specific corrupt intent to influence the action of a public official; a gratuity “rewards” a public official for action that he took (or is going to take) notwithstanding the payment of the gratuity. The court then turned to the question of what § 666 prohibits. The defendant argued that § 666 only outlaws bribes. The court declines to answer this question: the evidence was sufficient to prove the payment of a bribe. The Fourth Circuit agreed that the lower court’s definition of “corrupt intent” (the instruction did not include the concept of quid pro quo). However, it was not plain error and therefore the conviction was affirmed.

United States v. Rooney, 37 F.3d 847 (2d Cir. 1994)

The defendant was developing a senior citizens home and was using federal FMHA funds. This was a project covered by 18 U.S.C. §666. The defendant became indebted to the contractor and had a choice of either continuing with his debt to him or applying for more loans from FMHA to pay off this debt. The defendant told the developer that he would apply for more loans if the contractor would build a pond at the site. This did not violate §666. There was nothing corrupt about this “solicitation,” and a conviction under §666 could not be upheld.

United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990)

Numerous defendants were charged with tax evasion, extortion, and bribery in connection with payments made to a congressman. The evidence did not support the conviction of the congressman’s son for bribery. The government contended that payments made to the son were for the purpose of bribing the congressman. The evidence failed to show that the son was aware that the payments made to him were for the purpose of affecting the congressman’s actions as opposed to simply helping the congressman circumvent limits on the amount of money he could receive.

United States v. Cicco, 938 F.2d 441 (3rd Cir. 1991)

The defendants in this case told municipal workers that, unless they supported the defendants (the mayor and councilman), they would lose their jobs. This is not bribery under §666.

United States v. Valentine, 63 F.3d 459 (6th Cir. 1995)

18 U.S.C. §666 makes it a crime for a person working for an agency receiving at least $10,000 in federal funds to misappropriate $5,000. The Sixth Circuit holds that the $5,000 must be received during the course of one 12-month period. The government may not aggregate funds received over an extended period of time and rely on a total sum of $5,000 received over the entire period.