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.

In Snyder v. United States, the Supreme Court of the United States could redefine the legal boundaries regarding federal bribery as it prepares to answer whether the primary federal bribery statute, 18 U.S.C. § 666, criminalizes gratuity payments to officials in recognition of actions the official had previously taken, absent any quid pro quo agreements to take those actions. This client alert provides an overview of the case and its potential landscape changes, including potential changes if the Supreme Court determines gratuities without a quid pro quo agreement do not violate 18 U.S.C. § 666.Snyder v. United States James Snyder, former mayor of Portage, Indiana, was convicted under 18 U.S.C. § 666 for accepting $13,000 in connection with contracts awarded through the city’s bidding process for garbage truck acquisitions after having previously helped a local corporation secure lucrative city contracts, Mr. Snyder was alleged to have shown up at the garbage company unannounced requesting payment for “consulting” work that was never fully performed. In response, the company sent him a $13,000 payment check the next day.The conviction was affirmed by the Seventh Circuit, and a petition for writ

er instructed Wilson to provide wires to Singer’s foundation so that Singer could pass along payments to his contacts at each university’s athletic department. Singer and Wilson spoke on the phone numerous times, and the FBI recorded many of these calls.Abdelaziz and Wilson were each charged with conspiracy to commit federal programs bribery, and mail and wire fraud. The government’s main wire fraud theory was that the payments to university athletic departments, made through Singer, constituted bribes that violated each university’s right to its employees’ honest services. The conspiracy charge alleged that the defendants engaged in an overarching conspiracy with Singer, his staff, university insiders, and other parents to defraud multiple universities. Abdelaziz and Wilson were tried together, found guilty, and sentenced to 13 and 15 months in prison, respectively.On appeal, the defendants argued that their payments were not illegal under either the federal programs bribery statute, 18 U.S.C. §666, or the governing honest services wire fraud U.S. Supreme Court case,United States v. Skilling,and that the government’s conspiracy charge was flawed because they were not involved with any other parents who worked with Singer.Federal Programs BriberyThe federal programs bribery statute, 18 U.S.C. §666, prohibits “corruptly” giving or offering to give “anything of value to any person” with an intent to influence an agent of a local government or an organization that receives federal funding.The defendants argued that §666 does not apply when the alleged bribe money is intended to be paid to the allegedly betrayed party (e.g., the university) rather than to the betrayer (e.g., the athletic department official).The First Circuit rejected the defendants’ argument and held that it did not matter whom the bribe was paid to.The court adhered to the plain language of §666, which encompasses payments “to any person,” without exceptions. It also dismissed the defendants’ concerns that such an

Not only has the courts found uncertainty in the law, the U.S. Justice Department’s own prosecution manual has concerns about it. The Department’s own manual states:“The broad language of 18 U.S.C. § 666(a)(1)(A) and its legislative history raise a significant issue regarding the scope of the statute. The primary issue is whether the statute prohibits only the illegal taking of Federal program funds or property acquired with Federal funds or whether the statute prohibits the illegal taking of any funds or property of an organization or of a state or local government agency that receives Federal assistance.

BackgroundDefendants Dawkins and Code were charged with a variety of crimes, including federal programs bribery and conspiracy to commit “honest services” wire fraud. The jury only convicted them, however, on the charges of substantive bribery and conspiracy to commit bribery under 18 U.S.C. § 666 (federal programs bribery). The relevant portion of this statute prohibits “certain actions taken ‘with intent to influence or reward an agent’ of a designated recipient of federal funds, ‘in connection with any business’ of that recipient.”

See also Black v. United States, 130 S. Ct. 2963 (2010) and United States v. Weyhrauch, 130 S.Ct. 2971 (2010).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. There must be a quid pro quo, not a mere “reward” in order to violate the honest services fraud provision.

Key TakeawaysThe First Circuit applied a narrow definition of “bribery” for honest services fraud under 18 U.S.C. § 1346. Payments made to the purportedly harmed party in the alleged bribery scheme—here, the universities—cannot constitute bribery.By contrast, the First Circuit interpreted the text of 18 U.S.C. § 666, the statute that addresses bribery related to federal programs, expansively.Defendants were prejudiced by the government’s decision to charge an overbroad conspiracy, which increased the risk the jury was exposed to irrelevant and prejudicial evidence.BackgroundSince erupting into the headlines in 2019, the Varsity Blues college admissions scandal yielded bribery charges against more than 50 individuals—including numerous affluent and powerful parents seeking to obtain admission for their children to some of the country’s most prestigious institutions, including Harvard, Stanford, and USC—as well as multiple books and a Netflix movie.While many of the parents elected to plead guilty, Gamal Abdelaziz and John Wilson went to trial. Charged with conspiracy to commit federal programs bribery and conspiracy to commit mail and wire fraud on both honest services fraud and property fraud theories, the jury convicted them on both counts. Defendant Wilson was also charged with, and convicted o

On August 9, 2019, the U.S. Court of Appeals for the Second Circuit upheld Macao businessman Ng Lap Seng’s July 2017 conviction for violating and conspiring to violate the FCPA, as well as for federal program bribery and money laundering, in connection with an alleged scheme to bribe United Nations officials to help him build a conference center in Macao. The Court rejected Ng’s argument that the FCPA and the federal program bribery statute, 18 U.S.C. § 666, are limited to prohibiting bribes paid in exchange for “official acts.” Ng argued that the jury should have been instructed to use the definition for “official act” established by the Supreme Court in McDonnell v. United States in June 2016 for the domestic bribery statute, 18 U.S.C. § 201, in determining whether he violated § 666 and the FCPA.

Once the RICO count fell, the prejudice on the remaining count was undeniable. United States v. Rooney, 37 F.3d 847 (2d Cir. 1994) The defendant’s conviction on an 18 U.S.C. §666 count was reversed based on insufficient evidence. Unrelated counts under 18 U.S.C. §1001 were supported by sufficient evidence, but were tainted by the erroneous conviction of the §666 count.

(Judge Bibas concurrence at 1.)Panel (Re)Affirms Conviction of Charter School OperatorUnited States v. Shulick (November 15, 2021), No. 18-3305http://www2.ca3.uscourts.gov/opinarch/183305ppan.pdf Unanimous decision: Fisher (writing), Porter, McKeeBACKGROUNDThe former owner of a for-profit education company diverted public funding, earmarked to operate a school for at-risk students, for personal use and the benefit of co-conspirator, Chaka Fattah, Jr. A jury convicted Defendant of embezzlement under 18 U.S.C. § 666, among other related charges.HOLDINGAfter granting Defendant’s petition for panel rehearing, the Court upheld, for a second time, the Defendant’s conviction.