Public Corruption and Bribery Prosecutions in Federal Court.

Although a bribery conviction turns on proof of a corrupt quid pro quo involving a public official, federal law treats public corruption as an umbrella designation rather than a standalone offense. Section 201(b) of Title 18, the federal bribery statute, creates criminal liability for anyone who “knowingly and corruptly gives, offers or promises anything of value to any public official or candidate for public office, or whoever, being a public official or candidate for public office, knowingly and corruptly demands, seeks or receives or agrees to receive or asks another to receive any thing of value,” in order to influence or reward the recipient “in connection with any official act.”

While Section 201(b) is a federal bribery provision that also targets anyone who attempts to give, or offers to give, a bribe to a public official, it is just one of the many statutes that federal authorities can use in bribery, fraud, theft, extortion, and conspiracy prosecutions. As the criminal charges that can target those involved in corruption in the public sector vary in scope, penalties, and other important features, federal prosecutors generally tailor charges based on an individual’s specific role in a public corruption case.

Many criminal public corruption cases fall within the jurisdiction of the DOJ’s Public Integrity Section, which focuses on prosecuting corruption and “the misuse of public office and public trust.” These cases often target public officials and the individuals and companies that pay bribes. The FBI likewise describes public corruption as its “top criminal investigative priority” and identifies these as “complex criminal matters that pose significant threats to national security and the integrity of the federal government.”

Which Federal Bribery Statute Applies to My Case?

Spodek Law Group defends individuals and businesses in federal bribery and public corruption investigations and prosecutions. As a result, we are very familiar with the primary statutory authority that federal prosecutors use to pursue charges in public corruption cases.

There are three primary federal statutes that can apply in public corruption cases, and there are important differences between each in terms of both scope and elements. At the same time, there is a high degree of overlap among the three. While all three involve forms of public bribery and public corruption, each focuses on a slightly different aspect of the offense, and they impose different statutory maximum prison sentences, up to 15 years under Section 201(b), up to 10 years under Section 666, and up to 20 years under the Hobbs Act. While it is possible that any one of these statutes will apply to a given corruption scheme, in many corruption cases that uncover allegations involving a federal public official (as defined in the statute), a federal prosecutor may pursue charges under only one of these statutes. However, a corruption scheme may establish the elements of all three.

Many bribery cases involving state and local officials are pursued under federal bribery statutes. For example, the federal bribery statute under 18 U.S.C. § 201(b) can apply to anyone who “knowingly and corruptly gives, offers or promises anything of value to any public official or candidate for public office, or whoever, being a public official or candidate for public office, knowingly and corruptly demands, seeks or receives or agrees to receive or asks another to receive any thing of value” in order to influence official actions. Federal “public officials” include all “members of Congress, Officers, Employees, Agents, and Jurors of the United States.”

Section 666 of Title 18 covers bribery involving an organization that receives benefits from the federal government. Under Section 666, bribery charges can apply if a person gives, offers, or promises “anything of value” to an “agent of” a state, local, or Indian tribal government, or to an “agent of any organization or entity receiving more than $10,000 in any one year in federal funds” if the official or agent “acts as an employee, agent, or fiduciary.”

Crucially, Section 666 of Title 18 requires the corrupt transaction in question to involve anything of value “valued at $5,000 or more.” Moreover, the term “agent” is defined as “any person who acts as an employee, agent, or fiduciary.”

Section 1951 of Title 18, commonly known as the Hobbs Act, makes it a federal offense to commit extortion for “under color of official right” as public officials and agents. Under the Hobbs Act, federal extortion charges target public officials (and agents) who “obtain or attempt to obtain property” by means of “wrongful use of actual or threatened force, violence, or fear, or under color of official right.” However, extortion offenses under the Hobbs Act can also be charged when a government official uses his or her official power to solicit “anything of value” in exchange for official action.

What Counts as an “Official Act” in a Federal Bribery Case?

In McDonnell v. United States, 579 U.S. 550 (2016), the U.S. Supreme Court narrowed the interpretation of the definition of an official act under Section 201. In so doing, the Court emphasized that the definition of an official act “must be read in light of the phrase “quid pro quo” and the phrase “corruptly influences.” It further noted that the term “official act” refers only to “a formal exercise of governmental power.” For defendants facing federal bribery and federal public corruption charges that involve allegations of bribery, fraud, extortion, and other crimes, this means that to secure a conviction, the U.S. government must prove not only a corrupt quid pro quo, but also a quid pro quo that is tied to a public official taking action in a specific pending matter, or adopting a specific course of action in a pending matter. It is generally not enough that a public official used her or his official position to provide generalized political access to another individual or company.

Under a strict reading of the Supreme Court’s reasoning in McDonnell, the government would generally be unable to support a conviction in a federal public corruption case involving allegations of bribery, fraud, extortion, or any other crime for which government official must have taken (or even attempted to take) “official action.” By the Court’s reasoning, a meeting, a phone call, or an event such as a reception, while it may constitute an “official act” under some circumstances, would typically not suffice. Crucially, even if a meeting, phone call, or other event takes place, constitutes a federal constituent service, and is therefore not even an “official act,” the government may still use evidence of an act to support its case. While constituting a constituent service does not make it a federal bribe under the Supreme Court’s reasoning in McDonnell, proving that a public official arranged to speak with constituents, took a phone call from constituents, or arranged a meeting with constituents may evidence the intent of the parties to engage in bribery.

While Section 666 does not contain a similar separately defined official-act requirement, Section 666 still incorporates the requirement that a bribe takes place with respect to “business, transaction, or series of transactions” of an entity, and Section 201 still incorporates the requirement that a bribe takes place in connection with an “official act.”

Following the Supreme Court’s decision in the public corruption case of Percoco v. United States, 598 U.S. 319 (2023), individuals and businesses facing federal charges involving bribery, fraud, and related offenses must know about the Supreme Court’s recent holdings in addition to knowing whatconstitutes an honest-services duty of loyalty.

The Supreme Court held in Percoco that just because an individual has used his or her personal influence to obtain an outcome or resolve a matter does not mean that the individual has a fiduciary duty. While an individual’s informal role as a former state official managing a sitting governor’s reelection campaign may involve the use of informal political influence, it does not give rise to a fiduciary duty that would subject him to federal prosecution for honest services fraud. Importantly, in public corruption cases involving allegations of bribery, fraud, extortion, and related offenses, this means that the benefit received by a defendant must be tied to an official’s exercise of his or her actual official authority and power rather than an official’s personal influence alone.

What Is the Difference Between a Bribe and an Illegal Gratuity?

The distinction between a bribe and an illegal gratuity is an important distinction in the context of federal public corruption cases. Under Section 201(c), the federal government prosecutes cases involving illegal gratuities. Under Section 201(c), providing a gift to a public official in exchange for the official’s past conduct is a criminal offense that carries up to two years in prison. In contrast, bribery can lead to a sentence of up to 15 years. One of the primary differences between these two offenses is that in a bribery case, a person must provide a thing of value for the recipient to perform an official action. In a gratuity case, a person can offer the gratuity as a reward for the performance of an official action.

What is a “Gratuity” Under Section 666?

In the recent public corruption case of Snyder v. United States (2024), the U.S. Supreme Court addressed whether Section 666 encompasses both bribery and gratuity offenses, and it held that Section 666 only applies to cases involving bribery. In a 6-3 decision, the U.S. Supreme Court held that Section 666 does not encompass cases in which the recipient accepted a gratuity for an official act that had already happened; rather, the Supreme Court held that Section 666 is only applicable to cases that involved “quid pro quo” bribery in which the person accepting a gratuity agrees to be influenced by the gratuity in order to perform the specific official action.

Along with determining that Section 666 does not apply to state and local officials receiving what the Court called “standalone gratuities,” the Supreme Court also held that state and local gratuity-offense regulations are a matter of “State law, not federal law.” However, while a case that does not involve a federal public official will not involve federal penalties under Section 666, this does not prevent federal prosecution under Section 201(c), and it also does not prevent state-level prosecution under relevant state bribery, gratuity, and corruption laws.

What Else Is Important to Know About Federal Gratuity Offenses?

There are a few additional things you need to know about federal gratuity offenses. First, while the Supreme Court noted that illegal gratuities are given in exchange for “completed” official actions, a § 201(c) gratuity can be offered before the specific official act that triggered the person’s interest in providing the gratuity in the first place.

Second, a § 201(c) gratuity offense, unlike a § 201(b) bribery offense, does not require proof of a preexisting corrupt agreement between the bribe giver and the bribe recipient.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

How Do Prosecutors Prove a Bribery Agreement Without a Written Deal?

Federal prosecutors rarely have the benefit of an express (or even implied) agreement between a bribing party and a government official. As a result, they commonly prove corrupt intent through various forms of circumstantial evidence including:

• Timing
• The nature of communications
• The relationship between the parties
• Other relevant facts

While parties typically avoid express (or implied) corrupt agreements in federal bribery and public corruption cases, a party’s conduct can still support a permissible inference of a corrupt agreement even when such agreements are not express. For example, the use of coded communications is a common form of circumstantial evidence that federal prosecutors use to support this inference.

Sham consulting arrangements are another form of circumstantial evidence commonly used in federal bribery and public corruption cases. In some cases, defendants may attempt to disguise bribes as compensation for consulting services. If benefits are disguised as consulting fees, no consulting services are actually rendered, and the parties’ relationship is otherwise indicative of a corrupt agreement, prosecutors can use these factors as circumstantial evidence that the payments involved were, in fact, bribes.

Offering benefits to a public official’s relative, child, or associate, or directing benefits into a loan for a relative or into business or financial dealings involving a public official’s associate or relative can also serve as circumstantial evidence of bribery, fraud, extortion, and related offenses.

Another way to support a federal public corruption case is to rely on an “ongoing-benefits theory.” Under this theory, benefits are not tied to a specific official action or even a single corrupt agreement. Instead, benefits are provided “in return for accepting the relationship as a whole,” and these benefits are tied to “sufficiently identified governmental matters” involving the use of the public official’s actual official power. If the benefits provided to a public official appear unrelated to the official’s power and actions, an ongoing-benefits theory is unlikely to be sufficient to sustain a public corruption charge.

Finally, McCormick v. United States is a key case when campaign contributions are involved in public corruption allegations. In McCormick, the Supreme Court emphasized that, under the Hobbs Act, “clear and unambiguous” evidence of an explicit quid pro quo is required to support a public corruption charge. However, an explicit quid pro quo can be proven by circumstantial evidence and “does not require a precise agreement or a ‘particular statement as a means of demonstrating the exchange.’”

How Much Prison Time Does a Federal Bribery Conviction Carry?

A conviction under Section 201(b) of Title 18 can result in the mandatory loss of “all right, title, office, or appointment” and may result in the permanent loss of the ability to hold “any office of honor, trust, or profit under the United States.” As a result, federal bribery and public corruption charges can have long-lasting ramifications even for those who avoid prison time.

But if a conviction under Section 201(b) or any other applicable statute leads to sentencing, a public official and other individuals charged in federal bribery and public corruption cases will have to face federal sentencing guidelines as well. The base offense level under U.S.S.G. § 2C1.1 is 14 if the defendant is a “public official” and 12 if the defendant is not a public official. But other factors can increase or decrease a defendant’s exposure for prison time. These factors include:

• Multiple Bribes or Extortions - Under Section 2C1.1(b)(1), sentencing courts are to increase the offense level by two if the defendant “gives or receives one or more bribes, or solicits or obtains one or more extortion payments in excess of the applicable amount (1) for the same or different official actions or business transactions; or (2) on multiple occasions in connection with any single official action or business transaction.”
• The Amount of the Bribe, Benefit, or Government Loss - Under Section 2C1.1(b)(2), if there are “bribes, gratuities, benefit received or obtained, or government loss” involved, a sentencing court must increase the offense level by the amount that applies to the highest of these amounts.
• Use of Public Position - In public corruption cases involving elected officials and other high-level government officials, Section 2C1.1(b)(3) provides for a sentencing increase of four. Under Section 2C1.1(b)(3), the minimum offense level for a public official is 18.

Offense level increases are only one part of federal sentencing. For example, U.S.S.G. § 3E1.1 permits reductions for “Acceptance of Responsibility,” and U.S.S.G. § 5K1.1 allows “ cooperation departures” to be considered when a government official proves that a defendant’s “voluntary, substantial assistance” warrants a sentence shorter than what would otherwise be imposed.

While an explicit campaign-contribution quid pro quo may be proved without express words, campaign contributions do not always amount to a federal crime. Public corruption allegations may turn on a single offense or a series of offenses, depending on the circumstances involved. If facing charges, individuals and businesses must work with their federal criminal defense counsel to carefully consider all of the defenses available in their case.

What Does this Mean for a Government Agent or Contractor?

As previously discussed, federal bribery and corruption crimes can impose significant prison sentences and civil, administrative, and regulatory consequences for defendants. Because of this, if you face allegations of giving, receiving, or soliciting bribes, or are at risk of being prosecuted or otherwise facing negative consequences as the result of an investigation, it is critical to contact federal criminal defense counsel immediately.

What Defenses Work Against Federal Bribery and Corruption Charges?

Although bribery, fraud, and related offenses are all criminal offenses, a federal public corruption charge does not require a prior agreement or a clear-cut “quid pro quo” in the sense of an actual exchange. Instead, as we discussed above, public corruption allegations can support a conviction based on a defendant’s conduct which demonstrates an intent to establish a quid pro quo relationship with a public official.

The U.S. Supreme Court clarified this concept in the case of Skilling v. United States (2010), in which it affirmed that the “honest services” fraud statute targets corruption, not just any “private fraud.” The Court explained that while the statute also prohibits bribes and gratuities that trigger honest services fraud liability, “the only form of private fraud that is within the statute’s scope is bribes and kickbacks.”

This, among other factors, means that an ethics-rule violation alone can constitute a grounds for ethics-related disciplinary action, and in some cases this can be a ground for upholding federal public corruption charges. However, an ethics-rule violation alone is not necessarily enough to establish a corrupt quid pro quo between a public official and another party. The government can still be accused of making a corrupt agreement in order to influence a federal public official’s actions, and an offense may be targeted even if the corruption involves non-federal officials.

The requirement of corrupt intent is a recurring feature of bribery and public corruption cases. In those cases, the public official’s (and his or her agent’s) knowledge of the bribery-related offense would be sufficient to prove corrupt intent. But this does not mean a defendant will automatically lose in an investigation or trial even when he or she makes a mistake. Although § 201(b) does not require knowledge of the statute’s restrictions, mistakes of law generally do not excuse defendants from facing liability for federal crimes.

As a result, defendants convicted of federal bribery and corruption charges often raise entrapment defenses. An entrapment defense is not a constitutional right, but is a judge-made legal defense that can be effective when the government’s agents inducement led a defendant to commit a crime that he or she otherwise would not have committed. Unlike most federal crimes, which a jury must find by a “preponderance of the evidence,” the standard for proving entrapment is “clear and convincing evidence.”

If you are under investigation or facing charges, a few things to keep in mind include:

• It may be too late to avoid an indictment. Even if you were caught on a delay-record or another form of evidence, you may still have a chance to fight the charges that you face.
• It may be too late to avoid an indictment or plea deal.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.