Bribery is a serious federal offense. Individuals charged with bribing public officials can face up to 15 years of federal imprisonment in addition to substantial fines and disqualification from holding public office. However, the federal bribery statute is also extremely broad. And in today’s world of lobbying and currying favor, there is often a fine line between a lawful transaction and a “bribe” that constitutes a federal felony offense.
When targeting corporate executives and other individuals for prosecution under the federal bribery statute, 18 U.S.C. 201, federal prosecutors will often also seek to gather the evidence needed to file charges for conspiracy to commit bribery under 18 U.S.C. 371. The reason for this is simple: It takes far less to prove a conspiracy than it does to prove a bribe. And under 18 U.S.C. 371, individuals can face fines and up to five years of incarceration even if they never offered or paid an unlawful bribe.
A Closer Look at 18 U.S.C. 201 and 18 U.S.C. 371
1. Bribery of Public Officials and Witnesses: 18 U.S.C. 201
In order to understand the offense of conspiracy to commit bribery, it is first necessary to understand what constitutes an unlawful bribe. Under 18 U.S.C. 201(b):
“(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent
“(A) to influence any official act; or
“(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
“(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person . . . shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.”
Similar to many other federal criminal statutes (including the federal conspiracy statute discussed below), the federal bribery statute is extremely broad and gives prosecutors with the U.S. Department of Justice (DOJ) substantial leeway to craft charges against individuals under a wide range of circumstances. A bribe can consist of “anything of value,” and paying a bribe triggers criminal culpability if it is intended to “influence” or “induce” improper conduct regardless of whether or not that improper conduct ever occurs. Furthermore, federal courts across the country have ruled that:
- The quid pro quo necessary to establish an unlawful bribe can be either explicit or implicit.
- A “stream of benefits” conferred upon a public official or a third party with whom the public official has a beneficial relationship can constitute a bribe even if prosecutors cannot tie a specific benefit to a specific official or illegal act.
- For purposes of 18 U.S.C. 201, a public official is an individual who “possess[es] some degree of official responsibility for carrying out a federal program or policy.”
- A payment will constitute an unlawful bribe as long as one motive for the payment was to influence an official act or induce illegal conduct.
- It is not a defense to bribery to show that the official would have undertaken an official or illegal act even without payment of the bribe.
2. Conspiracy to Commit Offense or to Defraud United States: 18 U.S.C. 371
Not only is it not necessary for a bribe to actually influence or induce an official or illegal act; but, in order to face criminal prosecution, it is not even necessary for an individual to actually pay a bribe. Under the federal conspiracy statute, 18 U.S.C. 371:
“If two or more persons conspire . . . to commit [bribery under 18 U.S.C. 201(b)] and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”
In order to pursue charges for conspiracy to commit bribery under 18 U.S.C. 371, federal prosecutors must prove three elements:
- An agreement to pay a bribe;
- Intent to pay a bribe; and
- An “overt act” toward payment of a bribe.
If the government can prove each of these elements using evidence obtained during a bribery investigation, then each member of the conspiracy can face up to five years of federal imprisonment even though no bribe was ever paid. This is true regardless of (i) whether the agreement was express or implied, and (ii) which co-conspirator undertook to complete the “overt act.”
What to Do If You Are Facing a Federal Bribery Investigation
For individuals who are being targeted in federal bribery investigations, executing a proactive and strategic defense will provide the best opportunity to avoid federal prosecution and a felony conviction. Early steps to take during a bribery investigation include:
- Engaging experienced federal criminal defense counsel
- Making contact with the prosecutors involved to determine the scope and nature of the investigation (though defense counsel)
- Retaining any records that may be relevant to the government’s investigation
- Instructing personnel on how to (and how not to) interact with federal agents
- Not overlooking the potential for a conspiracy charge, even if no bribe has been paid
Federal Criminal Defense Law Attorneys Experienced in Bribery and Conspiracy Investigations
Led by founding attorney, Nick Oberheiden, Ph.D., the federal criminal defense law attorneys at The Criminal Defense Firm, provide strategic and effective legal representation for individuals facing bribery and conspiracy investigations. If you would like to discuss your investigation with Dr. Oberheiden in confidence, please call (888) 452-2503 or inquire online to schedule a complimentary initial consultation.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.