Public corruption

American Criminal Law Review

Volumn 45, Issue 2, 2008, Pages 825-869

  Kircher, Ashley ^a   Whittaker, Brian ^a   Hicks, Jordan ^a  

^a NONE

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EID: 44949206417     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (379)

1. For a brief history of federal conflict of interest statutes and the original purpose of the modern conflict statute, see Van Ee v. EPA, 202 F.3d 296, 305-08 (D.C. Cir. 2000) (discussing historical context for federal bar on federal employee representational services). For an analysis of the 1962 legislation that consolidated and modernized federal conflict of interest statutes, see Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 HARV. L. REV. 1113, 1117 (1963) (comparing previous law to 1962 Act),
2. and Memorandum of Attorney General Regarding Conflict of Interest Provisions of Public Law 87-849, 28 F.R. 985 (Jan. 28, 1963) (same).
3. 18 U.S.C. § 201(b) (2000) (criminalizing offer or receipt of bribe to or by public official or witness).
4. 18 U.S.C. § 201(c) (2000) (criminalizing offer or receipt of illegal gratuity to or by public official or witness).
5. 18 U.S.C. § 203 (2000) (prohibiting unauthorized compensation of government officials for representing persons before the government).
6. 18 U.S.C. § 205 (2000) (prohibiting government officials from representing persons prosecuting claims against the United States or before the government).
7. 18 U.S.C. § 207 (2000) (restricting post-employment activities of former executive branch officials). The Honest Leadership and Open Government Act of 2007 increased from one year to two the restriction on lobbying by former executive personnel. See Honest Leadership and Open Government Act of 2007, § 101, Pub. L. No. 110-81, 121 Stat. 735, 736-37 (2007) (codified at 18 U.S.C. § 207).
8. 18 U.S.C. § 208 (2000) (prohibiting executive branch officials from participating in matters that affect their financial interest).
9. 18 U.S.C. § 209 (2000) (prohibiting executive branch officials from receiving outside salaries).
10. 18 U.S.C. § 216 (2000) (establishing penalties for violations of §§ 203-05 and §§ 207-09).
11. 18 U.S.C. §§ 201-09 (2000); see Comment, The Federal Bribery Statute and Special Interest Campaign Contributions, 79 J. CRIM. L. & CRIMINOLOGY 1347 (1989).
12. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 409-10 (1999) (discussing various federal statutes and regulations to outlaw various kinds of gratuities).
13. 18 U.S.C. § 201 (criminalizing offenses of bribery and illegal gratuity).
14. See id. § 201(a)(1) (defining the term "public official"); id. § 201(a)(2) ("person who has been selected to be a public official); id. § 201(a)(3) ("official act").
15. 18 U.S.C. § 201(b)(1) (defining the offense as applied to the offeror of a bribe) id. § 201(b)(2) (defining the offense as applied to the offeree or recipient).
16. 18 U.S.C. § 201 (b); see also Sun-Diamond, 526 U.S. at 404 (outlining elements of § 201(b)); Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. REV. 784, 795-96 (1985) (summarizing elements of bribery statutes generally). This article will not address bribery offenses involving fraud or violations of lawful duty, as these offenses are rarely prosecuted. For examples of bribery cases involving fraud, see United States v. Leyva, 282 F.3d 623 (9th Cir. 2002) (falsifying immigration documents) and United States v. Purvis, 762 F. Supp. 535 (S.D.N.Y. 1991) (manipulating government payroll checks).
17. 18 U.S.C. § 201(c)(1) (defining the offense as applied to the offeror); id. § 201(c)(3) (defining the offense as applied to the offeree or recipient).
18. 18 U.S.C. § 201(c); see also Sun-Diamond, 526 U.S. at 404 (outlining elements of § 201(c)(1)); Lowenstein, supra note 15, at 796-97 (summarizing elements of illegal gratuity offenses generally).
19. See 18 U.S.C. § 201 (2000) (establishing elements of bribery and illegal gratuity offense); Sun-Diamond, 526 U.S. at 404 ("The distinguishing feature [between bribery and illegal gratuities] is [bribery's] intent element.").
20. Sun-Diamond, 526 U.S. at 404-05 (emphasis in original).
21. 18 U.S.C. § 201(c) at 404-05 ("An illegal gratuity . . . may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken." (quoting 18 U.S.C. § 201(c))).
22. See, e.g., United States v. Hipkins, 756 F. Supp. 233, 237 (D. Md. 1991) (noting giving money to former public official could be charged under the illegal gratuities statute, but not under bribery statute). Compare 18 U.S.C. § 201(c)(1)(A)-(B) with § 201(b)(1)-(2).
23. See, e.g., United States v. Leyva, 282 F.3d 623, 625-26 (9th Cir. 2002) (holding falsification of immigration documents in exchange for money to be both bribery and fraud against the United States); United States v. Purvis 762 F. Supp. 535, 537 (S.D.N.Y. 1991) ("The fact that a fraud upon the United States has been perpetrated by and for only federal employees does not preclude the application of the bribery statute."). Compare 18 U.S.C. § 201(b)(1)-(2) with § 201(c)(1)(A)-(B).
24. 18 U.S.C. § 201(b), (c); see also Sun-Diamond, 526 U.S. at 404 (noting both bribery and illegal gratuity statutes require showing that something of value was given).
25. See United States v. Marmolejo, 89 F.3d 1185, 1192 (5th Cir. 1996) (noting that courts have broadly construed the term "anything of value" across several criminal statutes) (internal citations omitted).
26. See, e.g., United States v. Crozier, 987 F.2d 893, 901 (2d Cir. 1993) (holding that loan constitutes a "thing of value") (internal citations omitted).
27. See, e.g., Marmolejo, 89 F.3d at 1192 ("'[T]hing of value' when used in criminal statutes . . . includes intangibles, such as amusement, sexual intercourse, a promise to reinstate an employee, and information." (citing United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979))).
28. See, e.g., United States v. Biaggi, 909 F.2d 662, 684-85 (2d Cir. 1990) (holding promise of future job is "something of value").
29. See, e.g., United States v. Persico, 2000 WL 145750, at *6 (S.D.N.Y. 2000) (finding several vacation trips to be "things of value").
30. See, e.g., United States v. Couto, 119 Fed. Appx. 345, 347 (2d Cir. 2005) (holding illegal green card to be "thing of value").
31. See, e.g., United States v. Williams, 705 F.2d 603, 622-23 (2d Cir. 1983) (recognizing stocks as "anything of value" in bribery and related statutes).
32. See, e.g., United States v. Gorman, 807 F.2d 1299, 1305-06 (6th Cir. 1986) (rejecting argument that loans received and repaid with interest merely constituted "economic exchange[s]" and not "things of value"); United States v. Holck, 398 F. Supp. 2d 338, 350 (E.D. Pa. 2005) ("[T]he provision of favorable loans is sufficient 'quid' to sustain a conviction under the bribery statute.").
33. See, e.g., United States v. Crozier, 987 F.2d 893, 901 (2d Cir. 1993) ("[A]ny payment that [recipient] defendant subjectively believes has value . . . constitutes a 'thing of value.'").
34. E.g., Williams, 705 F.2d at 622-23 (agreeing with lower court that commercially worthless shares of stock were "things of value" to defendant senator because of his subjective expectation of their value); see also United States v. Ostrander, 999 F.2d 27, 31 (2d Cir. 1993) (reiterating the conclusion in Williams that stock is not valued by commercial worth for purposes of determining "thing of value").
35. See United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) (stressing intent, not timing of payment, as the key to distinguishing between bribe and illegal gratuity).
36. Id. (quoting United States v. Campbell, 684 F.2d 141, 148 (D.C. Cir. 1982) (internal quotation marks omitted)).
37. Id.
38. 18 U.S.C. § 201(c)(2) (2000) ("Whoever . . . gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given . . . by such person as a witness upon a . . . proceeding before any court . . . shall be fined under this title or imprisoned for not more than two years, or both.").
39. In 1998, a Tenth Circuit panel held that the plain meaning of the bribery statute required its application to federal prosecutors and their use of immunity and leniency. United States v. Singleton, 144 F.3d 1343, 1348 (10th Cir. 1998). The full circuit, however, granted rehearing and vacated the panel's decision, concluding that § 201(c)(2) did not apply to consideration given to witnesses by federal prosecutors. United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc) (Singleton II). For an examination of the Singleton and Singleton II decisions and the legality and propriety of federal prosecutors granting leniency to witnesses in exchange for favorable testimony, compare Bryan S. Gowdy, Leniency Bribes: Justifying the Federal Practice of Offering Leniency for Testimony, 60 LA. L. REV. 447 (2000) (arguing that leniency-induced testimony is permissible and beneficial),
40. with A. Jack Finklea, Note, Leniency in Exchange for Testimony: Bribery or Effective Prosecution?, 33 IND. L. REV. 957 (2000) (arguing leniency-induced testimony is barred by § 201(c)(2) and also violates notions of justice and fair play).
41. See United States v. Hunte, 193 F.3d 173, 173 (3d Cir. 1999) (aligning with the Singleton II decision and "every other circuit court that has considered the issue").
42. See Singleton II, 165 F.3d at 1300 ("When an assistant United States Attorney (AUSA) enters into a plea agreement with a defendant, that plea agreement is between the United States government and the defendant.").
43. See id. (construing the term "whoever" in § 201(c)(2) to apply to human beings - not the United States, an "inanimate entity").
44. Id. at 1301-02.
45. See, e.g., United States v. Dawson, 425 F.3d 389, 394-95 (7th Cir. 2005) (holding that government payment to informant of twenty percent of proceeds from government sale of illegal narcotics made possible by informant's efforts did not violate § 201(c)(2)); United States v. Harris, 210 F.3d 165, 167 (3d Cir. 2000) (concluding government payments of $2100 and $20 to informants for testimony in drug trafficking case did not violate § 201(c)(2)); United States v. Barnett, 197 F.3d 138, 145 (5th Cir. 1999) (concluding government payment of $7500 to witness for assistance and testimony in murder-for-hire prosecution did not violate § 201(c)(2)); United States v. Albanese, 195 F.3d 389, 394 (8th Cir. 1999) (holding government payments of more than $60,000 to informant for assistance and testimony in drug conspiracy prosecution were not prohibited by § 201(c)(2)).
46. See United States v. Ibarra-Zarate, 171 Fed. Appx. 554, 555 (9th Cir. 2006) (rejecting claim that § 201(c)(2) "is violated when the government offers immunity or leniency at sentencing" in exchange for cooperative testimony); see also United States v. Blassingame, 197 F.3d 271, 285 (7th Cir. 1999) (holding government may promise immunity in exchange for truthful testimony).
47. See United States v. Feng, 277 F.3d 1151, 1153-54 (9th Cir. 2002) (holding that the government's offer of letters recommending asylum on behalf of testifying witnesses did not violate the federal anti-gratuity statute because immigration benefits or leniency should not be differentiated from criminal leniency under § 201(c)(2)).
48. See V Cable, Inc. v. Guercio, 148 F. Supp. 2d 236, 241 (E.D.N.Y. 2001) (finding witness' arrangement with plaintiff "does not run afoul of Section 201" when his testimony was given a year and a half after completing services required for forgiveness of portion of settlement sum and his attendance was obtained via service of subpoena).
49. 18 U.S.C. § 201 (2000).
50. Id. § 201(c)(1); see United States v. Hipkins, 756 F. Supp. 233, 237 (D. Md. 1991) (finding that giving money to former public official could be charged under the illegal gratuities statute but not under the bribery statute).
51. 18 U.S.C. § 201(a)(2).
52. Id. §§ 201(b)(3), (c)(2).
53. 18 U.S.C. §§ 201(b)(3), (c)(2) (2000).
54. See Dixson v. United States, 465 U.S. 482, 496 (1984) ("Congress never intended the open-ended definition of 'public official' in § 201(a) to be given [a] cramped reading . . . ."); see also United States v. Kenney, 185 F.3d 1217, 1221-22 (11th Cir. 1999) (stating that a defense contractor employee who did not have the final say but whose "input [was] given sufficient weight to influence the outcome of the decisions at issue" was a "public official" for purposes of § 201(c)).
55. Dixson, 465 U.S. at 496. The Court cautioned that its interpretation was not intended to bring all employees of local organizations that administer federal funds within the definition of "public official." Id. at 499. Rather, the Court held that the term "public official" applies only to those individuals who "possess some degree of official responsibility for carrying out a federal program or policy." Id. (indicating federal assistance to local group will not be sufficient to invoke § 201); see also United States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002) (holding that cook employed at federal prison was "public official" because cook was federal employee with official functions); States v. Thomas, 240 F.3d 445, 447-48 (5th Cir. 2001) (holding guard employed by private company that operated detention facility under contract with Immigration and Naturalization Service was "public official" because guard was subject to federal rules and responsibilities and occupied position of public trust), cert. denied, 532 U.S. 1073.
56. Id. at 497-98 (stating that Congress intended for such local officials to be covered by the statute and concluding that "employment by the United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute").
57. See United States v. Vega, 184 Fed. Appx. 236, 242 (3d Cir. 2006) (holding immigration inspector's promise to commit immigration fraud, "even without actual performance, is sufficient to sustain a conviction for bribery" (internal citation omitted)); United States v. Parker, 133 F.3d 322, 326 (5th Cir. 1998) (stating government employee need not have specific authority to perform official act); United States v. Romano, 879 F.2d 1056, 1060 (2d Cir. 1989) (holding public official's inability to achieve bribe giver's objective is not relevant to definition of public official).
58. See United States v. Gjieli, 717 F.2d 968, 973-74 (6th Cir. 1983) (affirming conviction of bribe offeror who believed, albeit erroneously, that agent of Federal Bureau of Alcohol, Tobacco, and Firearms, a "public official," could arrange for the transfer of state prisoner despite agent's inability to affect custody of state inmates); United States v. Analytis, 687 F. Supp. 87, 89-92 (S.D.N.Y. 1988) (holding federal IRS investigator who presented himself as able to "fix" bribe offeror's state tax liabilities was not required to have actual authority to achieve discharge of state liability).
59. See, e.g., United States v. Couto, 119 Fed. Appx. 345, 347 (2d Cir. 2005) (rejecting defendant's assertion that insufficient evidence existed to support her knowledge that undercover immigration agent was a "public official" when agent demonstrated to defendant several indicia consistent with being immigration official); United States v. Romano, 879 F.2d 1056, 1058-1060 (2d Cir. 1989) (holding corrupt EPA inspector who agreed to act as paid undercover agent for government to investigate construction industry remained "public official" notwithstanding curtailment of his normal EPA duties).
60. 18 U.S.C. § 201 (2000).
61. Id. § 201(a)(3).
62. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 406-07 (1999) (rejecting the Government's contention that § 201 "requires only a showing that a 'gift was motivated . . . by the recipient's capacity to exercise governmental power or influence in the donor's favor without necessarily showing that it was connected to a particular official act") (emphasis in original).
63. Id. at 407-08 (noting that broad interpretation of § 201 would criminalize the giving of token gifts during public ceremonies - sports jersey to President during White House visit by sports team, school cap to Secretary of Education during high school visit, and complementary lunch by farmers during visit by Secretary of Agriculture - all "assuredly 'official acts' in some sense"). For a case that examines the scope of "official act" in the wake of Sun-Diamond's "absurdities" distinction, see United States v. Valdes, 437 F.3d 1276, 1280 (D.C. Cir. 2006) (holding police officer's act of checking police database for public information on fictitious entities' warrants in exchange for money was akin to presidential receipt of team jersey for White House visit and not "official act" because police officer's act was not "a 'decision or action' that directly affects any formal government decision made in fulfillment of government's public responsibilities"). See generally Brent Gurney et al., United States v. Valdes: 'Officially' Defining 'Official Act' Under the Federal Gratuities Statute, CHAMPION, Sept.-Oct. 2006, at 22, 24 (examining Sun-Diamond's analysis of "official act" and claiming that the "Sun-Diamond Court did not offer any guidance on how to define that term").
64. Sun-Diamond, 526 U.S. at 406 ("The insistence upon an "official act," carefully defined, seems pregnant with the requirement that some particular act be identified and proved."). For subsequent acts identified by lower courts as "official acts," see In re Pierce, 201 F.3d 473, 477-78 (D.C. Cir. 2000) (holding that administration of housing project funds constituted "official act") and United States v. Ahn, 231 F.3d 26, 32 (D.C. Cir. 2000) (holding that failure to report licensing violations of massage parlors constituted an "official act").
65. 526 U.S. 398 (1999).
66. Id. at 404 ("The distinguishing feature of each crime is its intent element.").
67. 18 U.S.C. § 201(b)(1)-(2) (2000).
68. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999); see also United States v. Orenuga, 430 F.3d 1158, 1166 (D.C. Cir. 2006) (rejecting defendant's contention that bribery requires the quid pro quo to be fully executed, noting instead that bribery requires only the "specific intent of performing an official act in return") (internal citation and quotation marks omitted) (emphasis in original).
69. See United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) ("[A] goodwill gift to an official to foster a favorable business climate, given simply with the 'generalized hope or expectation of ultimate benefit on the part of the donor,' does not constitute a bribe." (citing United States v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980))).
70. See United States v. Tomblin, 46 F.3d 1369, 1379 (5th Cir. 1995) ("Intending to make a campaign contribution does not constitute bribery, even though many contributors hope that the official will act favorably because of their contributions.").
71. Id. (noting that "[a]ccepting a campaign contribution does not equal taking a bribe unless the payment is made in exchange for an explicit promise to perform or not perform an official act" (citing United States v. Allen, 10 F.3d 405, 411 (7th Cir. 1993))).
72. See United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993) ("[W]e [have] noted that there could be dual purposes for payments . . . ." (citing United States v. Biaggi, 909 F.2d 662, 682-84 (2d Cir. 1990))).
73. Id. (quoting Biaggi, 909 F.2d at 682-84).
74. See Jennings, 160 F.3d at 1014 ("Direct evidence of intent is unnecessary . . . . To prove bribery under § 201, the government is not required to prove an expressed intention (or agreement) to engage m a quid pro quo. Such an intent may be established by circumstantial evidence."); United States v. Massey, 89 F.3d 1433, 1439 (11th Cir. 1996) (holding that requiring direct evidence of bribery "would allow [defendants] to escape liability . . . with winks and nods, even when the evidence as a whole proves that there has been a meeting of the minds to exchange official action for money" (quoting United States v. Carpenter, 961 F.2d 824, 827 (9th Cir. 1992))).
75. United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) ("[T]he intended exchange in bribery can be 'this for these' or 'these for these,' not just 'this for that.'").
76. United States v. Quinn, 359 F.3d 666, 675 (4th Cir. 2004) ("[I]t does not matter whether the government official would have to change his or her conduct to satisfy the payor's expectations.").
77. 18 U.S.C. § 201(c)(1)(A)-(B) (2000); see also United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404 (1999) (noting statutory intent requirement for illegal gratuity violation).
78. 18 U.S.C. § 201(c)(1)(A)-(B) (establishing illegal gratuity violation omits element of "corrupt" intent); see also Jennings, 160 F.3d at 1013 (noting for illegal gratuity violation, "[n]o corrupt intent to influence official behavior is required"); Charles B. Klein, What Exactly Is An Unlawful Gratuity After United States v. Sun-Diamond Growers?, 68 GEO. WASH. L. REV. 116, 119 (1999) (noting violator of illegal gratuity statute need not intend to corrupt public official).
79. See Sun-Diamond, 526 U.S. at 404-05 ("[F]or bribery there must be a quid pro quo - a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.").
80. See George D. Brown, Putting Watergate Behind Us - Salinas, Sun-Diamond, and Two Views of the Anti-Corruption Model, 74 TUL. L. REV. 747, 771-72 (2000) (noting that prior to the Sun-Diamond decision, there had been "considerable disagreement within the lower federal courts" on nature of link between illegal gratuity and official act).
81. See United States v. Bustamante, 45 F.3d 933, 940 (5th Cir. 1995) ("[I]t is sufficient for the government to show that the defendant was given the gratuity simply because he held public office.") (internal citation omitted); United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978) (en banc) ("[A]ll that need be proven is that the official accepted, because of his position, a thing of value . . . .").
82. See generally Brown, Anti-Corruption Model, supra note 78, at 771-72 (comparing "status" approach to "bribery-like" approach in interpreting the illegal gratuity statute).
83. See, e.g., United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) ("An illegal gratuity . . . is a payment made to an official concerning a specific official act . . . ."); United States v. Biaggi, 853 F.2d 89, 101 (2d Cir. 1988) (stating there is "substantial identity of the purposes behind the two levels of offense").
84. See United States v. Patel, 32 F.3d 340, 343 (8th Cir. 1994) ("[A]n unlawful gratuity . . . is a lesser included offense of bribery.").
85. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 414 (1999). For an argument that the Court's decision effectively transformed the crime of illegal gratuity into a lesser included crime of bribery, see Brown, Anti-Corruption Model, supra note 78, at 774. But see Sun-Diamond Growers, 526 U.S. at 404 (describing bribery and illegal gratuity offenses as "two separate crimes . . . with two different sets of elements and authorized punishments"); Klein, supra note 76, at 124 ("[T]he Supreme Court does not classify an unlawful gratuity as a lesser-included offense of bribery but instead describes both offenses as 'two separate crimes' with two distinct intent requirements.").
86. Sun-Diamond, 526 U.S. at 405 (rejecting government's and district court's reasoning regarding scope of § 201(c)(1)(A)).
87. See generally Klein, supra note 76, at 130 (analyzing both reward approach and intent-to-influence approach and noting Supreme Court did not explicitly adopt either).
88. Id.
89. United States v. Schaffer, 183 F.3d 833, 842 (D.C. Cir. 1999) ("[A] gratuity can be given with the intent to induce a public official to propose, take, or shy away from some future official act . . . . [This gratuity would be] given in the hope that, when the particular official actions move to the forefront, the public official will listen hard to, and hopefully be swayed by, the giver's proposals, suggestions, and/or concerns."), vacated as moot, 240 F.3d 35 (D.C. Cir. 2001).
90. See Klein, supra note 76, at 130, 132 (noting D.C. Circuit's interpretation creates "an extremely fine, and perhaps immeasurable, distinction" between the two offenses, arguing "the Schaffer holding essentially fuses the gratuity and bribery statutes").
91. See United States v. Orenuga, 430 F.3d 1158, 1165 (D.C. Cir. 2006) ("A successful entrapment defense requires evidence that (1) the crime was induced by the Government, and (2) appellant lacked a 'predisposition . . . to engage in the criminal conduct.' The latter inquiry 'focuses upon whether the defendant was an 'unwary innocent' or, instead, an 'unwary criminal' who readily availed himself of the opportunity to perpetrate the crime.'") (internal citations omitted).
92. See, e.g., United States v. Thickstun, 110 F.3d 1394, 1396-98 (9th Cir. 1997) (arguing IRS agent and co-conspirator entrapped defendant to commit bribery).
93. See, e.g., id. at 1397-98 (finding taxpayer was predisposed to commit bribery when she sought to eliminate large tax liability by offering $5000 to IRS agent who was undertaking bribery surveillance of taxpayer's friend because taxpayer owed a substantial amount of money, broached topic of bribe with agent, engaged in activity for profit, and displayed eagerness to commit crime); United States v. Patel, 32 F.3d 340, 345 n.7 (8th Cir. 1994) (dismissing defendant's entrapment argument given that "there was no evidence that the idea [of the gratuity] originated in the government [or that] the offer [was] provoked by any government activity" when would-be purchaser-defendant sought to obtain commercial property by offering $50,000 payment to contractor employee).
94. See, e.g., United States v. Collins, 972 F.2d 1385, 1396 (5th Cir. 1992) (outlining (and rejecting) defendant's argument that federal investigation "was so extreme as to constitute a due process violation").
95. See United States v. Russell, 411 U.S. 423, 431-32 (1973) ("[We might] some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.").
96. United States v. Hampton, 425 U.S. 484, 485 (1976) ("If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant but in prosecuting the police under the applicable provisions of state or federal law.").
97. See United States v. Tucker, 28 F.3d 1420, 1426-27 (6th Cir. 1994) (declining to recognize "due process" defense); Brown v. Doe, 2 F.3d 1236, 1242-43 (2d Cir. 1993) (holding outrageous police behavior may be remedied by prosecuting police but is not a bar to prosecution); Collins, 972 F.2d at 1396-97 (finding no due process violation in government's use of a drug defendant of questionable character who exhibited racial animus as an informant in sting operation targeted at African-American federal judge); United States v. Beverly, 723 F.2d 11, 12-13 (3d Cir. 1983) (rejecting defendants' assertion that allegedly outrageous government conduct deprived them of their due process rights); United States v. Kelly, 707 F.2d 1460, 1469, 1477 (D.C. Cir. 1983) (concluding government's conduct in Abscam sting did not violate defendant congressman's due process rights despite elaborate hoax required because bribery scheme did not involve "the infliction of pain or physical or psychological coercion").
98. See United States v. Liu, 960 F.2d 449, 454-55 (5th Cir. 1992) (holding that defendant alien who sought to purchase green cards from officials did not qualify for duress defense to bribery offense because defendant was not under "present, imminent and impending threat" and he "had a number of reasonable alternatives to the continued illegality"). Courts have also rejected a coercion defense in a bribery case involving a custodial service manager under contract to the Navy who sought to avoid demerits for poor service by paying regular bribes to a government inspector working with Naval Investigative Service. See United States v. Lee, 846 F.2d 531, 534-36 (9th Cir. 1988) (rejecting defendant's "economic coercion" theory based on government officer's purported ability to threaten defendant with serious economic loss).
99. United States v. Toney, 27 F.3d 1245, 1248 (7th Cir. 1994); see also United States v. Amparo, 961 F.2d 288, 291 (1st Cir. 1992) (adopting substantially identical requirements); United States v. Santos, 932 F.2d 244, 249 (3d Cir. 1991) (same); cf. United States v. Harris, 104 F.3d 1465, 1473 (5th Cir. 1997) ('To justify an instruction on duress, a defendant must show (1) he was under an unlawful, present, imminent and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) he had not recklessly or negligently placed himself in such a situation; (3) he had no reasonable legal alternative to violating the law; and (4) there is a direct causal relationship between the criminal action taken and the avoidance of threatened harm.").
100. U.S. CONST. art. I, § 6, cl. 1 ("[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.").
101. See, e.g., United States v. Brewster, 408 U.S. 501, 507-12, 525-26 (1972) (rejecting defendant Senator's claim of immunity under Speech or Debate Clause as inappropriate in criminal situations when the independence of the legislative branch is not at stake).
102. 383 U.S. 169 (1966) (reversing conviction of Congressman for bribery on grounds that prosecution depended on extensive questioning concerning the Congressman's motivation for making a speech on the House floor).
103. Id. at 186 (explaining that the Government's prosecution of the Congressman Johnson for conspiracy was improper because it "drew into question the legislative acts of the defendant [M]ember of Congress or his motives for performing them").
104. See Brewster, 408 U.S. at 525-26. But see United States v. Helstoski, 442 U.S. 477, 492 (1979) (noting § 201 "does not amount to a congressional waiver of the protection of the Clause for individual Members"). For an analysis of the scope of the Speech or Debate Clause, see Matthew R. Walker, Narrowing the Scope of Speech or Debate Clause Immunity, 68 TEMP. L. REV. 377 (1995) (analyzing impact of United States v. McDade, 28 F.3d 283 (3d Cir. 1994)).
105. See Brewster, 408 U.S. at 525-26.
106. See, e.g., In re Search of the Rayburn House Office Building Room Number 2113, 432 F. Supp. 2d 100 (D.D.C. 2006).
107. Id. at 111 (rejecting the argument that the Congressman's testimonial privilege under the Speech or Debate Clause shields him from the execution of a judicially issued warrant to search his office).
108. See United States v. Rayburn House Office Building Room 2113, 497 F.3d 654, 660-63 (D.C. Cir. 2007) (reasoning that a search that allows agents of the Executive to review privileged material without the Member's consent violates the Clause because the legislative process is disrupted by the disclosure of legislative material, even in the criminal context and suggesting that searching the office with the Member present might have cured the defect).
109. See, e.g., United States v. Moody, 977 F.2d 1420, 1424 (11th Cir. 1992) (finding gratuity statute "is neither unconstitutionally overbroad or vague" because defendant's conduct was within statute's "legitimate sweep" and the statute's definitions allowed "ordinary people [to] understand what conduct is prohibited").
110. See, e.g., FAC, Inc. v. Cooperativa de Seguros de Vida, 106 F. Supp. 2d 244, 256 (D.P.R. 2000) (denying defendants' immunity defense because "demanding kick-backs or bribes is so beyond the outer perimeters of [defendants'] statutory duties that there is no risk of shackling 'the fearless, vigorous, and effective administration of policies of government'" (quoting Westfall v. Erwin, 484 U.S. 292, 297 (1988))).
111. See United States v. Standefer, 452 F. Supp. 1178, 1188 (W.D. Pa.
112. See, e.g., United States v. Gomez, 807 F.2d 1523, 1526-28 (10th Cir. 1986) (referring to defendant mechanic's testimony that he became involved in supplies purchasing scheme as part of his own investigation and affirming conviction of lower court); United States v. Strand, 574 F.2d 993, 996 (9th Cir. 1978) (noting defendant Customs Service temporary inspector's defense theory that he accepted bribe to gain confidence of smugglers, allowing him to later make "spectacular arrest").
113. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 405 (1999) ("The punishments prescribed for the two offenses reflect their relative seriousness."); Klein, supra note 76, at 119 ("Because the violator of the gratuity statute actually does not intend to corrupt the public official, the gratuity statute carries a much fighter penalty.").
114. 18 U.S.C. § 201(b) (2000); id. § 3571(b)(3) (2000) (outlining fines for individuals convicted of various offenses, including felonies).
115. Id. § 201(b) (providing penalty option of disqualification from government office).
116. Id. § 201(c) (establishing penalties for illegal gratuities); id. § 3571(b)(3) (outlining fines for individuals convicted of various offenses, including felonies); id. § 3571(c)(3) (outlining fines for organizations convicted of various offenses, including felonies). In 1992, the Supreme Court's holding in Evans v. United States, 504 U.S. 255, 269 (1992), added another layer of complexity to federal public corruption prosecution of state and local officials by holding that both bribery and illegal gratuity can qualify as "extortion" under the Hobbs Act, 18 U.S.C. § 1951, which criminalizes obstruction of commerce through robbery or extortion. The significance of this holding is that prosecutors can seek penalties for public corruption under either § 201 or the Hobbs Act. The requirements for Hobbs Act liability mirror the lower requirements for § 201(c) illegal gratuity liability. However, the maximum penalty under the Hobbs Act is twenty years, while the federal bribery statute provides for only fifteen years maximum imprisonment. This has enticed some prosecutors to seek bribery-type penalties for illegal gratuity-type offenses. See, e.g., United States v. Cianci, 378 F.3d 71, 99 (1st Cir. 2004) (affirming that bribery can be prosecuted under Hobbs Act). For further discussion, see Stephen F. Smith, Proportionality and Representation, 91 VA. L. REV. 879, 904-08, 918-21 (2005) (arguing that the Supreme Court's holding in Evans overrode Congress's intent to distinguish between illegal gratuity and bribery offenses).
117. U.S. SENTENCING GUIDELINES MANUAL app. A (2007) [hereinafter U.S.S.G. MANUAL] (specifying particular offense guideline section applicable to statutes of conviction, including 18 U.S.C. §§ 201(b) and (c)).
118. U.S.S.G. MANUAL ch. 2, pt. C, introductory cmt. (2007). In 2005, the Supreme Court severed the provision that made the Guidelines mandatory, rendering them "effectively advisory." See United States v. Booker, 543 U.S. 220, 245 (2005); see also Kimbrough v. United States, 2007 WL 4292040, at *10, (U.S. Dec. 10, 2007) ("[W]hile [the federal sentencing statute] still requires a court to give respectful consideration to the Guidelines, see Gall v. United States, 2007 WL 4292116 (U.S. Dec. 10, 2007), Booker 'permits the court to tailor the sentence in light of other statutory concerns as well.' Booker, 543 U.S. at 245-46.").
119. U.S.S.G. MANUAL app. A (2007) (specifying particular offense guideline section applicable to statutes of conviction, including §§ 201(b)(1) and (2)).
120. U.S.S.G. MANUAL § 2C1.1(a)(1) (establishing base offense level for bribery of a public official at fourteen).
121. Id. § 2C1.1, cmt. n. 1 (A)-(E) (defining "public official" to include a broad group).
122. U.S.S.G. MANUAL § 2C1.1(b) (outlining specific offense characteristics for bribery).
123. U.S.S.G. MANUAL § 2C1.1(b)(1) (increasing base offense level for offenses involving more than one incident of bribery); see also United States v. Snell, 152 F.3d 345, 346 (5th Cir. 1998) (adding two levels because offense involved more than one bribe); U.S.S.G. MANUAL § 2B1.1 (providing table for offenses involving fraud and deceit).
124. United States v. Bynum, 327 F.3d 986, 993 (9th Cir. 2003) (concluding that the district court did not err in finding more than one bribe when it was foreseeable to the defendant that another individual would be solicited a bribe in furtherance of the jointly undertaken plan to embezzle public funds); see also U.S.S.G. MANUAL § 1B1.3 (2007) (stating that when calculating base offense levels under Chapter Two of the Guidelines, courts should include "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity"); United States v. Misla-Aldarondo, 478 F.3d 52, 70-71 (1st Cir. 2007) (finding defendant liable for bribes of co-defendant even though he did not know about them).
125. U.S.S.G. MANUAL § 2C1.1, cmt. n.2; see also United States v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002) (explaining courts consider whether offense conduct involves "installment payments for a single action" when determining whether an offense involves "more than one bribe or extortion").
126. See, e.g., United States v. Arshad, 239 F.3d 276, 281 (2d Cir. 2001) ("[T]he fact that different payments are intended to elicit different actions may . . . warrant treating the payments as multiple bribes."); United States v. Kahlon, 38 F.3d 467, 470 (9th Cir. 1994) (holding payments made as part of larger conspiracy need not be installment payments).
127. See Arshad, 239 F.3d at 281 (finding payments made to an inspector for passing numerous inspections were independent bribes even though they were all part of a single scheme); United States v. Weaver, 175 Fed. Appx. 506, 511 (3rd Cir. 2006) (holding that separate payments for performing the same action on three different occasions can constitute multiple bribes).
128. See United States v. Morales, 11 F.3d 915, 917 (9th Cir. 1993) (concluding that multiple payments made to an IRS agent in different amounts and at distinct intervals were not installments of a single bribe); see also Weaver, 175 Fed. Appx. at 511 (concluding that a large payment made after the defendant had already received the agreed upon payment supported a finding of multiple bribes); Arshad, 239 F.3d at 281-82 (considering that payments were made at a fixed rate as a factor that could imply they were installments of a single bribe).
129. See Morales, 11 F.3d at 917 (finding that multiple payments to an IRS agent by different sources implied that they were not installments of a single bribe); see also Arshad, 239 F.3d at 282 (noting that payments made by a single individual and through the same channels could imply that they were installments of a single bribe); Weaver, 175 Fed. Appx. at 511 (considering different methods of delivery as one factor in a finding of multiple bribes).
130. U.S.S.G. MANUAL § 2C1.1(b)(2) (2007); see also United States v. Pankhurst, 118 F.3d 345, 354 (5th Cir. 1997) (detailing "Specific Offense Characteristics" created by § 2C1.1(b)(2) that increase the base offense level, including a fourteen-level increase recommended because the benefit received from the bribe exceeded $5,000,000).
131. See, e.g., United States v. Falcioni, 45 F.3d 24, 28 (2d Cir. 1995) (finding intended loss of $41,000 to government was correctly used to increase base offense level of defendant who attempted to bribe IRS official in exchange for discharge of friend's $41,000 tax liability, even though defendant stood to benefit only $3500 and had no apparent knowledge of extent of tax liability).
132. U.S.S.G. MANUAL § 2C1.1, cmt. n.3.
133. See id. § 2C1.1, cmt. n.3(C); see also United States v. Edwards, 496 F.3d 677, 683-84 (D.C. Cir. 2007) (affirming reliance on the defendant's quoted benefit that would be conferred as reasonable).
134. See United States v. Kinter, 235 F.3d 192, 196 (4th Cir. 2000) (including the profits a conspiring company received as a result of an illegal payment by a middle man in the calculation of benefits received for the purposes of sentencing the middle man); United States v. Gillam, 167 F.3d 1273, 1279 (9th Cir. 1999) (following the decisions of other Circuit Courts to find that the benefits accrued by all participants in the scheme are included in the calculation of the "benefit" of the middle man); cf. United States v. Agostino, 132 F.3d 1183, 1197 (7th Cir. 1997) (determining that benefits accrued by third parties could not be included in the calculation of benefit to the payer when it has not been proven that the parties were co-conspirators).
135. See, e.g., United States v. Muhammad, 120 F.3d 688, 701 (7th Cir. 1997) (finding that the fact that the government intervened before a juror could act in favor of a litigant who bribed him did not eliminate the "benefit" for sentencing purposes).
136. See, e.g., Edwards, 496 F.3d at 682 (noting that an unsuccessful bribe does not prevent the court from considering the benefit that the bribe intended to achieve in order to enhance the sentence under § 2C1.1(b)(2)(A)); United States v. Quinn, 359 F.3d 666, 680 (4th Cir. 2005) (rejecting the argument that a benefit sought from a scheme that was never carried out should not be considered a "benefit" for sentencing purposes).
137. See United States v. Thickstun, 110 F.3d 1394, 1400 (9th Cir. 1997) (holding that, although the payor had legal means for escaping full payment to the IRS, his sentence was commensurate with the full amount).
138. See U.S.S.G. MANUAL § 2C1.1, cmt. n.3 (2007) (directing courts to apply the definition of "loss" found in § 2B1.1, cmt. n.3).
139. Id. § 2C1.1(b)(3).
140. See United States v. Lazarre, 14 F.3d 580, 581 n. 3 (11th Cir. 1994) (using "the term 'high-level official' . . . [to] refer to an official in a high level decision-making or sensitive position"); see also United States v. Gatling, 96 F.3d 1511, 1526 (D.C. Cir. 1996) (citing United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) demonstrating that a Chief of Section 8 housing was a "high-level" official).
141. See United States v. Reneslacis, 349 F.3d 412, 416 (7th Cir. 2003) (considering an INS official to hold a "sensitive," but not "high-level" position).
142. U.S.S.G. MANUAL § 2C1.1, cmt. n.4(B) (2007) (providing illustrative list of officials holding high-level decision-making positions); see also United States v. Vega, 184 Fed. Appx. 236, 245 (3rd Cir. 2006) (holding that a customs supervisor was guilty of taking bribes as a "high level official").
143. See Reneslacis, 349 F.3d at 416 (listing factors that courts have considered to contribute to the implication of a "high-level" position).
144. U.S.S.G. MANUAL § 2C1.1, cmt. n.4(B) (providing illustrative list of officials holding sensitive positions).
145. See United States v. Stephenson, 895 F.2d 867, 877-78 (2d Cir. 1990) (deciding that an export licensing officer did not hold a "sensitive" position despite having some supervisory and discretionary powers because § 2C1.1(b)(2) is intended to apply only to those holding "high positions of public trust").
146. See United States v. Cardenas, 135 Fed. Appx. 688, 690 (5th Cir. 2005) (finding an IRS agent to hold a sensitive position despite not being in a supervisory role).
147. Reneslacis, 349 F.3d at 416 (considering the fact that an INS adjudication officer held a "sensitive" position in part because he made important public decisions that, although made in conformance with guidelines, were rarely reviewed in practice).
148. Id. (INS adjudication officer held, among other quasi-judicial functions, the power to subpoena witnesses and take testimony); see also United States v. Lazarre, 14 F.3d 580, 582 (11th Cir. 1994) (finding that an INS official with discretion to set bonds and parole and detain immigrants held a "sensitive" position).
149. See United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) (considering a supervisory engineer, working with Navy procurement as holding a "sensitive" position because he had considerable discretion and influence in matters that, if abused, could cost the government millions of dollars).
150. U.S.S.G. MANUAL § 2C1.1(b)(4) (2007).
151. Id. § 2C1.1(c) (providing cross-references to other criminal offenses for application of those offense levels).
152. Id. § 2C1.1(c)(1); see also United States v. Shenberg, 89 F.3d 1461, 1475 (11th Cir. 1996) (increasing defendant's offense level above the usual amount because defendant participated in planning a murder).
153. U.S.S.G. MANUAL § 2C1.1(c)(2); see also United States v. Baker, 82 F.3d 273, 277 (8th Cir. 1996) (cross-referencing to § 2J1.2 on the ground that defendant police officer's extortion of a motorist was committed for the purpose of obstructing justice).
154. U.S.S.G. MANUAL § 2C1.1(c)(3); see also United States v. Harmon, 194 F.3d 890, 900 (8th Cir. 1999) (finding solicitation of monetary payments in exchange for not prosecuting crimes involved only a threat of prosecution and not threats of physical injury or property destruction).
155. U.S.S.G. MANUAL § 2C1.1(d) (2007).
156. Id. § 2C1.1 cmt. n.7; see also United v. Reeves, 892 F.2d 1223, 1229 (5th Cir. 1990) (finding that when bribes would have continued indefinitely, and it was therefore impossible to know the full value of the scheme, an upward adjustment was appropriate).
157. Id. § 2C1.1 cmt. n.7 (allowing for an upward adjustment when a bribe is part of "systematic or pervasive" scheme that corrupts government processes and when a conspiracy will "cause loss of public confidence in government"); see also Shenberg, 89 F.3d at 1476 (finding that an upward adjustment was appropriate for a judge involved in a kickback scheme that involved murder because such actions may erode public confidence in government). But see United States v. Chance, 306 F.3d 356, 396 n.18 (6th Cir. 2002) (concluding that mere assertion that the bribed official held a powerful post was insufficient, standing alone, to warrant upward adjustment).
158. U.S.S.G. MANUAL app. A. For an in-depth discussion of the impact of the recent Supreme Court decision, United States v. Booker, on the Guidelines see supra Section II.C.
159. U.S.S.G. MANUAL § 2J1.3(a). (2007)
160. Id.
161. Id. § 2J1.3(b)(2); see also United States v. Johnson, 485 F.3d 1264, 1271-72 (11th Cir. 2007) (upholding a three-level enhancement under § 2J1.3(b)(2) for false testimony of the defendant before a grand jury that resulted in the government incurring additional investigative expenses).
162. U.S.S.G. MANUAL § 2J1.3(c).
163. Id. § 2J1.3, cmt. n.4.
164. Id. app. A.
165. Id. § 2C1.2(a)(2).
166. Id. § 2C1.2(a)(1); see also id. § 2C1.2, cmt. n.1 (defining the term "public official" broadly).
167. Id. § 2C1.2(b).
168. U.S.S.G. Manual § 2C1.2(b)(1). But see United States v. Smith, 267 F.3d 1154, 1158 (D.C. Cir. 2001) (holding that increasing the base offense level by two is not allowed in cases of multiple gratuities if the court finds defendant accepted multiple gratuities by a preponderance of the evidence standard after jury failed to find the defendant guilty by a reasonable doubt standard).
169. U.S.S.G. MANUAL § 2C1.2, cmt. 2; see also United States v. Canestraro, 282 F.3d 427, 432 (6th Cir. 2002) (finding twenty payments of illegal gratuities were multiple gratuities and not installments for a single gratuity).
170. U.S.S.G. MANUAL § 2C1.2(b)(2); see also Smith, 267 F.3d at 1158 (increasing the base offense level by four in a case in which illegal gratuities were valued at $29,600).
171. U.S.S.G. MANUAL § 2C1.2(b)(3) (2007).
172. United States v. Vega, 184 Fed. Appx. at 245 (3rd Cir. 2006) (holding that a customs supervisor was guilty of taking bribes as a "high level official"); U.S.S.G. MANUAL § 2C1.2, cmt. n.3(B) (2007) (outlining individuals who qualify as high-level officials).
173. U.S.S.G. MANUAL § 2C1.2(b)(4).
174. Id. app. A.
175. Id. § 2J1.9(a).
176. Id. § 2J1.9(b)(1). But see United States v. Cefalu, 85 F.3d 964, 968 (2d Cir. 1996) (holding courts are not required to add an obstruction of justice adjustment level enhancement when a defendant intended to obstruct justice; courts may keep the base level of six provided by § 2J1.9(a)).
177. 18 U.S.C. § 203 (2000) (prohibiting unauthorized compensation of government officials for representing persons before the government).
178. 18 U.S.C. § 205 (2000) (prohibiting government officials from representing persons prosecuting claims against the United States or before the government).
179. 18 U.S.C. § 207 (2000) (restricting post-employment activities of former executive branch officials).
180. 18 U.S.C. § 208 (2000) (prohibiting executive branch officials from participating in matters that affect their financial interest).
181. 18 U.S.C. § 209 (2000) (prohibiting executive branch officials from receiving outside salaries).
182. 18 U.S.C. § 216 (2000) (outlining the penalties applicable for a violation of §§ 203-209).
183. Id. § 203 (prohibiting unauthorized compensation of government officials for representing persons before government).
184. Id. As with the bribery offense, the defendant may either be a public official or one who attempts to influence a public official; most principles apply equally to either instance. Id. For a comprehensive discussion of § 203, as well as comparisons of this section to § 205 and others, see generally Perkins, supra note 1. See also Kenneth A. Gross, The Enforcement of Campaign Finance Rules: A System in Search of Reform, 9 YALE L. & POL'Y REV. 279, 296-98 (1991) (discussing applicability of § 203 to campaign contributions made as improper compensation, and suggesting that it should be "vigorously enforced" by federal prosecutors).
185. 18 U.S.C. § 216 (setting forth punishments for violations of §§ 203-209).
186. Id. § 203; see also United States v. Myers, 692 F.2d 823, 855 (2d Cir. 1982) (stating that, in passing § 203, "Congress was primarily concerned with government officials being paid to bring their influence to bear on federal agencies"); United States v. Evans, 572 F.2d 455, 479 (5th Cir. 1978) (stating the purpose of §§ 201 and 203 is "to reach any situation in which the judgment of a government agent might be clouded because of payments or gifts made to him by reason of his position").
187. 18 U.S.C. § 203(a)(1)(A)-(B) (2000) (setting forth the individuals covered by the statute). See generally Jeffrey Green, History of Conflicts of Law, 26 HAMLINE L. REV. 555, 562-63 (2003) (discussing history and scope of § 203).
188. 18 U.S.C. § 202(a) (defining "special government employee" for purposes of § 203 as an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or of the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis, a part-time United States commissioner, a part-time United States magistrate, or, regardless of the number of days of appointment, an independent counsel appointed under chapter 40 of title 28 and any person appointed by that independent counsel under § 594(c) of title 28.); see also United States v. Baird, 29 F.3d 647, 650-51 (D.C. Cir. 1994) (discussing the "special government employee" classification); Starr v. Mandanici, 152 F.3d 741, 752 n.25 (8th Cir. 1998) (stating that independent counsel are "special government employees").
189. 18 U.S.C. § 203(a)(2) (applying to whoever "knowingly gives, promises or offers any compensation for any such representational services" to public officials).
190. See Baird, 29 F.3d at 650-51 (D.C. Cir. 1994) (reversing district court, and stating that reserve Coast Guard officer was not a "special government employee" under § 203(c); rather, because his aggregated tours of duty totaled more than 130 days during a 365 day period, he was a "regular officer" under § 203(a)).
191. 18 U.S.C. § 206 (2000) (providing both §§ 203 and 205 do not apply to retired officers who are not on active duty).
192. Id. § 203(e) (stating that, for exemption to apply to government employee in this context, head of agency concerned with grant must certify, by publication in Federal Register, that "the national interest" requires work of that employee).
193. Id. § 203(f) (explaining that § 203 does not prevent an individual from making statements or giving testimony under oath); see also Kelly v. Pan. Canal Comm'n, 26 F.3d 597, 602 (5th Cir. 1994) (stating that §§ 203(f) and 205(g) expressly exclude from punishment or sanction "the giving of testimony under oath").
194. 18 U.S.C. § 203(d) (stating that § 203 does not prevent an officer or employee from acting "with or without compensation, as agent or attorney for or otherwise representing his parents, spouse, child, or any person for whom . . . he is serving as guardian, executor, administrator, trustee, or other personal fiduciary" except in matters in which he has participated substantially as an employee or in matters that are the subject of his official responsibility).
195. 18 U.S.C. § 202(a) (2000).
196. Id. § 203(c)(1)-(2) (listing matters which bring special government employees within the reach of the statute); see also Jeffrey Lovitky, The Problems of Government Contracting for Consulting Services, 14 PUB. CONT. L.J. 332, 345-46 (1984) (arguing that federal conflict of interest prohibitions are not as extensive for special government employees and that it is generally believed that independent contractors do not fall within the scope of these laws).
197. See United States v. Wallach, 935 F.2d 445, 469-72 (2d Cir. 1991) (finding conspiracy to violate § 203 to be legally sufficient even though defendant never became a federal employee).
198. See 18 U.S.C. § 203(a)(1)(B) (2000) (prohibiting an individual from demanding, seeking, receiving, accepting, or agreeing to receive compensation for any representational services "in relation to any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest").
199. See United States v. Williams, 705 F.2d 603, 622 (2d Cir. 1983) (stating that the "phrase 'other particular matter' has the effect of causing the adjective 'particular' to modify all of the preceding nouns, including 'contract'").
200. Id. (holding that it is sufficient if the government shows compensation was received for services rendered "with respect to a particular category of contracts").
201. See United States v. Wallach, 979 F.2d 912, 920-21 (finding that an indictment referencing Department of Defense contracts with defendant satisfied § 203); Williams, 705 F.2d at 622 (applying § 203 when a conflict "applies to a particular category of matters and need not be narrowed to just one identified contract, which might not be known until a proceeding involving the contract was actually pending") (citations omitted).
202. See United States v. Evans, 572 F.2d 455, 481 (5th Cir. 1978) (en banc) ("[I]t is immaterial that the donee-official's position is ministerial or subordinate, or even that he actually lacks the authority to perform an act to benefit the donor."); see also United States v. Myers, 692 F.2d 823, 854 n.26 (2d Cir. 1982) (holding that the charge need not specify the matter pending at the time compensation is received); United States v. Standefer, 610 F.2d 1076, 1080 (3d Cir. 1979) ("All that was required in order to convict Standefer [under § 201(f)] was that the jury conclude that the gifts were given by him for or because of Niederberger's official position, and not solely for reasons of friendship or social purposes."). But see United States v. Sun-Diamond Growers of Cal., 138 F.3d 961, 968 (D.C. Cir. 1998) (declining to follow Evans and Standefer in § 201(c)(1)(A) context, and stating that decisions suggesting gifts motivated solely by recipient's official position are illegal gratuities disregard "the explicit language of the statute"); see also Peter J. Henning, Public Corruption: A Comparative Analysis of International Corruption Conventions and United States Law, 19 ARIZ. J. INT'L & COMP L. 793, 829-37 (2001) (discussing the "expanded" reach of recent federal conflict of interest laws, which cover a "broader form of political corruption").
203. 18 U.S.C. § 203(a)(1)-(2) (2000) (setting forth the circumstances in which § 216 penalties should be applied); see also Myers, 692 F.2d at 859 n.36 ("[S]imply an agreement to receive money, rather than actual receipt would violate . . . § 203.").
204. E.g., Evans, 572 F.2d at 481 (concluding that airline tickets are a form of illegal compensation).
205. E.g., United States v. Williams, 705 F.2d 603, 607 n.2 (2d Cir. 1983) (concluding that receipt of loan and "sum of money" violates § 203).
206. See Myers, 692 F.2d at 853 n.24 (allowing "for the sake of argument" that the defendant must be shown to have received the money for his own benefit).
207. United States v. Freeman, 813 F.2d 303, 306 (10th Cir. 1987) (deciding government must prove that "the official accepted, because of his position, a thing of value 'otherwise than as provided by law for the proper discharge of official duty'" (quoting United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978))); see also United States v. Bustamante, 45 F.3d 933, 938 (5th Cir. 1995) (stating that to find bribery, a jury must find that an official accepted a thing of value).
208. See United States v. Evans, 572 F.2d at 480 (holding that specific intent is not an element of § 203(a), and "the requisite intent necessary to sustain a conviction for bribery is that the official accept a thing of value 'corruptly'").
209. Evans, 572 F.2d at 481; see also United States v. Alexandro, 675 F.2d 34, 43 (2d Cir. 1982) (discussing the significance of intent with respect to § 203(a)).
210. See United States v. Baird, 29 F.3d 647, 652 (D.C. Cir. 1994) (holding that specific intent is not required under § 203(a), despite the fact that a Coast Guard reservist did not know that his position was one covered under § 203).
211. See id. at 653-54 ("[T]he government 'opened the door' on the matter of defendant's state of mind . . . [and o]nce the door is opened, the other party can get through it otherwise irrelevant evidence 'to the extent necessary to remove any unfair prejudice which might otherwise have ensued.'" (quoting United States v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990))).
212. Compare 18 U.S.C. § 203(a)(1) (2000) ("Whoever . . . directly or indirectly - (1) demands, seeks, receives . . . ."), with 18 U.S.C. § 203(a)(2) ("[K]nowingly gives, promises, or offers . . . ."). See also United States v. Baird, 778 F. Supp. at 537 (acknowledging this difference, and surmising that Congress intended to "treat government employees receiving payments . . . more harshly than donors of such payments"), rev'd on other grounds, 29 F.3d 647 (D.C. Cir. 1994). But see Stern v. General Electric, 924 F.2d 472, 478 (2d Cir. 1991) ("Criminal intent under § 203 turns not on what the contributor expects the recipient to do with the money, but rather on what the contributor expects to receive for that money."); Evans, 572 F.2d at 480 (asserting in dicta that a different scienter requirement applies with respect to donors).
213. 18 U.S.C. § 203(a)(1)(B) (listing as forums "any department, agency, court, court-martial, officer, or any civil, military or naval commission").
214. See infra notes 213-18 (describing service requirement).
215. Compare United States v. Freeman, 813 F.2d 303, 306 (10th Cir. 1987) (holding defendant was subject to § 203 even though he had not compensated a public official for services before any listed forum), with United States v. Myers, 692 F.2d 823, 857 (2d Cir. 1982) (reversing § 203 conviction where defendant provided compensated advice but did not perform services before a listed forum).
216. Freeman, 813 F.2d at 306.
217. Myers, 692 F.2d at 857.
218. United States v. Wallach, 979 F.2d 912, 920 (2d Cir. 1992) (holding defendant's promise to influence U.S. Attorney General and Department of Defense on payer's behalf to be a violation of § 203(a)(1)).
219. Id. (reiterating Myers Court's holding that proscribed services must be performed before the federal forum in question).
220. Id. ("Congress wished to punish a federal official who accepts compensation not only for services rendered directly before the department where a contract decision is pending but also for services rendered indirectly through another federal official.").
221. 18 U.S.C. § 203(a)(1) (2000) (proscribing receipt or giving of compensation for "representational services").
222. Pub. L. No. 101-194, Title I, § 101(a), 103 Stat. 1716, 1716-24, (as amended by Act of May 4, 1990, Pub. L. No. 101-280, §§ 2(a), 5(d), 104 Stat. 149, 149-52, 159 (adding technical corrections to the Ethics Reform Act of 1989), and as amended by Federal Employees Pay Comparability Act of 1990, Pub. L. No. 101-509, Title V, § 529, 104 Stat. 1389, 1440-41 (conforming Ethics Reform Act of 1989 to Federal Employees Pay Comparability Act of 1990)) [hereinafter Ethics Reform Act].
223. 692 F.2d 823 (2d Cir. 1982).
224. Id. at 858 (stating that services to be performed before federal agency are covered by 18 U.S.C. § 203, whereas mere advice concerning immigration problems are not).
225. Id.
226. Ethics Reform Act, § 402; 135 CONG. REC. 29,668 to 29,671 (1989) (providing section-by-section analysis of Ethics Reform Act). A central aspect of § 203(a) is compensation. See supra note 196 and accompanying text (discussing compensation as element to § 203). A person may provide some services otherwise prohibited by the Act without such compensation. See 18 U.S.C. § 203(d) (2000) (stating that representation, with or without compensation, is permissible for family or any other person for whom federal employee is serving as personal fiduciary, except in those matters in which the official is substantially involved or matters that are within the ambit of his official responsibility).
227. See supra Section II.B. (discussing available defenses).
228. See United States v. Baird, 29 F.3d 647, 654 (D.C. Cir. 1994) (applying this defense to a reserve officer who relied on the legal advice of a Coast Guard official (quoting United States v. Barker, 546 F.2d 940, 955 (D.C. Cir. 1976))); accord MODEL PENAL CODE § 2.04(3)(b) (Official Draft 1985) (listing similar requirements for defense of reasonable reliance on an official statement).
229. See United States v. Carpentier, 689 F.2d 21, 25 (2d Cir. 1982) (citing Hampton v. United States, 425 U.S. 484, 495 n. 7 (1976) (Powell, J., concurring)).
230. See id. at 25-26 (rejecting the "outrageous behavior" defense when an undercover operation induced a defendant to act in a fashion that brought about conflict of interest charges); see also United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998) (denying the "outrageous government conduct" defense to defendants caught in a drug sting).
231. 18 U.S.C. § 205(a)(2) (2000) (stating that a federal employee who prosecutes a claim against the government or acts as an agent for an individual or group prosecuting a claim in which the United States is a party or has a direct and substantial interest shall be subject to the penalties set forth in § 216). See generally Van Ee v. EPA, 202 F.3d 296, 305-08 (D.C. Cir. 2000) (discussmg legislative history of § 205).
232. But see DeMarrias v. United States, 713 F. Supp. 346, 347 (D.S.D. 1989) (holding there was no conflict which prevented part-time Veteran's Admimstration doctor from testifying for plaintiff against government).
233. See United States v. Myers, 692 F.2d 823, 856 (2d Cir. 1982) (discussing similarities and differences between §§ 203 and 205).
234. Id. (noting one of two marked differences between §§ 203 and 205 is that § 205 prohibits conduct whether or not performed for compensation); see also supra notes 196-99 and accompanying text (discussing compensation element of § 203).
235. 18 U.S.C. § 205(a)(1)-(2) (making no mention of compensation); see also Myers, 692 F.2d at 856 (stating officials are prohibited from acting as agents or attorneys for anyone even if they receive no compensation).
236. See Elefant, supra note 233, at 728.
237. See id. at 720 (critiquing the policy decision to criminalize pro bono work by federal employees).
238. 18 U.S.C. § 205(a) (2000).
239. Id. § 205(c) (limiting application to covered matters "involving a specific party or parties"). See Lisa G. Lerman, Public Service by Public Servants, 19 HOFSTRA L. REV. 1141, 1170 (1991) (explaining that a special government employee is "an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or of the District of Columbia, who is employed with or without pay for not more than 130 days during any 365-day period").
240. For a discussion of the history, impetus, and consequences of the amendment, see, e.g., Philip Luci, Jr., Contracting with Government Employees: An Overly Restrictive Rule, a Comparison, and a Compromise, 27 PUB. CONT. L.J. 37, 72 (1997).
241. 18 U.S.C. § 205(c)(1) (stating special government employee is only subject to restrictions of § 205(a) and (b) if such employee has "at any time participated personally and substantially as a Government employee or special Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise" in the matter in question).
242. Id. § 205(c)(2) (stating special government employee is subject to § 205 restrictions if matter in question is pending in department or agency in which employee is serving, except when employee has served in department or agency for no more than sixty days during the immediately preceding year).
243. Federal Employee Representation Improvement Act of 1996, Pub. L. No. 104-177, § 2, 110 Stat. 1563 (1996) (amending 18 U.S.C. § 205(d)(1)(B)). Congress intended this amendment to allow government employees who were also members of employee associations to voice their opinions before the government.
244. A person acts as an agent where he seeks to influence agency decision-making on behalf of another organization. See O'Neill v. Dep't of Hous. and Urban Dev., 220 F.3d 1354, 1360 (Fed. Cir. 2000) (holding that, in absence of statutory definition, common-law meaning of "agent" should be used in deciding whether government employee is acting as agent for purposes of § 205); Refine Constr. Co. v. United States, 12 Cl. Ct. 56, 61 (1987) (holding that "agent" is broadly-defined term where one is authorized to act for another). The agency of an employee may be dependent upon his actions during the proceedings at issue. See United States v. Schaltenbrand, 930 F.2d 1554, 1561 (11th Cir. 1991) (concluding that defendant was not agent where he attended covered meeting, but did not participate). An employee is not, however, prevented from joining an organization, maintaining a leadership position, or representing the organization in non-governmental proceedings. See Van Ee v. EPA, 55 F. Supp. 2d 1, 16 (D.D.C. 1999), rev'd on other grounds, 202 F.3d 296 (D.C. Cir. 2000).
245. 18 U.S.C. § 205(h) (2000) (stating that covered matter is "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter"); see Van Ee, 202 F.3d at 302-03 (D.C. Cir. 2000) (concluding that § 205 is to apply only to matters in which the governmental decision at stake is focused on conferring a benefit, imposing a sanction, or otherwise having a discernable effect on the financial or similarly concrete interests of identifiable persons or entities).
246. 18 U.S.C. § 205(d)(2)(A) (including the governments of the United States and the District of Columbia).
247. Id. § 205(d)(2)(B).
248. 18 U.S.C. § 205(d)(2)(C).
249. See Van Ee, 202 F.3d at 302 (rejecting plaintiff's argument that § 205 is limited to adversarial proceedings and formal legal relationships).
250. 18 U.S.C. § 205(d) (stating that government employees may act as agents or attorneys for, or otherwise represent parties, if matter is not one in which they have participated personally or substantially and is not within their official responsibihties).
251. 18 U.S.C. § 205(g) (2000); Kelly v. Pan. Canal Comm'n, 26 F.3d 597, 603 (5th Cir. 1994) (stating that § 205 excludes testimony under oath from punishment); see also DeMarrias v. United States, 713 F. Supp. 346, 347 (D.S.D. 1989) (holding that testimony of government physician is not contrary to purpose of either § 203 or § 205).
252. U.S. CONST. amend. V ("No person shall be . . . compelled in any criminal case to be a witness against himself.").
253. See Young v. United States, 181 F.R.D. 344, 347-48 (W.D. Tex. 1997) (denying Young's motion to compel, and holding testimony was not privileged such that government could block its introduction, but that witness could assert Fifth Amendment right not to testify due to possibility of prosecution under § 205).
254. See Van Ee, 202 F.3d at 301 (D.C. Cir. 2000) ("Interpreting the scope of matters covered by § 205(a)(2) is an issue of first impression in this circuit").
255. See O'Neill v. Dep't of Hous. and Urban Dev., 220 F.3d 1354, 1360-63 (Red. Cir. 2000) (interpreting term "agent" in § 205 in absence of statutory definition).
256. 202 F.3d 296 (D.C. Cir. 2000).
257. Id. at 309.
258. See id. at 303 (citing similar interpretations expressed in opinions of the Office of Government Ethics ("OGE"), and the DOJ's Office of Legal Counsel ("OLC")).
259. 220 F.3d 1354 (Fed. Cir. 2000).
260. Id. at 1356-58 (finding that O'Neill met with Base Conservation Agency officials, and sent e-mails and made phone calls to HUD official regarding the proposal).
261. See id. at 1360 (stating that, when a term with established common law or equity meaning is used in statute, Congress intends to incorporate that meaning unless statute indicates otherwise) (citations omitted).
262. See id. at 1363 (concluding that there was no evidence to show that O'Neill had actual or apparent authority to represent non-profit agency).
263. 18 U.S.C. § 205(d)(1)(A) (2000); see also Bachman v. Pertschuk, 437 F. Supp. 973, 976 (D.D.C. 1977) (recognizing pro bono exception to § 205 in administrative proceeding). But see Elefant, supra note 233, at 720, 734-40 (discussing the negative effect of § 205's "criminalization" of pro bono representation); United States v. Bailey, 498 F.2d 677, 680 (D.C. Cir. 1974) (invoking § 205 to prevent two part-time Georgetown University law students, who also worked for government, from participating in appellate litigation clinic representing indigent clients; the court held that "criminal cases could pose special problems where the defendant might also suffer, or claim to suffer, from his agent or attorney occupying a dual role . . .").
264. Elefant, supra note 233, at 729.
265. See Lerman, supra note 232, at 1170 (outlining various exceptions to the activities proscribed by § 205, and explaining the policies behind those exceptions).
266. See id. at 1190-1191 (analyzing the limited interpretation of § 205's pro bono exception clause); Bachman, 437 F. Supp. at 976 (holding that conflict of interest, not the violation of § 205, is at issue when a plaintiff class' attorney is employed by defendant federal agency and is himself a member of that plaintiff class).
267. 18 U.S.C. § 205(f). The legislative history explains: [t]his narrow authority is given to take care of any situations involving the national interest where an intermittent employee's special knowledge or skills may be required by his employer or other private person to effect the proper performance of a Government contract, but where his services may be unavailable in the absence of a waiver of section 205. S. REP. NO. 87-2213, at 11 (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3860.
268. 18 U.S.C. § 207 (2000).
269. See generally Federal Criminal Conflict of Interest, 40 AM. CRIM. L. REV. 531, 562-69 (2003) (discussing § 207 elements and application);
270. George D. Brown, The Constitution as an Obstacle to Government Ethics -Reformist Legislation After National Treasury Employees Union, 37 WM. & MARY L. REV. 979, 1013-18 (1996) (providing a discussion of § 207, "the prototypical revolving door statute").
271. 18 U.S.C. § 207; see Grant Dawson, Working Guidelines for Successive Conflicts of Interest Involving Government and Private Employment, 11 GEO. J. LEGAL ETHICS 329, 339-42 (1998) (describing the Ethics Reform Act of 1989 and its effect on § 207).
272. Former President Clinton further expanded the scope of § 207 by making post-employment restrictions on high-level appointees more stringent, requiring such appointees to sign an ethics pledge committing them to refrain from certain actions after termination of employment. For example, covered appointees are not allowed to lobby any employee or officer of their former agency for a period of five years after the termination of their employment. See Office of Government Ethics Authorization Act of 1996, Pub. L. No. 104-179, § 5, 110 Stat. 1566 (1996).
273. See United States ex rel. Siewick v. Jamieson Science and Eng'g, Inc., 214 F.3d 1372, 1374-77 (D.C. Cir. 2000) (finding insufficient evidence of a § 207 violation when a Navy employee accepted a position with a government contractor in his field within the year of his departure from government service).
274. 18 U.S.C. § 216 (2000); see generally Annotation, Limitation, Under 18 U.S.C.A. § 207, on Participation of Former Federal Government Officers and Employees in Proceedings Involvement Federal Government, 71 A.L.R. FED. 360 (1985 & Supp. 1996) (noting that majority of cases arising under § 207 have not involved criminal prosecutions, but rather claims that government contracts awarded to former government employees should be void, and observing that such claims have generally been unsuccessful).
275. Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735 (2007) (amending 18 U.S.C. § 207) (limiting the "revolving door" by requiring a "cooling-off" period so that congressional members must wait one to two years after leaving their jobs before lobbying their former colleagues).
276. 18 U.S.C. § 207 (2000); see also United States v. Coleman, 805 F.2d 474, 478 (3d Cir. 1986) (setting forth the elements of § 207 violation); Robert E. Derecktor of R.I., Inc. v. United States, 762 F. Supp. 1019, 1026 (D.R.I. 1991) (employing factors set out in Coleman in § 207 prosecution). But see Express One Intern., Inc. v. U.S. Postal Service, 814 F.Supp. 93, 101 (D.D.C. 1992) (limiting the holding in Derecktor "to the facts in that case, in which the court found no evidence that an alleged conflict of interest even could cause prejudice to the disappointed bidder").
277. 18 U.S.C. § 207(a)-(e).
278. Id. § 207(c)(2).
279. Id. § 207(a)-(e) (stating that restrictions may be imposed for one year, two years, or permanently, depending upon the employee's position and involvement with a "particular matter").
280. Id. § 207(a)-(f).
281. 18 U.S.C. § 207(a)(1) (2000); see U.S. ex rel. Watson v. Conn. Gen. Life Ins. Co., 2003 WL 203568 (E.D. Pa. 2003) (discussing application of § 207(a)(1), and applying the restriction on appearing "on behalf of any other person . . . in connection with a particular matter" to a specific set of facts); United States v. Martin, 39 F. Supp.2d 1333, 1334 (D. Utah 1999) (defining 'personally' as directly, and 'substantially,' as involvement that is significant "to the matter, or form[s] a basis for a reasonable appearance of such significance").
282. 18 U.S.C. § 207(a)(2); see United States v. Spellissy, 2006 WL 1232807 (M.D. Fl May 5, 2006) (finding probable cause for a violation when a retired United States Army colonel was accused of representing a defense contractor which offered weaponry that had been considered for procurement previously under his official responsibility).
283. 18 U.S.C. § 207(b)(1).
284. Id. § 207(d)(1)-(2) (limiting the contact that certain defined appointees of the President and Vice President can have with executive agencies for a period of two years).
285. Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat 735 (2007) (altering § 207(e)(1) entirely).
286. 18 U.S.C.A. § 207 (e)(1)(A) (West 2000 & Supp. 2007); Pub. L. No. 110-81, 121 Stat. 735 (adding this language).
287. 18 U.S.C.A. § 207 (e)(1)(B); Pub. L. No. 110-81, 121 Stat. 735 (inserting this distinction between Senators and House Members).
288. 18 U.S.C.A. § 207(c)(2)(B).
289. 18 U.S.C. § 207(j)(6).
290. Id. §§ 207(j)(6)(A)-(B). But see EEOC v. Exxon Corp., 202 F.3d 755, 758 (5th Cir. 2000) (holding the § 207(j)(6)(A) ban on government employees giving expert testimony does not apply "to the extent that the former employee may testify from personal knowledge as to occurrences which are relevant to the issues in the proceeding, including those in which the former Government employee participated, utilizing his or her expertise").
291. 18 U.S.C. § 207(j)(6)(A).
292. Id. § 207(j)(1)-(7) (articulating exceptions for official conduct for federal, state, or local governments, and for institutions, hospitals, and organizations exempted under § 501(c)(3) of the Internal Revenue Code, and stating that an employee may aid an international organization with prior Secretary of State approval, may provide a statement (without remuneration) based on his or her personal knowledge, may make a statement on a technological or scientific matter, may testify, and may make statements on behalf of political candidates or campaign committees).
293. 18 U.S.C. § 207(j)(5).
294. Office of Government Ethics Authorization Act of 1996, 18 U.S.C. § 207 (2000).
295. 18 U.S.C. § 207(a); see also O'Neill v. Dep't of Hous. and Urban Dev., 220 F.3d 1354, 1361-62 (Fed. Cir. 2000) (stating that § 207 does not narrow its application to "agents" as § 205 does, but rather "prohibits making, with the intent to influence, 'any communication to or appearance before any officer or employee' of specified government entities").
296. 930 F.2d 1554, 1561 (11th Cir. 1991) (stating that, where the government claims that a defendant "acted as an agent" for a party in violation of § 207(a) and does not also include a claim that a defendant "otherwise represented" a party in violation of § 207(a), defendant is only guilty if the government proves that he acted as an agent).
297. See id. at 1560 (defining the term "agent" in § 207, since it was not defined in the statute and no other court had examined its meaning).
298. See id. at 1561 (finding government's argument that defendant was an agent particularly weak, given that he was only asked to attend meetings in order to listen to proceedings, and that another individual had been designated as a spokesperson); see also Robert E. Derecktor of R.I., Inc. v. United States, 762 F. Supp. 1019, 1027 (D.R.I. 1991) (holding that defendant did not violate § 207(b) because he did not make "appearance" for representative purposes when he merely acted as messenger, and not in his professional capacity).
299. 18 U.S.C. § 207(a)(1)(B) (2000).
300. See United States v. Medico Indus., Inc., 784 F.2d 840, 845-46 (7th Cir. 1986) (affirming that Medico retained an army procurement officer for contract modification negotiations in violation of § 207 and that, where the United States has an interest, it may not be estopped from a § 207 claim due to the inaction or wrong action of a subordinate official). But see United States ex rel. Siewick v. Jamieson Sci. and Eng'g, Inc., 214 F.3d 1372, 1375-78 (D.C. Cir. 2000) (permitting a Navy employee to accept a position with a government contractor with which he had previously associated).
301. 18 U.S.C. § 207(a)(1)(B).
302. Id. § 207(i)(3).
303. 202 F.3d 755 (5th Cir. 2000).
304. Id. at 757 (quoting Medico, 784 F.2d at 843).
305. The Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (1990); EEOC, 202 F.3d at 757.
306. See EEOC, 202 F.3d at 757.
307. See id. at 758.
308. 719 F.2d 1567 (Fed. Cir. 1983).
309. See id. at 1576-77 (holding no § 207 violation when defendant was not involved in particular matter in question while employed by government).
310. Id. at 1571.
311. See id. at 1576 (stating that the previous matter and current matter were not the same particular matter "because of (a) time elapsed between them, and (b) fundamental differences in their scope and approach").
312. See United States v. Medico Indus., Inc., 784 F.2d 840, 843-44 (7th Cir. 1986) (stating that a contract does not constitute a "particular matter" for the purposes of § 207 when the contracts do not involve the same "parties, facts, and subject matter").
313. See Robert E. Derecktor of R.I., Inc. v. United States, 762 F. Supp. 1019, 1026 (D.R.I. 1991) (stating that a messenger is not acting in a professional capacity and thus does not violate § 207).
314. EEOC, supra note 300.
315. Id.; see also United States v. Clark, 333 F. Supp. 2d 789, 794-95 (E.D. Wis. 2004) (holding that defense counsel in drug trafficking conspiracy case who, when he previously was assistant United States attorney, supervised drug trafficking investigation that identified his current client as potential defendant, participated in a "particular matter involving a specific party").
316. See Kelly v. Brown, 9 Vet. App. 37, 39 (1996) (holding witness could testify because his involvement with the previous matter was insubstantial); see also United States v. Martin, 39 F. Supp. 2d 1333, 1335 (D. Utah 1999) (dismissing counsel for conflict of interest where counsel's conduct, "as a whole, creates the 'reasonable appearance' of significance"); United States v. Gonzalez-Florido, 986 F. Supp. 687, 689 (D.P.R. 1997) (allowing counsel to remain where she had participated as U.S. Attorney with same defendant, but several years prior); Violet v. Brown, 9 Vet. App. 530, 532-33 (1996) (finding conflict of interest where counsel had previously represented opposition).
317. Kelly, 9 Vet. App. at 39 ('Substantial responsibility envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question.").
318. See C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1576 (Fed. Cir. 1983) (articulating this standard). But see United States ex rel. Siewick v. Jamieson Sci. and Eng'g, Inc., 214 F.3d 1372, 1374-75 (D.C. Cir. 2000) (finding that a Navy employee could work for a government contractor despite negotiating prices with that same contractor during his government service).
319. See United States v. Nofziger, 878 F.2d 442, 454 (D.C. Cir. 1989) (reversing conviction because government had not proven defendant had knowledge of each element of offense); see also United States v. Baird, 29 F.3d 647, 652 (D.C. Cir. 1994) (discussing "knowledge" in § 203 context and stating Nofziger only required that government prove defendant knew facts that made conduct criminal, not that he knew those facts added up to crime).
320. 878 F.2d at 444-45 (D.C. Cir. 1989).
321. See id. at 446 (rejecting the government's claim that § 207 is violated if defendant communicates with a governmental agency on a subject with which it has an interest even if the defendant has no reason to know that that interest exists).
322. See id. at 454 (stating that, because there is no evidence that Congress intended § 207 to impose strict liability, court must be guided by rule of lenity and presumption of mens rea).
323. 18 U.S.C. §§ 207(a)(1)-(2), (e)(1)-(5) (2000).
324. Id. § 208(a) (2000); see United States v. Lund, 853 F.2d 242, 243-47 (4th Cir. 1988) (finding a violation of § 208 where defendant participated in his wife's employment contract, and noting § 208 was extended by Congress because it "fail[ed] to cover other personal and substantial participation in matters in which the employee ha[d] a personal interest"). But cf. United States v. Tierney, 947 F.2d 854, 865 (8th Cir. 1991) (holding that, where prosecutor's spouse was partner in law firm representing defendant's insurer and insurer had sued defendant, such "interest [was] simply too insubstantial to require disqualification of a partner's spouse in related litigation").
325. United States v. Miss. Valley Generating Co., 364 U.S. 520, 548, 563-66 (1961) (holding non-enforcement is remedy where contract is infected with illegal conflict of interest); see also City & County of San Francisco v. United States, 443 F. Supp. 1116, 1125 (N.D. Cal. 1977) (stating that the purpose of § 208 is to protect the public from the corrupting influences of government agents who are financially interested in the business transactions which they are conducting for the government).
326. See United States v. Ponnapula, 246 F.3d 576, 583 (6th Cir. 2001) (asserting that § 208 "does not need to extend to employees who have no discretion to affect [the decision-making] process").
327. See United States v. Smith, 267 F.3d 1154, 1159 (D.C. Cir. 2001) (concluding that § 208(a) was intended to have a broad reach); United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993) (stating that, by enacting § 208, "Congress intended to expand the purview of the statute's predecessor, 18 U.S.C. § 434"); Lund, 853 F.2d at 246 (stating that the "legislative history and purpose of § 208(a) fully support giving its unambiguous terms the full breadth of their ordinary meaning."); United States v. Jewell, 827 F.2d 586, 587 (9th Cir. 1987) ("The section's 'catch-all' language . . . was designed to allow prosecution on the basis of any type of action taken to execute or carry to completion a contract.").
328. 18 U.S.C. § 216 (2000).
329. Id. § 208(a); see also Ponnapula, 246 F.3d at 583 (discussing these elements of the offense). This formulation of the elements is composite, i.e., containing questions of "personally and substantially" and "particular matter" in the same element.
330. 18 U.S.C. § 208(a).
331. Id.
332. Id. § 208(b).
333. 18 U.S.C. § 208(b)(1) (2000).
334. Id. § 208(b)(2); see Stuart A. Smith, Deferred Taxation of Gains Realized Upon Divestiture of Property to Avoid Conflicts of Interest: A Proposal, 36 FED. BAR NEWS & J. 126 (1989) (stating that this exemption has been utilized by federal appointees who might otherwise be required to divest themselves of property to avoid conflicts of interest); 5 C.F.R. § 2640 (2005) (listing the Office of Government Ethics exemptions which were issued on December 18, 1996).
335. 18 U.S.C. § 208(b)(3); see Michael E. Horwin, Note, Ensuring Safe, Effective and Necessary Vaccines for Children, 37 CAL. W. L. REV. 321, 347-49 (2001) (discussing the application of § 208(b)(3) in relation to waivers for doctors serving on vaccine committees).
336. 18 U.S.C. § 208(b)(4).
337. See United States v. Smith, 267 F.3d 1154, 1158-59 (D.C. Cir. 2001) (holding salary below GS-12 does not preclude application of the federal conflict of interest statute).
338. Id.
339. See id. at 1159 ("[Section] 208(a) was intended, and has generally been interpreted to have a broad reach . . . .").
340. See United States v. Jewell, 827 F.2d 586, 588 (9th Cir. 1987) (discussing the definition of "particular matter" and finding a "matter may form a separate basis for liability under § 208 only if it is a discrete transaction").
341. See United States v. Conlon, 628 F.2d 150, 154 (D.C. Cir. 1980) (reinstating indictment under § 208 where district court had construed statute too narrowly).
342. See Van Ee v. EPA, 55 F. Supp. 2d 1 (D.D.C. 1999), rev'd on other grounds, 202 F.3d 296, 303-04 (D.C. Cir. 2000) (citing 5 C.F.R. § 2635.402(b)(3) (1999)). But see Daniel L. Koffsky, Coming to Terms with Bureaucratic Ethics, 11 J.L. & POL. 235, 256 (1995) (discussing ABA Committee proposal to end exclusion of broad policy decisions from matters covered by § 208).
343. United States v. Ponnapula, 246 F.3d 576, 582-83 (6th Cir. 2001) (finding that attorney hired by the Small Business Administration to act as substitute trustee at foreclosure sale was not a "substantial" participant in the sale).
344. See United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993) (holding that to prove the knowledge element "it must be shown that defendant knew that he, his spouse, or another statutorily-listed person had a financial interest in that particular matter").
345. 18 U.S.C. § 208(a) (2000) (stating that parties covered by the statute include a government employee's minor child, general partner, and organizations in which he or she is serving as an officer, director, trustee, general partner, or employee).
346. See, e.g., United States v. Gorman, 807 F.2d 1299, 1304 (6th Cir. 1986) ("Section 208 sets forth an objective standard of conduct which is directed not only at dishonor, but also at conduct which tempts dishonor."); United States v. Lord, 710 F. Supp. 615, 617 (E.D. Va. 1989) (comparing § 203 and § 208 and finding that specific intent was not requisite element of latter statute), aff'd, 902 F.2d 1567 (4th Cir. 1990).
347. See United States v. Hedges, 912 F.2d 1397, 1400-02 (11th Cir. 1990) (finding conflict of interest statute imposes strict liability, but reversing due to improper jury instruction).
348. See, e.g., United States v. Lund, 853 F.2d 242, 245 (4th Cir. 1988) (holding that spouse's potential gain in salary from defendant's actions constituted financial interest for purposes of § 208(a)); Gorman, 807 F.2d at 1303-04 (holding that defendant had cognizable financial interest where he stood to gain from contingent fee arrangement). The Gorman Court expressly found financial interest to exist "where there is a real possibility of gain or loss as a result of developments in or resolution of a matter." Id. at 1303 (citing Office of Government Ethics Advisory Opinion, 83 OGE 1 (Jan. 7, 1983)).
349. Airline Pilots Ass'n, Int'l v. United States Dep't of Transp., 899 F.2d 1230, 1232 (D.C. Cir. 1990) (quoting Office of Government Ethics Advisory Opinion, 83 OGE 1, at 2) (holding there was no conflict of interest when a DOT Secretary participated in an investigation of an airline which was a client of a law firm that employed the Secretary after he left the DOT); see Gorman 807 F.2d at 1303 (stating "[g]ain or loss need not be probable for the prohibition against official action to apply. All that is required is that there be a real, as opposed to a speculative, possibility of benefit or detriment.").
350. See United States v. Conlon, 628 F.2d 150, 154 (D.C. Cir. 2001) (finding it was not necessary to plead "specific acts of negotiating" to enforce § 208); United States v. Schaltenbrand, 930 F.2d 1554, 1559 (11th Cir. 1991) (concluding that defendant conducted negotiations when he completed employment application, was interviewed, and discussed his qualifications for job); C.A.C.I., Inc.-Federal v. United States, 719 F.2d 1567, 1578 (Fed. Cir. 1983) (concluding that discussions were only "preliminary exploratory talks, directed to possibilities that never materialized," and therefore did not violate § 208).
351. Conlon, 628 F.2d at 155 ("Congress meant the words 'negotiating' and 'arrangement' in § 208(a) to be given a broad reading."); see also Schaltenbrand, 930 F.2d at 1558 (concluding that Air Force reservist defendant had negotiated with private employer despite fact that no offers had been made).
352. 827 F.2d 586 (9th Cir. 1987).
353. See id. at 588 (finding that signing of invoices was part of ongoing process relating to one government contract in which defendant had financial interest).
354. See id. (stating that a matter forms a separate basis for liability under § 208 "only if it is a discrete transaction").
355. 241 F. Supp. 2d 1270 (D. Kan. 2003), aff'd, 2003 WL 22376994 (10th Cir. 2003).
356. See id. at 1285 (dismissing § 208 (b) and (c) actions because there was no express or implied private right of action).
357. 18 U.S.C. § 209(a) (2000); see United States v. Project of Government Oversight, 454 F.3d 306, 309 (D.C. Cir. 2006) (discussing requirements of § 209(a) and what constitutes compensation fore services rendered as a government employee); United States v. Smith, 324 F.3d 922, 926 (7th Cir. 2003) (finding that other statutes addressing the topic of a federal employee's receipt of income from outside sources do not cast doubt on the ability of an Assistant United States Attorney to receive his salary from the State of Wisconsin).
358. 18 U.S.C. § 216 (setting out penalties for violation of § 209).
359. See Judicial Watch v. Clinton, 880 F. Supp. 1, 5 n.3 (D.D.C. 1995) (disallowing private suit against President Clinton regarding potential for undue influence stemming from donations to Legal Expense Trust), aff'd, 76 F.3d 1232 (D.C. Cir. 1996).
360. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 408-09 (1999) (contrasting § 201 and § 209 with respect to the requirement of a specific quid pro quo, and noting that if Congress intended § 201 to be read broadly it would have used language similar to that found in § 209); see generally Beth Nolan, Public Interest, Private Income: Conflicts and Control Limits on the Outside Income of Government Officials, 87 NW. U. L. REV. 57, 89 (1992) (discussing policy considerations in prohibiting salary supplementation). But see United States v. Muntain, 610 F.2d 964, 970 (D.C. Cir. 1979) (applying § 209 narrowly and finding no violation where private party reimbursed government officer for trip unrelated to his official duties, and holding that, where payment has "no relation to governmental services, there can be no violation of 18 U.S.C. § 209").
361. 494 U.S. 152 (1990).
362. See id. at 167 (noting that literal reading of statute places such payments outside scope of § 209(a)). See generally Thomas E. Kearney, Pre-Employment Payments to Individuals who Enter Government Service: As Approved in Crandon v. United States, 33 B.C. L. REV. 456 (1992) (discussing Crandon holding and the history of § 209).
363. See Crandon, 494 U.S. at 167 (noting this was a public interest as identified by President and Attorney General at time of statute's enactment).
364. See id. at 153 (noting rule of lenity supported interpretation of statute to require employment by government at time payment is made); see also United States v. Paisley, 957 F.2d 1161, 1163 (4th Cir. 1992) (reiterating Crandon's holding that § 209 does not apply when defendants were not government employees at time payments were made and received in context of a civil suit). But see Modern Muzzleloading, Inc. v. Magaw, 18 F. Supp. 2d 29, 35 (D.D.C. 1998) (narrowing Crandon's use of the rule of lenity).
365. 18 U.S.C. § 209(b)-(f) (2000) (delineating exceptions).
366. United States v. Project on Gov't Oversight, 454 F.3d 306, 309 (D.C. Cir. 2006).
367. Id.
368. 18 U.S.C. § 209(d). Section 4111 of Title 5 of the United States Code provides: [t]o the extent authorized by regulation of the President, contributions and awards incident to training in non-Government facilities, and payment of travel, subsistence, and other expenses incident to attendance at meetings, may be made to and accepted by an employee, without regard to section 209 of title 18, if the contributions, awards, and payments are made by an organization determined by the Secretary of the Treasury to be an organization described by section 501(c)(3) of title 26 which is exempt from taxation under section 501(a) of title 26. 5 U.S.C. § 4111(a).
369. 18 U.S.C. § 209(b).
370. 18 U.S.C. §§ 203, 205, 207, 208 (2000); see United States v. Smith, 267 F.3d 1154, 1159-1166 (D.C. Cir. 2001) (discussing sentencing guidelines for violations of § 208(a)); U.S.S.G. MANUAL app. A (2007).
371. U.S.S.G. MANUAL § 2C1.3(a) (2007) (stating that offenses
372. Id. § 2C1.3(b)(1); see United States v. Geddings, 497 F. Supp. 2d 729, 742 (E.D.N.C. 2007) (applying this calculation to defendant's hypothetical argument).
373. Id. app. A.
374. Id. § 2C1.1(b)(3) (stating that, if an offense such as bribery is committed by a high-level official, the base offense level is increased by four and increased to eighteen if not yet at that level); Id. (stating that if an offense of offering, giving, soliciting, or receiving a gratuity is committed by a high-level official the level is increased by four and increased to fifteen if not yet at that level).
375. See United States v. Sun-Diamond Growers of Cal., 138 F.3d 961, 975 (D.C. Cir. 1998) (reversing in part where district court's conclusion was contrary to Sentencing Commission's explanation of section 2C1.2).
376. 18 U.S.C. § 216 (2000); see Conrad v. United Instruments, Inc., 988 F. Supp. 1223, 1225 (W.D. Wis. 1997) (discussing the penalties under § 216).
377. 18 U.S.C. § 216(a)(1)-(2).
378. Id.. § 216(b); see United States v. Bouchey, 949 F. Supp. 9, 11-12 (D.C. Cir 1996) (holding double jeopardy does not apply in civil case brought by Attorney General for criminal conflict of interest violation because government can seek "remedial compensation," and holding "section 216(b) is not limited to recovery for pecuniary loss; rather, it is also intended to redress the government for damage to its character and standing on account of a defendant's actions").
379. 18 U.S.C. § 216(c).