USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
The general prohibition on bribing US officials is codi - fied in 18 USC, Section 201 (b). This statute prohibits “corruptly” giving or receiving (or offering, demanding, etc) anything of value in return for an official act or omission by a public official. This law also prohibits exchanging things of value for an act of fraud by the public official (or for the public official’s assistance in a fraud). The “gratuities” law, codified in 18 USC, Section 201 (c), prohibits giving “anything of value” to a current, former, or future public official “because of any official act” (unless such an act is provided for by law). This statute is broader than the “bribes” law in 18 USC, Section 201 (b), because it does not require “corrupt” intent or an explicit quid pro quo. 18 USC, Sections 207–08, the federal criminal con - flict of interest statutes, restrict the conduct of federal officers and employees during and after their federal service. In general, federal officials must not engage in official acts that could affect their personal finan - cial interests (or those of their family members, their future employers, or certain affiliated organisations). These offences are “strict liability” (ie, the prosecution only has to prove the actus reus – the act itself – not the mens rea – the intent), although wilful violations expose an official to more severe penalties. 18 USC, Sections 641, 654, and 666 broadly prohibit theft, wrongful conversion, embezzlement, or bribery involving federal property or programmes funded by federal money. Generally speaking, the acts must be committed “knowingly” or with a “corrupt intent” for criminal liability to apply. Federal fraud statutes, especially the mail and wire fraud statutes in 18 USC, Sections 1341 and 1343, are frequently used in corruption prosecutions. 18 USC, Section 1346 authorises prosecutors to file charges under these statutes based on an “honest services” theory – ie, that a corrupt official deprived the gov - ernment of its intangible right to his or her uncom - promised judgment, discretion, etc (ie, their “honest services”). These charges require a specific intent to deprive the government of honest services, property, etc.
Other federal statutes are often also used to charge conduct related to a bribery scheme, although they are not specifically related to corruption. For example, prosecutors may charge corrupt officials (or their co- conspirators) with: • extortion (18 USC, Section 1951) for obtaining property (eg, a bribe) “under colour of official right”; • travelling in interstate or foreign commerce (or sending interstate emails, making interstate phone calls, etc) to “promote” or “carry on” unlawful activity, including violations of state bribery laws (18 USC, Section 1952, also called the “Travel Act”); or • money laundering (18 USC, Sections 1956–57) for monetary transactions involving the bribe funds or the proceeds of a bribery scheme – conspiring to violate any of these statutes, or aiding and abetting violations, may be separately charged under 18 USC, Sections 2, 371, and/or 1961–68. A bribe may be “anything of value” under the FCPA and domestic statutes. “Things of value” may also include cash payments, benefits in kind, lavish gifts, excessive hospitality, charitable donations, contracts, or employment relationships. The receipt of a bribe is an offence for domestic brib - ery under 18 USC, Section 201, but not under the FCPA. However, as detailed below, the US govern - ment recently passed the Foreign Extortion Prevention Act (FEPA), which makes it a crime for foreign officials to solicit or accept bribes. The US government has also employed other laws (such as money-laundering statutes) to prosecute foreign officials who receive bribes. Merely proposing or accepting an improper advan - tage may constitute an offence. Generally, US anti- corruption statutes do not require that the desired results occur, as long as the perpetrator acted with the requisite intent. Indeed, US authorities often crimi - nally prosecute defendants under broad conspiracy statutes in situations where it would be impossible for the expected results to occur – for example, by using undercover law-enforcement agents who are only pretending to be public officials or connected to public officials.
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