USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
1341 and 1343, are frequently used in cor - ruption prosecutions. 18 U.S.C. Section 1346 authorises prosecutors to file charges under these statutes based on an “honest services” theory – ie, that a corrupt official deprived the government of its intangible right to his or her uncompromised judgment, discretion, etc (ie, their “honest services”). These charges require a specific intent to deprive the gov - ernment 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-conspira - tors) with: (a) extortion (18 U.S.C. Section 1951) for obtaining property (eg, a bribe) “under colour of official right”; (b) travelling in interstate or foreign com - merce (or sending interstate emails, phone calls, etc) to “promote” or “carry on” unlawful activity, including violations of state bribery laws (18 U.S.C. Section 1952, also called the “Travel Act”); or (c) money laundering (18 U.S.C. 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 abet - ting violations, may be separately charged under 18 U.S.C. 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, charita - ble donations, contracts, or employment rela - tionships.
The receipt of a bribe is an offence for domes - tic bribery under 18 U.S.C. Section 201, but not under the FCPA. However, as detailed below, the US government 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 advantage may constitute an offence. Generally, US anti-corruption statutes do not require that the desired results occur, as long as the perpe - trator acted with the requisite intent. Indeed, US authorities often criminally prosecute defendants under broad conspiracy statutes in situations where it would be impossible for the expected results to occur – for example, by using under - cover law-enforcement agents who are only pre - tending to be public officials or connected to public officials. Hospitality, Travel, Gifts and Promotions Under domestic bribery laws, federal and state officials, including elected political figures and career employees, are generally restricted in the gifts and hospitality they may receive from sources outside the government. Some officials, such as members of Congress, may be required to disclose the gifts they receive to the public. For federal employees, gifts over USD20 are generally prohibited (and they generally may not accept more than USD50 in a year from a single non-government source). Travel expenses are a separate, complicated area of law and also require an analysis of internal government ethics rules. Whether or not a government employee’s travel may be funded by a non-government source often depends on the purpose of the trip and the specific rules of the agency where they work.
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