49:2. Elements of bribery and illegal gratuity, 6 White Collar Crime 49:2 (2d ed.

6 White Collar Crime 49:2 (2d ed.)

White Collar Crime
Database updated June 2011
Joel Androphy
Chapter 49. Substantive Crimes: Public Corruption
II. Bribery and Illegal Gratuity Involving Public Officials and Witnesses
References

49:2. Elements of bribery and illegal gratuity

Wests Key Number Digest

Wests Key Number Digest, Bribery

1(1)
Treatises and Practice Aids

Corporate Counsels Guide to White-Collar Crime 1:90 to 1:94

Trial Strategy
Handling the Defense in a Bribery Prosecution, 37 Am. Jur. Trials 273
Law Reviews and Other Periodicals
Kircher, Whittaker, and Hicks, Public Corruption, 45 Am. Crim. L. Rev. 825 (Spring, 2008)
Pinnell and Shahani, Federal Criminal Conflict of Interest, 41 Am. Crim. L. Rev. 565 (Spring, 2004)
The federal bribery and gratuity statute (the statute) sets out two separate crimes: the bribing of public officials
and giving of illegal gratuity to public officials.1 The statute seeks to punish the public officials who accept bribes
or illegal gratuity, as well as those who intend to influence public officials with bribes or illegal gratuity.2
Whether a benefit is considered a bribe or an illegal gratuity depends on the individuals intent in conveying the
benefit bribery requires proof of intent; illegal gratuity does not.3
The statute makes it a punishable offense for any person to directly or indirectly, corruptly give, offer or promise
anything of value to a public official or a person who has been selected to be a public official.4
The relevant questions in bribery cases, then, are: (1) whether the official is a present or future public official
within the meaning of the statute; (2) whether the benefit was given, offered, or promised to the public official or
was demanded, sought, received, or accepted by the public official; (3) whether the benefit was a thing of value
within the meaning of the statute; and (4) whether the gift, offer, or promise was made with corrupt intent or
intent to influence an official act.5
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2012 Thomson Reuters. No claim to original U.S. Government Works.

 49:2. Elements of bribery and illegal gratuity, 6 White Collar Crime 49:2 (2d ed.)

Footnotes
1
18 U.S.C.A. 201.
2

18 U.S.C.A. 201.

For discussion of intent, see 49:6; U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 40405,
119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999) (noting that the distinguishing feature between bribery and
illegal gratuity is the element of intent associated with bribery).

18 U.S.C.A. 201(b)(1).

18 U.S.C.A. 201(a)(3) defines an official act as any decision or action on any question, matter, cause,
suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before
any public official, in such officials official capacity, or in such officials place of trust or profit.

End of Document

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Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.

 49:3. Who is a public official, 6 White Collar Crime 49:3 (2d ed.)

6 White Collar Crime 49:3 (2d ed.)

White Collar Crime
Database updated June 2011
Joel Androphy
Chapter 49. Substantive Crimes: Public Corruption
II. Bribery and Illegal Gratuity Involving Public Officials and Witnesses
References

49:3. Who is a public official

Wests Key Number Digest

Wests Key Number Digest, Bribery

1(1)
A.L.R. Library

Who Is Public Official Within Meaning of Federal Statute Punishing Bribery of Public Official (18
U.S.C.A. 201), 161 A.L.R. Fed. 491
Treatises and Practice Aids
Corporate Counsels Guide to White-Collar Crime 1:90
Law Reviews and Other Periodicals
Kircher, Whittaker, and Hicks, Public Corruption, 45 Am. Crim. L. Rev. 825 (Spring, 2008)
Although the statute provides a comprehensive definition of public official,1 the courts have construed the
definition broadly, encompassing far more than merely those who are elected officials, those in privity of contract
with the federal government, or those within an agency relationship with the federal government.
In particular, when it included the phrase for or on behalf of the United States,2 Congress gave the courts a
great deal of leeway in determining who is and is not a public official under the statute.
The Supreme Court has adopted the view that for or on behalf of the United States means that a public official
is anyone who is in a position of public trust with official federal responsibilities.3 In Dixson v. United States,
the Supreme Court found that executives of a private non-profit social service corporation that had responsibility
for the administration of a federal housing grant program within a city under the terms of a sub-grant were public
officials for the purposes of the federal bribery statute.4
Looking to the legislative history of the statute, Justice Marshall reasoned that Congress did not intent to limit
public officials to those in an employment or agency relationship with the federal government; rather, the
definition of public official was intended to be broad.5 Therefore, the Court concluded that any person that
possesses some degree of official responsibility for carrying out a federal program or policy occupies a
position of public trust and is a public official within the meaning of the statute.6 Although this definition of
public official is expansive, it does not include any officials in organizations that merely receive some federal
2012 Thomson Reuters. No claim to original U.S. Government Works.

 49:3. Who is a public official, 6 White Collar Crime 49:3 (2d ed.)

funding.7 Instead, the definition includes persons possessing some degree of responsibility for carrying out a
federal program or policy.8
Courts have found the following to be public officials within the meaning of the federal bribery statute:9 an
agent for the Bureau of Alcohol, Tobacco, and Firearms;10 a postal employee who had the responsibility of
ensuring that bulk mail had the appropriate postage;11 and a Private in the Army.12
Footnotes
1
18 U.S.C.A. 201(a)(1) provides that a public official is any Member of Congress, Delegate, or
Resident Commissioner, either before or after such official has qualified, or an officer or employee or
person acting for or on behalf of the United States, or any department, agency, branch of Government
thereof, including the District of Columbia, in any official function, under or by authority of any such
department, agency, or branch of Government, or a juror.
2

18 U.S.C.A. 201(a)(1).

Dixson v. U.S., 465 U.S. 482, 496, 104 S. Ct. 1172, 79 L. Ed. 2d 458 (1984). See U.S. v. Thomas, 240 F.3d
445, 447 (5th Cir. 2001) (applying the Dixson standard to a case where a detention guard was employed by
a private company that helped with a contract with the Department of Immigration and Naturalization);
U.S. v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990) (applying the Dixson standard to find that Veterans
Administration Fee appraisers were public officials within the meaning of the statute).

Dixson v. U.S., 465 U.S. 482, 104 S. Ct. 1172, 79 L. Ed. 2d 458 (1984).

Dixson v. U.S., 465 U.S. 482, 49596, 104 S. Ct. 1172, 79 L. Ed. 2d 458 (1984).

Dixson v. U.S., 465 U.S. 482, 499, 104 S. Ct. 1172, 79 L. Ed. 2d 458 (1984).

Dixson v. U.S., 465 U.S. 482, 499500, 104 S. Ct. 1172, 79 L. Ed. 2d 458 (1984).

Dixson v. U.S., 465 U.S. 482, 499500, 104 S. Ct. 1172, 79 L. Ed. 2d 458 (1984).

For a comprehensive discussion of what constitutes a public official under the federal bribery statute, see
Jay Zitter, Who Is Public Official Within Meaning of Federal Statute Punishing Bribery of Public Official
(18 U.S.C.A. 201), 161 A.L.R. FED. 491 (2008).

10

U.S. v. Gjieli, 717 F.2d 968 (6th Cir. 1983) (holding that an ATF agent was within the statutory definition
of public official even though he did not have the ability to carry out the target action of the bribe).

11

U.S. v. Gelb, 881 F.2d 1155 (2d Cir. 1989) (holding that a postal worker that was responsible for ensuring
that bulk mail had the appropriate postage was a public official within the meaning of the federal bribery
statute). See also U.S. v. Jackson, 850 F. Supp. 1481 (D. Kan. 1994) (applying Dixson to postal workers).

12

U.S. v. Kidd, 734 F.2d 409 (9th Cir. 1984) (dismissing defendants argument that Army Private was not a
public official because she was an enlisted soldier, rather than an officer).

End of Document

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 49:4. Gives, offers or promises: Timing of conveyance, 6 White Collar Crime 49:4...

6 White Collar Crime 49:4 (2d ed.)

White Collar Crime
Database updated June 2011
Joel Androphy
Chapter 49. Substantive Crimes: Public Corruption
II. Bribery and Illegal Gratuity Involving Public Officials and Witnesses
References

49:4. Gives, offers or promises: Timing of conveyance

Wests Key Number Digest

Wests Key Number Digest, Bribery

1(1)

Law Reviews and Other Periodicals

Kircher, Whittaker, and Hicks, Public Corruption, 45 Am. Crim. L. Rev. 825 (Spring, 2008)
Pinnell and Shahani, Federal Criminal Conflict of Interest, 41 Am. Crim. L. Rev. 565 (Spring, 2004)
The statute only requires that the thing of value be given, offered, or promised.1 The plain language of the
statute does not require that any actual conveyance of the benefit occur. The timing of the conveyance speaks only
to the intent2 of the bribe or illegal gratuity,3 rather than to the substance of the crime. The courts make it clear
that as long as a thing of value is given, offered, or promised (regardless of whether or not the object of the
benefit occurs), the statute has been violated.4
Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1
18 U.S.C.A. 201(b)(1).
2

For a discussion of intent necessary under 201, see, 49:6.

U.S. v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998).

U.S. v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998).

End of Document

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 49:5. Is the benefit a thing of value under the statute?, 6 White Collar Crime 49:5...

6 White Collar Crime 49:5 (2d ed.)

White Collar Crime
Database updated June 2011
Joel Androphy
Chapter 49. Substantive Crimes: Public Corruption
II. Bribery and Illegal Gratuity Involving Public Officials and Witnesses
References

49:5. Is the benefit a thing of value under the statute?

Wests Key Number Digest

Wests Key Number Digest, Bribery

1(1)

Law Reviews and Other Periodicals

Kircher, Whittaker, and Hicks, Public Corruption, 45 Am. Crim. L. Rev. 825 (Spring, 2008)
Pinnell and Shahani, Federal Criminal Conflict of Interest, 41 Am. Crim. L. Rev. 565 (Spring, 2004)
In order to prove a case under the statute, it must be shown that a thing of value was given, offered, or
promised.1 Congress has used the term thing of value in many criminal statutes2 and the courts have broadly
interpreted the meaning of the phrase.3 It is generally accepted that intangible, as well as tangible, objects are
considered things of value by the courts.4
The courts tend to use a subjective test when evaluating whether the benefit is a thing of value. That is to say,
the courts look to whether the benefit had value to the defendant at the time of the conveyance, rather than
whether the benefit had actual value.5
The following benefits have been considered things of value: stock that did not have any commercial value;6
vacations;7 promises of employment;8 and quick, unsecured loans (even when the loan is paid back).9
Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1
18 U.S.C.A. 201(b)(1).
2

See, e.g., 18 U.S.C.A. 641, 666, 876, 1029, 1954.

See, e.g., U.S. v. Williams, 705 F.2d 603, 622 to 623, 12 Fed. R. Evid. Serv. 1648 (2d Cir. 1983) (stating
that thing of value is broadly interpreted in 201 bribery cases); U.S. v. Nilsen, 967 F.2d 539, 542, 36
Fed. R. Evid. Serv. 355 (11th Cir. 1992) (stating that thing of value is broadly interpreted in extortion
cases under 18 U.S.C.A. 876); U.S. v. Girard, 601 F.2d 69, 71 (2d Cir. 1979) (stating that thing of
value is broadly interpreted in 18 U.S.C.A. 641 larceny cases); U.S. v. Schwartz, 785 F.2d 673, 680 to
2012 Thomson Reuters. No claim to original U.S. Government Works.

 49:5. Is the benefit a thing of value under the statute?, 6 White Collar Crime 49:5...

681, 107 Lab. Cas. (CCH) 10141 (9th Cir. 1986) (stating that thing of value is not ambiguous in 18
U.S.C.A. 1954 and that Congress intended the meaning to be the same as other statutes that employ the
phrase).
4

See, e.g., U.S. v. Williams, 705 F.2d 603, 622 to 623, 12 Fed. R. Evid. Serv. 1648 (2d Cir. 1983) (holding
that stock that had no commercial value was, nevertheless, a thing of value).
Additionally, The Fifth, Sixth, Seventh and Eighth Circuits hold that the federal statute against bribery of
state or local government agents that receive federal funds pursuant to 18 U.S.C. 666 does not require the
government to prove a connection between the bribe and the use of the federal funds. See U.S. v. Sabri,
326 F.3d 937 (8th Cir. 2003), affd and remanded, 541 U.S. 600, 124 S. Ct. 1941, 158 L. Ed. 2d 891, 5
A.L.R. Fed. 2d 821 (2004); U.S. v. Dakota, 197 F.3d 821, 826, 84 A.F.T.R.2d 99-7427, 1999 FED App.
0419A (6th Cir. 1999); U.S. v. Grossi, 143 F.3d 348, 350 (7th Cir. 1998); U.S. v. Westmoreland, 841 F.2d
572, 576, 25 Fed. R. Evid. Serv. 407 (5th Cir. 1988).
However, the Second and Third Circuits require the government to demonstrate a nexus between the bribe
and the use of the federal funds in order to prove a violation of 18 U.S.C.A. 666. See U.S. v. Santopietro,
166 F.3d 88, 93 (2d Cir. 1999) (abrogated by, Sabri v. U.S., 541 U.S. 600, 124 S. Ct. 1941, 158 L. Ed. 2d
891, 5 A.L.R. Fed. 2d 821 (2004)); U.S. v. Zwick, 199 F.3d 672, 682 (3d Cir. 1999) (abrogated by, Sabri v.
U.S., 541 U.S. 600, 124 S. Ct. 1941, 158 L. Ed. 2d 891, 5 A.L.R. Fed. 2d 821 (2004)).

U.S. v. Williams, 705 F.2d 603, 622 to 623, 12 Fed. R. Evid. Serv. 1648 (2d Cir. 1983). See also, U.S. v.
Nilsen, 967 F.2d 539, 542 to 543, 36 Fed. R. Evid. Serv. 355 (11th Cir. 1992) (stating that looking to the
defendants expectations is appropriate in extortion cases).

U.S. v. Williams, 705 F.2d 603, 622 to 623, 12 Fed. R. Evid. Serv. 1648 (2d Cir. 1983).

U.S. v. Persico, 2000 WL 145750 at *6 (S.D. N.Y. 2000), judgment affd, 242 F.2d 369 (2d Cir. 2000).

U.S. v. Biaggi, 909 F.2d 662, 684 to 684, 36 Cont. Cas. Fed. (CCH) 75902, 30 Fed. R. Evid. Serv. 673
(2d Cir. 1990); U.S. v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986).

U.S. v. Gorman, 807 F.2d 1299, 1304 (6th Cir. 1986).

End of Document

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2012 Thomson Reuters. No claim to original U.S. Government Works.

 49:6. Intent, 6 White Collar Crime 49:6 (2d ed.)

6 White Collar Crime 49:6 (2d ed.)

White Collar Crime
Database updated June 2011
Joel Androphy
Chapter 49. Substantive Crimes: Public Corruption
II. Bribery and Illegal Gratuity Involving Public Officials and Witnesses
References

49:6. Intent

Wests Key Number Digest

Wests Key Number Digest, Bribery

1(1)
Treatises and Practice Aids

Corporate Counsels Guide to White-Collar Crime 1:94

Trial Strategy
Handling the Defense in a Bribery Prosecution, 37 Am. Jur. Trials 273
Law Reviews and Other Periodicals
Kircher, Whittaker, and Hicks, Public Corruption, 45 Am. Crim. L. Rev. 825 (Spring, 2008)
Bribery1 and illegal gratuity2 differ only in the intent required under the statute. The Supreme Court has held that
bribery requires a corrupt intent to influence (or be influenced in) an official act,3 while illegal gratuity only
requires the benefit be given (or accepted) for or because of any official act.4
Bribery
In United States v. Sun-Diamond Growers of California,5 the Supreme Court states that the crime of bribery
requires a specific intent to give or receive something of value in exchange for an official act, (emphasis in
original). Justice Scalia explains that bribery requires a quid pro quo6that is to say, the benefit exchanged must
be linked to some specific official act, rather than a general hope by the giver that the public official will act in a
manner that is favorable to the giver.
Some courts have been hesitant to extend the quid pro quo requirement to other federal corruption statutes. See
U.S. v. Abbey, 560 F.3d 513, 521 (6th Cir. 2009), cert. denied, 130 S. Ct. 739 (2009) (finding Sun-Diamonds
quid pro quo standard inapplicable to 18 U.S.C.A. 1951 (Hobbs Act) and 18 U.S.C.A. 666). See also U.S. v.
Ganim, 510 F.3d 134, 146 (2d Cir. 2007), for additional opinion, see, 256 Fed. Appx. 399 (2d Cir. 2007), cert.
denied, 128 S. Ct. 1911, 170 L. Ed. 2d 749 (2008) and cert. denied, 128 S. Ct. 1911, 170 L. Ed. 2d 749 (2008).
Further, the benefits given, offered, or promised need not be solely as payment for a specific official act. The
2012 Thomson Reuters. No claim to original U.S. Government Works.

 49:6. Intent, 6 White Collar Crime 49:6 (2d ed.)

courts have acknowledged that a bribe may be given with a dual purpose.7 The mere presence of a valid
purpose that partially motivates a transaction does not relieve the parties of criminal liability for the illicit
purpose.8
For this reason, the courts will examine all of the consequences of a conveyance of a benefit-the mere presence of
a valid reason for the transaction will not exonerate the defendant if there was an intent to influence a specific
official act.
In 2008, the Fifth Circuit held that 201(b) does not require that the official actually commit the violation of his
official duty; it only requires that he demand or agree to accept something of value in return for being induced to
commit the violation. The statute also clearly requires that the officials demand be corrupt.8.50
Illegal Gratuity
According to the Supreme Court in Sun-Diamond Growers of California, an illegal gratuity requires only that the
gratuity be given or accepted for or because of an official act.9 No specific intent is required on the part of the
giverit is enough that the gratuity reward some act that the public official will take (or took in the past).10
The statute does not, however, reach so far as to criminalize a gratuity that is made to build a reservoir of
goodwill that might ultimately affect one or more of a multitude of unspecified acts.11 The government must
show that the gratuity was linked to a particular official act.12
It may be argued that the requirement that the gratuity be linked to some particular official act makes the crime of
illegal gratuity a lesser offense of bribery (bribery without the specific intent to influence), but Justice Scalia, in
Sun-Diamond Growers of California emphasized that illegal gratuity and bribery are two separate and distinct
crimes.13
Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1
18 U.S.C.A. 201(b).
2

18 U.S.C.A. 201(c).

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 404 to 405, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 404 to 405, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

U.S. v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993) (quoting U.S. v. Biaggi, 909 F.2d 662, 683, 36 Cont. Cas.
Fed. (CCH) 75902, 30 Fed. R. Evid. Serv. 673 (2d Cir. 1990) and upholding a jury charge that included
the phrase at least in part related to intent).

U.S. v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993).

2012 Thomson Reuters. No claim to original U.S. Government Works.

 49:6. Intent, 6 White Collar Crime 49:6 (2d ed.)

8.50 U.S. v. Valle, 538 F.3d 341, 344 (5th Cir. 2008), cert. denied 2009 WL 804246, 77 USLW 3543 (U.S. Mar
30, 2009).
9

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

10

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 405, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

11

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 405, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

12

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 406, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

13

U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 119 S. Ct. 1402, 143 L. Ed. 2d 576
(1999).

End of Document

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Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.