FEDERAL PROSECUTION OF STATE OFFICIALS Excerpts from Federal Statutory and Case Law Presenter: Thomas R. Vaughn RELACS Professional Development Seminar September 2017, Lexington Kentucky HOBBS ACT 18 USC 1951 “ (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. The term “ extortion ” means the obtaining of property from another, with his (b) (2) consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. ” (Emphasis added). McCormick v. United States “ This is not to say that it is impossible for an elected official to commit extortion in the course of financing an election campaign. Political contributions are of course vulnerable if induced by the use of force, violence, or fear. The receipt of such contributions is also vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. ” McCormick v. United States, 500 U.S. 257, 273, 111 S. Ct. 1807, 1816, 114 L. Ed. 2d 307 (1991). “ . . . McCormick's sole contention in this case is that the payments made to him were campaign contributions. Therefore, we do not decide whether a quid pro quo requirement exists in other contexts, such as when an elected official receives gifts, meals, travel expenses, or other items of value. ” McCormick v. United States, 500 U.S. 257, 274, 111 S. Ct. 1807, 1817, 114 L. Ed. 2d 307 (1991). Evans v. United States “ We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts. ” Evans v. United States, 504 U.S. 255, 268, 112 S. Ct. 1881, 1889, 119 L. Ed. 2d 57 (1992). Circuit Courts post-McCormick and Evans “ Moreover, we have held since Evans that the government does not have to prove an explicit promise to perform a particular act made at the time of payment. See Garcia, 992 F.2d at 419. Rather, it is sufficient if the public official understands that he or she is expected as a result of the payment to exercise particular kinds of influence — i.e., on behalf of the payor — as specific opportunities arise. ” United States v. Coyne, 4 F.3d 100, 114 (2d Cir. 1993). 1 of 4
“ So Abbey is wrong in contending that, to sustain a Hobbs Act conviction, the benefits received must have some explicit, direct link with a promise to perform a particular, identifiable act when the illegal gift is given to the official. Instead, it is sufficient if the public official understood that he or she was expected to exercise some influence on the payor's behalf as opportunities arose.” United States v. Abbey, 560 F.3d 513, 518 (6th Cir. 2009). “ The public official need not even have any intention of actually exerting his influence on the payor's behalf because “fulfillment of the quid pro quo is not an element of the offense.” Evans, 504 U.S. at 268, 112 S.Ct. 1881. The inquiry is whether the official extracted money through promises to improperly employ his public influence. ” United States v. Abbey, 560 F.3d 513, 518 – 19 (6th Cir. 2009). “ Outside the campaign contribution context, where Antico's case falls, the line between legal and illegal acceptance of money is not so nuanced. . . . Antico would read into the phrase “knowing the payment was made in return for official acts” a requirement that the jury be instructed using the express words “quid pro quo.” We echo the Supreme Court's satisfaction with an implicit quid pro quo requirement. ” United States v. Antico, 275 F.3d 245, 257 – 58 (3d Cir. 2001). HONEST SERVICES FRAUD 18 USC 1341, et seq 18 U.S.C.A. § 1341 “ Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. ” (Emphasis added). 18 U.S.C.A. § 1346 “For the purposes of this chapter, the term “ scheme or artifice to defraud ” includes a scheme or artifice to deprive another of the intangible right of honest services. ” (Emphasis added). 2 of 4
Skilling v. United States “ As to arbitrary prosecutions, we perceive no significant risk that the honest-services statute, as we interpret it today, will be stretched out of shape. Its prohibition on bribes and kickbacks draws content not only from the pre-McNally case law, but also from federal statutes proscribing — and defining — similar crimes. See, e.g., 18 U.S.C. §§ 201(b), 666(a)(2); 41 U.S.C. § 52( 2) (“The term ‘kickback’ means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to [enumerated persons] for the purpose of improperly obtaining or rewarding favorable treatment in connection with [enumerated circumstances].”).45 See also, e.g., United States v. Ganim, 510 F.3d 134, 147– 149 (C.A.2 2007) (Sotomayor, J.) (reviewing honest-services conviction involving bribery in light of elements of bribery under other federal statutes); United States v. Whitfield, 590 F.3d 325, 352 – 353 (C.A.5 2009); United States v. Kemp, 500 F.3d 257, 281 – 286 (C.A.3 2007). A criminal defendant who participated in a bribery or kickback scheme, in short, cannot tenably complain about prosecution under § 1346 on vagueness grounds.” Skilling v. United States, 561 U.S. 358, 412 – 13, 130 S. Ct. 2896, 2933 – 34, 177 L. Ed. 2d 619 (2010). United States v. Woodward “. . . [t]he practice of using hospitality, including lavish hospitality, to cultivate business or political relationships is longstanding and pervasive.” United States v. Woodward, 149 F.3d 46, 55 (1st Cir. 1998), quoting United States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996). “Because the “difference between lawful and unlawful turns primarily on intent,” we held that the court must instruct the jury that a lobbyist does not commit honest services fraud or violate the Travel Act if his “intent was limited to the cultivation of business or political friendship.” Id. He commits those violations “only if instead or in addition, there is an intent to cause the recipient to alter her official acts.” Id. United States v. Woodward, 149 F.3d 46, 55 (1st Cir. 1998), quoting United States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996). “ The evidence need not compel an intent-to-deceive finding; rather, it is only required that a reasonable jury could be persuaded, beyond a reasonable doubt, that [Woodward] had such intent. And we are mindful that a jury may choose among the reasonable alternatives posed by the evidence. Finally, the specific intent to deceive may be proven (and usually is) by indirect and circumstantial evidence. ” United States v. Woodward, 149 F.3d 46, 55 (1st Cir. 1998), quoting United States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996). Thus “[t]he best evidence of Woodward's intent to perform official acts to favor Hancock's . . . interests is the evidence of Woodward's actions on bills wh ich were important to Hancock.” United States v. Woodward, 149 F.3d 46, 57-58 (1st Cir. 1998). United States v. Urciuoli “ That Celona performed some marketing services did not prevent the jury from regarding the payments as primarily intended by Urciuoli to secure Celona's legislative help. Nor does it matter whether Celona expressly agreed to help RWMC on specific bills, for the jury could infer an understanding that he provide RWMC general support in exchange for *15 money (even if occasionally opposing RWMC). ” United States v. Urciuoli, 613 F.3d 11, 14 – 15 (1st Cir. 2010). “[N] othing cited to us in the statute's language, history or case law suggests that the only honest services expected of a legislator are his or her casted votes. ” United States v. Urciuoli, 613 F.3d 11, 17 (1st Cir. 2010). 3 of 4
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