Tag Archives: 18 USC 666

Pay Me Now or Pay Me Later – Update for July 1, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TIMING IS EVERYTHING

bribeB160627It’s a crime for state and local officials to “corruptly” solicit, accept, or agree to accept “anything of value from any person, intending to be influenced or rewarded” for an official act. That’s a bribe, prohibited by 18 USC § 666.

Last week, the Supreme Court ruled that § 666 only applies to bribes, not gratuities. The law prohibits state and local officials from accepting bribes that are promised or given before the official act. But gratuities, which are given after the facts, are not covered.

It’s the graft version of “viva la difference.”

viveladifference240701An Indiana mayor got $13,000 after his city bought a million bucks worth of garbage trucks from a local dealer. Hizzoner said the payment was for “consulting.”  Uh-huh.

The government couldn’t prove the deal was in place before the truck purchase but told the jury that didn’t matter, because the gratuity after the fact was as illegal under § 666 as the bribe would have been.

Not so, the Supremes said last Friday.

The Court explained that bribes are payments made or agreed to before an official act to influence the official regarding that future official act. American law generally treats bribes as inherently corrupt and unlawful. Gratuities, on the other hand, are typically payments made to an official after an official act as a token of appreciation.

Gratuities, thus, are different. The majority opinion held

Gratuities are typically payments made to an official after an official act as a token of appreciation. Some gratuities can be problematic. Others are commonplace and might be innocuous. A family gives a holiday tip to the mail carrier. Parents send an end-of-year gift basket to their child’s public school teacher. A college dean gives a college sweatshirt to a city council member who comes to speak at an event. A state legislator’s neighbor drops off a bottle of wine to congratulate her for her work on a new law.

As those examples suggest, gratuities after the official act are not the same as bribes before the official act. After all, unlike gratuities, bribes can corrupt the official act—meaning that the official takes the act for private gain, not for the public good. That said, gratuities can sometimes also raise ethical and appearance concerns. For that reason, Congress, States, and local governments have long regulated gratuities to public officials.

garbagetruck240701However, such regulation of state or local officials has been left to states and localities. “State and local governments often regulate the gifts that state and local officials may accept,” Justice Kavanaugh wrote in the 6-3 opinion. “Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities. Rather, § 666 leaves it to state and local governments to regulate gratuities to state and local officials.”

Justice Gorsuch filed a concurring opinion. Justice Jackson wrote a dissent, in which Justices Sotomayor and Kagan joined.

The Mayor has since served his entire 21-month sentence, making his victory (especially since he was also convicted of an IRS-related felony) a bit hollow.

Snyder v. United States, Case No 23-108 (June 26, 2024) 2024 USLEXIS 2843 (June 26, 2024)

– Thomas L. Root

Supremes Will Review Four More Criminal Cases – Update for December 19, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT ENDS YEAR WITH CRIMINAL-CASE CERTIORARI BLOWOUT

In what was probably its last certiorari grant order for 2023, the Supreme Court issued probably added four criminal cases last week.

blowout231219The highest profile case is Fischer v. United States, which arises from a defendant convicted of obstruction of Congress for the January 6th Capitol riot. He was convicted of an 18 USC § 1512(c) offense, which prohibits corruptly obstructing, influencing, or impeding “any official proceeding.” The district court dismissed the § 1512(c) charge, holding that Congress only intended it to apply to evidence tampering that obstructs an official proceeding. The D.C. Circuit Court of Appeals reversed that decision in a 2-1 opinion, ruling that “[u]nder the most natural reading of the statute,” the law “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the evidence-tampering language of § 1512(b). One judge dissented that the government’s interpretation of the statute would render it “both improbably broad and unconstitutional in many of its applications.”

SCOTUS also will review a 9th Circuit ruling in favor of Danny Lee Jones, sentenced to death for two murders. A federal district court in Arizona rejected Jones’s claims that his lawyer had provided inadequate assistance, but the 9th reversed that decision, upholding its position in an order denying an en banc rehearing with ten judges dissenting.

The issue is how evidence not presented by a defense attorney because of failure to investigate should be weighed in determining Strickland v. Washington prejudice in a post-conviction proceeding. Although the issue relates to an Arizona death penalty case, the outcome could provide the first new ruling on Strickland prejudice in well over a decade.

goodpros170330In Chiaverini v. City of Napoleon, the high court will consider whether a claim for malicious prosecution can proceed for a baseless criminal charge, even if there was probable cause for prosecutors to bring other criminal charges. In Snyder v. United States, the Supremes will consider whether the federal bribery statute – 18 USC § 666(a)(1)(B) – makes it a crime to accept “gratuities” — that is, payment for something a government official has already done, without any prior agreement to take those actions in exchange for payment.

The Court will rule on the cases by the end of its current term on June 30, 2024.

Sentencing Law and Policy, Four criminal cases of note in latest SCOTUS cert grants (December 13, 2023)

Fischer v. United States, Case No. 23-5572 (certiorari granted December 13, 2023)

Thornell v. Jones, Case No. 22-982 (certiorari granted December 13, 2023)

Chiaverini v. Napoleon, Case No. 23-50 (certiorari granted December 13, 2023)

Snyder v. United States, Case No. 23-108 (certiorari granted December 13, 2023)

– Thomas L. Root

Money for Nuthin’ – Update for August 29, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

YO MOMMA

Ruel Hamilton, a Dallas real estate developer, liked politicians. He liked them so much that he gave money to members of the Dallas City Council just because he could.

money160118In 2017, Ruel wanted to get a paid-sick-leave ordinance on the ballot in the upcoming election. He thought the policy made good sense: in fact, he already had a more generous policy in place for his own employees. Plus, he thought having the ordinance on the ballot would increase voter turnout, another good thing (and one which would help secure the reelection of City Council members Ruel liked).

Ruel called City Councilman Dwaine Caraway to discuss getting the measure on the ballot. His call came at a bad time: Dwaine was in the middle of negotiating a plea deal with the US Attorney over some other bribery allegations when the call came in. The government – always happy to ensnare another defendant when possible – encouraged Dwaine to meet with Ruel (and to let the FBI secretly record the confab).

At the meeting, Dwaine and Ruel talked about how Dwaine’s mother needed a $6,200 healthcare bill paid that very day and how busy, tired and broke Dwaine was. They then discussed the paid-sick-leave initiative, how that vote might come out if it was put on the agenda by the Mayor, and how Ruel hoped Dwaine would run for reelection.

money170419Ruel kept reminding Dwaine that he was there to help in any way he could. Dwaine finally said, “You can answer that bill that I just threw out there… for about [$6,200] today and that will help me… do what I need to do.” Ruel happily obliged: “Can I just write a check to Dwaine Caraway?” he asked. Dwaine clarified that the money was not a loan and was not related to his campaign. He said he had to “go pay for my mama.”

Ruel gave him a check for $7,000 but neither asked for nor was promised that Dwaine would do anything in return. It was indeed “money for nuthin’.” Nevertheless, Ruel soon found himself on the wrong end of an indictment for bribery in violation of 18 USC § 666.

In giving the jury instructions for the federal-programs-bribery counts, the district court told the jury that neither a quid-pro-quo exchange nor any “official act” by the council members was required to convict Ruel for bribery. Essentially, the district court said, whether Ruel bribed Dwaine or just paid an illegal gratuity to him didn’t matter.  Both violated 18 USC § 666, the district judge said.

piublicdefender220829But Ruel wasn’t just some down-on-his-luck dopehead represented by an underpaid court-appointed attorney. Rather, he hired Paul Clement (a former US Solicitor General), high-powered defense attorney Abbe David Lowell, and the combined power of three top-tier Washington law firms. Not only was Ruel’s legal team successful in keeping him out of prison pending appeal (no mean feat), but it buried the US Attorney in an avalanche of appellate issues.

Ruel’s legal fees probably would have choked a horse, but like my dad always said, ‘no one ever regrets buying the best there is.’ Ruel’s  team clobbered the two AUSAs prosecuting the case.
quid220829Last week, the 5th Circuit vacated Ruel’s conviction. Holding that “bribery requires a quid pro quo – a specific intent to give or receive something of value in exchange for an official act – [while an] illegal gratuity does not,” the 5th rejected precedent from five other circuits, ruling that 18 USC § 666 does not cover illegal gratuities, only bribery. Because of this, the government must show that the defendant had a specific intent to give something of value in exchange for an official act. The jury was never instructed that a quid pro quo was an essential element of the offense, making Ruel’s conviction defective.

“Section 666 criminalizes only a quid pro quo, not mere gratuities,” the Circuit held. “The district court’s instruction allowed the jury to convict based on mere gratuities. For these reasons, we vacate Hamilton’s convictions….’

United States v. Hamilton, Case No 21-11157, 2022 US App. LEXIS 23648 (5th Cir. Aug 23, 2022)

– Thomas L. Root