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Ninth Circuit Concludes That Bribery Means More Than Just 18 USC 201

Judicial Decision

As highlighted in this post, recently the Second Circuit concluded in U.S. v. Ng Lap Seng that just because 18 U.S.C. 201 (the so-called domestic bribery statute) and the FCPA (as well as other statutes) all concern bribery does not therefore mean that all bribery statutes have the same elements or interpretations.

Recently, the Ninth Circuit concluded the same thing in U.S. v. Heon-Cheol Chi. (See here for the decision).

The decision sets forth the following relevant background:

“Dr. Heon-Cheol Chi, a citizen of South Korea, was employed as a principal researcher and director at the Korea Institute of Geoscience and Mineral Resources (KIGAM), a government-funded geological research institute in South Korea. Over nearly fifteen years, Chi solicited and received payments from two seismometer manufacturers. In exchange, he ensured that KIGAM purchased their products, and he gave the companies inside information about their competitors. He asked the companies to route his payments—which totaled over a million dollars—to a bank account in the United States. An FBI investigation ensued, and Chi was arrested on December 12, 2016.

Chi was indicted for six counts of violating 18 U.S.C. § 1957, which criminalizes engaging in monetary transactions of over $10,000 derived from certain “offense[s] against a foreign nation,” including crimes involving “bribery of a public official.” 18 U.S.C. § 1956. The “offense against a foreign nation” here was a violation of Article 129 of the South Korean Criminal Code. The district court concluded that Article 129 could properly be classified as describing an offense involving “bribery of a public official,” and the jury was instructed on the elements of that offense. Chi was convicted on one count, Count 6.

On appeal, Chi argues that the district court misinterpreted the term “bribery of a public official” as used in § 1956. According to Chi, “bribery of a public official” is a reference to the federal bribery statute, 18 U.S.C. § 201, and the district court erred by failing to ensure that the crime described in Article 129 fell within the elements of the crime described in said § 201. We disagree. We hold that “bribery of a public official” in § 1956 is defined by that phrase’s “ordinary, contemporary, common meaning,” Perrin v. United States, 444 U.S. 37, 42 (1979), and is not constrained by 18 U.S.C. § 201, a statute to which § 1956 makes no reference. Furthermore, because we find the crime described in Article 129 of the South Korean Criminal Code fits comfortably within the ordinary meaning of “bribery of a public official” as used in § 1956, we find the indictment was sufficient and that there was no instructional error. Accordingly, we affirm the judgment of the district court.”

As stated by the Ninth Circuit:

“[T]he legal question at the heart of this case is simple: what does an “offense against a foreign nation involving … bribery of a public official” as found in 18 USC § 1956 1956(c)(7)(B) mean?

[…]

The question here is how to define the categorical boundaries of such “bribery of a public official.”

[…]

Chi urges us to hold that “bribery of a public official” is a reference to 18 USC 201.”

However, the court concluded:

“That reading is belied by the rest of the statute. Several of the categories in § 1956(c)(7)(B) include references to specific federal laws, such as §§ 1956(c)(7)(B)(i) (Controlled Substances Act), 1956(c)(7)(B)(iii) (International Banking Act of 1978), 1956(c)(7)(B)(v)(I) (22 U.S.C. § 2778), and 1956(c)(7)(B)(v)(II) (15 C.F.R. Parts 730–74). § 1956(c)(7)(B)(iv), which includes “bribery of a public official,” contains no such reference. “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted). In the words of the district court, “had Congress intended to criminalize the laundering of bribery proceeds only where the foreign bribery statutes tracked the requirements of § 201, it would have said so.”

Furthermore, even if “bribery of a public official” were interpreted as a reference to a specific federal statute, it is not clear to which statute it would refer. To be sure, 18 U.S.C. § 201 is frequently referred to as “the federal bribery statute.” McDonnell v. United States, 136 S. Ct. 2355, 2365 (2016). But it is “merely one strand of an intricate web of regulations, both administrative and criminal, governing the acceptance of gifts and other selfenriching actions by public officials.” United States v. SunDiamond Growers of California, 526 U.S. 398, 409 (1999). Various federal statutes apply to federal employees who participate in proceedings relating to a matter in which they have a financial interest, 18 U.S.C. § 208; employees who receive “any contribution to or supplementation of salary . . . from any source other than the [g]overnment,” 18 U.S.C. § 209; or employees who “solicit or accept anything of value from a person . . . whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties,” 5 U.S.C. § 7353. Faced with this web of regulation, § 1956(c)(7)(B) gives no indication which—if any—federal law should define the meaning of “bribery of a public official.” Hence, absent a statutory basis to refer to and adopt the elements of § 201, we interpret “bribery of a public official” per Perrin’s instruction.”

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