California Penal Code Section 67 is similar to the anti-bribery provisions of the Foreign Corrupt Practices Act in that it states: ““Every person who gives or offers any bribe to any executive officer in this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in the state prison for two, three or four years, and is disqualified from holding any office in this state.”
Other portions of California law provide that the “word ‘bribe’ signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity.” The word “corruptly” imports a wrongful design to acquire or cause some pecuniary or other advantage to the person guilty of the act or omission referred to, or to some other person.”
Thomas Moyer (who during the time period relevant was the head of the Global Security Group at Apple Inc. and in charge of all aspects of Apple security) was criminally charged with giving or offering a bribe to an executive officer in violation of Section 67.
The short version of the facts is that in 2017 Moyer’s group decided that they wanted to go from unarmed to armed security and that “securing the necessary approvals to carry firearms outside of Apple’s campus would require obtaining a concealed carry weapons (CCW) permit for each member of the team” and that the “sheriff of a county has authority to issue CCW permits to those who live within that county.”
Evidence was presented that obtaining CCW permits was very difficult, but ultimately the Undersheriff of the County (Sung) directed appropriate personnel in the Sheriff’s Office to start processing the Apple CCW permits. Thereafter, Sung emailed Moyer requesting a meeting and during the meeting Moyer e-mailed himself “with no text in the body of the e-mail and only “iPad Donation” in the subject line.” As stated in the court’s opinion:
“That same day, Moyer also emailed the head of the Apple executive protection team, informing him: “Just finished meeting with SO. You will have your permits shortly. Potentially early next week. […] A couple of days after [the] meeting, Moyer inquired with Apple personnel regarding the process for donating Apple iPads or computers to the Santa Clara County Sheriff’s Office.”
Moyer moved to dismiss the bribery charge by arguing, among other things, that probable cause of bribery was lacking and the court agreed finding that there was insufficient evidence of Moyer’s corrupt intent.
In opposition, the state argued that there was sufficient evidence that Moyer violated Section 67 because he promised to donate iPads to the Sheriff’s Office and did so with corrupt intent contending that the “only reasonable explanation” for Moyer’s e-mail to himself during the meeting and his subsequent inquiries about donating iPads to the Sheriff’s Office is that Moyer offered to donate iPads to the Sheriff’s Office to secure the CCW licenses for the executive protection team.
However, the court disagreed and stated:
Generally speaking, there is sparse FCPA judicial decisions including as to the corrupt intent element of the FCPA’s anti-bribery provisions. Although outside the FCPA context the Moyer decision is FCPA relevant. Indeed, although the court did not substantively address the issue, in its decision the court did note that Moyer requested the court to take judicial notice of “reports and opinions of the U.S. Department of Justice and the U.S. Attorney General interpreting the Foreign Corrupt Practices Act.”
