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Supreme Court To Hear Bribery Case

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Given how the government enforces the Foreign Corrupt Practices Act (most corporate resolutions generally lack any meaningful judicial scrutiny and individual enforcement actions are generally rare), the Supreme Court has never addressed an FCPA issue in the statute’s 46 year existence. As long as these dynamics continue, it is unlikely that the Supreme Court will address an FCPA issue any time soon. (As highlighted here, a cert petition was filed in the Esquenazi “foreign official” case, but getting the Supreme Court to accept an issue in the absence of a circuit split is rare).

However, in recent years the Supreme Court has issued many decisions regarding the scope of federal criminal statutes – including in the general bribery context – and the results are often unfavorable to the Department of Justice. (See here).

The Supreme Court – which generally decides which cases it will hear – recently decided to hear U.S. v. Snyder. (See here).

As stated in the cert petition, the question presented is as follows:

“18 U.S.C. § 666(a)(1)(B) makes it a federal crime for a state or local official to “corruptly solicit[,] demand[,] … or accept[] … anything of value from any person, intending to be influenced or rewarded in connection with any” government business “involving any thing of value of $5,000 or more.” The question presented, on which the circuits are divided, is: Whether section 666 criminalizes gratuities, i.e., payments in recognition of actions the official has already taken or committed to take, without any quid pro quo agreement to take those actions.”

The petition states:

“This case presents an exceptionally important, outcome-determinative question concerning the scope of the most prosecuted federal public-corruption statute: 18 U.S.C. § 666. That statute makes it a crime for state and local officials to “corruptly solicit[,] demand[,] … or accept[] … anything of value” in order to be “influenced or rewarded in connection with” government business “involving any thing of value of $5,000 or more.” 18 U.S.C. § 666(a)(1)(B).

The circuits are deeply divided over whether section 666 criminalizes gratuities, i.e., payments in recognition of actions the official has already taken or committed to take where the official did not agree to take those actions in exchange for payment. In the First and Fifth Circuits, gratuities are not criminal. To secure a section 666 conviction, the government must instead prove that the official and the payor agreed to exchange something of value for official action. In other words, the government must prove a quid pro quo bribe like paying a legislator to vote for a bill.

In direct conflict, the Seventh Circuit below, joined by the Second, Sixth, Eighth, and Eleventh Circuits, do not require a quid pro quo and permit convictions for gratuities. While section 666 requires that the official act “corruptly,” those circuits and the government read that word to require only that officials knew they were getting something of value that was intended to reward them. That capacious interpretation risks chilling an enormous range of legitimate conduct. A constituent might donate to the campaign of a politician who took an action the constituent likes. Or a real-estate agent might offer a deal on a condo to a city housing official whose policies helped the agent weather a recession. In five circuits, those actions are illegal, and officials can be prosecuted for accepting donations or gifts.

Courts, commentators, and even the government recognize that 5-2 circuit split. And the split is entrenched and intractable. Circuits on both sides have acknowledged the conflict, and declined to reconsider their positions en banc. The battle lines are drawn, and only this Court can break the logjam and restore uniformity on the meaning of an important federal criminal statute.

This circuit split is also manifestly important. Millions of state and local officials nationwide fall within section 666’s scope. And a parallel provision, 18 U.S.C. § 666(a)(2), criminalizes payments to a state or local official, reaching anyone who gives anything of value to public officials too. Whether people may spend years in federal prison should not turn on the happenstance of where they reside. Yet, as it stands, public servants, constituents, and others in New York, Chicago, and Miami can spend up to ten years in prison for conduct that is not a federal crime in Boston or Houston. The current arbitrary disparity cries out for this Court’s resolution.

Moreover, the government’s reading of section 666 risks chilling a wide range of constitutionally protected conduct. Absent a quid pro quo requirement, section 666’s reach is amorphous, sweeping up wide arrays of First Amendment-protected interactions with government officials. Officials and citizens across the country should not be left guessing when the everyday hustle and bustle of local politics becomes a federal crime. And federalism principles counsel strongly against reading section 666 to permit federal prosecutors to micromanage how state and local officials campaign, carry out their jobs, and interact with constituents.

This case is the ideal vehicle to resolve this critical and recurring question. Petitioner James Snyder, the former Mayor of Portage, Indiana, was convicted under section 666 for accepting $13,000 from a truck company after the company successfully won bids to sell garbage trucks to the City. Mayor Snyder maintains that this payment was a valid transaction with his consulting business, as the truck company’s owner testified at trial. Regardless, the government does not allege that Mayor Snyder agreed to rig the bidding process in exchange for $13,000. The government instead alleged Mayor Snyder both approached the company and received the payment after the bidding was complete, i.e., that Mayor Snyder received a gratuity.

Thus, at trial, the government repeatedly disavowed any obligation to prove a quid pro quo. The district court rebuffed Mayor Snyder’s requests to dismiss the indictment, instruct the jury that section 666 does not cover gratuities, or grant acquittal. And the Seventh Circuit affirmed Mayor Snyder’s section 666 conviction solely on a gratuity theory, recognizing that the same conduct would not be a federal crime in the First and Fifth Circuits. This Court should grant certiorari now to resolve this entrenched, intolerable conflict.”

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