Alerts and Updates
Second Circuit Decision in Bribery Conviction Reversal Opens Possible Loophole
January 27, 2020
At a minimum, the public official must promise to influence a “focused and concrete… question or matter.”
Sheldon Silver, former speaker of the New York State Assembly, was convicted of a number of political corruption crimes in 2015, namely accepting bribes in exchange for favorable “official acts” that benefited some bribe payors. He appealed his conviction to the Second Circuit on two grounds: first, that the trial court erred by failing to require that the prosecution establish that he and the bribe payor had a “meeting of the minds” on the specific official act to be performed in exchange for the bribes; and second, that the trial court erred by allowing the prosecution to proceed on a theory that allowed conviction based on a “nonspecific promise to undertake official action on any future matter beneficial to the payor.” (Emphasis added.)
On January 21, 2020, the United States Court of Appeals for the Second Circuit partially reversed Silver’s conviction and remanded the case for resentencing. The court’s logic and findings are significant and merit close attention.
The court rejected Silver’s first argument, finding that a conviction for bribery does not “require evidence of a meeting‐of-the‐minds agreement” on the specific official act to be performed in exchange for the bribe. It found instead that a valid conviction only “requires proof as to each party’s belief or understanding as to the purpose for which payment is made, but it does not demand that the victim and defendant shared a common criminal intent or purpose.”
In analyzing the mindsets of the respective players, the court stated:
What matters is the intent the official conveys to the payor—i.e., that he will take or refrain from taking certain official action in return for payment. Significantly, there is no requirement that the official actually intend to follow through on his commitment. What matters is that the official manifest a willingness to take payment for official action or inaction. And since the official need not follow through or even intend to follow through on his representations, it follows that there cannot logically be a requirement that the official and payor share a common purpose.
The payor need only be motivated, at least in part, by the expectation that as a result of the payment, the public official will exercise official influence or decision‐making for the benefit of the payor. The public official must also be aware of this motivation. There is no requirement that the government prove a meeting of the minds between the payor and the official as to the corrupt purpose of the payments. The politician can be “playacting” and giving false promises of assistance to people he believes are offering him money to influence his official actions and still violate the bribery statute.
The Second Circuit did, however, agree with Silver’s second argument, finding that the prosecution was required to establish that when the bribe was paid, the defendants understood “the particular question or matter to be influenced” and not necessarily the official act to be performed in exchange for the bribe.
Here, the Second Circuit found that “a public official must do more than promise to take some or any official action beneficial to the payor as the opportunity to do so arises; she must promise to take official action on a particular question or matter as the opportunity to influence that same question or matter arises.” (Emphasis added.) At a minimum, the public official must promise to influence a “focused and concrete… question or matter” that “involv[es] a formal exercise of governmental power.” The court did note, however, that its holding should not curtail many prosecutions, as “circumstantial evidence demonstrating understanding between the payor and the official will often be sufficient for the government to identify a properly focused and concrete question or matter.”
The Second Circuit further concluded that the “relevant point in time in a quid pro quo bribery scheme is the moment at which the public official accepts the payment.” (Emphasis added.) This temporal requirement leaves open the possibility of court dismissing criminal charges in a case where an individual makes a large payment to a politician and years later asks for a “favor.” Additionally, the Second Circuit’s findings leave open the possibility that regular payments to politicians in the hopes they will perform unspecified favors in return would not constitute a violation of federal bribery statutes. As the Second Circuit noted, “so long as currying favor and building a reservoir of goodwill with politicians is legal, the government’s burden in bribery prosecutions remains high.”
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