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8.12 Bribery of Public Official

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8.12 BRIBERY OF PUBLIC OFFICIAL (18 U.S.C. § 201(b)(1))

The defendant is charged in [Count _______ of] the indictment with bribing a public official in violation of Section 201(b)(1) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant [gave] [offered] [promised] something of value, [specify the thing of value], to [name of public official]; and

Second, the defendant acted corruptly, that is, with the intent to [influence an official act by the [name of public official]] [influence the [name of public official] to commit or allow a fraud on the United States] [induce the [name of public official] to do or to omit to do an act in violation of [his] [her] lawful duty][.] [; and]

[Third, [name of public official] was a public official.]

Comment

The crime of bribery requires "corrupt intent," a higher degree of intent than is required under the provision outlawing gratuities to public officials. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 822 (9th Cir.1985). Under the bribery sections of § 201, the term "corruptly" refers to the "defendant’s intent to be influenced to perform an act in return for financial gain." United States v. Leyva, 282 F.3d 623, 626 (9th Cir.2002) (citing United States v. Strand, 574 F.2d 993, 995-96 (9th Cir.1978)).

The "thing of value" given, offered, or promised to a public official is an element of the bribery charge. It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. United States v. Choy, 309 F.3d 602, 607 (9th Cir.2002). Where the defense asserts that the thing given, offered, or promised had no value, the jury must be asked to determine whether it had value.

If there is any question in the case about the "official" character of the action sought by the defendant, insert a sentence following "duty" defining "official act:" "An official act is any decision or action on a question that may be brought before any public official in his official capacity." See 18 U.S.C. § 201(a)(3). "Public official" is defined in 18 U.S.C. § 201(a)(1); § 201(b)(1) also applies to a person selected to be a public official. Actual power to do what defendant wants is not an element. "[A] person may be convicted of bribery even though the action requested is not within the official’s power to perform." Chen, 754 F.2d at 825.

Omit the bracketed third element of this instruction when the recipient’s status as a public official is not in dispute. Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., "with all of you agreeing as to what the defendant intended the public official to do in return for the bribe"). See Instruction 7.9 (Specific Issue Unanimity).