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8.17 Receiving Illegal Gratuity by Public Official

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8.17 RECEIVING ILLEGAL GRATUITY BY PUBLIC OFFICIAL (18 U.S.C. § 201(c)(1)(B))

The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [agreeing to receive] an illegal gratuity in violation of Section 201(c)(1)(B) 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 was [specify public official]; and

Second, the defendant [[solicited] [received] [agreed to receive]] something of value, [specify the thing of value], personally for or because of an official act [performed] [to be performed] by the defendant.

Comment

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).

See Comment to Instruction 8.16 (Illegal Gratuity to Public Official).

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 public official intended to do in return for the gratuity"). See Instruction 7.9 (Specific Issue Unanimity).

"Public official" is defined in 18 U.S.C. § 201(a)(1); § 201(c)(1)(B) also applies to a former public official and a person selected to be a public official.