The Ultimate Guide to the Federal Bribery and Public Corruption Statute

Bribery and public corruption are serious federal crimes. While the Foreign Corrupt Practices Act (FCPA) addresses bribery, gratuities, and other corrupt activities involving foreign entities, the federal bribery and public corruption statute, 18 U.S.C. Section 201, focuses on bribery and public corruption at home. Specifically, it addresses bribery and corruption involving witnesses, federal public officials, and individuals who have been selected to serve in a federal public office.

Under the federal bribery and public corruption statute, both individuals who offer bribes and gratuities and those who accept bribes and gratuities can face prosecution. The statute also criminalizes offering and seeking bribes and gratuities in equal measure. As a result, federal bribery and public corruption investigations will often implicate multiple individuals; and, even if no money (or other property) changes hands, all individuals involved can face substantial fines and prison time.

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The Federal Bribery and Public Corruption Statute: An Overview

The federal bribery and public corruption statute, 18 U.S.C. Section 201, has two main operative provisions—subsection 201(b) and subsection 201(c). As the U.S. Department of Justice (DOJ) explains, these subsections establish two distinct offenses:

“The first offense, codified in section 201(b), prohibits the giving or accepting of anything of value to or by a public official, if the thing is given ‘with intent to influence’ an official act, or if it is received by the official ‘in return for being influenced.’

“The second offense, codified in section 201(c), concerns what are commonly known as ‘gratuities,’ although that word does not appear anywhere in the statute. Section 201(c) prohibits that same public official from accepting the same thing of value, if he does so ‘for or because of’ any official act, and prohibits anyone from giving any such thing to him for such a reason.”

Subsections 201(b) and (c) both apply to individuals who offer and pay bribes and gratuities as well as to witnesses, public officials, and “person[s] who ha[ve] been selected to be a public official” and who either solicit or accept bribes or gratuities. Subsection 201(a) defines “public official” to include any “Member of Congress, Delegate, or Resident Commissioner, . . . or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government . . . or a juror.”

Breaking down the federal bribery and public corruption statute even further, we can focus separately on each side of the transaction (or proposed transaction) for each of the statute’s two separate offenses:

1. Offering and Payment of Bribes

Offering and payment of bribes is addressed in subsections 201(b)(1) and (b)(3). Under subsection 201(b)(1), it is a federal white-collar crime to “directly or indirectly, corruptly give[], offer[] or promise[] anything of value to any public official or person who has been selected to be a public official . . . with intent—

• “(A) to influence any official act; or
• “(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
• “(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person . . . .”

Subsection 201(b)(1) also criminalizes offering or paying a bribe to a third party in an attempt to influence an official act. Subsection 201(b)(3) establishes similar prohibitions with respect to witnesses.

2. Soliciting and Receipt of Bribes

Soliciting and receipt of bribes is addressed in subsections 201(b)(2) and (b)(4). These provisions are essentially the inverse of subsections 201(b)(1) and (b)(3), establishing penalties for public officials, individuals selected for public office, and witnesses who “directly or indirectly, corruptly demand[], seek[], receive[], accept[], or agree[] to receive or accept anything of value” in exchange for an official act, violation of a lawful duty, testimony, or refusal to testify.

3. Offering and Payment of Gratuities

While bribes are paid in exchange for unlawful acts, gratuities are paid “because of” unlawful acts. Gratuities are addressed in subsection 201(c); although, as noted by the DOJ, the statute does not use the term “gratuity” specifically. Under subsection 201(c)(1)(A):

“Whoever . . . otherwise than as provided by law for the proper discharge of official duty . . . directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official [is guilty of public corruption.”

Similarly, under subsection 201(c)(2), anyone who “directly or indirectly, gives, offers, or promises anything of value to any person, for or because of” a witness’s testimony (or refusal to testify) is guilty of public corruption.

4. Soliciting and Receipt of Gratuities

Subsections 201(c)(1)(B) and 201(3) address the soliciting and receipt of gratuities. Similar to subsections 201(b)(2) and (b)(4), they impose criminal penalties for public officials, individuals selected for public office, and witnesses who “directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value” for or because of an official act violation of a lawful duty, testimony, or refusal to testify.

Penalties Under the Federal Bribery and Public Corruption Statute (18 U.S.C. Section 201)

The penalties imposed under the federal bribery and public corruption statute are different for cases involving bribes and cases involving gratuities. However, within these two broad categories, all individuals involved are subject to the same penalties—and these penalties apply regardless of whether a bribe or gratuity is ultimately paid:

• Penalties for Bribery (18 U.S.C. Section 201(b)) – Under Section 201(b), individuals convicted of offering, paying, soliciting, or receiving a bribe can face up to 15 years of federal imprisonment and a fine of $250,000 or three times the amount of the bribe, whichever is greater.
• Penalties for Gratuities (18 U.S.C. Section 201(c)) – Under Section 201(c), individuals convicted of offering, paying, soliciting, or receiving a gratuity can face up to 2 years of federal imprisonment plus a statutory fine.

In cases involving witnesses, the statute clarifies that the penalties imposed under Section 201(b) or 201(c) are “separate from and in addition to” any penalties imposed for witness intimidation, jury tampering, or obstructing official proceedings under 18 U.S.C. Sections 1503, 1504, and 1505. Depending on the specific charge and circumstances involved, these offenses can carry statutory fines and up to 20 years of federal imprisonment.

Defenses to Prosecution Under the Federal Bribery and Public Corruption Statute

There are several potential defenses to all types of charges under 18 U.S.C. Section 201. Depending on a target’s or defendant’s alleged role in a bribery or public corruption scheme, it may be possible to avoid prosecution or conviction by asserting defenses such as:

• Lack of Intent – Under 18 U.S.C. Section 201(b)(1), federal prosecutors must prove that a defendant acted with intent to influence a public official or person selected for public office. Without evidence of intent to influence, prosecutors do not have a case to pursue.
• Lack of Influence or Inducement – Public officials, individuals selected for public office, and witnesses can accept gifts if they do not have a corrupt purpose (subject to varying restrictions in certain circumstances). If prosecutors cannot prove that a gift was offered, made, solicited, or accepted in exchange for something else, then they cannot prove a criminal act under Section 201.
• Inadequate Evidence of Solicitation or Acceptance – Public officials, individuals selected for public office, and witnesses may be able to defend against allegations under Section 201 by challenging the government’s evidence of solicitation or acceptance. If someone offers or attempts to pay a bribe or gratuity, this alone does not establish criminal culpability on the part of the intended recipient.
• Insufficient or Inadmissible Evidence Generally – Federal prosecutors must be able to prove a defendant’s guilt under the federal bribery and public corruption statute beyond a reasonable doubt. If the government’s evidence regarding any element of the offense is lacking, or if the government’s evidence is inadmissible due to a constitutional violation, then prosecution is unwarranted regardless of the facts at hand.

These are just examples. Depending on the specific facts involved, there may be a variety of other options for defending against bribery and public corruption charges under 18 U.S.C. Section 201 as well. For individuals who are under investigation or facing charges, building a defense strategy starts with engaging experienced federal white-collar defense counsel as soon as possible.

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We represent public officials and other individuals in federal bribery and public corruption cases throughout the United States. If you are under investigation or facing charges, you can call 888-680-1745 or contact us online to speak with a senior lawyer at Oberheiden P.C. about your case in confidence.