REPORT OF THE PUBLIC CORRUPTION WORKING GROUP Vince Ventimiglia Pam Rigby Elizabeth Atwater Kathryn Rosieh Amy Lecocq Jon Sands Liz Phillips Kirsten Swisher September 8, 1993 / TABLE OF CONTENTS Page ' EXECUTIVE SUMMARY iV I. SCOPE OF THE WORKING GROUP AND REPORT l II. SCOPE OF THE PUBLIC CORRUPTION GUIDELINES AND STATUTES l A. Public Corruption Guidelines 1 B. Amendments to Guidelines 4 l. Amendments to Sections 2C1.1 and 2C1.2 4 2. Addition of Section ZCLT . 5 C. Public Cormption Statutes 5 D. Legislative History 8 E; Proportionality of Punishment Relative to Guidelines for Bribery, Extortion, and Gratuity Involving Other than Public Officials 8 F. Proportionality of Punishment Relative to Statutory Maximum 9 G. Pending Legislation . 10 'III. COMMON LAW AND STATUTORY DEFINITIONS 10 A Bribery and Gratuity ll l. Specific Intent ll 2. 12 B. Extortion by Threat of Force and Extortion Under Color of Official Righlz I. Primary Distinction Between the Two Extortions: Private Versus ' Public Actor 12 2. Elements of Extortion Under Color of OfEcia.1 Right 13 a. Solicitation of Payment . 13 b. - 14 c. Mgg5,&e,a 14 C. Bllortion and Extortion Under Color of Official Right as Crimes of Violence l5 D. 'FBe"McNa.l1y Fix" - Application of Generic Fraud Statutes to Public Corruption Offenses 15 IV. EXPERT ASSISTANCE, PUBLIC COMMENT, HOTLINE CALLS, ' LITERATURE REVIEW 17 A. Expert Assistance 17 Page i PUBLIC CORRUPTION REPORT - l. Department of Justice ; . 17 2. Practitioners' Advisory Group . .. lb 3. Other Defense Bar Practitioners 18 4. U.S. Probation Officer Advisory Group lg 5. Training Staff ; 19 1 . B. Public Comment . .. 20 C. Attorney and TAS Hotline Calls 20 l. Primary Issues in Section 2C1.1 21. 2. Additional Issues in Section 2C1.1 . 22 - 3. Issues in Sections 2C1.2 2C1.7 . 22 D. Literature Review 22 V. CASE LAW REVIEW 23 A. The Determination of Value . 24 B. Application of High-Level Official Adjustment !. 25 C. Determination of Appropriate Guideline . 26 D. Review of Depanures 27 VI. MONITORING DATA 28 A Data"source: The Public Corruption File (1993) > ; 28 B. Defendant and Offense Data . 28 l. Criminal History Category 29 2. Race 30 3. Gender 3 I 4. Citizenship 3 l 5. Education . 34 6. District Analysis 1 35 7. Plea and Trial Rates . 36 C. Guideline Application Data 37 l. Specific Offense Characteristic 37 a. Section ZCl.1 (Bribery) 37 b. A Section 2C1.2 (Gratuity) " 37 . 2. Total Offense Levels 7 38 3i Sentence Medians and Distributions 39 £ Departures 40 5 - Departures by District 42 6. Reasons for Non-substantial-Assistance Departure 43 7. Substantial Assistance Departure Rates Within Specific Conspiracies 8. Comparison of Offense Levels and Sentences Imposed Under Past Practice and Under the Guidelines 44 a. Comparison of Offense Levels 44 9. Fines and Restitution 45 Page ii PUBLIC CORRUPTION REPORT VII. CASE ; . FILE REVIEW . 46 A. Frequency Data 46 B. Multiple Bribes, Extortions, or Gratuities 48 - C. Detennination of Value 49 D. Application of 8-Level High-Level Official Adjustment 49 E.' Conduct in Cases Under Sections 2C1.3, 2C1.4, 2C1.5, 2C1.6, 2C1.7 50 F. Use of Other Guidelines in Connection with Public Comiption Offenses 51 - l. "Non public Corruption Guideline High" Cases 52 2. "Guideline Pass" Cases 52 G. Application of Section 381.3 (Abuse of Position of Tn1st) 53 H. Additional Case File Data Runs 54 Page iii PUBLIC CORRUPTION REPORT EXECUTIVE SUMMARY / Public corruption oEenses comprise a relatively small portion of the cases sentenced under the federal sentencing guidelines over the last two and a half years. During this time period, over 600 cases involved the public corruption guidelines at Chapter Two, Part C. The vast majority of these cases are covered by 52Cl.l ((Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right), with a sizable number also covered by €2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity). (See section lI-A of the report.) A substantial number of public corruption cases, primarily prison contraband, dmg, and fraud cases are sentenced using other guidelines. (See section VII-F.) This modest representation in numbers, however, belies a high-profile nature of public comiption offenses. Public corruption defendants are often powerful, well-known public officials holding high-level or elected office. Recent defendants include officials from every level of govemment, in every branch of govemment federal, state, and local including the United States Congress, the federal judiciary, the Pentagon, state govemors and their staff, several statelegislatures, state judges. mayors and aldermen, sheriffs and chiefs of police. In addition, public corruption offenses commonly involve bribes paid to IRS agents to reduce tax liability; bribes to secure immigration documents, prison contraband cases, and procurement and contract-related bribes and gratuities. (See Appendix IX.) Public comiption defendants are generally White (45%), male (85%), American (76%), well-educated (54% completed college or received a graduate degree) first offenders (91% are criminal history category 1), who plead guilty (85 %) to their public corruption charges. A higher proportion of public corruption defendants are Asian (17% compared with less than 3% for all MONFY92 defendants) and a lower proportion are Hispanic (9% compared with 23%); and public corruption defendants have lower criminal histories and higher levels of education than the general MONFY92 defendant. Otherwise, these defendants generally match the characteristics of the typical MONFY92 defendant. (See section VI-B.) Public corruption defendants have a median total offense level 14 and a median - sentence of 6 months. However, a significant number of public con uption defendants in multiple count cases or who are cross referenced to other guidelines receive substantially higher senten~ (median of 18 "months). One-third of defendants receive probation. (See section - ~.) Upward and downward departure rates (l% and 6%, respectively) for public corruption defendants are consistent with overall guidelines. However, the substantial assistance departure rate is substantially higher (25% compared with 15%), and this contributes to the relatively low median sentence and the high proportion of probationers (indeed, 60% of 55K1.1 cases receive probation). The majority of substantial assistance departures, however, arise in a small number of districts. (See section VI-C.) Page iv PUBLIC CORRUPTION REPORT Comment from public corruption experts and criminal justice practitioners, and a review of literature, hotline calls, and case law revealed a number of concems regarding application of the public corruption guidelines. (See sections IV and V.) A primary issue raised by all sources centers on the distinctions between the offenses of bribery, gratuity, extortion under color of official right, extortion, and other public con-uption offenses. Not only are theelements of the offenses similar (gg, gratuity and bribery); in some statutes the key elementslare subjective and not easily "detem1inable (9,9, the requirement of a corrupt purpose for bribery under 18 U.S.C. 5 201(6)). Moreover, the definitions for similar offenses often vary among statutes (see, gag, bribery under 18 U.S.C. {$5 201(b) and 666). (See section III.) Related to this issue is the infrequent use of 552C1.3 through .ZC 1.7, some of which offenses may be comparable in nature arid may merit consolidation. (See section VII-E.) A secondary issue involves the - definition of an "official holding a high level decision-making or sensitive position." Concerns have been raised regarding the difficulties involved with applying this rather subjective adjustment (the adjustment is applied to some - offenses involving line INS agents and not to certain cases involving high-level federal procurement officials) and regarding the extent of the adjustment (9,3,, * the 8-level adjustment is applied similarly to lower-level, elected, local officials and the highest-level official). This adjustment was applied in approximately 15 percent of the €52CLl and 2C1.2 cases. (See section VII-D.) Another concem with application is the determination of the value of the payment for purposes of the value table adjustment. Concems have been raised regarding determination of value in some complex cases or cases where some facts are obscure (99,, procurement or contract cases) or where the benefit is not readily determinable leg., INS document cases). Other concems have focused on the ,complexity of or ambiguity in the commentarys definition of the relevant tem1s. Additional concems have arisen over application of the adjustment for cases involving multiple bribes or gratuities. At least one of these two adjustments were applied in 83 percent of the public corruption cases. (See sections VII-B and VIIAC.)- > A finalissue surrounds the use of departures on grounds of collateral consequences (£3,, debarment, loss of official position, vulnerability in prison) and cultural predkposition (£3,, to offer a gratuity for services rendered). (See section V-D.) Num~ *additional; - relatively limited and technicalchanges have been identified as possibly mGidng further consideration by the Commission. The Working Group will continue the ongoing research projects described in this report. At the Commissions direction, the Working Group will identify issues raised by this report and will suggest, for further consideration by the Commission, possiblesteps that can be taken to address those issues. Page