1995 Guidelines Manual

Chapter Two - PART C - OFFENSES INVOLVING PUBLIC OFFICIALS

Introductory Commentary

The Commission believes that pre-guidelines sentencing practice did not adequately reflect the seriousness of public corruption offenses. Therefore, these guidelines provide for sentences that are considerably higher than average pre-guidelines practice.

Historical Note: Effective November 1, 1987.

2C1.1.Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right

(a)Base Offense Level: 10

(b)Specific Offense Characteristics

(1)If the offense involved more than one bribe or extortion, increase by 2 levels.

(2)(If more than one applies, use the greater):

(A)If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest, exceeded $2,000, increase by the corresponding number of levels from the table in 2F1.1 (Fraud and Deceit).

(B)If the offense involved a payment for the purpose of influencing an elected official or any official holding a high- level decision-making or sensitive position, increase by 8 levels.

(c)Cross References

(1)If the offense was committed for the purpose of facilitating the commission of another criminal offense, apply the offense guideline applicable to a conspiracy to commit that other offense if the resulting offense level is greater than that determined above.

(2)If the offense was committed for the purpose of concealing, or obstructing justice in respect to, another criminal offense, apply 2X3.1 (Accessory After the Fact) or 2J1.2 (Obstruction of Justice), as appropriate, in respect to that other offense if the resulting offense level is greater than that determined above.

(3)If the offense involved a threat of physical injury or property destruction, apply 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above.

(d)Special Instruction for Fines - Organizations

(1)In lieu of the pecuniary loss under subsection (a)(3) of 8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful payment; (B) the value of the benefit received or to be received in return for the unlawful payment; or (C) the consequential damages resulting from the unlawful payment.

Commentary

Statutory Provisions: 18 U.S.C. 201(b)(1), (2), 872, 1951. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Official holding a high-level decision-making or sensitive position" includes, for example, prosecuting attorneys, judges, agency administrators, supervisory law enforcement officers, and other governmental officials with similar levels of responsibility.

2."Loss" is discussed in the Commentary to 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) and includes both actual and intended loss. The value of "the benefit received or to be received" means the net value of such benefit. Examples: (1) A government employee, in return for a $500 bribe, reduces the price of a piece of surplus property offered for sale by the government from $10,000 to $2,000; the value of the benefit received is $8,000. (2) A $150,000 contract on which $20,000 profit was made was awarded in return for a bribe; the value of the benefit received is $20,000. Do not deduct the value of the bribe itself in computing the value of the benefit received or to be received. In the above examples, therefore, the value of the benefit received would be the same regardless of the value of the bribe.

3.Do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill) except where the offense level is determined under 2C1.1(c)(1), (2), or (3). In such cases, an adjustment from 3B1.3 (Abuse of Position of Trust or Use of Special Skill) may apply.

4.In some cases the monetary value of the unlawful payment may not be known or may not adequately reflect the seriousness of the offense. For example, a small payment may be made in exchange for the falsification of inspection records for a shipment of defective parachutes or the destruction of evidence in a major narcotics case. In part, this issue is addressed by the adjustments in 2C1.1(b)(2), and 2C1.1(c)(1), (2), and (3). However, in cases in which the seriousness of the offense is still not adequately reflected, an upward departure is warranted. See Chapter Five, Part K (Departures).

5.Where the court finds that the defendant's conduct was part of a systematic or pervasive corruption of a governmental function, process, or office that may cause loss of public confidence in government, an upward departure may be warranted. See Chapter Five, Part K (Departures).

6.Subsection (b)(1) provides an adjustment for offenses involving more than one incident of either bribery or extortion. Related payments that, in essence, constitute a single incident of bribery or extortion (e.g., a number of installment payments for a single action) are to be treated as a single bribe or extortion, even if charged in separate counts.

Background: This section applies to a person who offers or gives a bribe for a corrupt purpose, such as inducing a public official to participate in a fraud or to influence his official actions, or to a public official who solicits or accepts such a bribe. The maximum term of imprisonment authorized by statute for these offenses is fifteen years under 18 U.S.C. 201(b) and (c), twenty years under 18 U.S.C. 1951, and three years under 18 U.S.C. 872.

The object and nature of a bribe may vary widely from case to case. In some cases, the object may be commercial advantage (e.g., preferential treatment in the award of a government contract). In others, the object may be issuance of a license to which the recipient is not entitled. In still others, the object may be the obstruction of justice. Consequently, a guideline for the offense must be designed to cover diverse situations.

In determining the net value of the benefit received or to be received, the value of the bribe is not deducted from the gross value of such benefit; the harm is the same regardless of value of the bribe paid to receive the benefit. Where the value of the bribe exceeds the value of the benefit or the value of the benefit cannot be determined, the value of the bribe is used because it is likely that the payer of such a bribe expected something in return that would be worth more than the value of the bribe. Moreover, for deterrence purposes, the punishment should be commensurate with the gain to the payer or the recipient of the bribe, whichever is higher.

Under 2C1.1(b)(2)(B), if the payment was for the purpose of influencing an official act by certain officials, the offense level is increased by 8 levels if this increase is greater than that provided under 2C1.1(b)(2)(A).

Under 2C1.1(c)(1), if the payment was to facilitate the commission of another criminal offense, the guideline applicable to a conspiracy to commit that other offense will apply if the result is greater than that determined above. For example, if a bribe was given to a law enforcement officer to allow the smuggling of a quantity of cocaine, the guideline for conspiracy to import cocaine would be applied if it resulted in a greater offense level.

Under 2C1.1(c)(2), if the payment was to conceal another criminal offense or obstruct justice in respect to another criminal offense, the guideline from 2X3.1 (Accessory After the Fact) or 2J1.2 (Obstruction of Justice), as appropriate, will apply if the result is greater than that determined above. For example, if a bribe was given for the purpose of concealing the offense of espionage, the guideline for accessory after the fact to espionage would be applied.

Under 2C1.1(c)(3), if the offense involved forcible extortion, the guideline from 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) will apply if the result is greater than that determined above.

When the offense level is determined under 2C1.1(c)(1), (2), or (3), an adjustment from 3B1.3 (Abuse of Position of Trust or Use of Special Skill) may apply.

Section 2C1.1 also applies to extortion by officers or employees of the United States in violation of 18 U.S.C. 872, and Hobbs Act extortion, or attempted extortion, under color of official right, in violation of 18 U.S.C. 1951. The Hobbs Act, 18 U.S.C. 1951(b)(2), applies in part to any person who acts "under color of official right." This statute applies to extortionate conduct by, among others, officials and employees of state and local governments. The panoply of conduct that may be prosecuted under the Hobbs Act varies from a city building inspector who demands a small amount of money from the owner of an apartment building to ignore code violations to a state court judge who extracts substantial interest-free loans from attorneys who have cases pending in his court.

Offenses involving attempted bribery are frequently not completed because the victim reports the offense to authorities or is acting in an undercover capacity. Failure to complete the offense does not lessen the defendant's culpability in attempting to use public position for personal gain. Therefore, solicitations and attempts are treated as equivalent to the underlying offense.

Historical Note: Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C, amendment 18); November 1, 1989 (see Appendix C, amendments 120-122); November 1, 1991 (see Appendix C, amendments 367 and 422).

2C1.2.Offering, Giving, Soliciting, or Receiving a Gratuity

(a)Base Offense Level: 7

(b)Specific Offense Characteristics

(1)If the offense involved more than one gratuity, increase by 2 levels.

(2)(If more than one applies, use the greater):

(A)If the value of the gratuity exceeded $2,000, increase by the corresponding number of levels from the table in 2F1.1 (Fraud and Deceit).

(B)If the gratuity was given, or to be given, to an elected official or any official holding a high-level decision-making or sensitive position, increase by 8 levels.

(c)Special Instruction for Fines - Organizations

(1)In lieu of the pecuniary loss under subsection (a)(3) of 8C2.4 (Base Fine), use the value of the unlawful payment.

Commentary

Statutory Provision: 18 U.S.C. 201(c)(1). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1."Official holding a high-level decision-making or sensitive position" includes, for example, prosecuting attorneys, judges, agency administrators, supervisory law enforcement officers, and other governmental officials with similar levels of responsibility.

2.Do not apply the adjustment in 3B1.3 (Abuse of Position or Trust or Use of Special Skill).

3.In some cases, the public official is the instigator of the offense. In others, a private citizen who is attempting to ingratiate himself or his business with the public official may be the initiator. This factor may appropriately be considered in determining the placement of the sentence within the applicable guideline range.

4.Related payments that, in essence, constitute a single gratuity (e.g., separate payments for airfare and hotel for a single vacation trip) are to be treated as a single gratuity, even if charged in separate counts.

Background: This section applies to the offering, giving, soliciting, or receiving of a gratuity to a public official in respect to an official act. A corrupt purpose is not an element of this offense. An adjustment is provided where the value of the gratuity exceeded $2,000, or where the public official was an elected official or held a high-level decision-making or sensitive position.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 121); November 1, 1991 (see Appendix C, amendment 422); November 1, 1995 (see Appendix C, amendment 534).

2C1.3.Conflict of Interest

(a)Base Offense Level: 6

(b)Specific Offense Characteristic

(1)If the offense involved actual or planned harm to the government, increase by 4 levels.

Commentary

Statutory Provisions: 18 U.S.C. 203, 205, 207, 208. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Note:

1.Do not apply the adjustment in 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Background: This section applies to financial and non-financial conflicts of interest by present and former federal officers and employees.

Historical Note: Effective November 1, 1987. Amended effective November 1, 1995 (see Appendix C, amendment 534).

2C1.4. Payment or Receipt of Unauthorized Compensation

(a)Base Offense Level: 6

Commentary

Statutory Provisions: 18 U.S.C. 209, 1909.

Application Note:

1.Do not apply the adjustment in 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Background: Violations of 18 U.S.C. 209 involve the unlawful supplementation of salary of various federal employees. 18 U.S.C. 1909 prohibits bank examiners from performing any service for compensation for banks or bank officials. Both offenses are misdemeanors for which the maximum term of imprisonment authorized by statute is one year.

Historical Note: Effective November 1, 1987.

2C1.5.Payments to Obtain Public Office

(a)Base Offense Level: 8

Commentary

Statutory Provisions: 18 U.S.C. 210, 211.

Application Note:

1.Do not apply the adjustment in 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Background: Under 18 U.S.C. 210, it is unlawful to pay, offer, or promise anything of value to a person, firm, or corporation in consideration of procuring appointive office. Under 18 U.S.C. 211, it is unlawful to solicit or accept anything of value in consideration of a promise of the use of influence in obtaining appointive federal office. Both offenses are misdemeanors for which the maximum term of imprisonment authorized by statute is one year.

Historical Note: Effective November 1, 1987.

2C1.6.Loan or Gratuity to Bank Examiner, or Gratuity for Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of Commercial Paper

(a)Base Offense Level: 7

(b)Specific Offense Characteristic

(1)If the value of the gratuity exceeded $2,000, increase by the corresponding number of levels from the table in 2F1.1 (Fraud and Deceit).

Commentary

Statutory Provisions: 18 U.S.C. 212-214, 217.

Application Note:

1.Do not apply the adjustment in 3B1.3 (Abuse of Position of Trust or Use of Special Skill).

Background: Violations of 18 U.S.C. 212 and 213 involve the offer to, or acceptance by, a bank examiner of a loan or gratuity. Violations of 18 U.S.C. 214 involve the offer or receipt of anything of value for procuring a loan or discount of commercial paper from a Federal Reserve bank. Violations of 18 U.S.C. 217 involve the acceptance of a fee or other consideration by a federal employee for adjusting or cancelling a farm debt. These offenses are misdemeanors for which the maximum term of imprisonment authorized by statute is one year.

Historical Note: Effective November 1, 1987.

2C1.7. Fraud Involving Deprivation of the Intangible Right to the Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions

(a)Base Offense Level: 10

(b)Specific Offense Characteristic

(1)(If more than one applies, use the greater):

(A)If the loss to the government, or the value of anything obtained or to be obtained by a public official or others acting with a public official, whichever is greater, exceeded $2,000, increase by the corresponding number of levels from the table in 2F1.1 (Fraud and Deceit); or

(B)If the offense involved an elected official or any official holding a high-level decision-making or sensitive position, increase by 8 levels.

(c)Cross References

(1)If the offense was committed for the purpose of facilitating the commission of another criminal offense, apply the offense guideline applicable to a conspiracy to commit that other offense if the resulting offense level is greater than that determined above.

(2)If the offense was committed for the purpose of concealing, or obstructing justice in respect to, another criminal offense, apply 2X3.1 (Accessory After the Fact) or 2J1.2 (Obstruction of Justice), as appropriate, in respect to that other offense if the resulting offense level is greater than that determined above.

(3)If the offense involved a threat of physical injury or property destruction, apply 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) if the resulting offense level is greater than that determined above.

(4)If the offense is covered more specifically under 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right), 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity), or 2C1.3 (Conflict of Interest), apply the offense guideline that most specifically covers the offense.

Commentary

Statutory Provisions: 18 U.S.C. 371, 1341-1343.

Application Notes:

1.This guideline applies only to offenses committed by public officials or others acting with them that involve (A) depriving others of the intangible right to honest services (such offenses may be prosecuted under 18 U.S.C. 1341-1343), or (B) conspiracy to defraud the United States by interfering with governmental functions (such offenses may be prosecuted under 18 U.S.C. 371). "Public official," as used in this guideline, includes officers and employees of federal, state, or local government.

2."Official holding a high-level decision-making or sensitive position" includes, for example, prosecuting attorneys, judges, agency administrators, supervisory law enforcement officers, and other governmental officials with similar levels of responsibility.

3."Loss" is discussed in the Commentary to 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) and includes both actual and intended loss.

4.Do not apply 3B1.3 (Abuse of Position of Trust or Use of Special Skill) except where the offense level is determined under 2C1.7(c)(1), (2), or (3). In such cases, an adjustment from 3B1.3 (Abuse of Position of Trust or Use of Special Skill) may apply.

5.Where the court finds that the defendant's conduct was part of a systematic or pervasive corruption of a governmental function, process, or office that may cause loss of public confidence in government, an upward departure may be warranted. See Chapter Five, Part K (Departures).

Background: The maximum term of imprisonment authorized by statute under 18 U.S.C. 371 and 1341-1343 is five years.

Historical Note: Effective November 1, 1991 (see Appendix C, amendment 368). Amended effective November 1, 1992 (see Appendix C, amendment 468).


United States Sentencing Commission