2005 Federal Sentencing Guidelines
Chapter 2 - PART E - OFFENSES INVOLVING CRIMINAL ENTERPRISES AND RACKETEERING
§2E5.1. Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting
the Operation of an Employee Welfare or Pension Benefit Plan; Prohibited
Payments or Lending of Money by Employer or Agent to Employees, Representatives,
or Labor Organizations
(a) Base Offense Level:
(1) 10, if a bribe; or
(2) 6, if a gratuity.
(b) Specific Offense Characteristics
(1) If the defendant was a fiduciary of the benefit plan or labor organization,
increase by 2 levels.
(2) If the value of the prohibited payment or the value of the improper
benefit to the payer, whichever is greater (A) exceeded $2,000 but did not
exceed $5,000, increase by 1 level;
or (B) exceeded $5,000, increase by the number of levels from the table in §2B1.1
(Theft, Property Destruction, and Fraud) corresponding to that amount.
(c) 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) if a bribe, the value of the benefit received or to be received
in return for the unlawful payment; or (C) if a bribe, the consequential
damages resulting from the unlawful payment.
Statutory Provisions: 18
U.S.C. § 1954; 29 U.S.C. § 186.
1. "Bribe" refers to the offer or acceptance of an unlawful payment with
the specific understanding that it will corruptly affect an official action
of the recipient.
2. "Gratuity" refers to the offer or acceptance of an unlawful payment other
than a bribe.
3. "Fiduciary of the benefit plan" is defined in 29 U.S.C.
§ 1002(21)(A) to mean a person who exercises any discretionary authority
or control in respect to the management of such plan or exercises authority
or control in respect to management or disposition of its assets, or who renders
investment advice for a fee or other direct or indirect compensation with respect
to any moneys or other property of such plan, or has any authority or responsibility
to do so, or who has any discretionary authority or responsibility in the administration
of such plan.
4. "Value of the improper benefit to the payer" is explained in the Commentary
to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion
Under Color of Official Right; Fraud Involving the Deprivation of the Intangible
Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference
with Governmental Functions).
5. If the adjustment for a fiduciary at §2E5.1(b)(1) applies, do not
apply the adjustment at §3B1.3 (Abuse of Position of Trust or Use of Special
Background: This section
covers the giving or receipt of bribes and other unlawful gratuities involving
employee welfare or pension benefit plans, or labor organizations. The seriousness
of the offense is determined by several factors, including the value of the
bribe or gratuity and the magnitude of the loss resulting from the transaction.
Historical Note: Effective
November 1, 1987. Amended effective November 1, 1989 (see Appendix
C, amendment 149); November 1, 1991 (see Appendix
C, amendment 422); November 1, 1993 (see Appendix
C, amendment 481); November 1, 2001 (see Appendix
C, amendment 617); November 1, 2004 (see Appendix
C, amendment 666).