AMENDMENT 367
Amendment: Section 2C1.1(b)(1) is amended by inserting "or extortion" immediately following "bribe".
Section 2C1.1(b)(2)(A) is amended by deleting "bribe or the benefit received, or to be received, in return for the bribe" and inserting in lieu thereof "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,".
Section 2C1.1(b)(2)(B) is amended by deleting "bribe" and inserting in lieu thereof "payment".
Section 2C1.1(c) is amended by deleting:
"(1) If the bribe was for the purpose of concealing or facilitating another criminal offense, or for obstructing justice in respect to another criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to such other criminal offense if the resulting offense level is greater than that determined above.";
by renumbering subsection (c)(2) as (c)(3); and by inserting the following as subsections (c)(1) and (2):
"(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.".
The Commentary to §2C1.1 captioned "Application Notes" is amended by deleting Note 2 as follows:
"2. ‘Value of the bribe or the benefit received, or to be received, in return for the bribe’ means the greater of the value of the bribe or the value of the benefit received, or to be received, in return for the bribe. The ‘value of the benefit received or to be received’ means the net value of such benefit. For example, if a $150,000 contract on which $20,000 profit was made was awarded in return for a bribe, the value of the benefit received in return is $20,000.",
and inserting in lieu thereof:
"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.";
The Commentary to §2C1.1 captioned "Application Notes" is amended in Note 3 by deleting "§2C1.1(c)(1) or (2)." and inserting in lieu thereof "§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.".
The Commentary to §2C1.1 captioned "Application Notes" is amended in Note 4 by deleting "bribe" and inserting in lieu thereof "unlawful payment"; and by deleting "and (2)" and inserting in lieu thereof ", (2), and (3)".
The Commentary to §2C1.1 captioned "Application Notes" is amended in Note 6 by inserting the following as the first sentence:
"Subsection (b)(1) provides an adjustment for offenses involving more than one incident of either bribery or extortion.";
by deleting "bribe" the first time it occurs and inserting in lieu thereof "incident of bribery or extortion"; and by inserting "or extortion" immediately before ", even if charged".
The Commentary to §2C1.1 captioned "Background" is amended by deleting the third paragraph as follows:
" The amount of the bribe is used as a factor in the guideline not because it directly measures harm to society, but because it is improbable that a large bribe would be given for a favor of little consequence. Moreover, for deterrence purposes, the punishment should be commensurate with the gain.",
and inserting in lieu thereof:
" 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.".
The Commentary to §2C1.1 captioned "Background" is amended in the fourth paragraph by deleting "bribe is" and inserting in lieu thereof "payment was".
The Commentary to §2C1.1 captioned "Background" is amended by deleting the fifth, sixth, and seventh paragraphs as follows:
"Under §2C1.1(c)(1), if the purpose of the bribe involved the facilitation of another criminal offense or the obstruction of justice in respect to another criminal offense, the guideline for §2X3.1 (Accessory After the Fact) in respect to that criminal offense will be applied, if the result is greater than that determined above. For example, if a bribe was given for the purpose of facilitating or covering up the offense of espionage, the guideline for accessory after the fact to espionage would be applied.
Under §2C1.1(c)(2), 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.
Note that, when applying 2C1.1(c)(1) or (2), an adjustment from Chapter Three, Part B (Role in the Offense) will also apply. This normally will result in an increase of at least 2 levels.",
and inserting in lieu thereof:
" 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.".
Reason for Amendment: This amendment adds an additional factor in subsection (b)(2)(A) to take into account loss to the government from the offense; expands subsection (c) to distinguish an offense committed for the purpose of facilitating the commission of another offense from an offense committed to cover up or obstruct justice in respect to another offense; clarifies the term "value of the benefit received"; and substitutes "payment" for "bribe" and adds "or extortion" where necessary to reflect that this guideline covers both bribery and extortion under color of official right.
Effective Date: The effective date of this amendment is November 1, 1991.