AMERICAN CRIMINAL LAW REVIEW

Transcription

1 1620 AMERICAN CRIMINAL LAW REVIEW [Vol. 53: C overage "Particular Matter" and "Agency" Exceptions... C. Limitations on "Revolving Door" Post-Employment A ctivities Elements of the Offense... a. Coverage... b. Representative or Agent... c. Direct and Substantial Interest of the United States... d. Know ledge... D. Acts Affecting Financial Interest Elements of the Offense... a. Officer or Employee... b. Participated "Personally and Substantially" in a "Particular Matter"... c. Knowledge of Financial Interest D efenses... E. Illegal Outside Salaries for Federal Employees... F. P enalties... IV. THE HONEST-SERVICES DOCTRINE... A. History of the Honest-Services Doctrine Shushan and the Early Honest-Services Cases M cn ally Section B. The Current Honest-Services Doctrine Skilling and Black Elements of the Honest-Services Doctrine... a. Defraud of Honest Services... b. Bribes and Kickbacks I. INTRODUCTION Congress has enacted statutes designed to deter and punish acts of corruption involving government officials that are contrary to the best interests of the general public.' The growing interdependence between the Government and the private economy has increased the number of potential conflict-of-interest situations and the need for regulation. 2 The discussion that follows examines several of the 1. United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961). 2. For a brief history of federal conflict-of-interest statutes and the original purpose of the modern conflict statute, see Van Ee v. EPA, 202 E3d 296, (D.C. Cir. 2000) (discussing historical context for the federal bar on federal employee representational services). For an analysis of the 1962 legislation that consolidated and modernized federal conflict-of-interest statutes, see Memorandum of Attorney General Regarding Conflict of

2 2016] PUBLIC CORRUPTION enumerated crimes. Section II of this Article examines the elements of, defenses to, and penalties for the federal bribery 3 and illegal gratuity 4 offenses. Section III explores the elements of and defenses to the unauthorized compensation offense 5 and examines provisions limiting the activities of government officers and employees during 6 and after 7 their terms of employment. Section III also analyzes the statutory provisions governing participation by government officials in activities in which the official has a financial interest 8 as well as improper acceptance of certain outside compensation. 9 Finally, Section IV addresses the honest-services doctrine and the Supreme Court's limitation of its application. 10 II. BRIBERY AND ILLEGAL GRATUITY In 1962, Congress enacted a package of conflict-of-interest legislation that significantly revised the federal bribery statute. 1 These revisions laid the foundation for "an intricate web of regulations... governing the acceptance of gifts and other self-enriching actions by public officials," 12 including statutory prohibitions on bribery and illegal gratuity. The discussion that follows describes the four elements of the bribery and illegal gratuity offenses and then considers potential defenses and sanctions. Interest Provisions of Public Law , 28 Fed. Reg. 985 (Jan. 28, 1963) (comparing previous law to 1962 Act); Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 HARV. L. REv. 1113, 1114(1963) ("The conflict of interest with which the public is concerned is the encounter between the personal economic interest of a government official and his duty as a fiduciary to the public."). 3. See 18 U.S.C. 201(b) (2012) (criminalizing offer or receipt of bribe to or by public officials or witnesses). 4. See id. 201(c) (criminalizing offer or receipt of illegal gratuity to or by public official or witness). 5. See id. 203 (prohibiting unauthorized compensation of government officials for representing persons before the government). 6. See id. 205 (prohibiting government officials from representing persons prosecuting claims against the United States or before the government). 7. See id. 207 (restricting post-employment activities of former executive branch officials). The Honest Leadership and Open Government Act of 2007 increased the restriction on lobbying by former executive personnel from one year to two years. Pub. L. No , 101, 121 Stat. 735, (2007) (codified at 18 U.S.C. 207 (2012)). 8. See 18 U.S.C. 208 (2012) (prohibiting executive branch officials from participating in matters that affect their financial interest). 9. See id. 209 (prohibiting executive branch officials from receiving outside compensation). 10. See id (including in the definition of a "scheme to defraud" the "intangible right of honest services") (held unconstitutional by Richter v. Advance Auto Parts, Inc., 686 E3d 847, 856 (8th Cir. 2012) cert. dismissed, 133 S. Ct (2013)); see also Skilling v. United States, 561 U.S. 358, 408 (2010) (limiting the application of the doctrine to cases of bribery or kickbacks) U.S.C (2012). See generally William M. Welch II, Comment, The Federal Bribery Statute and Special Interest Campaign Contributions, 79 J. CRIM. L. & CRIMINOLOGY 1347 (1989). 12. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 409 (1999) (discussing federal statutes and regulations outlawing various kinds of gratuities).

3 1642 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 payments for airfare and hotel for a single vacation trip) are to be treated as a single gratuity, even if charged in separate counts." If the value of the illegal gratuity exceeds $5,000, 2C1.2(b)(2) instructs the court to increase the base offense level in accordance with the loss table in 2B If the gratuity was given to an elected official or an official holding a high-level decision-making or sensitive position, 2C1.2(b)(3) provides for a four-level increase and a minimum offense level of fifteen As with bribery offenses, individuals who generally qualify as high-level public officials and officials holding sensitive positions include prosecuting attorneys, judges, agency administrators, law enforcement officers, jurors, election officials, and other government officials who are able to substantially influence a governmental entity's decisionmaking process. 112 Section 2C1.2(b)(4) provides for a two-level increase if the defendant was a public official who facilitated entry for a person, a vehicle, or cargo into the United States or helped obtain a passport or other immigration or government identification document. 183 b. Offenses Involving Witnesses Section 2J1.9 of the Guidelines applies to defendants convicted under 18 U.S.C. 201(c)(2) or (3) for illegal gratuities involving witnesses 1 84 and sets a base offense level of six. 185 Section 2J1.9(b)(1) provides for a four-level increase if the illegal gratuity was made or offered to induce the witness to refuse to testify or not to present herself in order to avoid testifying III. CRIMINAL CONFLICT OF INTEREST This Section examines the elements of, defenses to, and penalties for charges relating to criminal conflicts of interest. 0 Part A discusses 18 U.S.C. 203, which prohibits the unauthorized compensation of government officials for representing persons in matters affecting the government See id. 2C1.2(b)(2) Id. 2C1.2(b)(3) Id. 2C1.2 cmt. n.3 (defining "high-level decision-making or sensitive position" and outlining individuals who qualify under the definition); see United States v. Richards, 674 F.3d 215, 224 (3d Cir. 2012) (affirming the district court's conclusion that a human resources director was subject to the "high level official" enhancement at 2C1.2(b)(3) because he was able to "substantially influence the [county government's] decision-making process") U.S.S.G. MANUAL 2C1.2(b)(4) Id. at app. A Id. 2J1.9(a) Id. 2J1.9(b)(1) U.S.C. 203 (2012).

4 2016] PUBLIC CORRUPTION 1643 * Part B discusses 18 U.S.C. 205, which prohibits government officials from representing persons prosecuting claims against the United States or persons before the government in connection with any covered matter in which the United States is a party or has a direct and substantial interest * Part C discusses 18 U.S.C. 207, which restricts the post-employment activities of former federal and D.C. government employees. 189 * Part D discusses 18 U.S.C. 208, which prohibits executive branch officials from participating in matters that affect their financial interest. 190 * Part E discusses 18 U.S.C. 209, which prohibits executive branch officials from receiving salaries from sources other than the United States government. 191 * Part F discusses 18 U.S.C. 216, which outlines the penalties for violating the offenses in A. Unauthorized Compensation 18 U.S.C. 203 criminalizes the use of public office for private gain. The defendant may either be the public official receiving unauthorized compensation or the individual attempting to influence a public official Elements of the Offense To obtain a conviction under 203, the government must prove that (i) a person covered by the statute (ii) in connection with a particular matter in which influence was sought (iii) demanded, sought, accepted, agreed to receive, or knowingly gave, promised, or offered compensation (iv) with corrupt intent (v) to provide or pay for services before a particular governmental forum Id Id Id Id Id Id. 203(a) (b). For a comprehensive discussion of section 203, as well as comparisons of it to section 205 and others, see generally Roswell B. Perkins, The New Federal Conflict- of-interest Law, 76 HARV. L. REV (1963). See also Kenneth A. Gross, The Enforcement of Campaign Finance Rules: A System in Search of Reform, 9 YALE L. & POL'Y REV. 279, (1991) (discussing applicability of 203 to campaign contributions made as improper forms of compensation and suggesting that it should be "vigorously enforced by federal prosecutors") U.S.C. 203; see also United States v. Myers, 692 F.2d 823, 855 (2d Cir. 1982) (discussing the statutory genealogy of 203 and suggesting Congress passed its earliest predecessor in 1864 primarily to prevent government officials from "being paid to bring their influence to bear on federal agencies"); United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978) (stating that the purpose of 203 is "to reach any situation in which the judgment of a government agent might be clouded because of payments or gifts made to him by reason of his position").

5 1644 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 a. Coverage Section 203 covers all individuals employed by the federal government, including members of Congress, federal judges, and employees of the executive, legislative, and judicial branches, 1 95 as well as individuals employed by the District of Columbia 9 6 and special government employees Section 203 also covers individuals who knowingly give, promise, or offer compensation to public officials for representational services rendered or to be rendered in the future A special government employee is subject to the statute only in relation to matters in which the individual "participated personally and substantially as a Government employee" and matters "pending in the department or agency.., in which such employee is serving." 1 99 It is generally believed that independent contractors do not fall under the definition of special government employees For the purposes of 203, military reserve officers are "regular officers" when their tours of duty aggregate to more than 130 days per 365-day period However, 203 exempts individuals representing family members or other personal fiduciaries, with or without compensation, except in matters in which the individual has participated personally and substantially as an employee and in matters that are the subject of the individual's official responsibility Furthermore, the statute exempts special government employees working under grants or 195. See 18 U.S.C. 203(a)(1)(A) (B). See generally Jeffrey Green, History of Conflicts of Law, 26 HAMLINE L. REV. 555, (2003) (discussing history and scope of 203) U.S.C. 203(b)(1) Id. 203(c); see United States v. Baird, 29 F.3d 647, (D.C. Cir. 1994) (discussing the scope of the special government employee classification); Starr v. Mandanici, 152 E3d 741, 752 n.25 (8th Cir. 1998) (Loken, J., concurring) (stating independent counsel are special government employees). For the purposes of 203, a special government employee is defined as the following: "[A]n officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or of the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis, a part-time United States commissioner, a part-time United States magistrate judge, or, regardless of the number of days of appointment, an independent counsel appointed under chapter 40 of title 28 and any person appointed by that independent counsel under 594(c) of title 28[.]" 18 U.S.C. 202(a) U.S.C. 203(a)(2), (b)(2) (2012) Id. 203(c)(1) (2) See Jeffrey Lovitky, The Problems of Government Contracting for Consulting Services, 14 PUB. CONT. L.J. 332, (1984) (arguing federal conflict of interest prohibitions are not as extensive for special government employees and that it is generally believed that independent contractors do not fall within the scope of these laws) See Baird, 29 F.3d at (finding that, because reserve Coast Guard officer's aggregated tours of duty totaled more than 130 days during a 365-day period, he was a "regular officer" pursuant to 203(a), not special government employee under 203(c)) U.S.C. 203(d) (2012).

6 2016] PUBLIC CORRUPTION 1645 contracts for the benefit of the national interest 20 3 and individuals giving testimony under oath or statements under penalty of perjury. 204 Finally, 18 U.S.C. 206 exempts retired military officers who are not otherwise government employees. 2 5 An individual may be convicted for conspiracy to violate 203 by accepting prohibited compensation even if he or she only anticipates becoming, but never actually becomes, a public official b. Particular Matter Section 203 prohibits public officials from accepting compensation for representational services in relation to a "particular matter" in which the United States is a party or has a direct and substantial interest Although the contract, claim, controversy, charge, or other matter of governmental interest must be particularized, 208 the government need not identify one specific contract or claim for which the defendant offered to provide, or offered compensation for, representational services For instance, a general description of potential future contracts would suffice. 210 Some circuits have held that 203 has been violated even in cases where a public official lacked the authority to perform an act to benefit the donor and where no particular contract award was pending, 2 11 but the Supreme Court has 203. See id. 203(e) (stating the statute does not prevent special government employees from performing work under a grant or contract for the United States if the "head of the department or agency concerned with the grant or contract certifies in writing that the national interest so requires and publishes such certification in the Federal Register") Id. 203(f); Kelly v. Pan. Canal Comm'n, 26 E3d 597, 603 (5th Cir. 1994) U.S.C See United States v. Wallach, 935 F.2d 445, (2d Cir. 1991) (finding that, although none of the parties agreeing to commit a conspiracy were federal employees, 203 was applicable because the parties had anticipated that one of them would become a federal employee) See 18 U.S.C. 203(a)(1) (describing "particular matter" as "any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest") See United States v. Williams, 705 F.2d 603, 622 (2d Cir. 1983) (noting that the phrase "other particular matter" in 18 U.S.C. 203(a)(1) "has the effect of causing the adjective 'particular' to modify all of the preceding nouns, including 'contract."') See id. (holding it is sufficient for the government to show that compensation was "received for services to be rendered with respect to a particular category of contracts") See Wallach, 935 F.2d at (holding that indictment referencing Department of Defense contracts with defendant generally, not identifying each contract individually, satisfied the particularity requirement of 203); Williams, 705 F.2d at 622 (holding that future proceedings not yet pending are a "particular matter" for purposes of 203(a)(1)(B), and "need not be narrowed to just one identified contract, which might not be known until a proceeding involving the contract was actually pending") See United States v. Evans, 572 F.2d 455, 481 (5th Cir. 1978) (en banc) ("[I]t is immaterial that the donee-official's position is ministerial or subordinate, or even that he actually lacks the authority to perform an act to benefit the donor."); see also United States v. Myers, 692 F.2d 823, 853 n.26 (2d Cir. 1982) (stating that 203 does not mandate that jury instructions include the charge that a proceeding, in relation to which services are rendered, must be pending before a governmental forum at the time compensation is received); cf United States v. Mitchell, 993 F.2d 229 at *5 (4th Cir. Apr. 30, 1993) (stating that 18 U.S.C. 201(c)(1)(B) does not require that the public official "have the power to provide the official act in question to be convicted under the statute").

7 1646 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 suggested that the statute should be construed more narrowly c. Compensation A violation of 203 requires that compensation be demanded, sought, received, accepted or agreed upon by a public official or knowingly given, promised or offered to a public official While compensation may be in the form of cash, it may also include things of value such as airline tickets, 2 14 loans, 21 5 or even sex The Tenth Circuit has held that "the government employee [need only] receive compensation, otherwise than as provided by law." 2 17 d. Intent Specific intent is not a requisite element of 203(a) Thus, "[t]he gravamen of [ 203] is not an intent to be corrupted or influenced, but simply the acceptance of an unauthorized compensation., 2 19 In order to prevent unfair prejudice, however, the D.C. Circuit has allowed a defendant to rebut evidence that he manifested intent to be corrupted when the government presented such evidence In addition, defendant-payors, as opposed to defendant-payees, may argue from the statutory language that scienter is required See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 412, 414 (1999) (holding that 18 U.S.C. 201(c)(1)(A) requires "a link between a thing of value conferred upon a public official and a specific 'official act' and suggesting that conflict of interest statutes should be construed narrowly). See generally Peter J. Henning, Public Corruption: A Comparative Analysis of International Corruption Conventions and United States Law, 18 ARIZ. J. INT'L & COMp. L. 793, (2001) (discussing the gratuities prohibition at 201(c) and asserting that the Supreme Court in Sun-Diamond "essentially eliminated the criminal prohibition on gratuities when the transfer takes place before an official act.") See 18 U.S.C. 203(a)(1) (2) (2012); see also Myers, 692 F.2d at 859 n.36 ("[S]imply an agreement to receive money, rather than actual receipt would violate... [section] 203.") See, e.g., Evans, 572 F.2d at (concluding that airline tickets are a form of illegal compensation) See, e.g., United States v. Williams, 705 F.2d 603, & n.2 (2d Cir. 1983) (affirming conviction for seeking and agreeing to receive a loan in violation 203(a)) See United States v. Moore, 525 F.3d 1033, 1048 (lth Cir. 2008) (finding sex to be a thing of value because "monetary worth is not the sole measure of value.") United States v. Freeman, 813 F.2d 303, 306 (10th Cir. 1987) Evans, 572 F.2d at Id.; see also United States v. Alexandro, 675 F.2d 34, 43 (2d Cir. 1982) (discussing the significance of intent with respect to 203(a) and how it differs from 201) See United States v. Baird, 29 E3d 647, (D.C. Cir. 1994) ("[T]he government 'opened the door' on the matter of defendant's state of mind... [O]nce the door is opened, the other party can get through it otherwise irrelevant evidence 'to the extent necessary to remove any unfair prejudice which might otherwise have ensued."' (quoting United States v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990))) See Baird, 778 E Supp. at 537 (D.D.C. 1990) (surmising that the reason for this difference in statutory language is that Congress intended to "treat government employees receiving payments.., more harshly than donors of such payments"), rev'd on other grounds, 29 F.3d 647 (D.C. Cir. 1994); see also Stern v. Gen. Elec. Co., 924 F.2d 472, 478 (2d Cir. 1991) ("Criminal intent under 203 turns... on what the contributor expects to receive for that money."). Compare 18 U.S.C. 203(a)(1) (2012) ("Whoever... directly or indirectly (1) demands, seeks, receives..."), with 18 U.S.C. 203(a)(2) ("Whoever... knowingly gives, promises, or offers...").

8 2016] PUBLIC CORRUPTION 1647 e. Forum The most complicated issues arising from 203 concern the scope of the forum: namely, whether the statutory list of forums in 203(a) is exclusive, 222 and whether officials are prohibited from providing only representational services, or both representational services and advice. 223 Addressing the first question, the Second Circuit has previously stated that, because Congress's intention in enacting 203 is unclear, one should construe 203(a)(1) as reaching only "services performed or to be performed before the federal forums listed in the statute., 224 Subsequently, however, the Second Circuit found that 203 is violated by "services rendered indirectly through another federal official., 225 While the court reaffirmed that the list of forums in 203 is exclusive,226 it held that the statute nonetheless applies when one compensated official influences another federal official to provide services before a forum listed in In contrast, the Tenth Circuit has held that 203(b) "is not limited to federal employees appearing before the federal forums enumerated in 203(a). 228 The second issue concerns the types of services that a government official is prohibited from providing under 203(a)(1). 229 Originally, officials were allowed to give advice without running afoul of 203,230 but since the passage of the Ethics Reform Act of "any compensation for any representational services, as agent or attorney or otherwise" is specifically prohibited by The Ethics Reform Act additionally added "courts" to the forums listed in 203(a)(1) See 18 U.S.C. 203(a)(1) (listing as forums "any department, agency, court, court-martial, officer, or any civil, military or naval commission") See infra text accompanying notes (discussing the service requirement) See United States v. Myers, 692 F.2d 823, (2d Cir. 1982) (reversing 203 conviction where defendant provided compensated advice but jury instructions failed to limit the term "services" to those that would be performed before the forums listed in the statute) See United States v. Wallach, 979 F.2d 912, 920 (2d Cir. 1992) (holding that a compensated government employee's attempt, on the payer's behalf, to convince another government employee to influence a third governmental party before a forum listed in 203 violated 203(a)(1)) Id Id. ("Congress wished to punish a federal official who accepts compensation not only for services rendered directly before the department where a contract decision is pending but also for services rendered indirectly through another federal official.") See United States v. Freeman, 813 F.2d 303, 306 (10th Cir. 1987) (concluding that 203(b) does not require that the defendant appears before a forum enumerated in 203(a)) See 18 U.S.C. 203(a)(1) (2) (2012) (proscribing receipt or giving of compensation for "representational services") United States v. Myers, 692 F.2d 823, 858 (2d Cir. 1982) Ethics Reform Act, Pub. L. No , 103 Stat (as amended by Act of May 4, 1990, Pub. L. No , 2(a), 5(d), 104 Stat. 149, , 159 (adding technical corrections to the Ethics ReformAct of 1990, Pub. L. No , Title V, 529, 104 Stat. 1389, (conforming Ethics Reform Act of 1989 to Federal Employees Pay Comparability Act of 1990))) Id. 402; see supra Section III.A.1.c (discussing compensation as an element of 203) Ethics Reform Act 402.

9 1648 AMERICAN CRIMINAL LAW REVIEW [Vol. 53: Defenses Defenses that apply to bribery and illegal gratuity provisions also apply to prosecutions under Additionally, a common law defense has emerged that is grounded in reliance on an official's misstatement of the law and is available to a defendant who: "(i) reasonably, on the basis of an objective standard, (ii) relies on a (iii) conclusion or statement of law (iv) issued by an official charged with interpretation, administration, and/or enforcement responsibilities in the relevant legal field.", 2 35 In cases involving government undercover operations, defendants also may assert that the government's behavior was so "outrageous" as to violate Due Process, 2 36 but only in rare cases, if any, will such claims be successful B. Limitations on Activities of Government Officers and Employees Section 205 prohibits a government employee from prosecuting any claim against the government or acting as an agent for any individual or group prosecuting a claim in which the United States is a party or has a direct and substantial interest, other than in the discharge of his or her official duty The purpose of this provision is "to prevent federal employees from using private government information to assist persons who have claims against the United States., 2 39 However, some have criticized 205 for exceeding the purpose by prohibiting a wider variety of pro bono activities by federal employees than intended. 240 Section 205 covers the same proceedings and forums that are covered by 203,241 which prohibits government employees from receiving unauthorized compensation in exchange for representational services in matters affecting an 234. See supra Section II.B (discussing available defenses for bribery and illegal gratuity charges under 201) See United States v. Baird, 29 F.3d 647, 654 (D.C. Cir. 1994) (quoting United States v. Barker, 546 F.2d 940, 955 (D.C. Cir. 1976) (Merhige, J., concurring)) (applying the "official misstatement of the law" defense to a reserve officer who relied on the word of a superior officer, who in turn had verified legality of the action in question with Coast Guard legal and contracting officials); accord MODEL PENAL CODE 2.04(3)(b) (Official Draft 1985) (listing similar requirements for defense of reasonable reliance on an official statement) United States v. Carpentier, 689 F.2d 21, 25 (2d Cir. 1982) (citing United States v. Russell, 411 U.S. 423, (1973)) United States v. Tucker, 28 E3d 1420, 1423 (6th Cir. 1994) (citing Hampton v. United States, 425 U.S. 484, 489 (1976)) U.S.C. 205(a)(2) (2012). See generally Van Ee v. EPA, 202 F.3d 296, (D.C. Cir. 2000) (discussing legislative history of 205). For a discussion of the history, impetus, and consequences of 205, see Philip Luci, Jr., Contracting with Government Employees: An Overly Restrictive Rule, a Comparison, and a Compromise, 27 PUB. CONT. L.J. 37, 72 (1997).) DeMarrias v. United States, 713 F. Supp. 346, 347 (D.S.D. 1989) See, e.g., Carolyn Elefant, When Helping Others Is a Crime: Section 205's Restriction on Pro Bono Representation by Federal Attorneys, 3 GEO. J. LEGAL ETHICS 719, 720 (1990) (critiquing the policy decision to criminalize pro bono work by federal employees) See 18 U.S.C. 203(a), 205(a) (2012).

10 2016] PUBLIC CORRUPTION 1649 interest of the United States. 2 Unlike 203, however, 205 focuses not on receiving unauthorized compensation, but on preventing impermissible representational activity by government officials.a 3 1. Coverage Section 205 applies to federal executive, legislative, and judicial branch employees, as well as employees of any agency of the United States 244 and individuals employed by the District of Columbia.4 5 It also provides for limited application to "special Government employee[s]. ' ' 246 According to the statute, a special government employee is subject to the 205 restrictions only if he or she participated "personally and substantially" in the covered matter while a government employee, 247 or if the covered matter was pending in the department or agency in which the employee was serving.24 8 The statute, however, provides an exception from 205(c)(2) for special government employees who have served in the department or agency for no more than sixty days during the immediately preceding year. 249 Congress amended 205(d)(1)(B) in 1996 to allow federal employees to represent, without compensation, certain non-profit organizations 25 before the government "if a majority of the... members are current officers or employees of the United States or of the District of Columbia....,, 251 However, a federal 242. See United States v. Myers, 692 F.2d 823, 856 (2d Cir. 1982) (comparing 203 with 205 and noting, prior to the Ethics Reform Act of 1989, 203 and 205 covered the same proceedings and similar forums) See id. (stating that officials are prohibited from acting as agents or attorneys even if they receive no compensation); see also supra Section III.A.l.c (discussing compensation element of 203). Compare 18 U.S.C. 205(a)(1) (2) (making no mention of compensation), with 18 U.S.C. 203(a)(1) (2) (requiring that compensation be demanded, sought, received, accepted or agreed upon by a public official or knowingly given, promised or offered to a public official). See generally Elefant, supra note 240, at (discussing history and scope of 205) U.S.C. 205(a) Id. 205(b) See id. 205(c) (limiting application to covered matters "involving a specific party or parties"); id. 202(a) (defining special government employee as "an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or of the District of Columbia, who is employed with or without pay for not more than 130 days during any 365-day period") Id. 205(c)(1) (stating that a special government employee only is subject to the restrictions of 205(a) and (b) if such employee has "at any time participated personally and substantially as a Government employee or special government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise" in the matter in question) Id. 205(c)(2) Id. 205(c) Id. 205(d)(1)(B) (non-profits include "cooperative, voluntary, professional, recreational, or similar organization or group") Federal Employee Representation Improvement Act of 1996, Pub. L. No , 2, 110 Stat (1996) (amending 18 U.S.C. 205(d)(1)(B)). Congress intended this amendment to allow government employees who also were members of employee associations to voice their opinions before the government.

11 1650 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 employee is still precluded from acting as an agent 2 52 in any covered matter not limited to adversarial proceedings 253 that: (i) is a claim against the federal or D.C. government; (ii) is "a judicial or administrative proceeding where the... group is a party"; or (iii) "involves a grant, contract, or other agreement... providing for the disbursement of Federal funds to the organization or group "Particular Matter" and "Agency" The federal appellate courts have addressed both the scope of and the meaning of the term "agent" in the statute. 256 The D.C. Circuit, for example, analyzed the "particular matter" requirement of 205 in Van Ee v. EPA, 25 7 and determined that Congress did not intend to bar a federal employee from representing outside interests in all matters in which the United States has an interest In Van Ee, an employee of the EPA challenged the agency's determination that he was prohibited by 205 from communicating with various federal agencies as part of his volunteer work for the Sierra Club The court concluded that the scope of 205 turns on the "nature and focus of the governmental decision to be made or action to be taken as a result of the proceeding," and that "[o]nly where the decision is focused on a probable particularized impact on discrete and identifiable parties are the concerns animating 205 implicated., 260 Accordingly, the court concluded that federal employees may represent other groups in connection with broad policy matters.261 Other courts have also interpreted the term "agency." A person acts as an agent when he seeks to influence agency decision-making on behalf of another organiza U.S.C See id. 205(h) (stating that covered matter is "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter"); see also Van Ee v. E.P.A., 202 F.3d 296, 302 (D.C. Cir. 2000) (interpreting "other particular manner" to apply to more than adversarial proceedings) U.S.C. 205(d)(2)(A) (C) See Van Ee, 202 E3d at 302 (holding that the scope of "particular matter" within the meaning of 205(a)(2) is not limited to "adversarial proceedings or formal legal relationships") See O'Neill v. Dep't of Hous. & Urban Dev., 220 E3d 1354, (Fed. Cir. 2000) (interpreting term "agent" in 205 in absence of statutory definition) Van Ee, 202 F.3d at See id. at (concluding that 205 applies to matters "in which the governmental decision at stake is focused on conferring a benefit, imposing a sanction, or otherwise having a discernable effect on the financial or similarly concrete interests of discrete and identifiable persons or entities") Id. at Id. at Id. (noting that while the land use decisions might have an impact on the general environmental interests of the Sierra Club, the interest in environmental issues implicates too large and diverse a population of people to be defined as a "particular matter" under the statute). Id. at 310; see also id. at (citing similar interpretations expressed in opinions of the Office of Government Ethics and the Department of Justice's Office of Legal Counsel).

12 2016] PUBLIC CORRUPTION 262 tion. A person is regarded as an agent when that person has consented to act on behalf of another, subject to the other's control The agency of an employee may depend upon his or her actions during the proceedings at issue An employee is not, however, prevented from joining an organization, maintaining a leadership position, or representing the organization in non-governmental proceedings Exceptions Section 205 includes several exceptions for certain activities that do not run afoul of 203. The first exception is a pro bono clause, which allows government employees to provide unpaid representation to a "person who is the subject of disciplinary, loyalty, or other personnel administration proceedings" if it is not inconsistent with the employees' duties Congress created this exception "to preserve government employees' ability to accept the obligation of defending the honor or reputation of an accused employee." 26 7 Furthermore, the pro bono exception ensures that government employees with grievances against their employer-agency will have representation in those proceedings without having to hire a private attorney. 26 " This exception, however, has been interpreted as applying only to administrative proceedings and not to representation before a court An additional exception to 205 allows special government employees to represent parties who are grant recipients or who are under contract with the United States, if the head of the agency associated with the contract certifies in writing that such representation is necessary "and publishes such certification in 262. See O'Neill v. Dep't of Hous. & Urban Dev., 220 F.3d 1354, 1360 (Fed. Cir. 2000) (holding that in absence of statutory definition, common-law meaning of "agent" should be used in deciding whether government employee is acting as agent for purposes of 205); see also Refine Constr. Co. v. United States, 12 Cl. Ct. 56, 61 (1987) (holding that "agent" is broadly-defined term where one is authorized to act for another) See O'Neill, 220 F.3d at 1360 (holding that in absence of statutory definition, common-law meaning of "agent" should be used in deciding whether government employee is acting as agent for purposes of 205); see also Refine Constr. Co., 12 Cl. Ct. at 61 (holding that "agent" is broadly-defined term where one is authorized to act for another) See United States v. Schaltenbrand, 930 F.2d 1554, 1561 (1 lth Cir. 1991) (concluding that defendant was not agent where he attended covered meeting but did not participate) Van Ee, 202 F.3d at U.S.C. 205(d)(1)(A) (2012); see also Bachman v. Pertschuk, 437 F. Supp. 973, 976 (D.D.C. 1977) (recognizing pro bono exception to 205 in administrative proceeding); cf United States v. Bailey, 498 F.2d 677, 680 (D.C. Cir. 1974) (holding that two law students who also worked for the government were prohibited from participating in an appellate litigation clinic representing indigent clients because of the potential for a conflict of interest between their duties to their employers and their duties to their clients). See generally Elefant, supra note 240, at (proposing further amendment to the pro bono exception of 205 to ensure that government employees are able to participate in pro bono activities) Elefant, supra note 240, at See Lisa G. Lerman, Public Service by Public Servants, 19 HOFSTRA L. REV. 1141, (1991) Bachman, 437 F. Supp. at 976; see also Lerman, supra note 268, at (analyzing the scope of 205's pro bono exception clause in case law).

13 1652 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 the Federal Register., 270 As explained by the statute's legislative history, this exception covers situations "involving the national interest where an intermittent employee's special knowledge or skills may be required by his employer or other private person to effect the proper performance of a Government contract but where his services may be unavailable in the absence of a waiver of section 205."271 The final exception to 205 permits full- and part-time government agency employees to testify under oath, even in a case against the United States, or to make statements required under penalty of perjury or contempt. 272 C. Limitations on "Revolving Door" Post-Employment Activities Section 207,27 3 known as the "revolving door statute," forbids former federal and D.C. government employees from participating in certain lobbying and other representational types of employment activities after they leave government service The statute serves to protect the government by restricting opportunities for former government employees to use proprietary information, acquired through their service, against the government on behalf of private parties. 275 It also is intended to prevent former federal officials from using, or appearing to use, their "inside" knowledge and connections in order to profit in the private sector by corruptly influencing legislative and administrative governmental processes The Ethics Reform Act of 1989 expanded 207 by extending its reach to legislative branch employees, including members of Congress. 277 Covered appointees are forbidden to lobby any employee or officer of their former agency for a period of five years after the termination of their employment. 278 As with the other U.S.C. 205(f) S. REP. No , at 11 (1962), reprinted in 1962 U.S.C.C.A.N. 3852, U.S.C. 205(g); Kelly v. Pan. Canal Comm'n, 26 F.3d 597, 603 (5th Cir. 1994); see also United States v. Lecco, 495 F. Supp. 2d 581, (S.D. W. Va. 2007) (quoting DeMarrias v. United States, 713 F. Supp. 346, 347 (D.S.D. 1989) (recognizing 205 does not prohibit part-time government agency employee from testifying in case against United States because " 205 expressly states that '[n]othing herein prevents an officer or employee from giving testimony under oath')) U.S.C. 207 (2012) See generally Paul Josephson and Andrew Weiming Lee, Taking the Leap from Public Service to Private Sector, NEW JERSEY LAWYER, Feb. 2015, at 30 (providing a comprehensive discussion of 207, comparing it with a similar New Jersey statute) JACK MASKELL, CONG. RESEARCH SERV., POST-EMPLOYMENT, "REVOLVING DOOR," LAWS FOR FEDERAL PERSONNEL 2 (2014) (noting in upholding the constitutionality of 207(a) that "the purpose of protecting the government, which can act only through its agents, from the use against it by former agents of information gained in the course of their agency, is clearly a proper one." (quoting United States v. Nasser, 476 F.2d 1111, 1116 (7th Cir. 1973))) Id U.S.C. 207(e); see Grant Dawson, Working Guidelines for Successive Conflicts of Interest Involving Government and Private Employment, 11 GEO. J. LEGAL ETHICS 329, (1998) (describing the Ethics Reform Act of 1989 and its effect on section 207) Office of Government Ethics Authorization Act of 1996, Pub. L. No , 5, 110 Stat (1996).

14 2016] PUBLIC CORRUPTION 1653 conflict of interest statutes, the penalties for a 207 violation are delineated in Ethics rules imposed by the Honest Leadership and Open Government Act of 2007 further restrict post-employment lobbying by members of Congress Elements of the Offense Section 207 contains multiple subsections that impose distinct restrictions on post-employment activities by former executive and legislative branch employees. Subsections (a)-(e) set forth the elements required to prove each offense. 281 Sections 207(a)(1)-(2) ban former federal and D.C. executive branch employees from "switching sides" on certain matters they participated in or supervised during their government service. 282 Section 207(a)(1) imposes a lifetime ban forbidding former government employees from representing private parties in certain matters in which they participated "personally and substantially" as government employees Section 207(a)(2) imposes a two-year cooling-off period prohibiting representation of private parties on certain matters that were under the former employee's supervisory control during the year prior to his or her leaving government service. 284 To obtain a conviction under either 207(a) or 207(b), the government must prove that (i) a person covered by the statute, (ii) appeared before or communicated with any federal or D.C. government officer or employee, (iii) in relation to a particular matter in which the United States or the District of Columbia has a direct and substantial interest, (iv) and that the defendant's representation was knowing. 285 To prove a violation of 207(a), the government also must show that (v) the defendant participated "personally and substantially" on the particular matter as a U.S.C. 216 (2012) See Honest Leadership and Open Government Act of 2007, Pub. L. No , 101, 121 Stat. 735 (2007) (amending 18 U.S.C. 207) (limiting the "revolving door" by requiring a "cooling-off' period so that congressional members must wait one to two years after leaving their jobs before lobbying their former colleagues) U.S.C. 207(a) (e) (2012) Id. 207(a)(1) (2) Id. 207(a)(1); see United States v. Clark, 333 E Supp. 2d 789, 794 (E.D. Wis. 2004) (defining "personally" as directly and "substantially" as significant "to the matter, or form[ing] a basis for a reasonable appearance of such significance."); see also United States v. Rosen, 599 E Supp. 2d 690, (E.D. Va. 2009) (holding a former DOD employee did not participate "substantially" in a prior matter when he offered no advice, assistance, or recommendations on the matter and had only a few brief meetings with prosecutors on the issue) U.S.C. 207(a)(2); see United States v. Tapp, No. CR107-08, 2008 WL , at *2 3 (S.D. Ga. Feb. 6, 2008) (holding a former Assistant United States attorney was precluded from representing defendant because the matter was "actually pending" prior to the attorney's departure from the United States Attorney's Office); see also United States v. Spellissy, No. 805CR475T27TGW, 2006 WL , at *6 7 (M.D. Fla. May 5, 2006) (finding probable cause for a 207(a)(2) violation when an affidavit indicated that a retired United States Army colonel, within two years of termination of service, had represented a defense contractor who had been considered for procurement previously under the colonel's official responsibility) U.S.C. 207; see also United States v. Coleman, 805 F.2d 474, 478 (3d Cir. 1986) (setting forth the elements of a 207(b) violation); Robert E. Derecktor of R.I., Inc. v. United States, 762 F. Supp. 1019, 1026 (D.R.I. 1991) (applying factors set out in Coleman in 207(b) prosecution).

15 1654 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 government employee.286 To prove a violation of 207(b), the government must show, in addition to the four elements previously enumerated, that (v) the defendant knew, or reasonably should have known, that the particular matter was "pending under his or her official responsibility" during the year prior to the defendant's leaving government service Section 207(b) restricts participation by former federal executive branch employees, members of Congress, and legislative branch employees in trade or treaty negotiations for a period of one year after they leave government service. 2 8 To obtain a conviction under 207(b), the government must show that: (i) a person covered by the statute; (ii) knowingly; (iii) represented, aided, or advised another person; (iv) concerning any ongoing trade or treaty negotiation; (v) that the defendant participated in "personally and substantially" as a government employee; (vi) and about which the defendant learned information exempt from disclosure under 5 U.S.C Section 207(c) imposes a one-year restriction prohibiting certain former highlevel federal executive branch and independent agency employees from representing any other person before the department or agency in which such person served. 290 A violation of 207(c) requires that: (i) a person covered by the subsection, (ii) communicated to or appeared before any officer or employee of the department or agency where the defendant worked in the prior year, (iii) on behalf of another person seeking official action by an officer or employee of such department, and (iv) with the intent to influence such officer or employee. Section 207(d) restricts the lobbying activities that senior executive branch personnel may engage in for a two-year period after their termination from that position To prove a violation of 207(d), the government must show that: (i) a person covered by the statute, (ii) contacted any executive branch appointee listed in 207(d)(2)(B) or any officer or employee of a department or agency where the person worked within one year before he or she left government service; (iii) with the intent to influence that person; (iv) on behalf of any other person; (v) in connection with any matter on which such person seeks official action by an executive branch employee U.S.C. 207(a)(1)(B). See also U.S. v. Rosen, 599 E Supp.2d 690, 698 (E.D. Va. 2009) (describing the elements needed to prove a violation of 207(a)(1) Id. 207(a)(2)(B) Id. 207(b) Id Id. 207(c) Id. 207(d) Id.

16 2016] PUBLIC CORRUPTION 1655 Section 207(e)(1)(A), as amended by the Honest Leadership and Open Government Act of 2007,293 provides similar restrictions applicable to senators for two years after they leave office To prove a violation of 207(e)(1)(A), the government must show that: (i) a former senator; (ii) contacted any member, officer, or employee of Congress or any other legislative office of Congress; (iii) with the intent to influence that person; (iv) on behalf of any other person; (v) in connection with any matter on which such person seeks official action by an executive branch employee. 295 Section 207(e)(1)(B) similarly applies to members, officers, and employees of the House of Representatives, but applies for only one year after they have left office Subsections (e)(2)-(6) impose restrictions on activities by former officers and employees of the legislative branch, all applicable for up to one year after they have left office a. Coverage Section 207 covers conduct by former federal and D.C. executive branch employees, federal legislative branch employees, members of Congress, and special government employees in the federal executive branch. 298 Former government employees are subject to the statute's restrictions for periods ranging from one year after they leave government service to life The length of the ban imposed by 207 depends primarily upon the position held with additional restrictions based on the matter the former employee has allegedly attempted to influence. Former federal and D.C. executive branch employees are covered under 207(a), which bans communication for life about matters the former employee dealt with "personally or substantially,, 300 whereas communications about matters "pending under [the employee's] official responsibility" are prohibited for two years after termination of employment. 301 Former federal executive and legislative branch employees, including members of Congress, are covered under 207(b), for one year after they leave government service One-year coverage under 207(c) also applies to the limited class of high-level executive branch and independent agency employees determined by 293. Honest Leadership and Open Government Act of 2007, Pub. L. No , 121 Stat. 735 (2007) (amending 18 U.S.C. 207(e)(1) entirely) U.S.C. 207(e)(1)(A); Pub. L. No , 121 Stat U.S.C. 207(e)(1)(A) Id. 207(e)(1)(B); Pub. L. No , 121 Stat. 735 (adding this distinction between Senators and House Members to section 207(e)(1)(B)) U.S.C. 207(e)(2) (6) Id. 207(a) (e) See id. 207(a) (e) (stating that restrictions may be imposed for one year, two years, or permanently) Id. 207(a)(1)(B) Id. 207(a)(2)(B) Id. 207(b).

17 1656 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 position, pay grade, and tenure of employment under 207(c)(2). 3 3 Section 207(d) imposes a two-year ban restricting conduct by former very senior executive branch personnel Former employees covered by 207(d) include the vice president, 30 5 individuals employed at pay rate equivalent to level I of the Executive Schedule or level II if employed in the Executive Office of the President, 30 6 and certain presidential and vice presidential appointees Section 207(e)(1)(A) applies to former United States senators for a period of two years after they leave office Sections 207(e)(1)(B)-(6) apply to members of the House of Representatives and officers and staff of the legislative branch for a one-year period following termination of their government service. These bans, however, do not apply to special government employees who worked less than sixty days in the year prior to leaving government service Section 2070)(6) states that "[n]othing in this section shall prevent an individual from giving testimony under oath, or from making statements required to be made under penalty of perjury., 310 Notwithstanding this statement, the statute does impose certain limits on the ability of covered individuals to testify, except pursuant to court order For instance, 207(j)(6)(A) provides that a former executive branch employee subject to the restrictions of 207(a)(1) "with respect to a particular matter" may not, except under court order, serve as an expert witness on that matter for any party other than the United States. 312 Section 2070) lists several exceptions to otherwise prohibited conduct For example, 2070)(5) states that the statute does not apply to communications made 303. Id. 207(c)(2) Id. 207(d) Id. 207(d)(1)(A) Id. 207(d)(1)(B) Id. 207(d)(1)(C) Id. 207(e)(1)(A); see also Pub. L. No , 121 Stat. 735 (adding this language to 207(e)(1)(A)) Id. 207(c)(2)(B) Id. 207j)(6) Id. 207j)(6)(A) (B); see also EEOC v. Exxon Corp., 202 F.3d 755, (5th Cir. 2000) (holding a former government employee is typically barred from serving as an expert witness under the statute, unless there is a specific court order directing the testimony of those former employees as experts) U.S.C. 207(j)(6)(A); see Adams v. United States, No. CV E-BLW, 2008 WL , at *3 (D. Idaho Dec. 31, 2008) (holding that when deciding whether a court should issue an order permitting testimony under 207(j)(6)(A), the court should consider the impact of the exclusion of the expert on "[clourt proceedings and the administration of justice" and to what extent "allowing the expert to testify [would] do violence to the intent and policy behind 207"); see also United States v. Lecco, 495 F. Supp. 2d 581, (S.D. W. Va. 2007) (noting the safe-harbor provision of 207j) is "nearly identical to its counterparts in 203 and [but it] contains additional provisions restricting expert witness testimony by former federal employees"). But see United States v. Rosen, 599 F Supp. 2d 690, (E.D. Va. 2009) (holding that government employee was permitted to testify as expert witness, not because of court order, but because a meeting with his former employer for an hour to discuss general matters was too insubstantial to disable him from serving as an expert witness) See 18 U.S.C. 2070)(1) (7) (articulating exceptions for official conduct for federal, state, or local governments; for institutions, hospitals, and organizations exempted under 501(c)(3) of the Internal Revenue Code; and for employees aiding an international organization with prior Secretary of State approval).

18 2016] PUBLIC CORRUPTION 1657 "solely for the purpose of furnishing scientific or technological information," provided that the communication takes place according to "procedures acceptable to the department or agency concerned" or pursuant to a special certification process Furthermore, in 1996, 207(j) was amended to allow former seniorlevel officials to leave their positions to represent a candidate for political office or an organization, and to contact, for the purpose of influencing, their former agency. 315 b. Representative or Agent Section 207 applies to instances in which a former official, acting as an agent or representative of anyone else, has contact with the federal government knowingly and with the intent of influencing the government. 16 The key inquiry is whether the defendant actually represented another party after leaving federal employment. The Eleventh Circuit, applying principles of agency law, held that the defendant could not be considered a representative or agent for purposes of 207 because he did not have "actual" or "apparent" authority to bind the principal. 317 The Federal Circuit, Federal Claims Court, and the DC Circuit have also defined agent in the same way, using its common law meaning. 318 However, the Southern District of New York and DC District Court have adopted broader definitions. 319 c. Direct and Substantial Interest of the United States Section 207 provides that the United States must be a party to, or have a direct and substantial interest in, a particular matter in order to successfully prosecute under 207(a)(1) (permanent ban where defendant participated personally and 314. Id. 207(j)(5) Id. 207(j)(7)(B) (C) (amended by Office of Government Ethics Authorization Act of 1996, Pub. L. No , 110 Stat (1996)) Id. 207(a) United States v. Schaltenbrand, 930 F.2d 1554, (lth Cir. 1991) (holding that defendant, a former Air Force Reserve officer, did not violate 207(a) because defendant's limited and insignificant role in meeting between defendant's new employer, a private defense contractor, and Air Force did not amount to representation on behalf of new employer); see also United States v. Clark, 333 E Supp. 2d 789, 795 (E.D. Wis. 2004) (holding that defendant's involvement in a supervisory capacity, taken as a whole, brought him within 207's reach because it created the "reasonable appearance" of significance, particularly when the defendant took the critical step of issuing subpoenas); Robert E. Derecktor of R.I., Inc. v. United States, 762 E Supp. 1019, 1027 (D.R.I. 1991) (holding that defendant did not violate 207 because he merely acted as a messenger and did not make an "appearance" for representative purposes in his professional capacity) O'Neill v. Dep't of Hous. & Urban Dev., 220 F.3d 1354, (Fed. Cir. 2000) (citing Refine Constr. Co. v. United States, 12 Cl. Ct. 56, 61 (Cl. Ct. 1987) and United States v. Bailey, 498 F.2d 677, 679 (D.C. Cir. 1974)) See Van Ee v. E.P.A., 55 F. Supp. 2d 1, 7 (D.D.C. 1999), rev'd on other grounds 202 F.3d 296 (2002) (holding that a person is considered an agent if they "attend hearings and meetings on behalf of organizations, and... represent their views to federal agencies in an effort to influence their decision-making). See also United States v. Sweig, 316 E Supp. 1148, 1157 (S.D.N.Y. 1970) (holding "the strict common-law notion of 'agency' does not necessarily exhaust the meaning of the prohibition").

19 1658 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 substantially) or 207(a)(2) (two-year ban where matter was pending under defendant's official authority). 320 The Seventh Circuit has held that the government's involvement in contract negotiations constitutes such a direct and substantial interest. 321 Under this interpretation, parties, facts, and subject matter must coincide to trigger the prohibition. Direct and substantial has been interpreted broadly to cover a "nucleus of operative facts. 322 Several courts have held that for a case to be a part of the "particular matter" that the United States has an interest in, the case must involve the same parties, the same subject matter, and substantially overlapping facts. 323 d. Knowledge In order to sustain a 207 conviction, the government must show that the defendant acted with knowledge of and with the intent to influence the officer, agency, court, or department with which he communicates regarding a particular matter. 3 4 In United States v. Nofziger, a lobbyist formerly employed as a presidential aide sent a letter to the Deputy Counselor for the President, requesting that a government contract be awarded to one of his firm's clients. 325 After he was convicted under 207, the lobbyist argued on appeal that he did not know that the United States had a "direct and substantial interest" in the matters addressed in his letter. 326 The D.C. Circuit agreed, holding that the mens rea of "knowingly" applied to all elements of a 207 violation. 327 Because the lobbyist did not know the United States had a "direct and substantial interest," the government failed to prove the required mens rea. Section 207 also requires "intent to influence., 328 The Office of Government Ethics has proposed to define "intent to influence" to refer to communications or U.S.C. 207(a)(1)(A), (a)(2)(a) See United States v. Medico Indus., Inc., 784 E2d 840, (7th Cir. 1986) (affirming that the defendant retained an army procurement officer for contract modification negotiations in violation of 207 and that, where the United States has an interest, it may not be estopped from a 207 claim due to the inaction or wrong action of a subordinate official). But see United States ex rel. Siewick v. Jamieson Sci. & Eng'g, Inc., 214 E3d 1372, (D.C. Cir. 2000) (permitting a Navy employee to accept a position with a government contractor with which he had previously associated) Medico, 784 F.2d at 843; EEOC v. Exxon Corp., 202 F.3d 755, 757 (5th Cir. 2000) See EEOC, 202 E3d at (holding that a suit challenging the substance abuse policy of Exxon is the same particular matter as the overall settlement negotiations between Exxon and the United States government, as the substance abuse policy was at issue in both cases); see also Medico, 784 E2d at U.S.C. 207(a)(1) (2); see United States v. Nofziger, 878 E2d 442, 454 (D.C. Cir. 1989) (reversing conviction because government had not proven defendant had knowledge of the facts that made his conduct criminal); see also United States v. Baird, 29 E3d 647, 652 (D.C. Cir. 1994) (discussing "knowledge" in 203 context and stating Nofziger only required that the government prove defendant knew facts that made such conduct criminal, not that he knew those facts added up to a crime) Nofziger, 878 E2d at Id. at Id. at 454 (stating that, because there is no evidence that Congress intended 207 to impose strict liability, court must be guided by rule of lenity and presumption that mens rea is required) U.S.C. 207(a)(1) (2).

20 2016] PUBLIC CORRUPTION appearances seeking direct government action or affecting government actions. The definition includes silent appearances, but excludes requests for publicly available documents, status inquiries, filing of tax returns, noncontroversial factual statements or questions, and filing a Form 10-K. 330 D. Acts Affecting Financial Interest Section 208 generally prohibits an officer or employee of the executive branch from "personally and substantially" participating in "any particular matter" in which the officer, or the officer's spouse, general partner, or organization with which he or she is involved has a known financial interest. 331 The purpose of 208 is "to insure honesty in the Government's business dealings by preventing federal agents who have interests adverse to those of the Government from advancing their own interests at the expense of the public welfare, 33 2 and to preserve the integrity of the decision-making process. 333 Courts interpret 208 broadly in order to achieve these objectives Violations of 208 are punishable by sanctions set forth in Elements of the Offense To obtain a conviction under 208, the government must prove that the defendant: (i) was an officer or employee of the executive branch or of an C.F.R (2015) Id.; Eleanor H. Smith and Leslie Berger Kiernan, POLITICAL ACTIVITY, LOBBYING LAWS & GIFT RULES GUIDE, 3D 19:24 (2015) U.S.C. 208(a) (2012); see United States v. Lund, 853 F.2d 242, (4th Cir. 1988) (finding a violation of 208 where defendant participated in his wife's employment contract, and noting 208 was enacted by Congress in order to extend 18 U.S.C. 434 "to cover other personal and substantial participation in matters in which the employee ha[d] a personal interest"); cf. United States v. Tierney, 947 F.2d 854, 865 (8th Cir. 1991) (holding that, where prosecutor's spouse was partner in law firm representing defendant's insurer and insurer had sued defendant, such "interest [was] simply too insubstantial to require disqualification of a partner's spouse in related litigation") See United States v. Miss. Valley Generating Co., 364 U.S. 520, 548, (1961) (holding non-enforcement is remedy where contract is infected with illegal conflict of interest); Kellog Brown & Root Servs. v. United States, 99 Fed. Cl. 488, 514 (Fed. Cl. 2011) ("[A] conflict of interest at the formation of the contract operates like a fraud and warrants nonenforcement."); see also City & Cnty. of S.F. v. United States, 443 F. Supp. 1116, 1125 (N.D. Cal. 1977) (stating that the purpose of 208 is to protect the public from the corrupting influences of government agents who are financially interested in the business transactions which they are conducting for the government) United States v. Ponnapula, 246 F.3d 576, 583 (6th Cir. 2001) See United States v. Smith, 267 F.3d 1154, 1159 (D.C. Cir. 2001) (concluding that 208(a) was intended to have a broad reach); see also United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993) (stating that, by enacting 208, "Congress intended to expand the purview of the statute's predecessor, 18 U.S.C. 434"); Lund, 853 F.2d at 246 ("[T]he legislative history and purpose of 208(a) fully support giving its unambiguous terms the full breadth of their ordinary meaning."); United States v. Jewell, 827 F.2d 586, 587 (9th Cir. 1987) ("The section's 'catch-all' language.., was designed to allow prosecution on the basis of any type of action taken to execute or carry to completion a contract.") U.S.C. 216 (2012).

21 1660 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 independent agency; (ii) participated personally and substantially in his or her official governmental capacity in a particular matter; and (iii) knew that he or she, his or her spouse, or another statutorily listed person had a financial interest in that particular matter This formulation is composite because it combines questions of "personally and substantially" and "particular matter" in the same element. a. Officer or Employee Section 208 requires that the defendant be an officer or employee of the executive branch or any independent agency of the federal government Section 208 also applies to special government employees Section 208 broadly applies to officers and employees of the executive branch and is not contingent upon salary. 339 In United States v. Smith, the D.C. Circuit summarily rejected the argument that the restrictions imposed by 208 only apply to defendants paid at a GS-13 level and above, 340 reasoning that the plain language of the statute, as well as the established practice of interpreting its provisions broadly, counseled against making salary-based distinctions among employees The statute also contains several exemptions First, 208 is inapplicable where an employee obtains prior approval from an appointing officer for actions involving potential conflict Second, 208 does not apply if the Director of the Office of Government Ethics has issued a general rule exempting the particular kind of interest at stake Additionally, 208 does not apply to a special government employee serving on an advisory committee if the appointing official "certifies in writing that the need for the individual's services outweighs the potential for a conflict of interest created by the financial interest involved., 345 Finally, 208 is inapplicable to a financial interest that would affect matters 346 concerning a Native American tribe or nation Id. 208(a); see also Ponnapula, 246 E3d at 583 (discussing these elements of the offense) Id. 208(a) Id See Smith, 267 F.3d at (holding that a salary below GS-12 does not preclude application of the federal conflict of interest statute) Id See id. at 1159 ("[Section] 208(a) was intended, and has generally been interpreted to have a broad reach...") U.S.C. 208(b) Id. 208(b)(1) Id. 208(b)(2); see 5 C.ER (2015) (listing the Office of Government Ethics exemptions issued on December 18, 1996) U.S.C. 208(b)(3); see also Michael E. Horwin, Note, Ensuring Safe, Effective and Necessary Vaccines for Children, 37 CAL. W. L. REv. 321, (2001) (discussing the application of 208(b)(3) in relation to waivers for doctors serving on vaccine committees) U.S.C. 208(b)(4).

22 2016] PUBLIC CORRUPTION b. Participated "Personally and Substantially" in a "Particular Matter" Only a few court decisions have discussed the definitions of "personally and substantially" 347 or "particular matter" under The D.C. Circuit has noted that the legislative history of 208 indicates that the section was designed to address "a growing concern, both in and out of Congress, with the ever present and perplexing problems of how best to assure high ethical standards in the conduct of the Federal Government The D.C. Circuit has held that the "personally and substantially" requirement may be met by a special government employee who individually influenced NASA funding allocations. 3 Other circuits hold that "substantially" participating "excludes employees performing purely ministerial or procedural duties The Office of Government Ethics has stated that the term "particular matter" in the 208 context does not extend to broad policy matters where the interests of a large group of persons are implicated, but rather "encompasses only matters that involve deliberation, decision, or action that is focused upon the interest of specific persons, or a discrete and identifiable class of persons However, a consortium of four research institutions in Mississippi was considered discrete enough to fall with the definition of a "particular matter" when a special government employee's client received the lion's share of earmarked funds. 3 According to the Office of Government Ethics, 208 applies to particular matters where the employee's personal and substantial participation will have a 4 direct or predictable effect on the particular matter. A direct effect is when there 347. See United States v. Selby, 557 E3d 968, 972 (9th Cir. 2009) (interpreting "participation personally and substantially" under 208 broadly and holding that defendant, who was government agency employee, violated 208 when she "substantially participated" in expansion of the agency's contract with a software company that employed her husband, even though she was not involved in the initial procurement of the contract) See United States v. Jewell, 827 E2d 586, 588 (9th Cir. 1987) (discussing the definition of "particular matter" and finding a "matter may form a separate basis for liability under 208 only if it is a discrete transaction") United States v. Conlon, 628 E2d 150, 154 (D.C. Cir. 1980) See United States v. Stadd, 636 F.3d 630, 637 (D.C. Cir. 2011) (holding that influencing the NASA director to allocate funds to the Defendant's client instead of through a national competition was personal and substantial participation) See United States v. Ponnapula, 246 E3d 576, (6th Cir. 2001) (finding that attorney hired by the Small Business Administration to act as substitute trustee at foreclosure sale was not a "substantial" participant in sale). The Ninth Circuit implicitly endorsed this formulation in United States v. Selby, where it rejected the defendant's argument under Ponnapula that her involvement in a contractual matter was merely "ministerial" and therefore non-substantial. See Selby, 557 F.3d at See Van Ee v. EPA, 55 F. Supp. 2d 1, 4 (D.D.C. 1999), rev'd on other grounds, 202 F.3d 296, (D.C. Cir. 2000) (citing 5 C.ER (b)(3)). Several commentators have advocated for Congress to amend the statute to end or change the exclusion of broad policy decisions from matters covered by 208; however, Congress has not done so. See Daniel L. Koffsky, Coming to Terms with Bureaucratic Ethics, 11 J.L. & POL. 235, 256 (1995) United States v. Stadd, 636 E3d 630, 637 (D.C. Cir. 2011) C.ER (2015).

23 1662 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 is a "close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest., 355 Direct effects may not occur immediately and do not include attenuated causation chains, speculative events, or general economic effects. 56 A predictable effect has a "real, as opposed to a speculative possibility that the matter will affect the financial interest." 357 A predictable effect still occurs even if the exact gain or loss is unknown or immaterial. 8 Minimal stockholdings by two members of a contract award evaluation panel did not have a direct or predictable effect. 9 c. Knowledge of Financial Interest There are three different types of knowledge of a financial interest an individual could have that would implicate them under the statute. 60 First, a defendant could be aware of the financial interest of a spouse, partner, child, or employer A defendant accused of violating 208 by virtue of the financial interest of such a financial interest must have known that the other individual specified by the statute had a financial interest at stake. 362 Several circuits have held that conviction under 208 requires only general intent, evidenced by knowledge of a financial interest, rather than specific intent The Eleventh Circuit agrees with its sister circuits that the statute does not require specific intent; however, it treats 208 as a strict liability offense Id Id Id Id Antarctic Support Associates v. U.S. Raytheon Tech. Servs. Co., 251 E3d 171 (Fed. Cir. 2000). But see Lorillard, Inc. v. United States Food & Drug Admin., No (RJL), 2014 WL (D.D.C. July 21, 2014) (holding that the composition of an FDA advisory committee where one member's ongoing financial relationship with drug manufacturers who competed with the product being studied, constituted a predictable effect and hence a conflict of interest falling under 208) See 18 U.S.C. 208(a) (2012) Id See id. (stating that a government employee is subject to penalty when he participates personally and substantially in a matter, which, "to his knowledge," he or an enumerated list of related parties has a financial interest) See, e.g., United States v. Gorman, 807 F.2d 1299, 1304 (6th Cir. 1986) ("Section 208 sets forth an objective standard of conduct which is directed not only at dishonor, but also at conduct which tempts dishonor."); United States v. Lord, 710 F. Supp. 615, 617 (E.D. Va. 1989) (comparing legislative history of 203 and 208 and finding that specific intent was not requisite element of either statute based on Congress' intent to expand the statutes' scopes), aff'd, 902 F.2d 1567 (4th Cir. 1990); cf United States v. Project on Gov't Oversight, 616 F.3d 544, (D.C. Cir. 2010) (holding that the general intent requirement of 18 U.S.C. 209, another criminal conflict of interest statute, is satisfied by the mere knowledge that an act has the "characteristics" that bring it within the purview of the statute) United States v. Hedges, 912 F.2d 1397, (11th Cir. 1990); see also United States v. Davidson, 399 Fed. App'x 525, 527 (1lth Cir. 2010) (reasoning that evidence of intent is irrelevant to a charge arising under 18 U.S.C. 208(a) because it is a strict liability offense).

24 2016] PUBLIC CORRUPTION 1663 Second, a defendant might have knowledge of their own financial interest In such a case, the government must prove that the defendant had a financial interest or stood to gain from participation in the matter in question In defining financial interest, the D.C. Circuit stated "a Government employee has a financial interest in a particular matter when there is a real possibility that he might gain or lose as a result of developments in or resolution of the matter. Speculative gain or loss is not enough." '367 Finally, a person might have knowledge of the financial interest of an organization they are negotiating with or whom they have an arrangement regarding prospective employment In these cases, the court must find that the defendant's personal conduct constituted "negotiations" or "arrangements" under this statute In keeping with the purpose of the statute, courts have liberally interpreted this element of Defenses Multiplicity of the indictment may serve as a defense against a prosecution under 208. In United States v. Jewell, 37 1 the defendant claimed that thirteen counts of violating 208(a) were multiplicities of one 208(a) violation because each count was based on the signing of invoices pertaining to the same contract Concluding that the multiple incidents each related to the same "particular matter" for the purposes of 208, the Ninth Circuit ultimately determined that the 365. See 18 U.S.C. 208(a) See United States v. Lund, 853 F.2d 242, 245 (4th Cir. 1988) (holding that spouse's potential gain in salary from defendant's actions constituted financial interest for purposes of 208(a)); Gorman, 807 F.2d at (holding that defendant had cognizable financial interest where he stood to gain from contingent fee arrangement) See Airline Pilots Ass'n, Int'l v. U.S. Dep't of Transp., 899 F.2d 1230, 1232 (D.C. Cir. 1990) (quoting Vested Rights in a Pension Plan as a 'Financial Interest,' Advisory Opinion, 83 Off. Gov't. Ethics 1, 2 (Jan. 7, 1983)) (holding there was no conflict of interest when a DOT Secretary participated in an investigation of an airline which was a client of the law firm that employed the Secretary after he left the DOT); see also United States v. White Eagle, 721 F.3d 1108, 1119 (9th Cir. 2013) (holding that whether a financial interest exists for the purposes of 18 U.S.C. 208(a) turns on whether "the link between the employee's interest and the public act" is "real and predictable" and not merely "remote and speculative") See 18 U.S.C. 208(a) See United States v. Conlon, 628 F.2d 150, 154 (D.C. Cir. 2001) (finding it was not necessary to plead "specific acts of negotiating" to enforce 208); United States v. Schaltenbrand, 930 F.2d 1554, 1559 (11th Cir. 1991) (concluding that defendant conducted negotiations when he completed employment application, was interviewed, and discussed his qualifications for job, despite no offer having been made); CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1578 (Fed. Cir. 1983) (concluding that discussions were only "preliminary exploratory talks, directed to possibilities that never materialized," and therefore were not negotiations which violated 208) Conlon, 628 F.2d at 155 ("Congress meant the words 'negotiating' and 'arrangement' in 208(a) to be given a broad reading...") F.2d 586 (9th Cir. 1987) Id. at (finding that signing of invoices was part of ongoing process relating to one government contract in which defendant had financial interest).

25 1664 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 defendant could be charged with only one count of violating subsection 208(a) If the government brings 208 charges against an individual, the defendant may also assert as a defense that the statute lacks a private right of action. In Scherer v. United States, 374 the court dismissed a 208 charge by a university student against a Department of Education employee finding that only the Attorney General possesses a right of action under that provision. 375 E. Illegal Outside Salaries for Federal Employees Section 209 prohibits receipt and payment of a salary as compensation, except from the government, for services rendered as an officer or employee of the Executive Branch, an executive agency, or the District of Columbia government. 7 6 A payment is "prohibited" by 209(a) if (i) the payor intends to compensate an executive branch employee for his government work or the payee intends to receive it as compensation for his government work, and (ii) the work in question is actually the employee's government work. 377 The general intent required by the statute is "only that the perpetrator 'kn[ow] that [his act] ha[s] the characteristics bringing it within the scope of the statute,' not that those characteristics make the acts unlawful., 378 If a defendant is found to have made such a payment, a showing of good faith is not a defense. 379 As with the other conflict of interest statutes, violators of 209 are subject to the penalties set forth in 216,380 and there is no private right of action Id. at 588 (stating that a matter forms a separate basis for liability under 208 "only if it is a discrete transaction") F Supp. 2d 1270 (D. Kan. 2003), aff'd, 78 E App'x 687 (10th Cir. 2003) Id. at 1285 (dismissing 208 (b) and (c) actions because there was no express or implied private right of action) U.S.C. 209(a) (2012); see United States v. Project on Gov't Oversight, 454 E3d 306, 309 (D.C. Cir. 2006) (discussing requirements of 209(a) and what constitutes compensation for services rendered as a government employee); United States v. Smith, 324 E3d 922, 926 (7th Cir. 2003) (finding that statutes other than 208 which address the topic of a federal employee's receipt of income from outside sources do not cast doubt on the ability of an Assistant United States Attorney to receive his salary from the state of Wisconsin) Project of Gov't Oversight, 616 F.3d at 559, n. 18 (D.C. Cir. 2010); see also United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, (1999) (noting that 209 was drawn broadly with the intent to proscribe any gift giving or salary supplementation) Project of Gov't Oversight, 616 F.3d at (quoting Carter v. United States, 530 U.S. 255, 269 (2000)). But see Sun-Diamond, 526 U.S. at (noting in dicta that 209 criminalizes certain gifts to executive officials "without regard to the purpose of the payment" and arguing that if Congress intended 201 to be read broadly it would have used language similar to that found in 209). See generally Beth Nolan, Public Interest, Private Income: Conflicts and Control Limits on the Outside Income of Government Officials, 87 Nw. U. L. REv. 57, 89 (1992) (discussing policy considerations in prohibiting salary supplementation) Project of Gov't Oversight, 616 E3d at U.S.C. 216 (2012) See Judicial Watch, Inc. v. Clinton, 880 E Supp. 1, 5 n.3 (D.D.C. 1995) (dismissing a private suit against former President Clinton regarding potential for undue influence stemming from donations to Legal Expense Trust), aff'd, 76 E3d 1232 (D.C. Cir. 1996).

26 2016] PUBLIC CORRUPTION 1665 The leading case construing 209 is Crandon v. United States, 38 2 in which the Supreme Court held that severance payments made to future federal employees before they begin government service do not violate the statute In reaching this result, the Court determined that Congress intended to help the government attract personnel with special knowledge and skills, 38 4 and that 209 accordingly applies only to those persons who are employed by the government at the time the outside payments are received One issue that was raised in a concurring opinion in Crandon is whether the statute is restricted to all forms of compensation or just periodic payments that could be understood as "salary., 38 6 However, courts have held that the statute clearly applies to all forms of compensation and not merely salaries or salary-like payments The statutory language of 209 lists a number of situations in which a federal officer or employee may accept outside compensation. 38 According to the Department of Justice, 209 does not "prohibit all non-government payments to an individual where there is any nexus between the payment and the individual's employment by the government., 3 9 Rather, the statute requires "an intentional, direct link between the outside compensation and the employee's government service In addition, a federal officer or employee may continue to accept any contributions, awards, or other expenses from tax-exempt organizations as governed by Chapter 41 of Title 5 of the U.S. Code U.S. 152 (1990) See id. at (noting that a literal reading of the statute places such payments outside scope of 209(a)). See generally Thomas E. Kenney, Pre-Employment Payments to Individuals who Enter Government Service: As Approved in Crandon v. United States, 33 B.C. L. REv. 456 (1992) (discussing Crandon holding and the history of 209) See Crandon, 494 U.S. at 167 (noting that an intent to attract certain personnel was a public interest as identified by the President and Attorney General at time of statute's enactment) See id. at (noting the rule of lenity supported an interpretation of statute to require employment by government at the time payment is made); see also United States v. Paisley, 957 F.2d 1161, 1163 (4th Cir. 1992) (reiterating Crandon's holding in context of a civil suit); Modern Muzzleloading, Inc. v. Magaw, 18 E Supp. 2d 29, 35 (D.D.C. 1998) (interpreting Crandon's use of the rule of lenity narrowly) See Crandon at 171 (suggesting that 209 only applies to payments that are akin to salary rather than one-time payments or non-monetary compensation) (Scalia, J., concurring) See e.g., United States v. Project on Gov't Oversight, 616 F.3d 544, (D.C. Cir. 2010) (holding that a one-time payment is enough for liability under the statute); United States v. Pratt, No. ELH , 2013 WL , 12 (D. Md. 2013) (holding that the statute covers numerous forms of compensation, including one-time payments, and listing several other circuits that have held similarly) See 18 U.S.C. 209(b) (f) (2012) (delineating exceptions) United States v. Project on Gov't Oversight, 454 F.3d 306, 309 (D.C. Cir. 2006) (citing Application of 18 U.S.C. 209 to Employee-Inventors Who Receive Outside Royalty Payments, Op. Off. Legal Counsel (Sept. 5, 2000)) Id U.S.C. 209(d). Section 4111 of Title 5 of the United States Code provides: [T]o the extent authorized by regulation of the President, contributions and awards incident to training in non-government facilities, and payment of travel, subsistence, and other expenses

27 1666 AMERICAN CRIMINAL LAW REVIEW [Vol. 53:1619 F Penalties Section 2C1.3 of the Guidelines applies to defendants convicted under 18 U.S.C The base offense level for these offenses is six If the offense involved harm to the government, the offense level is increased by four. 394 Defendants convicted of violating 18 U.S.C. 209 are also sentenced in accordance with 2C However, some crimes, such as illegal supplementation of an executive's salary, may involve high-ranking officials and lead to an increase in the offense level in accordance with 2C When these circumstances are present, the Sentencing Commission's explanation of intent provides courts with valuable guidance. 397 Section 216 sets forth the applicable penalties for violations of Criminal sanctions are adjusted according to whether the defendant "willfully" engaged in the conduct Without willful conduct, the penalty is limited to one year or less, a fine, or both. 400 If the crime was willfully committed, the sanction is up to five years in prison, a fine, or both The Attorney General may seek civil penalty fines capped at $50,000 for each violation, or equaling the compensation received or offered for the prohibited conduct, whichever is greater The incident to attendance at meetings, may be made to and accepted by an employee, without regard to section 209 of title 18, if the contributions, awards, and payments are made by an organization determined by the Secretary of the Treasury to be an organization described by section 501(c)(3) of title 26 which is exempt from taxation under section 50 1(a) of title U.S.C. 4111(a) (2012) U.S.C. 203, 205, 207, 208 (2012); see United States v. Smith, 267 F.3d 1154, (D.C. Cir. 2001) (discussing sentencing guidelines for violations of 208(a)); U.S.S.G. MANUAL app. A (2015) U.S.S.G. MANUAL 2C1.3(a) Id. 2C1.3(b)(1); see United States v. Geddings, 497 F. Supp. 2d 729, 742 (E.D. N.C. 2007) (applying this calculation to defendant's hypothetical argument) U.S.S.G. MANUAL app. A Id. 2C1.1(b)(3) (stating that, if an offense such as bribery is committed by a high-level official, the base offense level is increased by four and increased to eighteen if not yet at that level; if an offense of offering, giving, soliciting, or receiving a gratuity is committed by a high-level official, the level is increased by four and increased to fifteen if not yet at that level) See United States v. Sun-Diamond Growers of Cal., 138 E3d 961, 975 (D.C. Cir. 1998) (reversing in part where the district court's conclusion was contrary to the Sentencing Commission's explanation of section 2C1.2) U.S.C. 216 (2012); see United States v. Project on Gov't Oversight, 454 E3d 306, 309 (D.C. Cir. 2006) (discussing subsections of 216); see also CAN Corp. v. United States, 81 Fed. Cl. 722, 728 (2008) (stating that the penalties set forth in 216 apply to violations of 18 U.S.C. 207); Conrad v. United Instruments, Inc., 988 F. Supp. 1223, 1225 (W.D. Wis. 1997) (stating that pursuant to 216, violations of 207 may be punished by up to five years in prison or a fine of $50,000) U.S.C. 216(a)(1) (2) (2012) Id. 216(a)(1) Id. 216(a)(2); see United States v. Project on Gov't Oversight, 543 E Supp. 2d 55, (D.D.C. 2008) (stating that under 216(a)(2), no felony penalty may be imposed without proof of the requisite mens rea element, which is the difference between 216(a)(1) and 216(a)(2)), rev'd in part on other grounds, 616 E3d 544 (D.C. Cir. 2010) U.S.C. 216(b); see Project on Gov't Oversight, 543 E Supp. 2d at (discussing the penalties under 216(b) and holding a court can take good faith into account when considering the appropriate penalty to

28 2016] PUBLIC CORRUPTION 1667 standard of review for civil penalties is preponderance of the evidence. Imposing civil penalties does not preclude any other criminal or civil statutory, common law, or administrative remedy, which may be available by law to the United States or any other person Finally, if the employee is engaged in the prohibited conduct at the time the proceeding commences, the Attorney General may also seek injunctive relief prohibiting the individual from continuing to engage in that conduct IV. THE HONEST-SERVICES DOCTRINE In 1872, Congress passed the first federal mail fraud statute, and in 1909, added the language that now appears in the statute prohibiting "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises In interpreting the statute, various courts of appeals, paying special attention to the disjunctive language of the two clauses, read 1341 as criminalizing both schemes to defraud and schemes for obtaining money and property via fraudulent methods Under this reading of 1341, that statute protects the public from traditional fraudulent schemes that enrich the purveyor of the fraud at the expense of the victim as well as fraudulent schemes that enrich the purveyor of the fraud and a complicit third party while depriving the victim of only "honest services., 40 7 "Honest services," therefore, encompass the ethical conduct expected of certain individuals, the violation of which does not necessarily cause a tangible loss to the victim A. History of the Honest-Services Doctrine This subsection addresses the judicially crafted history of the honest-services doctrine and Congress's response to what it saw as a misapplication of the doctrine. impose against a non-profit political organization for paying a Department of Interior employee), rev'd in part on other grounds, 616 F.3d 544 (D.C. Cir. 2010). But see United States v. Bouchey, 949 F. Supp. 9, (D.C. Cir. 1996), abrogated by United States v. Project on Gov't Oversight, 484 E Supp. 2d 56, 67 (D.D.C. 2007) (holding double jeopardy does not apply in civil case brought by Attorney General for criminal conflict of interest violation because government can seek "remedial compensation," and holding "section 216(b) is not limited to recovery for pecuniary loss; rather, it is also intended to redress the government for damage to its character and standing on account of a defendant's actions") U.S.C. 216(b) Id. 216(c); Project on Gov't Oversight, 543 E Supp. 2d at U.S.C (2012). For an in-depth discussion of mail and wire fraud, see the Mail and Wire Fraud Article See, e.g., Shushan v. United States, 117 F.2d 110 (5th Cir. 1941) (holding 1341 protects two distinct rights) Id. at See Skilling v. United States, 561 U.S. 358, 400 (2010) (describing the "honest-services" doctrine as one targeting corruption that lacks the symmetry of schemes in which "the victim's loss of money or property supplie[s] the defendant's gain").