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Bribery vs. Acceptance of Gifts
Thursday, February 13th, 2014
Robert Wechsler
According to an
article in the New Orleans Times-Picayune, yesterday former
New Orleans mayor Ray Nagin was convicted on 20 of the 21 corruption
charges against him, primarily for bribery, honest services fraud,
and tax fraud.
This hard-fought battle was actually about one thing only, whether gifts given to the mayor were intended to influence him. From a government ethics perspective, this was unnecessary. The acceptance of gifts from someone seeking benefits is sufficient. Therefore, all the additional discovery and presentation of evidence was unnecessary, except to ensure that he would do time.
It's worth a look at the judge's instructions to the jury. Here is what the judge said about bribery with respect to the counts of honest services fraud (p. 11):
Robert Wechsler
Director of Research-Retired, City Ethics
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This hard-fought battle was actually about one thing only, whether gifts given to the mayor were intended to influence him. From a government ethics perspective, this was unnecessary. The acceptance of gifts from someone seeking benefits is sufficient. Therefore, all the additional discovery and presentation of evidence was unnecessary, except to ensure that he would do time.
It's worth a look at the judge's instructions to the jury. Here is what the judge said about bribery with respect to the counts of honest services fraud (p. 11):
[B]ribery includes the public official's solicitation or agreement to accept a thing of value in exchange for official action, whether or not the payor actually provides the thing of value, and whether or not the public official ultimately performs the requested official action or intends to do so.For more on Nagin, see my posts on a gift loophole and on how the indictment shows the weakness of the New Orleans ethics program.
The public official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods. Rather, the intent to exchange may be established by circumstantial evidence, based upon the defendant's words, conduct, acts, and all the surrounding circumstances disclosed by the evidence and the rational or logical inferences that may be drawn from them.
Bribery requires the intent to effect an exchange of money or other thing of value for official action, but each payment need not be correlated with a specific official act. The requirement that there be payment of a thing of value in return for the performance of an official act is satisfied so long as the evidence shows a "course of conduct" of things of value flowing to a public official in exchange for a pattern of official actions favorable to the donor.
It is not a defense to claim that a public official would have lawfully performed the official action in question even without having accepted a thing of value. ... Also, because people rarely act for a single purpose, the giver need not have offered or provided the thing of value only in exchange for specific official actions, and the public official need not have solicited or accepted the thing of value only in exchange for the performance of official action.
Robert Wechsler
Director of Research-Retired, City Ethics
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