In an opinion issued last month, Judge Richard Caputo of the U.S. District Court for the Middle District of Pennsylvania called attention to a deep split between the circuit courts over the federal-programs bribery statute. See United States v. Munchak, Civil Action NO. 3:10-CR-75 (M.D. Pa. Mar. 30, 2012) (mem. op.).
Codified at 18 U.S.C. § 666, this statute criminalizes the receipt or solicitation of bribes or kickbacks in excess of $5,000 by agents of a state or local organization or governmental entity that receives more than $10,000 in federal funds in any one-year period. Congress enacted the statute “to create new offenses to supplement the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or State and local governments pursuant to a Federal program.” S. Rep. No. 98-225, at 369 (1984).
According to a press release issued by the DOJ back in January, "Cordaro and Munchak used their positions as majority County Commissioners to 'engage in a pay-for-play scheme by accepting money in exchange for their official actions,' and violated the trust placed in them by the citizens of Lackawanna County."U.S. Attorney Peter J. Smith remarked, “People have the right to expect that their elected leaders will honor the oath they swore to. The federal justice system must and will stand up to protect that expectation."
But the circuit courts are deeply divided over whether a conviction under § 666 requires proof of a quid pro quo. Judge Caputo’s opinion in Munchak highlights the split in authority as follows:
United States v. Redzic, 627 F.3d 683, 692 (8th Cir. 2010) ("government must present evidence of a quid pro quo, but an illegal bribe may be paid with the intent to influence a general course of conduct. It was not necessary for the government to link any particular payment to any particular action undertaken by 'the defendant"'"); United States v. McNair, 605 F.3d 1152, 1187-88 (11th Cir. 2010) ("the government is not required to tie or directly link a benefit or payment to a specific official act by that County employee. The intent that must be proven is an intent to corruptly influence or to be influenced 'in connection with any business' or 'transaction,' not an intent to engage in any specific quid pro quo"); United States v. Abbey, 560 F.3d 513, 520-22 (6th Cir. 2009) ("the statute does not require the government to prove [the defendant] contemplated a specific act when he received the bribe. . . . [Thus,] the district court's instructions were not improper for failing to include a requirement that the government prove a direct link from some specific payment to a promise of some specific official act"); United States v. Ganim, 510 F.3d 134, 147 n.7 (2d Cir. 2007) ("bribery under § 666 requires a quid pro quo"); United States v. Gee, 432 F.3d 713, 714 (7th Cir. 2005) ("the defendant contends that the absence of a quid pro quo prevents conviction. Yet the statute does not require any such link. A quid pro quo of money for a specific legislative act is sufficient to violate the statute, but it is not necessary"); United States v. Jennings, 160 F.3d 1006, 1020 (4th Cir. 1998) (district court's jury instructions must "explain properly the quid pro quo element of § 666(a)(2)") (emphasis added.) But, the Third Circuit has not yet decided this issue. See, e.g., United States v. Van Pelt, 448 Fed Appx. 301, 305 (3d Cir. 2011).
One interesting side note about this case: according to the Scranton Times-Tribune, during sentencing Munchak requested leniency "for his years of donating blood and other charitable acts," which he argued, "should spare him from what could be a life prison sentence." Was his plea for leniency granted? You can read more here.
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