c. What Does § 1346 Official Act Encompass? McDonnell v. United States (Roberts) (2016)
- Holding—Standing alone, setting up a meeting, talking to another official, or organizing an event/agreeing to do so, does not fit the definition of “official act” contemplated by the § 201 Bribery statute.
- 18 U.S.C. § 201 Bribery
- Makes it a crime for a public official to demand anything of value in return for being influenced in the performance of an official act.
- § 201(a)(3)—official act—any decision or action on any question, matter, cause, suit, proceeding, or controversy, which may at any time (a) be pending OR (b) may, by law, be brought before any public official in his official capacity, or in his place of trust or profit.
- Elements of §1341 Mail/Wire Fraud Through § 1346 Bribery
- D knowingly participated in, devised, or intended to devise a scheme to defraud in order to obtain money or property (that he is not entitled to)
- The scheme included a material misrepresentation or concealment of a material fact
- Material—Has a natural tendency to influence the decision of a RPP
- D had the intent to defraud
- Specific intent
- Must have the intent to cheat another out of his property.
- Determined at the time the agreement is made
- D used the mail or caused another to use the mail or a wire in furtherance of the scheme
- § 1346 Deprived another of the intangible right to honest services by:
- Violating a fiduciary duty
- By participating in a bribery scheme
- If D were a federal official, he would have violated §201 bribery
Elements of § 201 Bribery
1. Official act in exchange for anything of value | Two Requirements to be an Official Act: (1) The act is “official.” Gov’t must identify a question, matter, cause, suit, proceeding, or controversy that may be brought in his official capacity. “Question, et. al.” MUST contemplated a formal exercise of gov’t power (2) Must prove D made a decision or took action on that matter OR agreed to do so. SEE MORE BELOW |
2. Agreement | Agreement may be implied and the official need not specify the means to the end. There is NO intent requirement. Basically, it comes down to whether the official agreed to perform an official act at the time of the quid pro quo. |
| 3. On any question, matter, cause, suit, proceeding, or controversy | The matter must be focused and concrete. It must involve: (1) a formal exercise of gov’t power, similar to a suit before a court, (2) concerning something specific and focused that that may be pending or brought by law. |
4. Which may, at any time, (a) be pending OR (b) brought, by law before him in his official capacity. | Considers things that can be put on an agenda, tracked for progress, and marked as completed. “Any” conveys that the matter is pending either before the D’s office or another public official. “By law” contemplates the exercise of official duties of the office. D MUST be a public official at the time of agreement |
- Two Requirements to be an Official Act
- (1) The act must be “official”—Gov’t must identify a question, matter, cause, suit, proceeding, or controversy that may be brought in his official capacity. “Question, et. al.” MUST contemplated a formal exercise of gov’t power
- (2) Must prove D made a decision or took action on that matter OR agreed to do so.
- “Decision/action,” under principles of nosciturr a sociis, takes on a formal connotation. Thus, the phrases contemplate the exercise of a duty of office.
- The mere existence of “pending matters” is insufficient to show that setting up a meeting/call is a decision or action, even where the meeting is with interested parties to discuss the matter.
- Examples Of Official Acts: (1) initiation of a project, (2) exertion of pressure on another official, (3) providing advice to another knowing or intending that such advice will form a basis for the other’s official act.
d. How do we Define Obtaining Property in § 1341? Kelly v. United States (Kagan) (2020)
- Holding—Because the scheme did not aim to acquire money or property, D could not have violated federal wire fraud laws.
- Money or Property—Must be transferable in the hands of the defendant.
- To be sufficient, the money/property deprived must be the object/purpose of executing the fraud.
- Object—The loss to the victim must be more than a negative externality of the fraud’s purpose. Do not consider incidental byproducts of the act.
- Cleveland—A scheme to alter regulatory choices is NOT one aimed at taking gov’t property.
- A government license cannot be bought, sold, or transferred. Therefore, it cannot be property
- McNally—Mail/Wire fraud statutes are limited to property fraud
- Skilling— § 1346 IRT honest services fraud is limited to bribery and kickbacks.
- A scheme to usurp a public employee’s paid time IS one to take gov’t property. However, a scheme to usurp the government’s police power is not property fraud. Negative external costs to that fraud are not considered.
- Prosecutors cannot use property fraud statutes to set standards of disclosure and good government for state and local officials.