Corruption Prevention
in the American Public
Prosecution System
Brian Pearce
Resident Legal Adviser/US Embassy & TCLI
Federal Prosecutor/US Dept. of Justice
Outline
• Federal Statutes Aimed at Corruption
• Regulations for Executive Officials
• State Bar Rules for Lawyers
• Supplemental Regulations for Prosecutors
• Internal Policy and Enforcement Agencies
.
Oversight of Prosecutors
Office of
Professional
Responsibility
Supervisors
State Bar
Federal
Agency
Federal Law
Enforcement
Judges/
Opposing
Counsel
Statutory Timeline
• 1776: Bribery statutes carry over from British rule. Aim to
ensure government “By the People, For the People”
-- not “Buy the Official, For the Official.”
• Purely reactive and prohibitive system (“thou shalt not take a
bribe”)
-- not proactive or aspirational (i.e., training toward a higher
standard, avoiding even appearances of misconduct).
• 1863: Civil War procurement scandals. Bribery
laws are
.
supplemented with statutes aimed at official profiteering.
Statutory Timeline (cont.)
• 1963: President Kennedy seeks aspirational laws,
regulations to put new stamp on public service.
• 1965: Executive Order 11222– Civil Service
Commission (now Office of Personnel Management)
issued six general principles of conduct, developed
model regulation for each executive agencies to
adapt to their needs. Confidential financial disclosure
.
system begins for top officials. Proactive approach.
Statutory Timeline (cont.)
• 1973: Watergate scandal leads to several good
governance measures.
• 1978: Government Ethics Act. Office of
Government Ethics was created to oversee
agencies in creating ethics programs, rules of
conduct. Financial disclosure expands; officials
with significant discretion file confidentially (around
.
275,000); 20,000 top officials make public filings.
Statutory Timeline (cont.)
• 1988: Office of Government Ethics Reauthorization Act
• 1989: Ethics Reform Act. Criminal statutes strengthened
with civil and injunctive authority (e.g., disgorging profits,
voiding transactions). Salaries raised at the same time that
outside income and service were limited.
• Executive Order 12674. 14 fundamental principles issued.
OGE begins writing more extensive, detailed regulations with
concrete examples. Published for public comment; 1,000
.
written comments received and addressed.
Statutory Regime
The Statutory-Regulatory
Pyramid
State
Bar Rules
(lawyers in state)
DOJ
Supp. Regs.
(DOJ employees)
Executive
Regulations
(all executive employees)
Federal Statutes
(all persons in US, US citizens)
Corruption-Related Statutes
• Bribery Statutes
• Gratuity Statutes
• Conflict of Interest Statutes
.
Bribery and
Gratuity Statutes
• 18 U.S.C. § 201(c)
Elements of Gratuity:
1. To knowingly give,
offer or promise;
2. Anything of value;
3. To a past, present of
future public official;
4. For or because of any
official act, past,
present of future
2-year felony
• 18 U.S.C. §
201(b)(1)
Elements of Bribery:
1.To corruptly give,
offer or promise;
2.Anything of value;
3.To a present or
future public official;
4.With intent to
influence any official
act.
15-year felony
Examples of Gratuities
• Oil company paid for vacation trips by tax official
•
•
who was in charge of audit. U.S. v. Standefer,
452 F.Supp. 1178 (W.D.P.A. 1978).
Congressman received free trips from shipping
company; introduced bill and wrote letters on
congressional stationery seeking favorable
treatment of the company. U.S. v. Biaggi, 853
F.2d 89 (2d Cir. 1988).
Informants at massage parlors gave police
lieutenant $1,000 cash payments after he told
them they were not properly licensed; sufficient
evidence of linkage to continued operation. U.S.
v. Ahn, 231 F.3d 26 (D.C.Cir. 2000).
Bribe or Gratuity?
• Payment for past act: if there was a
prior agreement, it is a bribe; if the
payment is just a “thank you”, it’s a
gratuity.
• Payment to a previous official: probably
a gratuity, unless there was a previous
agreement.
• No “quid pro quo”; official would have
done the act anyway –gratuity.
Bribe or Gratuity? (cont.)
• Payment is because of position—neither.
General “goodwill” payment is not enough.
Must link thing of value to official act. U.S.
v. Sun Diamond, 119 S. Ct. 1402 (1999).
• Offer of immunity or reduced sentence to
cooperating witness –neither. U.S. v.
Singleton, 165 F.3d 1297 (10th Cir. 1999).
• Offer of visa or other immigration benefits
to cooperating witness– neither. U.S. v.
Feng, 277 F.3d 1151 (9th Cir. 2002).
Conflict of Interest Statutes
18 U.S.C. §§ 202 to 209, 216
• § 203: Representational Services. US
officials, including prosecutors, cannot
represent a party for compensation in a
matter involving US or direct US interest.
• § 204: Prosecuting Claim Against US. US
officials may not prosecute claim against the
US (or receive any benefit for assisting).
Exception: professional non-profit
organization, majority are US officials.
Conflict of Interest (cont.)
§ 207: Representation by Former Officials.
Former US officials are restricted in their
ability to handle matters against US:
--Permanent ban: “participated personally
and substantially as such officer.”
-- 2-year ban: official knows or should know
matter was under his/her responsibility in last
year of service;
-- 1-year ban: Presidential appointees, other
high-ranking officials may not contact former
office with intent of influencing any matter.
Conflict of Interest (cont.)
• § 208: Personal Financial Interests. Officials
may not participate personally and
substantially in matter in which they, a
partner, immediate relative or prospective
employer have a financial interest.
• § 209: Outside Income. Government
officials may not receive compensation for
official services from any outside source.
Example of § 205 Case
• Air Force officer and EPA law clerk
attended night classes at Georgetown
Law School. They took part in lawyersupervised workshop offering free legal
services to poor people. Judge barred
them from making appearance. Court
of Appeals affirmed. Purpose is to
protect both government and client.
United States v. Bailey, 498 F.2d 677
(D.C. Cir. 1974).
Example of Section 208
“Financial Interest” Case
Air Force Reserve Officer worked on
project to sell surplus cargo airplanes to
Mexico. He met with US company bidding
to upgrade runways there. During series
of meetings, he applied for a job with the
company. His actions constituted
“negotiations” with prospective employer.
US v. Schaltenbrand, 930 F.2d 1554 (11th
Cir. 1991).
Regulations for Executive
Employees/DOJ Lawyers
The Statutory-Regulatory
Pyramid
DOJ
Supp. Regs.
(DOJ lawyers)
State Bar
Code of Conduct
(all lawyers in that state)
Executive
Regulations
(all executive employees)
Federal Statutes
(all persons in US, US citizens)
DOJ - Structure
Policy and Training in Codes of Conduct
Government Ethics Office.
• Drafted administrative standards of conduct.
• Oversees Executive agencies in:
--implementing Principles of Ethical Conduct;
-- reviewing financial disclosure statements;
writes opinion letters for high-level nominees.
-- designing ethics training programs.
--trains agency ethics counselors.
Enforcement of Codes of Conduct
Office of Professional Responsibility
• Established in 1975 to ensure DOJ
employees perform duties, meet
standards;
• Investigates allegations of professional
misconduct against DOJ attorneys &
agents
• Prosecutors must report every
allegation of misconduct to a supervisor,
who must report serious allegations to
OPR.
OPR (cont.)
• May ask for written response; if written record is
•
•
•
•
not enough, two OPR attorneys conduct
interviews;
Recommends range of discipline to Deputy AG;
termination, resignation, suspension, and
reprimands are typical;
Reports intentional/reckless cases to state bar.
Publishes report each year.
2004: 987 complaints, 31% found to warrant
further review; 88 full investigations opened;
involved 144 allegations; 29% found valid.
Code of Conduct for Executive Branch
Executive Order 12674
Gifts: “prohibited sources” are defined (e.g.
regulated parties, parties seeking official
action, subordinates); small gifts excepted.
 Financial Conflicts. Official may not
participate in matters in which she, spouse,
minor children or business partners have an
interest (exception for de minimis stock).
 Non-public information. Official cannot use
inside information gained through duties for
own gain.
Executive Code of Conduct (cont.)
Personal Conflicts. Official may not participate
without authorization in matters involving person
with shared business or contractual interest, close
relative, prospective employer of self or close
relative, recent employer and others –Prosecutors
must certify in each case that they have no
personal relationship with any target of
investigation, whether an individual or
organization.
 Outside Employment. Requires approval if related
to subject matter of responsibility; outside practice
of law requires approval, paid or unpaid.
DOJ Supplemental Regulations
• 5 CFR Part 3801--impose often stricter
standards than general Standards of Ethical
Conduct for Employees of the Executive
Branch, 5 CFR Part 2635.
• Department Ethics Office: administers agencyspecific program; requires annual ethics
training;
• Example of More Stringent Rule: Outside
employment: May not handle any criminal
matter, federal, state or local; no practice of
law, except community service or
State Bar Rules
State Bar
• Each State has its own State Bar association,
•
•
which regulates licensing, continuing education,
discipline and other matters.
Most States have an “integrated bar;” State Bar
and Supreme Court work together in licensing
and discipline.
Applicants must take “bar exam” on state law
and multi-state ethics exam, complete detailed
application and undergo background
examination.
State Bar Discipline
• California Model: State Bar operates a 2-tier
State Bar Court with its own “professional
responsibility judges.” State Bar can initiate
case against accused lawyer in that court or
Supreme Court.
• Hawaii Model. Office of Disciplinary Counsel
investigates complaints. Disciplinary Board
(18 lawyers and non-lawyers chosen by
Supreme Court) can impose discipline, but
only the Supreme Court can disbar.
State Bar and Prosecutors
• DOJ Requirement: All DOJ attorneys must be a
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•
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licensed, active member of at least on State Bar
(or District of Columbia Bar).
Most Federal Courts: require only that federal
prosecutor be licensed in a State.
Minority Rule: federal prosecutors must be
licensed member of that State’s Bar.
McDade Amendment: made state ethics rules more
applicable to federal prosecutors.
Conflicts: State Code of Conduct may conflict with
federal law/practice (e.g. Oregon undercover rule).
Questions?