Corruption Prevention Corruption Prevention in the American Public in the American Public

Prosecution SystemProsecution System

Brian PearceBrian Pearce

Resident Legal Adviser/US Embassy & Resident Legal Adviser/US Embassy & TCLITCLI

Federal Prosecutor/US Dept. of JusticeFederal Prosecutor/US Dept. of Justice

OutlineOutline• Federal Statutes Aimed at CorruptionFederal Statutes Aimed at Corruption

• Regulations for Executive OfficialsRegulations for Executive Officials

• State Bar Rules for LawyersState Bar Rules for Lawyers

• Supplemental Regulations for ProsecutorsSupplemental Regulations for Prosecutors

• Internal Policy and Enforcement AgenciesInternal Policy and Enforcement Agencies

.

Oversight of Prosecutors

FederalAgency

State Bar

Office ofProfessional

Responsibility

SupervisorsFederal LawEnforcement

Judges/OpposingCounsel

Statutory TimelineStatutory Timeline• 1776: Bribery statutes carry over from British rule. Aim to 1776: Bribery statutes carry over from British rule. Aim to

ensure government “By the People, For the People” ensure government “By the People, For the People”

-- not “Buy the Official, For the Official.”-- not “Buy the Official, For the Official.”

• Purely reactive and prohibitive system (“thou shalt not take Purely reactive and prohibitive system (“thou shalt not take

a bribe”)a bribe”)

-- not proactive or aspirational (i.e., training toward a higher -- not proactive or aspirational (i.e., training toward a higher

standard, avoiding even appearances of misconduct).standard, avoiding even appearances of misconduct).

• 1863: Civil War procurement scandals. Bribery laws are 1863: Civil War procurement scandals. Bribery laws are

supplemented with statutes aimed at official profiteering.supplemented with statutes aimed at official profiteering..

Statutory Timeline Statutory Timeline (cont.)(cont.)

• 1963: President Kennedy seeks aspirational laws, 1963: President Kennedy seeks aspirational laws,

regulations to put new stamp on public service.regulations to put new stamp on public service.

• 1965: 1965: Executive Order 11222Executive Order 11222– Civil Service – Civil Service

Commission (now Office of Personnel Management) Commission (now Office of Personnel Management)

issued six general principles of conduct, developed issued six general principles of conduct, developed

model regulation for each executive agencies to model regulation for each executive agencies to

adapt to their needs. Confidential financial adapt to their needs. Confidential financial

disclosure system begins for top officials. Proactive disclosure system begins for top officials. Proactive

approach.approach..

Statutory Timeline Statutory Timeline (cont.)(cont.)

• 1973: Watergate scandal leads to several 1973: Watergate scandal leads to several

good governance measures.good governance measures.

• 1978: 1978: Government Ethics ActGovernment Ethics Act. Office of . Office of

Government Ethics was created to oversee Government Ethics was created to oversee

agencies in creating ethics programs, rules of agencies in creating ethics programs, rules of

conduct. Financial disclosure expands; conduct. Financial disclosure expands;

officials with significant discretion file officials with significant discretion file

confidentially (around 275,000); 20,000 top confidentially (around 275,000); 20,000 top

officials make public filings.officials make public filings.

.

Statutory Timeline Statutory Timeline (cont.)(cont.)

• 1988: 1988: Office of Government Ethics Reauthorization ActOffice of Government Ethics Reauthorization Act

• 1989: 1989: Ethics Reform ActEthics Reform Act. Criminal statutes strengthened . Criminal statutes strengthened

with civil and injunctive authority (e.g., disgorging profits, with civil and injunctive authority (e.g., disgorging profits,

voiding transactions). Salaries raised at the same time voiding transactions). Salaries raised at the same time

that outside income and service were limited.that outside income and service were limited.

• Executive Order 12674Executive Order 12674. 14 fundamental principles . 14 fundamental principles

issued. OGE begins writing more extensive, detailed issued. OGE begins writing more extensive, detailed

regulations with concrete examples. Published for public regulations with concrete examples. Published for public

comment; 1,000 written comments received and comment; 1,000 written comments received and

addressed.addressed.

.

Statutory RegimeStatutory Regime

State Bar Rules

(lawyers in state)

DOJ Supp. Regs.

(DOJ employees)

Federal Statutes(all persons in US, US citizens)

The Statutory-Regulatory Pyramid

Executive Regulations

(all executive employees)

Corruption-Related Corruption-Related StatutesStatutes

•Bribery StatutesBribery Statutes

•Gratuity StatutesGratuity Statutes

•Conflict of Interest StatutesConflict of Interest Statutes

.

Bribery and Bribery and Gratuity Statutes Gratuity Statutes

• 18 U.S.C. § 201(c)18 U.S.C. § 201(c)Elements of Gratuity:Elements of Gratuity:1.1. To knowingly give, To knowingly give,

offer or promise; offer or promise; 2.2. Anything of value; Anything of value; 3.3. To a past, present of To a past, present of

future public official;future public official;4.4. For or because of For or because of

any official act, past, any official act, past, present of future present of future

2-year felony2-year felony

• 18 U.S.C. § 201(b)(1)18 U.S.C. § 201(b)(1)Elements of Bribery:Elements of Bribery:1.1.To corruptly give, To corruptly give,

offer or promise; offer or promise; 2.2.Anything of value; Anything of value; 3.3.To a present or To a present or

future public official;future public official;4.4.With intent to With intent to

influence any official influence any official act. act.

15-year felony15-year felony

Examples of GratuitiesExamples of Gratuities• Oil company paid for vacation trips by tax Oil company paid for vacation trips by tax

official who was in charge of audit. official who was in charge of audit. U.S. v. U.S. v. StandeferStandefer, 452 F.Supp. 1178 (W.D.P.A. 1978)., 452 F.Supp. 1178 (W.D.P.A. 1978).

• Congressman received free trips from Congressman received free trips from shipping company; introduced bill and wrote shipping company; introduced bill and wrote letters on congressional stationery seeking letters on congressional stationery seeking favorable treatment of the company. favorable treatment of the company. U.S. v. U.S. v. BiaggiBiaggi, 853 F.2d 89 (2d Cir. 1988)., 853 F.2d 89 (2d Cir. 1988).

• Informants at massage parlors gave police Informants at massage parlors gave police lieutenant $1,000 cash payments after he lieutenant $1,000 cash payments after he told them they were not properly licensed; told them they were not properly licensed; sufficient evidence of linkage to continued sufficient evidence of linkage to continued operation. operation. U.S. v. AhnU.S. v. Ahn, 231 F.3d 26 (D.C.Cir. , 231 F.3d 26 (D.C.Cir. 2000).2000).

Bribe or Gratuity?Bribe or Gratuity?•Payment for past act: if there was a Payment for past act: if there was a

prior agreement, it is a bribe; if the prior agreement, it is a bribe; if the payment is just a “thank you”, it’s a payment is just a “thank you”, it’s a gratuity.gratuity.

•Payment to a previous official: Payment to a previous official: probably a gratuity, unless there was probably a gratuity, unless there was a previous agreement.a previous agreement.

•No “quid pro quo”; official would No “quid pro quo”; official would have done the act anyway –gratuity.have done the act anyway –gratuity.

Bribe or Gratuity? (cont.)Bribe or Gratuity? (cont.)• Payment is because of position—neither. Payment is because of position—neither.

General “goodwill” payment is not enough. General “goodwill” payment is not enough. Must link thing of value to official act. Must link thing of value to official act. U.S. U.S. v. Sun Diamondv. Sun Diamond, 119 S. Ct. 1402 (1999)., 119 S. Ct. 1402 (1999).

• Offer of immunity or reduced sentence to Offer of immunity or reduced sentence to cooperating witness –neither. cooperating witness –neither. U.S. v. U.S. v. SingletonSingleton, 165 F.3d 1297 (10, 165 F.3d 1297 (10thth Cir. 1999). Cir. 1999).

• Offer of visa or other immigration benefits Offer of visa or other immigration benefits to cooperating witness– neither. to cooperating witness– neither. U.S. v. U.S. v. FengFeng, 277 F.3d 1151 (9, 277 F.3d 1151 (9thth Cir. 2002). Cir. 2002).

Conflict of Interest StatutesConflict of Interest Statutes18 U.S.C. §§ 202 to 209, 21618 U.S.C. §§ 202 to 209, 216

• § 203: § 203: Representational Services.Representational Services. US US officials, including prosecutors, cannot officials, including prosecutors, cannot represent a party for compensation in a represent a party for compensation in a matter involving US or direct US interest.matter involving US or direct US interest.

• § 204: § 204: Prosecuting Claim Against USProsecuting Claim Against US. US . US officials may not prosecute claim against officials may not prosecute claim against the US (or receive any benefit for the US (or receive any benefit for assisting). Exception: professional non-assisting). Exception: professional non-profit organization, majority are US profit organization, majority are US officials.officials.

Conflict of Interest (cont.)Conflict of Interest (cont.)§ 207: § 207: Representation by Former Officials.Representation by Former Officials.

Former US officials are restricted in their Former US officials are restricted in their ability to handle matters against US:ability to handle matters against US:

--Permanent ban: “participated --Permanent ban: “participated personally personally and substantiallyand substantially as such officer.” as such officer.”

-- 2-year ban: official knows or should -- 2-year ban: official knows or should know matter was under his/her know matter was under his/her responsibility in last year of service;responsibility in last year of service;

-- 1-year ban: Presidential appointees, -- 1-year ban: Presidential appointees, other high-ranking officials may not other high-ranking officials may not contact former office with intent of contact former office with intent of influencing any matter.influencing any matter.

Conflict of Interest (cont.)Conflict of Interest (cont.)

• § 208: § 208: Personal Financial Interests.Personal Financial Interests. Officials may not participate personally Officials may not participate personally and substantially in matter in which they, and substantially in matter in which they, a partner, immediate relative or a partner, immediate relative or prospective employer have a financial prospective employer have a financial interest.interest.

• § 209: § 209: Outside IncomeOutside Income. Government . Government officials may not receive compensation officials may not receive compensation for official services from any outside for official services from any outside source.source.

Example of § 205 CaseExample of § 205 Case

• Air Force officer and EPA law clerk Air Force officer and EPA law clerk attended night classes at Georgetown attended night classes at Georgetown Law School. They took part in lawyer-Law School. They took part in lawyer-supervised workshop offering free supervised workshop offering free legal services to poor people. Judge legal services to poor people. Judge barred them from making barred them from making appearance. Court of Appeals appearance. Court of Appeals affirmed. Purpose is to protect both affirmed. Purpose is to protect both government and client. government and client. United States United States v. Baileyv. Bailey, 498 F.2d 677 (D.C. Cir. , 498 F.2d 677 (D.C. Cir. 1974).1974).

Example of Section 208 Example of Section 208 “Financial Interest” Case“Financial Interest” CaseAir Force Reserve Officer worked on Air Force Reserve Officer worked on

project to sell surplus cargo airplanes to project to sell surplus cargo airplanes to Mexico. He met with US company Mexico. He met with US company bidding to upgrade runways there. bidding to upgrade runways there. During series of meetings, he applied During series of meetings, he applied for a job with the company. His actions for a job with the company. His actions constituted “negotiations” with constituted “negotiations” with prospective employer. prospective employer. US v. US v. SchaltenbrandSchaltenbrand, 930 F.2d 1554 (11th Cir. , 930 F.2d 1554 (11th Cir. 1991).1991).

Regulations for Regulations for ExecutiveExecutive

Employees/DOJ Employees/DOJ LawyersLawyers

DOJ Supp. Regs.

(DOJ lawyers)

State Bar Code of Conduct

(all lawyers in that state)

Federal Statutes(all persons in US, US citizens)

The Statutory-Regulatory Pyramid

Executive Regulations

(all executive employees)

DOJ - StructureDOJ - Structure

Policy and Training in Codes of Policy and Training in Codes of ConductConduct

Government Ethics OfficeGovernment Ethics Office. .

• Drafted administrative standards of Drafted administrative standards of conduct.conduct.

• Oversees Executive agencies in:Oversees Executive agencies in:

--implementing Principles of Ethical Conduct; --implementing Principles of Ethical Conduct;

-- reviewing financial disclosure statements; -- reviewing financial disclosure statements; writes opinion letters for high-level writes opinion letters for high-level nominees.nominees.

-- designing ethics training programs.-- designing ethics training programs.

--trains agency ethics counselors.--trains agency ethics counselors.

Enforcement of Codes of Conduct Enforcement of Codes of Conduct Office of Professional ResponsibilityOffice of Professional Responsibility

• Established in 1975 to ensure DOJ Established in 1975 to ensure DOJ employees perform duties, meet employees perform duties, meet standards;standards;

• Investigates allegations of Investigates allegations of professional misconduct against professional misconduct against DOJ attorneys & agentsDOJ attorneys & agents

• Prosecutors must report every Prosecutors must report every allegation of misconduct to a allegation of misconduct to a supervisor, who must report supervisor, who must report serious allegations to OPR.serious allegations to OPR.

OPR (cont.)OPR (cont.)

• May ask for written response; if written May ask for written response; if written record is not enough, two OPR attorneys record is not enough, two OPR attorneys conduct interviews;conduct interviews;

• Recommends range of discipline to Deputy Recommends range of discipline to Deputy AG; termination, resignation, suspension, and AG; termination, resignation, suspension, and reprimands are typical; reprimands are typical;

• Reports intentional/reckless cases to state Reports intentional/reckless cases to state bar.bar.

• Publishes report each year.Publishes report each year.

• 2004: 987 complaints, 31% found to warrant 2004: 987 complaints, 31% found to warrant further review; 88 full investigations opened; further review; 88 full investigations opened; involved 144 allegations; 29% found valid.involved 144 allegations; 29% found valid.

Code of Conduct for Executive BranchCode of Conduct for Executive Branch Executive Order 12674Executive Order 12674

GiftsGifts: “prohibited sources” are defined (e.g. : “prohibited sources” are defined (e.g. regulated parties, parties seeking official regulated parties, parties seeking official action, subordinates); small gifts excepted.action, subordinates); small gifts excepted.

Financial ConflictsFinancial Conflicts. Official may not . Official may not participate in matters in which she, spouse, participate in matters in which she, spouse, minor children or business partners have an minor children or business partners have an interest (exception for de minimis stock).interest (exception for de minimis stock).

Non-public information.Non-public information. Official cannot use Official cannot use inside information gained through duties for inside information gained through duties for own gain.own gain.

Executive Code of Conduct (cont.)Executive Code of Conduct (cont.)Personal ConflictsPersonal Conflicts. Official may not participate . Official may not participate

without authorization in matters involving without authorization in matters involving person with shared business or contractual person with shared business or contractual interest, close relative, prospective employer of interest, close relative, prospective employer of self or close relative, recent employer and self or close relative, recent employer and others –Prosecutors must certify in each case others –Prosecutors must certify in each case that they have no personal relationship with that they have no personal relationship with any target of investigation, whether an any target of investigation, whether an individual or organization.individual or organization.

Outside EmploymentOutside Employment. Requires approval if . Requires approval if related to subject matter of responsibility; related to subject matter of responsibility; outside practice of law requires approval, paid outside practice of law requires approval, paid or unpaid.or unpaid.

DOJ Supplemental RegulationsDOJ Supplemental Regulations • 5 CFR Part 38015 CFR Part 3801--impose often stricter --impose often stricter

standards than general Standards of Ethical standards than general Standards of Ethical Conduct for Employees of the Executive Conduct for Employees of the Executive Branch, 5 CFR Part 2635.Branch, 5 CFR Part 2635.

• Department Ethics Office: administers Department Ethics Office: administers agency-specific program; requires annual agency-specific program; requires annual ethics training;ethics training;

• Example of More Stringent Rule: Outside Example of More Stringent Rule: Outside employment: May not handle any criminal employment: May not handle any criminal matter, federal, state or local; no practice of matter, federal, state or local; no practice of law, except community service or law, except community service or representation of immediate family.representation of immediate family.

State Bar RulesState Bar Rules

State BarState Bar

• Each State has its own State Bar Each State has its own State Bar association, which regulates licensing, association, which regulates licensing, continuing education, discipline and other continuing education, discipline and other matters. matters.

• Most States have an “integrated bar;” State Most States have an “integrated bar;” State Bar and Supreme Court work together in Bar and Supreme Court work together in licensing and discipline.licensing and discipline.

• Applicants must take “bar exam” on state Applicants must take “bar exam” on state law and multi-state ethics exam, complete law and multi-state ethics exam, complete detailed application and undergo detailed application and undergo background examination.background examination.

State Bar DisciplineState Bar Discipline • California ModelCalifornia Model: State Bar operates a 2-: State Bar operates a 2-

tier State Bar Court with its own tier State Bar Court with its own “professional responsibility judges.” State “professional responsibility judges.” State Bar can initiate case against accused Bar can initiate case against accused lawyer in that court or Supreme Court. lawyer in that court or Supreme Court.

• Hawaii ModelHawaii Model. Office of Disciplinary . Office of Disciplinary Counsel investigates complaints. Counsel investigates complaints. Disciplinary Board (18 lawyers and non-Disciplinary Board (18 lawyers and non-lawyers chosen by Supreme Court) can lawyers chosen by Supreme Court) can impose discipline, but only the Supreme impose discipline, but only the Supreme Court can disbar.Court can disbar.

State Bar and ProsecutorsState Bar and Prosecutors • DOJ RequirementDOJ Requirement: All DOJ attorneys must be : All DOJ attorneys must be

a licensed, active member of at least on State a licensed, active member of at least on State Bar (or District of Columbia Bar).Bar (or District of Columbia Bar).

• Most Federal Courts:Most Federal Courts: require only that federal require only that federal prosecutor be licensed in a State.prosecutor be licensed in a State.

• Minority RuleMinority Rule: federal prosecutors must be : federal prosecutors must be licensed member of that State’s Bar.licensed member of that State’s Bar.

• McDade AmendmentMcDade Amendment: made state ethics rules : made state ethics rules more applicable to federal prosecutors.more applicable to federal prosecutors.

• ConflictsConflicts: State Code of Conduct may conflict : State Code of Conduct may conflict with federal law/practice (e.g. Oregon with federal law/practice (e.g. Oregon undercover rule).undercover rule).

Questions?Questions?