“Official act” means any decision or action on a [question] [matter] [cause] [suit] [proceeding] [controversy] involving the formal exercise of governmental power. The [question] [matter] [cause] [suit] [proceeding] [controversy] must be pending, or be able by law to be brought, before a public official, and the [question] [matter] [cause] [suit] [proceeding] [controversy] must be something specific and focused, rather than a broad policy objective.
[The official’s decision or action may include using [his] [her] official position to exert pressure on another official to perform an official act, or to advise another official, knowing or intending that such advice will form the basis for an official act by another official. The bribe recipient need not be the final decisionmaker.]
The government does not need to prove that the defendant ever actually intended to perform an official act or that the defendant ever did, in fact, perform an official act, provided that [he] [she] agreed to do so.
[Merely arranging a meeting, hosting an event, or giving a speech, do not qualify as the taking of a specific action.]
Comment
This instruction is based on 18 U.S.C. § 201(a)(3) as construed in McDonnell v. United States, 136 S. Ct. 2355 (2016).
The question or matter at issue need not currently be pending or capable of being brought before a public official. United States v. Kimbrew, 944 F.3d 810, 815 (9th Cir. 2019).
When using this instruction with Instruction 9.7 (Hobbs Act—Extortion or Attempted Extortion Under Color of Official Right), change the term “official act” to “official action.”
Revised May 2020
The defendant is charged in [Count _______ of] the indictment with bribing a public official in violation of Section 201(b)(1) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant [gave] [offered] [promised] something of value, [specify the thing of value], to [name of federal public official]; and
Second, the defendant acted corruptly, that is, with the intent to [influence an official act by the [name of federal public official]] [influence the [name of federal public official] to commit or allow a fraud on the United States] [induce the [name of federal public official] to do or to omit to do an act in violation of [his] [her] lawful duty][.] [; and]
[Third, [name of federal public official] was a federal public official.]
Comment
The crime of bribery requires “corrupt intent,” a higher degree of intent than is required under the provision outlawing gratuities to public officials. United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 822 (9th Cir. 1985). Under § 201(b)(1), the term “corruptly” refers to the defendant’s intent to influence an official act. See United States v. Leyva, 282 F.3d 623, 626 (9th Cir. 2002) (citation omitted).
The “thing of value” given, offered, or promised to a public official is an element of the bribery charge. It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. United States v. Choy, 309 F.3d 602, 607 (9th Cir. 2002). But see United States v. Renzi, 769 F.3d 731, 744-45 (9th Cir. 2014) (holding that a “recommendation is just that—a recommendation. Neither the pattern jury instruction nor any controlling precedent requires the district court to identify the thing of value, especially where variance from the indictment is not at issue”). Where the defense asserts that the thing given, offered, or promised had no value, the jury must be asked to determine whether it had value. Id. at 744.
If there is any question in the case about the “official” character of the action sought by the defendant, give Instruction 10.1 (Official Act—Defined). “Public official” is defined in 18 U.S.C. § 201(a)(1); § 201(b)(1) also applies to a person selected to be a public official. Actual power to do what defendant wants is not an element. “[A] person may be convicted of bribery even though the action requested is not within the official’s power to perform.” Chen, 754 F.2d at 825.
Omit the bracketed third element of this instruction when the recipient’s status as a federal public official is not in dispute. Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the defendant intended the public official to do in return for the bribe”). See Instruction 6.27 (Specific Issue Unanimity).
Revised Dec. 2019
The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [or] [agreeing to receive] a bribe in violation of Section 201(b)(2) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant was a public official;
Second, the defendant [demanded] [sought] [received] [accepted] [agreed to receive or accept] something of value, [specify the thing of value], in return for [being influenced in the performance of an official act] [being influenced to commit or allow a fraud on the United States] [being induced to do or not to do an act in violation of defendant’s official duty]; and
Third, the defendant acted corruptly, that is, intending to be influenced [in the performance of an official act] [to commit or allow a fraud on the United States] [to do or to omit to do an act in violation of the defendant’s official duty]. A public official acts “corruptly” when he or she accepts or receives, or agrees to accept or receive, a thing of value, in return for being influenced with the intent that, in exchange for the thing of value, some act would be influenced.
Comment
“Public official” is defined in 18 U.S.C. § 201(a)(1); § 201(b)(2) also applies to a person selected to be a public official. See also Comment to Instruction 10.2 (Bribery of Federal Public Official). The plain language of 18 U.S.C. § 201(b)(2)(B) requires only that the public official accept a thing of value in exchange for perpetrating a fraud; therefore the use of an official position is not an element of the offense under § 201(b)(2)(B). United States v. Leyva, 282 F.3d 623, 625-26 (9th Cir. 2002).
It is recommended that the instruction specifically describe the thing of value just as described in the indictment to avoid a variance. See Comment to Instruction 10.2 (Bribery of Federal Public Official).
If there is any question in the case about the “official” character of the action sought by the defendant, give Instruction 10.1 (Official Act—Defined).
A public official is not required to actually make a decision or take an action to perform an “official act;” it is enough that the official agrees to do so. The agreement need not be explicit; the public official need not specify the means that he will use to perform his end of the bargain. McDonnell v. United States, 136 S. Ct. 2355, 2370-71 (2016).
It is immaterial whether the public official who receives a thing of value ever intended to follow through with his or her end of the bargain; all that is necessary is that he or she agreed to perform the official act. The offense is complete at the moment of agreement—liability does not depend on the outcome of any follow-through. United States v. Kimbrew, 944 F.3d 810 (9th Cir. 2019).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the public official intended to do in return for the bribe”). See Instruction 6.27 (Specific Issue Unanimity).
Revised May 2020
The defendant is charged in [Count _______ of] the indictment with bribery of a witness in violation of Section 201(b)(3) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, [name of witness] was to be a witness under oath at a [specify proceeding];
Second, the defendant [gave] [offered] [promised] something of value, [specify the thing of value], to [name of witness]; and
Third, the defendant acted corruptly, that is, with the intent to influence [[the testimony of [name of witness]] [[name of witness] to be absent from the proceeding].
Comment
It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. See Comment to Instruction 10.2 (Bribery of Federal Public Official).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the defendant intended the witness to do in return for the bribe”). See Instruction 6.27 (Specific Issue Unanimity).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with soliciting a bribe in violation of Section 201(b)(4) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant was to be a witness under oath at a [specify proceeding];
Second, the defendant [solicited] [received] [agreed to receive] something of value, [specify the thing of value], in return for being [influenced in the defendant’s testimony] [absent from the proceeding]; and
Third, the defendant acted corruptly, that is, in return for [being influenced in [his] [her] testimony] [absenting [himself] [herself] from the proceeding].
Comment
It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. See Comment to Instruction 10.2 (Bribery of Federal Public Official).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the witness intended to do in return for the bribe”). See Instruction 6.27 (Specific Issue Unanimity).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with [giving] [offering] [or] [promising] an illegal gratuity in violation of Section 201(c)(1)(A) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, that the defendant [gave] [offered] [promised] something of value, [specify the thing of value] to a [specify public official]; and
Second, the defendant acted for or because of an official act performed or to be performed by the [specify public official].
Comment
It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. See Comment to Instruction 10.2 (Bribery of Federal Public Official).
To establish a violation of 18 U.S.C. § 201(c)(1)(A), the government must prove a link between a thing of value conferred upon a public official and a specific “official act” for or because of which it was given. United States v. Sun-Diamond Growers of California, 526 U.S. 398, 414 (1999).
If there is any question in the case about the “official” character of the action sought by the defendant, give Instruction 10.1 (Official Act—Defined).
The distinguishing features of the crimes of “bribery” and “illegal gratuity” are their intent elements. Bribery requires intent “to influence” an official act or “to be influenced” in an official act, while illegal gratuity requires only that the gratuity be given or accepted “for or because of” a specific official act. Bribery requires a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity may constitute a reward for some future act the public official will take (and may already have determined to take) or for an act already taken. Sun-Diamond Growers, 526 U.S.at 404-05. The gratuity offenses are lesser included offenses of the parallel bribery offenses. See United States v. Crutchfield, 547 F.2d 496, 500 (9th Cir. 1977); United States v. Brewster, 506 F.2d 62, 71-72 (D.C. Cir. 1974).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the defendant intended the public official to do in return for the gratuity”). See Instruction 6.27 (Specific Issue Unanimity).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [agreeing to receive] an illegal gratuity in violation of Section 201(c)(1)(B) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant was [specify public official]; and
Second, the defendant [[solicited] [received] [agreed to receive]] something of value, [specify the thing of value], personally for or because of an official act [performed] [to be performed] by the defendant.
Comment
It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. See Comment to Instruction 10.2 (Bribery of Federal Public Official).
See Comment to Instruction 10.6 (Illegal Gratuity to Public Official).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the public official intended to do in return for the gratuity”). See Instruction 6.27 (Specific Issue Unanimity).
“Public official” is defined in 18 U.S.C. § 201(a)(1); § 201(c)(1)(B) also applies to a former public official and a person selected to be a public official.
If there is any question in the case about the “official” character of the action sought by the defendant, give Instruction 10.1 (Official Act—Defined).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with [giving] [offering] [promising] an illegal gratuity in violation of Section 201(c)(2) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant [gave] [offered] [promised] something of value, [specify the thing of value], to [name of witness] [for testimony to be given under oath by [him] [her] in [specify proceeding]] [because of testimony given under oath by [name of witness] at/in [specify proceeding]] [for being absent from [specify proceeding] so that [he] [she] could not testify as a witness].
Comment
It is recommended that the instruction specifically describe the thing of value just as it is described in the indictment to avoid a variance. See Comment to Instruction 10.2 (Bribery of Federal Public Official).
See Comment to Instruction 10.6 (Illegal Gratuity to Public Official).
Section 201(c)(2) does not prohibit the government from paying fees, housing, expenses, and cash rewards to a cooperating witness so long as the payment does not recompense any corruption of the truth of testimony. United States v. Ihnatenko, 482 F.3d 1097, 1100 (9th Cir. 2007), cert. denied, 552 U.S. 904 (2007). Section 201(c)(2) also does not prohibit the government from providing immigration benefits or leniency, immunity from prosecution, or leniency to a cooperating witness. See United States v. Feng, 277 F.3d 1151, 1154 (9th Cir. 2002) (immigration benefits); United States v. Smith, 196 F.3d 1034, 1038–40 (9th Cir. 1999) (immunity); United States v. Mattarolo, 209 F.3d 1153, 1160 (9th Cir. 2000) (leniency).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the defendant intended the witness to do in return for the gratuity”). See Instruction 6.27 (Specific Issue Unanimity).
Revised Apr. 2019
The defendant is charged in [Count _______ of] the indictment with [soliciting] [receiving] [agreeing to receive] an illegal gratuity in violation of Section 201(c)(3) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant [solicited] [received] [agreed to receive] something of value, [specify the thing of value], [for testimony to be given under oath by the defendant as a witness in [specify proceeding]] [because of testimony given under oath by the defendant as a witness at/in [specify proceeding]] [for being absent from [specify proceeding] so that the defendant could not testify as a witness].
Comment
See Comment to Instructions 10.2 (Bribery of Federal Public Official), 10.6 (Illegal Gratuity to Public Official), and 10.8 (Illegal Gratuity to Witness).
Depending on the facts in evidence, it may be appropriate to amend this instruction with language requiring specific jury unanimity (e.g., “with all of you agreeing as to what the witness intended to do in return for the gratuity”). See Instruction 6.27 (Specific Issue Unanimity).
The defendant is charged in [Count ————— of] the indictment with soliciting, demanding, or accepting anything of value in connection with any bank business or transaction in violation of Section 215(a)(2) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant was an officer, director, employee, agent, or attorney of a financial institution;
Second, the defendant [solicited] [demanded] [accepted] [agreed to accept] something of value, [specify the thing of value], from any person in return for being [influenced] [rewarded] in connection with any business or transaction of the financial institution; and
Third, the defendant acted corruptly, that is, intending to be influenced or rewarded in connection with any business or transaction of such institution.
Comment
See Comment to Instruction 4.12 (Corruptly); United States v. Lonich, 23 F.4th 881, 902-04 (9th Cir. 2022).
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.1_criminal_rev_3_2022.docx
[2] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.2_criminal_rev_3_2022.docx
[3] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.3_criminal_rev_3_2022_0.docx
[4] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.4_criminal_rev_3_2022.docx
[5] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.5_criminal_rev_3_2022.docx
[6] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.6_criminal_rev_3_2022.docx
[7] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.7_criminal_rev_3_2022.docx
[8] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.8_criminal_rev_3_2022_0.docx
[9] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.9_criminal_rev_3_2022.docx
[10] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/10.10_criminal_rev_3_2022.docx