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WHITE-COLLAR CRIME | MONDAY, FEBRUARY 8, 2016 | S3

poration Y as the opportunities arose In the Skelos case, for example, the defen-
under color of his authority and in his
oficial capacity in exchange for the illegal dant urged the district court to embrace a
narrow reading of the bribery and extortion
beneits received.1
statutes, limiting the reach of the “oficial
At the pre-trial motion to dismiss stage of acts” element to the specific legislative
the two New York State Legislature cases and functions of Senator Skelos’ ofice. He relied
later on at the Rule 29 phase at the close of on the Supreme Court’s decision in United
the evidence in both cases, the defense raised States v. Sun-Diamond Growers of Cal.11 to
the argument that the quid pro quo element argue that Senator Skelos’ exerting inluence
is not satisied merely by demonstrating that with Nassau County oficials to obtain fund-

the gift giver intended to obtain generalized ing for particular projects beneitting a Long
goodwill and that the public oficial, at worst, Island technology company in exchange for
was self-dealing in receiving beneits from that company’s payments to his son did not
interested industry entities by acting in an supply the required nexus between gifts given
oficial capacity based upon undisclosed con- and speciic oficial action. In Sun-Diamond,
licts of interest.2 In rejecting the failure to the Supreme Court held that gifts given in an
allege and prove the requisite “in exchange attempt to generate generalized goodwill by
for” nexus between the beneits received and a USDA-regulated agricultural company with

the oficial action taken or to be taken, Judge matters pending before the U.S. Secretary of
Valerie Caproni in the Silver case held that Agriculture was not suficient, without more,
post-Skilling v. United States3 it is enough that
to sustain a conviction for commission of the
less serious federal gratuities offense. In that
case, the Supreme Court noted that the fed-
eral gratuity statute’s link between gifts given
Whether convictions based “for or because of an oficial act” mandated at
upon such evidence and cor- least proof of speciic and identiiable oficial
action by the Secretary of Agriculture and a
responding jury instructions
nexus between that action and the gifts given.
can be sustained ultimately will Analogously, Skelos argued that the federal
be left to the Second Circuit bribery statute should also be construed nar-
rowly to limit “oficial acts” to “purely legisla- marcumllp.com/nylj
and possibly the U.S. Supreme tive functions.” In rejecting that construction,
Judge Kimba Wood found that subsequent
Court to decide.
decisions in the Second Circuit and elsewhere
have made clear that “Sun-Diamond does not
the Government show, for example, that the undermine . the central [proposition] that

public oficial used the power of his ofice to ‘oficial acts’ extend beyond purely legisla-
obtain beneits for his law irm in the form of tive functions to encompass those activities
referrals and referral fees from another law generally thought to be part of a legislator’s
irm of one of his friends so long as it was legitimate use of his ofice.”12
done in exchange for the public oficial’s use Determining how far beyond those core
of his position to beneit those responsible legislative functions oficial acts may still
for the referrals “as the opportunities arose.”4
lie, therefore, remains open to question. The
One of the beneits to the Government of Fourth Circuit has held that even “mere steps

charging honest services fraud and Hobbs in furtherance of a inal act or decision may
Act extortion in public corruption cases is, of constitute an oficial act.”13 It is well settled
course, the ability to allege and place before under the Hobbs Act, and mail and wire
the jury the jarring allegation that the public fraud statutes that proof of a scheme does
oficial was dishonest in betraying the public not require a showing that the oficial act was
trust. Federal law provides that under the ever carried out.14 In other words, “consum-
mail and wire fraud statutes,5 “fraud” includes, mation of an oficial act is not an element
among the requisite schemes to defraud, “a of the offense.”15 Moreover, the Second Cir-
scheme or artiice to deprive [the public] of cuit held in a decision prior to Sun-Diamond
Be sure to reserve your space in the upcoming
[its] intangible right of honest services.”6 In that the federal bribery statute criminalizes
1988, Congress passed §1346 in response to schemes in which payment is made for oficial
the Supreme Court’s 1987 decision in McNally acts even if the opportunity to take the acts
v. United States7 limiting the scope of the has not yet arisen.16 Thus, not only is no proof
federal mail and wire fraud statutes to theft required that the quid pro quo be fulilled, but Litigation
of tangible property. Thereafter, in Skilling, also no proof earmarking the gifts to speciic
however, the Supreme Court in 2010 again oficial action is necessary given the Second
limited the otherwise sweeping breadth of the Circuit’s post-Sun-Diamond holding in United
federal fraud statutes to “only the bribe-and- States v. Ganim.In that case, the Second
17
kickback core of the pre-McNally case law.”8
Circuit reafirmed its prior decisions in Coyne
What this means insofar as federal pub- and Alisi and speciically endorsed a jury
lic corruption prosecutions of state govern- instruction that “[t]he government does not Tabloid Pull-Out Sections
mental officials is that the Government’s have to prove an explicit promise to perform
corruption nexus must be based on Hobbs a particular act made at the time of payment. Farrell McManus
Act9 “color of oficial right” kickback extortion It is suficient if the defendant understood he please contact:
and/or an honest services bribery scheme was expected as a result of the payment to
to defraud.10 Thus, proof of the “in exchange exercise particular kinds of inluence, that is, 212 457-9465

for,” or quid pro quo, element of the offenses on behalf of the payor, as speciic opportuni- Phone:
is critical to sustaining a conviction in these ties arose.”18
cases. Determining what is required in that Given this relatively relaxed formulation
regard is no easy matter and, indeed, it is of the quid pro quo requirement, it is not [email protected]
equally dificult to decide what constitutes surprising that the “as speciic opportunities
a suficient showing of oficial action.
arose” surrogate for a bargained » Page S12