Federal law proscribes theft and bribery relating to federally funded programs under 18 U.S.C. § 666. The language of § 666 appears clear enough on its face, but this clarity quickly dissolves when one attempts to define what types of actions the statute actually prohibits. Courts faced with this question have reached divergent conclusions about whether § 666 only forbids explicit quid pro quo transactions, or if it also extends to less explicit exchanges between officials and those seeking to curry their favor. This Note explores these positions with the goal of answering two questions: first, whether § 666 encompasses only bribes, or both bribes and illegal gratuities; and second, if the statute does include gratuities, what must be shown to secure a gratuities conviction. This Note argues that the best interpretation of the statute is one that encompasses both bribes and gratuities, and requires that, in order to obtain a conviction, the government prove corrupt intent, but not a link between the conferral of the benefit and a specific official act. This result is most consistent with the statutory text, legislative history, and broader federal anticorruption regime.
On March 22, 2007, Charles Abbey was convicted of one count of conspiracy to bribe a public official and one count of solicitation of a bribe by a public official in violation of 18 U.S.C. § 666, x the federal statute prohibiting "[t]heft or bribery concerning programs receiving federal funds." At trial, prosecutors showed that while Abbey served as a city administrator for the city of Burton, Michigan, he had accepted a plot of land from Albert Louis-Blake Rizzo, a local real estate developer, with Abbey's secretary and possible mistress serving as an intermediary.3 The government introduced no evidence that, at the time of this transfer, Rizzo and Abbey had an explicit agreement that Abbey would take a specific official action in exchange for the land. Rizzo testified at trial, however, that, in giving Abbey the land "for free"4 he had hoped to receive favorable treatment in future development projects.5 Prosecutors asserted that Abbey did, in fact, use his influence to help Rizzo in connection with several subsequent projects, including securing favorable public financing for Rizzo to develop a plot of land that he owned.6 After he was convicted, Abbey appealed to the Sixth Circuit, arguing that the trial court erred in failing to instruct the jury that § 666 requires proof of a quid pro quo, an explicit exchange of a benefit for an official act.7 The Sixth Circuit affirmed his conviction,8 but the issue that his appeal raised - the proper scope of § 666 - remains an open question, one that has resulted in a split among the federal circuits.
Passed as part of the Comprehensive Crime Control Act of 1984, § 666, governing "[t]heft or bribery concerning programs receiving Federal funds," provides an important tool for combating corruption of state and local political actors. In contrast to many of the other anticorruption statutes in use by federal prosecutors, § 666 does not consist of broad language that has been repurposed to address the problem of corruption by local officials, but rather was specifically drafted with that evil in mind.9 Even with this explicit focus, § 666 has received attention from a number of scholars, who have warned of the federalism concerns raised by federal prosecution of corruption on the part of state political actors.10 Most commentators have neglected, however, to thoroughly address the substantive conduct and mens rea elements of § 666. n Put simply, it remains unclear what conduct § 666 actually outlaws: how explicit must an exchange be before it comes within the statute's scope?
This confusion is certainly not unique to § 666. The difficulty of defining the proper scope of anticorruption statutes has come into focus in recent years following the Supreme Court's highprofile decisions in cases like McCormick v. …