Meriting Consolidation: Why Criminal Pattern Jury Instructions Should Consolidate Federal Bribery Statutes

Article | 104 KY. L. J. ONLINE 75 | April 14, 2016

Kierston Eastham Rosen1


Bribery in the federal system is notorious for its incoherence.2 Multiple bribery statutes exist with very similar elements, and a defendant can be prosecuted under any and all of these statutes.3 Because of this, the federal crime of bribery continues to confuse and perplex even the most seasoned attorneys.4 While confusion among attorneys helps illustrate the problem with federal bribery, attorneys are not the main focus of pattern jury instructions. Pattern jury instructions serve to educate lay jurors during federal trials, instructing them as to both the law and its application in a given case. It is imperative that these instructions are as clear and concise as possible, and currently, pattern instructions do not meet this standard. Therefore, federal bribery law and its corresponding pattern instructions need to be clarified.

Instead of using a separate instruction for each bribery statute, these similar instructions should be consolidated into one general “Bribery” instruction, analogous to the United States Sentencing Commission’s Federal Sentencing Guidelines’ approach of placing related bribery crimes within the same section.5 This process could easily be duplicated, and should be repeated within each United States Circuit Court of Appeals’ Criminal Pattern Jury Instructions. The instruction would include the common elements from these bribery statutes – which are largely the same6 – and could be modified as necessary through Use Notes, adding or deleting an element when necessary. The existing bribery instructions and statutes are already largely cross-referencing one another, making it impractical to separate them statute-by-statute.7

Section I provides background information pertaining to the development of federal bribery law, and its connection to pattern jury instructions and the United States Sentencing Guidelines. Section II details the main federal bribery statute, 18 U.S.C. § 201, which reaches federal public officials and continues to be the foundation for all other federal bribery statutes. Section III examines the Hobbs Act, 18 U.S.C. § 1951, which reaches public officials through extortion under color of official right. Section IV analyzes the development of honest services fraud, and its evolution into a federal bribery statute. Finally, Section V concludes that each circuit’s pattern jury instructions should reflect the vast similarities within federal bribery statutes by creating one “Bribery” instruction.8

I. The Development of Federal Bribery Law, Pattern Jury Instructions, and the United States Sentencing Guidelines’ Approach to Bribery

A. Federal Bribery Law

What is bribery? Courts tend to differ on an exact definition.9 The clearest articulation is that bribery is a form of public corruption, “which involves the offer and receipt of something of value for the purpose of influencing the exercise of authority.”10 Federal bribery statutes share the following common elements: (1) A public official accepted, received, or agreed to accept or receive a (2) thing of value (3) in exchange for official action (the quid pro quo).11 A quid pro quo, meaning “what for what,”12 denotes “a specific intent to give or receive something of value in exchange for an official act.”13 While this notion originated within § 201, a quid pro quo element is now contained within multiple federal bribery statutes, including the Hobbs Act and the mail fraud and wire fraud statutes.14 However, “fulfillment of the quid pro quo is not an element of the offense.”15 While the quid pro quo element provides a boundary for the crime of bribery, it has still not eliminated the uncertainty within this area of the law due to bribery’s vast “grey areas.”16

Bribery has been considered a serious offense since the United States’ inception.17 According to Henning and Radek, “among the first laws adopted after the ratification of the Constitution was a provision making it a federal crime to bribe customs officers and federal judges.”18 Some have even gone so far as to describe it as a “crime akin to treason.”19 Public corruption erodes the citizenry’s faith in its government, which in turn harms the government’s legitimacy.20 Bribery also serves to exploit public power for personal gain by using public leverage to receive a personal benefit.21 For these reasons, the federal government has a substantial interest in an honest government, necessitating the battle against public corruption.22

Public corruption prosecutions became a significant priority for the Department of Justice in the 1970s after the Watergate scandal.23 In 1975, President Gerald Ford directed federal prosecutors to target state and local corruption,24 and in 1976, the Public Integrity Section of the Department of Justice was formed. 25 Indeed, Watergate created a “volcano of change in the world of public corruption” and indirectly led to the development of the Public Integrity Section itself.26 Throughout the 1970s, state and local public corruption prosecutions remained a high priority due to the fear that its effects would undermine the ability of the United States government to properly function.27 This emphasis on public corruption continued through the 1980s, and its prevention was a stated DOJ policy goal for the fiscal year 1987.28 Beginning in the mid-1980s, however, federal prosecutors began to focus more on public officials at the federal level, rather than state and local public officials.29

Influencing a public official remains a serious offense within the federal system; a defendant receives a four-level increase to his offense level under the federal sentencing guidelines if the payment in question was for the purpose of influencing an official act.30 The maximum statutory sentences under each of the federal bribery statutes are by no means diminutive; the statutory maximum under § 201(b) (Bribery of a public official) is fifteen years,31 and under the Hobbs Act and honest services mail fraud and/or wire fraud, the penalty is twenty years.32 The penalties under honest services mail fraud and wire fraud may even be increased to a thirty-year maximum sentence under certain circumstances.33

While there is a bribery statute specifically prescribed for prosecuting federal officials,34 the prosecution of state and local officials is, at best, a patchwork approach.35 Several similar bribery statutes exist that could apply to a given public corruption case, and a public official can be charged under more than one of these statutes.36 This hodgepodge approach to bribery is the source of its surrounding confusion and is why it must be remedied via pattern jury instructions.

It is unlikely that Congress will remedy the situation by amending or consolidating its existing bribery statutes. Therefore the task is left to the drafting committees of pattern jury instructions to paint a clearer picture of bribery law.

B. Pattern Jury Instructions

Jury instructions serve as each circuit’s attempted consolidation and explanation of the law to be used by juries in federal criminal trials, and they are essential in properly instructing lay-juries on complex legal issues.37 By eliminating legal jargon and simplifying the law, pattern instructions can also serve as a helpful guide for practitioners. Pattern instructions provide jurors with this knowledge by explaining the crime and its elements in terms that a layperson can understand,38 bridging the gap between the law and the layperson.39 By putting difficult legal concepts into more straightforward terms, pattern instructions can also serve as a useful tool for lawyers trying to decipher a particularly confusing area of the law, such as federal bribery.

Pattern jury instructions are generally composed of an explanation of the statute or section’s elements, Use Notes, and/or Committee Commentary.40 Use Notes are interchangeable and are employed by the court to tailor the instructions to a given case. Committee Commentary, on the other hand, provides authority and a more in-depth explanation of the circuits’ applicable law for the statute, and essentially functions as a mini-treatise.41 This structure makes pattern jury instructions the ideal tool not only for practitioners looking to learn an area of the law, but as a way of definitively stating just what the law is. If federal bribery law is a jigsaw puzzle, pattern jury instructions can serve as the means to finally put the pieces together.

Most circuits’ pattern jury instructions currently use one instruction for each and every bribery statute and offense, as illustrated by the Fifth Circuit. This circuit has drafted an instruction for receiving a bribe by a public official under § 201, as well as an instruction for extortion under color of official right and for honest services fraud, which all encompass bribery.42 Although each instruction has slightly different elements, their core elements are essentially the same, which will be further illustrated below. While the Sixth Circuit does not yet have any bribery offense instructions,43 Hobbs Act extortion under color of official right and honest services fraud instructions are currently being drafted.

C. United States Sentencing Guidelines

The bribery offenses discussed within this note are all found within § 2C1.1 of the Federal Sentencing Guidelines Manual: Offering, Giving, Soliciting, or Receiving a Bribe (§ 201); Extortion Under Color of Official Right (Hobbs Act); Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials (§ 1346).44 The Commission consolidated its sentencing guidelines by acknowledging the similarities among bribery statutes and placed honest services fraud (§ 201) and extortion under color of official right within the same base offense level and section.45 In doing so, the United States Sentencing Guidelines have implicitly recognized that the statute-by-statute approach is, in fact, not the most logical method. If consolidation can be achieved within a scheme as complex as the sentencing guidelines, it can—and should—be done within each circuit’s pattern jury instructions.

18 U.S.C. § 201Receiving a Bribe by a Public Official

The federal bribery statute was enacted in 1962 as a part of a set of anti-corruption statutes targeting federal public officials. Various scattered anti-corruption provisions were streamlined into one set of laws with the Necessary and Proper Clause serving as Congress’s authority to enact the statute.46 Now, the main federal bribery statute, § 201, prohibits both bribery and unlawful gratuities given to and received by federal public officials.47 For purposes of this note, § 201(b)(2) is the primary focus: a public official seeking, receiving, accepting, or agreeing to accept a thing of value in return for being influenced in the performance of an official act.48 Although the statute primarily targets federal officials, it may reach local officials who administer federal programs and have some degree of official responsibility.49

The key case that details § 201 is United States v. Sun-Diamond Growers of California.50 The circumstances leading up the decision are simple: a trade association engaged in lobbying activities on behalf of its member cooperatives made illegal gifts to then-Secretary of Agriculture Michael Espy.51 The Supreme Court examined the bribery-gratuity distinction under the statute and found that “[b]ribery requires intent ‘to influence’ an official act, or ‘to be influenced’ in an official act” and there must be a quid pro quo between the payment and official government action.52 Gifts that are only given to “build a reservoir of goodwill” with a public official are not sufficient.53 Only a bribe requires proof of a quid pro quo, while the separate crime of gratuities under § 201 does not.54

The elements for receiving a bribe by a public official under 18 U.S.C. § 201(b)(2) according to most criminal pattern jury instructions are: (1) a public official demanded, sought, or received a (2) thing of value (3) corruptly (4) in return for being influenced in the performance of an official act (the quid pro quo element).55 The “corruptly” element should be eliminated, however, because it adds nothing to the statute and is more confusing than helpful. The Supreme Court has concluded that the word “corruptly” is “normally associated with wrongful, immoral, depraved, or evil.”56 This wrongfulness is captured by the quid pro quo, making the corruptly element obsolete. While some argue that the corruptly element differentiates lawful influence of an official act and an unlawful influence;57 the quid pro quo captures this distinction.

Courts are beginning to read “corruptly” out of § 201, defining the element in terms of the quid pro quo.58 The Model Penal Code also disfavors the use of “corruptly.” Its commentary states that the element “provides virtually no guidance as to the intended scope of the law,”59 and that in its place, “the issues with which it deals should be addressed more particularly.”60 The corruptly element was not included within later bribery statutes, undoubtedly because the quid pro quo defines the issue of bribery more particularly than corruptly. “Corruptly” should, therefore, be eliminated within the proposed bribery instruction.

As the remainder of this note will show, the foundational elements of § 201 are largely shared across various federal bribery crimes. Section 201 laid the groundwork for federal bribery law, therefore these elements served as a template for the bribery statutes and instructions that followed.

18 U.S.C. § 1951The Hobbs Act (Extortion Under Color of Official Right)

Although § 201 covered bribery at the federal level, prosecutors were left without any method of prosecuting state and local officials involved in public corruption. In order to remedy this problem, prosecutors began to utilize more general statutes such as the mail and wire fraud statutes and the Hobbs Act in order to prosecute lower-level bribery.61 Specifically, the Hobbs Act’s jurisdictional element is very broad, which also allowed expansive prosecutorial discretion in order to combat public corruption.62

The Hobbs Act was not originally designed to target public officials, but criminal organizations.63 Federal prosecutors began to use the statute to target public officials during the anti-corruption era of the 1970s, and first successfully used the statute in 1972 in United States v. Kenny.64 In Kenny, defendants involved with Jersey City, New Jersey’s “Democratic political-machine” were charged with color of official right extortion under the Hobbs Act, the first time the statute had been used to prosecute public corruption.65 Beginning with Kenny, the Hobbs Act and § 201 began to merge together.66 Although extortion under color of official right is used to prosecute state and local officials, it also covers bribery, and its elements are similar to those found in instructions that cover § 201.

While the Hobbs Act does not explicitly mention bribery, the Supreme Court in Evans v. United States recognized that a defendant who has committed extortion under color of official right has effectively taken a bribe.67 In Evans, the petitioner was an elected commissioner of a county in Georgia who accepted payment to vote in favor of a rezoning application.68 Although petitioner argued that passive acceptance of a payment did not constitute extortion and that some form of inducement was required on his part, the Court was not convinced.69 Under Evans, even passive acceptance of a thing of value qualifies as a bribe, so long as the official knows that the payment is in exchange for official acts.70 The Court also held that the quid pro quo element was satisfied as soon as payment was accepted, because “fulfillment of the quid pro quo is not an element of the offense.”71

After Evans, the elements of bribery of a federal public official under § 201 and Hobbs Act extortion under color of official right are basically the same. According to Professor Lindgren, the “traditional ‘color of office’ language links the two offenses” of bribery and extortion under color of official right,72 because the focus is on the person’s status as a public official. Some argue that the two crimes should be distinguished due to official right extortion’s one-sided nature.73 However, these arguments are outside the scope of this note, which is focused solely on the conduct of the public official.

The United States Sentencing Guidelines originally used only the term “bribe” in the original version of § 2C1.1, but this term was amended to “payment” in order to allow the applicability of extortion under color of official right.74 Even § 2C1.1’s commentary was amended to harmonize bribery and this type of extortion, deleting exclusive “bribe” language and adding “extortion.”75 The Commission’s rationale for consolidating these bribery provisions is not articulated within the amendment, but it becomes abundantly clear after examining its Report, published two years later. The Report admits that the elements of various public corruption crimes are “similar,” and that because some of these offenses are comparable, they may merit consolidation.76

Perhaps most importantly, the Report states that “no substantial distinction appears to exist between extortion under color of official right and the acceptance of bribes by a public official,” citing Evans for its proposition.77 It also recognizes that both crimes require a quid pro quo and specific intent.78 For these reasons, the crimes are now within the same sentencing guideline79 and receive the same base offense level (a ranking of seriousness based on conviction under a certain statute80), because “bribery of a public official is as serious a crime as extortion under color of official right.”81

This consolidation of bribery under § 201 and Hobbs Act extortion under color of official right could easily be duplicated within each circuit’s pattern jury instructions. Substantial overlap exists between the crimes’ elements, as well as existing pattern instructions for each crime. The elements for extortion under color of official right within most pattern instructions are as follows: (1) a public official obtains, accepts, or agrees to accept a (2) thing of value that the public official was not entitled to receive (3) knowing the payment was made in return for official acts (the quid pro quo) and (4) interstate commerce was affected.82

Comparing these instructions to those written for § 201,83 both the instructions for bribery of a federal public official and Hobbs Act color of official right extortion include common elements of (1) a public official, (2) a thing of value, and (3) a quid pro quo. While the “corruptly” element found among § 201 instructions is missing from the Hobbs Act—and likewise the Hobbs Act’s necessary jurisdictional element of an effect on interstate commerce is missing from § 201—these instructions are, at their core, the same. A simple Use Note could modify one “Bribery” instruction to easily reflect these elements when necessary.

18 U.S.C. § 1346Honest Services Fraud (Bribery Theory)

A. The Development of the Honest Services Theory and Skilling v. United States

The honest services theory was officially codified in 1988 within 18 U.S.C. § 1346, providing another avenue of mail fraud and wire fraud prosecution under 18 U.S.C. § 1341 and § 1343.84 While the intangible right to honest services theory is found within § 1346, it is an alternate theory of a “scheme or artifice to defraud” under the federal mail and wire fraud statutes. Section 1346 does not create a new crime, but adds to the breadth of the mail and wire fraud.85 Now, prosecutors may choose to prosecute under one of two theories of a “scheme or artifice to defraud”: the deprivation of honest services, or the deprivation of money and/or property.86

At first glance, § 1346 does not appear to cover bribery. But in Skilling v. United States, the Supreme Court explicitly limited the scope of honest services fraud to those cases involving bribery or kickbacks.87 In Skilling, the Court considered whether an Enron executive had been improperly convicted of conspiracy to commit wire fraud under the honest services theory.88 Skilling’s alleged conduct included artificially inflating Enron’s stock prices by misrepresenting the corporation’s fiscal health in order to sell his stock and obtain a net profit of $89 million.89 Although Skilling was not a public official, he had previously served as Enron’s Chief Executive Officer before he resigned.90

Skilling challenged § 1346 on the basis that the statute was void for vagueness, requiring the majority to limit its construction.91 The Court determined that the majority of honest services precedent applied to bribery and kickback schemes92 and concluded that Congress must have intended the statute to at least reach these two types of schemes.93 Thus, the Court held that § 1346 was limited to cover only bribery and kickbacks, not undisclosed self-dealing.94 Skilling’s conduct only amounted to the latter, making it impossible for him to have committed honest services fraud.95

According to the Skilling majority, “the honest-services doctrine had its genesis in prosecutions involving bribery allegations.”96 In order to define this particular type of bribery, the Court referenced “federal statutes proscribing—and defining—similar crimes,” including § 201.97 By limiting conduct under § 1346 to only bribes and kickbacks, bribery was once again recriminalized, providing prosecutors with another method of punishing public officials involved in bribery.98

Interestingly, the sentencing guidelines recognized the similarities between honest services fraud under § 1356, the Hobbs Act, and § 201 even before the Supreme Court’s decision in Skilling. Six years before the Court decided Skilling, the separate sentencing guideline dealing with honest services fraud was deleted and consolidated with § 2C1.1, which includes receiving a bribe under § 201 and extortion under color of official right.99 Originally several guidelines covered bribery and extortion offenses, but they were consolidated as of November 2004.100 Now, each of these offenses are found together, which is the approach that drafting committees of pattern jury instructions should adopt.

Comparing § 201, the Hobbs Act, and honest services fraud, common elements exist among the three statutes. The elements for honest services fraud found within pattern jury instructions are: (1) a public official (2) in a scheme or plan to defraud (3) accepts a bribe or kickback (thing of value) (4) in exchange for official action (the quid pro quo) and (5) violated his duty of honest services to the public by using the United States Postal Service or an interstate carrier in order to carry out the scheme.101 Again, the three common core bribery elements—a public official, thing of value, and the quid pro quo—are all present. In order to define bribery, pattern instructions for honest services fraud generally refer the reader to its instructions for § 201.102 If these instructions are already referring the reader to § 201, it seems that it would be much simpler to merge the instructions, and have all pertinent information readily accessible within one instruction. It also reflects the similarity between the crimes; one of the purposes of § 1356 is to punish the type of bribery already covered under § 201. “While they do not explicitly contain the word ‘corruptly,’ the Hobbs Act [and] honest services fraud . . . have swallowed 201 . . . .”103 If the statutes are already merging into one another, so too should their pattern instructions.

B. Offered Solution

The proposed Bribery instruction would include the following elements: (1) A public official accepted, received, or agreed to accept or receive a (2) thing of value (3) in exchange for official action (the quid pro quo). Although multiple forms of bribery exist via different statutes such as the Hobbs Act, § 201, and § 1346, each statute essentially punishes the same conduct. Through Use Notes, the instructions could be modified for each crime, adding an element when necessary. Committee Commentary would also explain the controlling law, each relevant statute, and the statutes’ intersection with one another. This unified Bribery instruction would not only be easier to understand, but would render federal bribery more coherent. A consolidated Bribery instruction would serve as a backdoor method to achieve the goal of the failed Revised Federal Criminal Code, which intended to remedy federal criminal law’s piecemeal approach. Thus, pattern jury instructions could serve as the glue to piece the puzzle that is federal bribery law back together.

This consolidation would be similar to the United States Sentencing Commission’s Federal Sentencing Guidelines’ approach of placing similar bribery crimes within the same section.104 The Commission has acknowledged federal bribery statutes’ similarities, as should drafters of pattern jury instructions. The Guidelines’ approach demonstrates the feasibility of consolidation, and should be repeated within each United States Circuit Courts of Appeals’ Criminal Pattern Jury Instructions.

Bribery is currently a deeply confusing area with unnecessary overlap between statutes, which is why drafting committees of pattern jury instructions should lead the charge to effectively consolidate these statutes through pattern jury instructions. Not only will a consolidated, more streamlined instruction help to avoid jury confusion, but it will aid both practitioners in understanding and applying federal bribery law to the facts of a given case, and judges in conducting the trial. Because the elements for the aforementioned statutes are largely the same, there is simply no rationale for separate pattern jury instructions. Instead, bribery crimes should be consolidated into one cohesive “Bribery” instruction.

1 J.D. Candidate, 2016.

2 See Charles N. Whitaker, Federal Prosecution of State and Local Bribery: Inappropriate Tools and the Need for a Structured Approach, 78 Va. L. Rev. 1617, 1619-21 (1992) (discussing the variation in interpretation of federal bribery laws and lack of consensus on the definition of bribery).

3Peter J. Henning & Lee J. Radek, The Prosecution and Defense of Public Corruption: The Law and Legal Strategies 3 (2011).

4 See Vince Ventimiglia, et. al., Report of the Public Corruption Working Group 20-21 (1993),

5 U.S. Sentencing Guidelines Manual § 2C1.1 (U.S. Sentencing Comm’n 2015).

6 See 18 U.S.C. § 201 (2011); 18 U.S.C. § 1951 (2010); 18 U.S.C. § 1346 (2010).

7 See, e.g., District Judges Association, Fifth Circuit Pattern Jury Instructions (Criminal Cases) (2015) (hereinafter Fifth Circuit) (referring the reader to 18 U.S.C. § 201(b) in order to define bribery within the context of honest services fraud).

8 The decision not to include 18 U.S.C. § 666 (theft or bribery concerning programs receiving federal funds) was due to its unique jurisdictional bases, but the proposed general bribery statute could apply to § 666 as well.

9 Daniel Hays Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. Rev. 784, 785-87 (1985).

10 Peter J. Henning, Federalism and the Federal Prosecution of State and Local Corruption, 92 Ky. L.J. 75, 94 (2003).

11 See, e.g., Fifth Circuit, supra note 7, §§ 2.09B, 2.56, 2.57, 2.73B.

12 Henning & Radek, supra note 3, at 15.

13 United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-05 (1999).

14 See Evans v. United States, 504 U.S. 255, 256 (1992); see also Skilling v. United States, 561 U.S. 358, 412-13 (2010).

15 Evans, 504 U.S. at 268.

16 Lowenstein, supra note 9, at 786.

17 U.S. Const. art. II, § 4 (describing only two crimes as specific bases for impeachment, one of which is bribery).

18 Henning & Radek, supra note 3.

19 State ex rel. Brady v. Bates, 102 Minn. 104, 110 (1907) (Start, C.J., concurring).

20 Adam H. Kurland, The Guarantee Clause as a Basis for Federal Prosecutions of State and Local Officials, 62 S. Cal. L. Rev. 367, 377 (1989).

21 James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U. Pa. L. Rev. 1695, 1705 (1993).

22 Kurland, supra note 20, at 376-77.

23 Geraldine Szott Moohr, Mail Fraud and the Intangible Rights Doctrine: Someone to Watch over Us, 31 Harv. J. on Legis. 153, 164 n.40 (1993).

24 Id.

25 Kurland, supra note 20, at n.26.

26 Reid Weingarten, Volcano of Change, 51 Hastings L.J. 693, 693-94 (2000).

27 Kurland, supra note 20, at n.26.

28 Id.

29 Moohr, supra note 23.

30 U. S. Sentencing Guidelines Manual § 2C1.1(b)(3) (U.S. Sentencing Comm’n 2015).

31 18 U.S.C. § 201(b) (4) (2011).

32 18 U.S.C. §§ 1341, 1951(a) (2010).

33 18 U.S.C. § 1341 (2010), 18 U.S.C. § 1343 (2011).

34 18 U.S.C. § 201 (2011).

35 John S. Gawey, The Hobbs Leviathan: The Dangerous Breadth of the Hobbs Act and Other Corruption Statutes, 87 Notre Dame L. Rev. 383, 418 (2011).

36 Henning & Radek, supra note 3.

37 See Luther C. Hames, Jr., Pattern Jury Instructions, 27 Mercer L. Rev. 291, 291-92 (1975).

38 See generally Fifth Circuit, supra note 7 (providing examples of jury instructions).

39 See Bethany K. Dumas, Jury Trials: Lay Jurors, Pattern Jury Instructions, and Comprehension Issues, 67 Tenn. L. Rev. 701, 708 (2000).

40 There is some variation among the judicial circuits, but each circuit has at least Use Notes or Committee Commentary, and some include both.

41 See, e.g., The Sixth Circuit Committee on Criminal Pattern Jury Instructions, Pattern Criminal Jury Instructions § 10.01 Committee Comment. (2015) [hereinafter Sixth Circuit].

42 Fifth Circuit, supra note 7, §§ 2.09B, 2.56, 2.57, 2.73B.

43 See Sixth Circuit, supra note 41, at Table of Contents.

44 U.S. Sentencing Guidelines Manual § 2C1.1 (U.S. Sentencing Comm’n 2015).

45 See id.

46 Henning, supra note 10, at 95-96.

47 18 U.S.C. § 201 (2011).

48 Id.

49 Dixson v. United States, 465 U.S. 482, 499-500 (1984).

50 526 U.S. 398 (1999).

51 Id. at 401-02.

52 Id. at 404-05.

53 Id. at 405.

54 Id.

55 See, e.g., Fifth Circuit, supra note 7, § 2.09B.

56 Arthur Andersen LLP v. United States, 544 U.S. 696, 705 (2005).

57 Eric J. Tamashasky, The Lewis Carroll Offense: The Ever-Changing Meaning of “Corruptly” within the Federal Criminal Law, 31 J. Legis. 129, 136 n.55 (2004).

58 See, e.g., United States v. Alfisi, 308 F.3d 144 (2d. Cir. 2002) (finding that evidence of a quid pro quo satisfied the corruptly element).

59 Model Penal Code § 240.1 cmt. 2 (Am. Law Inst., Official Draft and Revised Comments 1980).

60 Id. § 240.1 cmt. 1.

61 Henning, supra note 10, at 136-37.

62 Id. at 133.

63 Henning & Radek, supra note 3, at 107.

64 Id. at 108; United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972).

65 See Gawey, supra note 35, at 397-99.

66 Id. at 398.

67 See Evans v. United States, 504 U.S. 255, 268 (1992) (“We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”). But see Steven J. Mulroy, Official Explanation: Defining Official Capacity and Related Color of Office Phrases in Bribery and Extortion Law, 38 U. Mem. L. Rev. 587, 598 (2008) (arguing that bribery and extortion remain distinct crimes).

68 Evans, 504 U.S. at 257.

69 Id. at 268.

70 Id.; Judicial Committee On Model Jury Instructions for the Eighth Circuit, Eighth Circuit Model Jury Instructions (2014) § 6.18.1951 cmt. (2014) (“Because threats or coercion are not required, the facts of some cases will be fairly similar to the facts of a bribery case . . . .”).

71 Evans, 504 U.S. at 268.

72 Lindgren, supra note 21, at 1728.

73 Gawey, supra note 35, at 394-95 (“The difference between bribery of a public official and official right extortion is that bribery covers both sides of a reciprocity. Whereas official right extortion reaches only the public official who receives a bribe, bribery reaches both the public official and the briber.”).

74 U. S. Sentencing Guidelines Manual § 2C1.1 app. C, vol. I (U.S. Sentencing Comm’n 2015).

75 Id.

76 Ventimiglia, et. al., supra note 4, at v.

77 Id. at 13.

78 Id. at 11, 13.

79 See id. at 2.

80 See Frank O. Bowman, III, Beyond Band-Aids: A Proposal for Reconfiguring Federal Sentencing After Booker, 2005 Chi. Legal F. 149, 156 (2005).

81 Ventimiglia, et. al., supra note 4, at 2.

82 See, e.g., Fifth Circuit, supra note 7, § 2.73B.

83 Id. §§2.12–13.

84 18 U.S.C. § 1346 (2010).

85 Henning & Radek, supra note 3, at 155-56.

86 See 18 U.S.C. § 1341 (2010); 18 U.S.C. § 1343 (2011); 18 U.S.C § 1346. Mail fraud involves fraudulently obtaining money or property through use of the Postal Service or any private or commercial interstate carrier; wire fraud involves the same conduct, but instead utilizes wire, radio, or television communication.

87 Skilling v. United States, 561 U.S. 358, 409 (2010).

88 Id. at 367.

89 Id. at 413.

90 Id. at 368.

91 See id. at 402.

92 Id. at 405, 407.

93 Id. at 408.

94 Id. at 409-410.

95 Id. at 413.

96 Id. at 408.

97 Id. at 412.

98 See Sarah Kelly & Megan Jeans, Honest Services Fraud: The Trial Courts’ Turn, 46 New Eng. L. Rev. on Remand 79, 83 (2012).

99 U.S. Sentencing Guidelines Manual app. C, vol. 111, amend. 666 (U.S. Sentencing Comm’n 2015); id. § 2C1.1.

100 Id. at app. C, vol. 111, amend. 666.

101 See, e.g., Fifth Circuit, supra note 7, §§ 2.56, 2.57.

102 See, e.g., id. § 257 (referring the reader to 18 U.S.C. § 201(b) in order to define bribery within the context of honest services fraud).

103 Gawey, supra note 35, at 419.

104 See U.S. Sentencing Guidelines Manual § 2C1.1 (U.S. Sentencing Comm’n 2015).