Chapter 49: Article 134, UCMJ BRIBERY AND GRAFT
§ 49:1
Elements
§ 49:2
Discussion
§ 49:3
Standard Instructions
§ 49:4
Maximum Punishments
§ 49:5
Lesser Included Offenses
§ 49:1 – Elements
Asking, accepting, or receiving
Promising, offering, or giving
§ 49:2 – Discussion
The fundamental differences between bribery and graft are that bribery requires intent to influence or be influenced regarding matters of which the United States has an interest. Graft involves compensation for influence where no compensation is due. In United States v. McCrimmon, the Court of Appeals for the Armed Forces clearly articulated the different types of intent and social interests in the offense:
“For the two separate bribery offenses of giving and receiving a bribe under [UCMJ] there are different corrupt intents. On the part of the briber, this requires an intent to subject the official action of the recipient to the influence of personal gain or advantage rather than public welfare. It does not require that the action sought to be induced should benefit the briber or should actually be detrimental to the public. The social interest demands that official action should be free from improper motives of personal advantage, and an intent to subject the action to such motives is a corrupt intent. If money is paid for such a purpose it is immaterial to the guilt of the briber whether the officer's official conduct was actually influenced or not. On the part of the bribee, an intent to use the opportunity to perform a public duty as a means of acquiring an unlawful personal benefit or advantage, is a corrupt intent.”[1]
Defense counsel should be ever conscious that Wharton’s Rule applies in bribery cases. There is a temptation in the military for prosecutors to charge conspiracies whenever possible. Bribery necessarily involves two or more individuals to effectuate the commission of the crime; therefore, there can be no conspiracy.
§ 49:3 - Standard Instructions
Standard Instructions
DA Pamphlet 49-9
3-66-1: Bribery and graft – asking, accepting, or receiving.
3-66-2: Bribery and graft – promising, offering, or giving.
§ 49:4 - Maximum Punishment
The maximum punishment of bribery is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. The maximum punishment for graft is the same, except the maximum confinement is three years.
§ 49:5 – Lesser Included Offenses
The lesser-included offense of bribery is graft. Article 80 – attempts is a lesser included offense of both crimes.
[1] United States v. McCrimmon, 60 M.J. 145, 150 (C.A.A.F. 2004).
Elements
§ 49:2
Discussion
§ 49:3
Standard Instructions
§ 49:4
Maximum Punishments
§ 49:5
Lesser Included Offenses
§ 49:1 – Elements
Asking, accepting, or receiving
- That the accused wrongfully asked, accepted, or received a thing of value from a certain person or organization;
- That the accused then occupied a certain official position or had certain official duties;
- That the accused asked, accepted, or received this thing of value ([bribery] with the intent to have the accused’s decision or action influenced with respect to a certain matter) ([graft] as compensation for or in recognition of services rendered, to be rendered, or both, by the accused in relation to a certain matter);
- That this certain matter was an official matter in which the United States was and is interested; and
- That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Promising, offering, or giving
- That the accused wrongfully promised, offered, or gave a thing of value to a certain person;
- That this person then occupied a certain official position or had certain official duties;
- That the this thing of value was promised, offered, or given ([bribery] with the intent to have the accused’s decision or action influenced with respect to a certain matter) ([graft] as compensation for or in recognition of services rendered, to be rendered, or both, by the accused in relation to a certain matter);
- That this certain matter was an official matter in which the United States was and is interested; and
- That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
§ 49:2 – Discussion
The fundamental differences between bribery and graft are that bribery requires intent to influence or be influenced regarding matters of which the United States has an interest. Graft involves compensation for influence where no compensation is due. In United States v. McCrimmon, the Court of Appeals for the Armed Forces clearly articulated the different types of intent and social interests in the offense:
“For the two separate bribery offenses of giving and receiving a bribe under [UCMJ] there are different corrupt intents. On the part of the briber, this requires an intent to subject the official action of the recipient to the influence of personal gain or advantage rather than public welfare. It does not require that the action sought to be induced should benefit the briber or should actually be detrimental to the public. The social interest demands that official action should be free from improper motives of personal advantage, and an intent to subject the action to such motives is a corrupt intent. If money is paid for such a purpose it is immaterial to the guilt of the briber whether the officer's official conduct was actually influenced or not. On the part of the bribee, an intent to use the opportunity to perform a public duty as a means of acquiring an unlawful personal benefit or advantage, is a corrupt intent.”[1]
Defense counsel should be ever conscious that Wharton’s Rule applies in bribery cases. There is a temptation in the military for prosecutors to charge conspiracies whenever possible. Bribery necessarily involves two or more individuals to effectuate the commission of the crime; therefore, there can be no conspiracy.
§ 49:3 - Standard Instructions
Standard Instructions
DA Pamphlet 49-9
3-66-1: Bribery and graft – asking, accepting, or receiving.
3-66-2: Bribery and graft – promising, offering, or giving.
§ 49:4 - Maximum Punishment
The maximum punishment of bribery is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. The maximum punishment for graft is the same, except the maximum confinement is three years.
§ 49:5 – Lesser Included Offenses
The lesser-included offense of bribery is graft. Article 80 – attempts is a lesser included offense of both crimes.
[1] United States v. McCrimmon, 60 M.J. 145, 150 (C.A.A.F. 2004).
