In general, commercial bribery is the act where an employee, agent, or a person with fiduciary relationship to a principal is bribed with the intent to obtain and secure an advantage over other business competitors. Both the giving and receiving of the bribe is illegal. Commercial Bribery is the breach of duty to act disinterestedly. Government attempts to deter Commercial Bribery can be found un the Securities and Exchange Commission, the Internal Revenue Service, and Antitrust.
Commercial bribery is often prosecuted under the Mail Fraud Statute. Prosecutors may also seeking Racketeering, and Corrupt Organizations Act (RICO) as a way of charging commercial bribers. There are also federal statutes that prohibit conduct, which may not appear as common examples of commercial bribery. For example, kickbacks are also prosecuted. Specifically, 42 U.S.C. ß 1395nn(b)(1) and (b)(2) pertain to payments made to refer a patient for services or items paid under the Medicare program.
An individual may also be found guilty of Commercial Bribery if he presents himself to the public as being in the service of making a disinterested opinion, appraisal or criticism, and he solicit, accepts, or agrees to accept a benefit in order to influence his selection, appraisal, or criticism.
Most states do not have a commercial bribery statute. Many states that do have commercial bribery statutes only make the violation of commercial bribery a misdemeanor. There have been several cases launching attacks on state commercial bribery statutes, challenging the statutes for vagueness and therefore void. The constitutional argument holds that the statutes curtailed the right to contract and did not constitute to a reasonable exercise of state’s power. These attacks have failed.
In New York engaging in Commercial Bribery is considered a felony. Commercial Bribery in the First Degree is under New York Penal Code Section 180.03, and considered a Class E felony. A Class E felony is one that is considered non-violent and non-drug. There is no minimum incarceration period for this felony, but there is a maximum period of 1 1/3-4 years.
To prove that an individual is guilty of commercial bribery the prosecution must prove the following five elements beyond a reasonable doubt. The prosecution must show that the
- individual conferred, or offered, or agreed to confer and benefit upon a person who was an employee, agent, or fiduciary of a principal;
- the amount of the benefits was over $1000;
- the individual acted without consent of the employer or principal;
- the individual acted with the intent to influence the employee’s conduction in relation to his employer’s affairs;
- and, the individual’s conduct caused economic harm to the employer or principal in an amount over $250.
If has been held that it is not necessary to show that there has been actual or potential injury to the employer.
An inherent issue concerning the prosecution of commercial bribery is the unwillingness of the accused to testify. This makes natural sense. Often times, prosecutors will offer immunity deals to some of the participants in exchange for their witness testimony. Only a few states have immunity provisions in their Commercial Bribery statutes.
An individual is guilty of Commercial Bribery not only when offering a bribe, but when receiving one has well. Bribe receiving in the First Degree is codified under New York Penal Code 180.08. It is considered a Class E Felony.
To prove that an individual is guilty of receiving commercial bribery in the First Degree, the prosecution must prove the following six elements beyond a reasonable doubt. The prosecution must show that the
- the individual was an employee, agent, or fiduciary;
- the person solicited, accepted, or agreed to accept a benefit from another person;
- the value of the benefit exceeded $1000;
- the employee, agent, fiduciary did so upon an agreement or understanding that such benefit would influence his conduct in relation to his employer’s affairs;
- the person did so without the consent of his employer; and
- the person’s conduct caused economic harm to the employer or principal in the amount of $250.
The economic harm to the employer or principal means an actual economic loss that is suffered by the employer or principal; one that would not have incurred in the absence of the corrupt arrangement.
A fiduciary relationship is best described as a legal duty to act in another party’s interest, due to the nature of the particular relationship between the individuals. It exists where an individual places special confidence in another to act on their behalf, in good faith, in general affairs or business.
An individual is charged with a Class 5 Felony if he solicits, accepts, or agrees to accept any benefit as consideration, in which he has a duty of fidelity. Individuals often found in a role requiring a duty of fidelity are:
- agent or employee;
- trustee, guardian;
- lawyer, physician, accountant, appraiser;
- officer, director, partner, manager;
- duly elected officials, or appointed representatives;
- arbitrator or other purportedly disinterested adjudicator.
NYC criminal lawyers of Joseph Potashnik and Associates provide competent and aggressive representation to clients charged with criminal offenses in New York. We handle the toughest white collar, bribery, and corruption cases and have built a great track record of success. If you have been charged with a crime in New York, call our NYC criminal lawyers today to set up your consultation.