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by Peter Moskos

June 26, 2009

C.I. Payments vs. Criminal Bribery [continued]

I’ve still very curious about all this and your comments make it all the more interesting.

Here’s the law again:

S 180.00 Commercial bribing in the second degree.

A person is guilty of commercial bribing in the second degree when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter`s employer or principal, with intent to influence his conduct in relation to his employer`s or principal`s affairs.

Commercial bribing in the second degree is a class A misdemeanor.

S 180.03 Commercial bribing in the first degree.

...and when the value of the benefit conferred or offered or agreed to be conferred exceeds one thousand dollars and causes economic harm to the employer or principal in an amount exceeding two hundred fifty dollars.

Commercial bribing in the first degree is a class E felony.
There's a similar law for the person receiving such a bribe.

Here are some comments I’ve gotten:
I ran this by narco rangers and they said it's pretty common practice. Same in the Intel division re: terrorists. Vetted by lawyers, those people we depend on for moral rectitude. ... I'd be genuinely shocked if the people who make a living defending criminals haven't already challenged this. It's as old as the hills.
I’m rarely shocked, at least not genuinely. (Did you hear that Michael Jackson died!? I mean, he looked so healthy.)

And this:
The DEA is not attempting in any way to alter or influence the firm's business transactions, only learn about them in order to build a case against a criminal. ... Compensating a low-level employee for providing the info seems like a sound move, providing it doesn't circumvent 4th Amendment requirements, which is a different concern than bribery.
Of course in the past police have also threatened these employees with arrest if they don't "help" the investigation.... But let's ignore that bullying behavior for now and just focus on the use of paying employees as C.I.s to turn over business information they have access to.

There is not debate about "benefit" being offered and the lack of the employer's consent. It all comes down to the last part of the law: “With intent to influence his conduct in relation to his employer`s or principal`s affairs.”

Many businesses--from the phone company to apartment rental agencies to car rentals to self-storage to banks--depend on both implicit and explicit (legal) guarantees or trust and privacy. If a bank or any business was known for low-level employees telling me, after I paid $1,000, about what was going on in the business--information I could not find out simply by standing outside the place, information only an employee has access to--how could that not be "in relation" to the employer’s "affairs"?!

Would it not be a bribe if you had stocks and somebody in the firm managing your stocks, against firm policy, sold your information to a third party? If the owner of the firm wanted to give it, or even be paid for it, that might be his or her right. But it's not a right of the employee. And in the case I'm actually talking about, the owner doesn't want to give the information because turning over customer's information would violate trust and hurt business.

Besides, given past experience, he or she simply doesn't trust the police to snoop around on their whim. That is what we have search warrants for.

Or take this scenario:
What if we asked the liquor store worker the contents of Stone Killa's special orders, because we know when he gets the VSOP it means a party that Friday night where all the local Killas are invited? So we pay the worker and he calls us each week with the special orders, and pay him $50 a week for this. When we collar. The Killas at the party, the liquor store loses all Killa's business for the next eight years...
Personally, I think it's clever but also straight-up commercial bribery. Why wouldn't it be? Just because you caught the Killa doesn't really matter with regards to the bribery.

Let’s say you’re the patrol officer responding to a call for commercial bribery (as if). After going, “commercial what!?” you find the entire district down and your supervisor not be disturbed (screwing his mistress or something).

You arrive at the Kim’s Liquor and Kim says his employee was paid money by a private citizen, let’s say me, Peter Moskos, to turn over a list of all the delivery orders or the names on credit cards of something. Let’s say I want this because I’m curious if my wife is spending all my money here. Or I run a rival liquor store and want the database. Or I’m doing academic research. Or I want Stone Killa’s address. Whatever my motives, I don’t think they matter one bit for the legal debate.

The point is I am there, have the business information in my pocket, and confess to giving the employee $1,000 plus one penny for the information. The employee confesses, too. Mr. Kim presents a letter from an angry customer canceling a $251 order (thus meeting both monetary requirements for felony Commercial Bribing in the First Degree).

Mr. Kim, unmoved by our remorse and tears, wants us both locked up. What do you as the responding officer do? Make two easy felony arrests. Case closed.

And if it would be a crime for a private citizen, why would it not be a crime for law enforcement?

[Of course if somebody said, "give me money so I can buy illegal drugs and then use them," it would be considered a crime for most people--but not narcs in the C.I. business--to give money.]
If you dig deeper I am confident you will see that this is law enforcement practice that has been approved of and indemnified by government counsel, and that there is probably even case law that makes this clear.
Maybe. I am trying to dig deeper. I just can't see how this wouldn't be commercial bribery. It is against both the letter and the spirit of the law.


Anonymous said...

As far as the sprirt of the law goes, I think the implication is that the person offering the bribe will recieve a personal benefit in getting the information. Are cops who are trying to get information for a case without getting a warrant really benefiting personally?

PCM said...

No. I think you're misreading it. "Any benefit upon any employee" is pretty clear.

The briber offers money with the intent to influence the bribee's conduct.

Anonymous said...

No, Peter my point is that most laws involving property and bribery imply that the offer and acceptance of the bribe will result in a personal gain to the person offering the bribe. What is the cop to personally gain from this "bribe" other than enhancing his investigation of a criminal case?

Marc S. said...

If there was probable cause of something illegal going on in the office, they could get a warrant. If there was a relevant investigation, they could subpoena the files. It's pretty clear that they were attempting to use a CI to obtain private information that they could not obtain through legal channels.

Relevant case law: http://openjurist.org/652/f2d/788

other relevant information:

Where CI's are useful is dealing with illegitimate businesses because you can't exactly hand out a subpoena to a drug kingpin demanding that he turn over the financial documents for his drug business. In this case, it probably wouldn't fit in the definition of commercial bribery and frankly, if it did, i doubt the kingpin would file a complaint alleging such since he'd have to claim the street dealer as an employee of his drug empire.

Marc S. said...

It doesn't have to be tangible, Ed. What if i, as a private citizen bribed an employee of a company i have a personal grudge against to "accidentally" misplace some important client records. I do not gain anything tangible from this annoyance, just some self-satisfaction because I'm a vindictive prick.

Still commercial bribery, isn't it? Sorry ed, you can't read stuff into the law. It says what it says and it is certainly not vague.

And how isn't "enhancing his investigation of a criminal case" considered a personal gain for the officer? Police are judged on their records. What if he makes a big, high-profile bust as a result of his criminal investigation? Wouldn't that advance his career?

I think the only way to argue that this isn't commercial bribery is with the argument (and this is an absurd argument) that the commercial bribery statute is under Article 180: "Bribery not involving public servants, and related offenses." As such, the word "person" for the purposes of this article can not mean "public servant"

Article 200: "Bribery involving public servants and related offenses" only covers bribes to public servants and public servants receiving bribes, not bribes issued by public servant.

It's an unfortunate oversight in the law, your honor, i move to dismiss.

Very creative counselor, denied.

Of course, this is all pointless since:

15. "Public servant" means (a) any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state.

not agents of the federal government.

Marc S. said...

"The DEA is not attempting in any way to alter or influence the firm's business transactions, only learn about them in order to build a case against a criminal. ... Compensating a low-level employee for providing the info seems like a sound move, providing it doesn't circumvent 4th Amendment requirements, which is a different concern than bribery."

The law doesn't say that one needs to "alter or influence the firm's business transactions" only that one needs to intend to influence an employees conduct "in relation to his employer`s or principal`s affairs."

Those are two very different things. Furthermore, the only reason i can see to use a CI in this manner is in an attempt to circumvent the 4th amendment. If the DEA were legally entitled to obtain those documents, they would simply take them (probably wrecking up the place and shooting some dogs in the process--sorry, couldn't resist) rather than using bribery and intimidation.

Sorry for the series of lengthy comments. I'm not an FEOE, i just don't think I'm wrong.

PCM said...

Ed, I think "enhancing his investigation of a criminal case" is plenty motivation. And I don't see where this applies to bribery regardless.

And don't get me wrong, I don't fault police for using every tool they can. I don't doubt their motivations. I'm all for catching the bad guys. I'm just saying that doing it this way may not be legal.

PCM said...

And I do understand that getting a warrant is a pain and it's much easier if you can get consent.

But here the employee has no right to consent on part of his employer or the person being investigated.

But even taking the legitimate pain-in-ass factor into account, I do think this is more often an attempt to circumvent the 4th Amendment without probable cause.

Anonymous said...

According to the letter of the law, you're right and I'm wrong, a tangible benefit would not be needed to sustain this charge. I have done some amateur legal research though, and have not been able to find a prosecution of a law enforcement officer on this charge. I would like to think that this says something about the way our laws are applied and the common sense of the system.

Marc S. said...

Doesn't surprise me that you couldn't find anything. Allow me to repeat a portion of my post that started this "...unless you're above the law"

Police are effectively above the law. DA's won't prosecute cops under most circumstances. Government has a monopoly on force.

Anonymous said...

what seems to be missed here is that there is most certainly a robust precedent regarding how this statute is construed in prosecution, and that precludes it from being used against federal agents who are hiring CI's. If you look at the actual prosecution of bribery cases of every type, they are wildly divergent from this type of thing. I can't be properly rigorous here, but it seems very clear at firt blush that this is a fourth amendment concern rather than a bribery concern.

Anonymous said...

I think bribery should be defined as paying someone for information with conditions. I know of officers that have taken this to another level. Paying drug addicted informants for information, should not be legal. These people will say and do anything for the drugs, and to keep from going to jail themselves.