S. 118, Effective Corruption Prosecutions Act of 2007

As a means to provide investigators and prosecutors further “tools” to prosecute corruption offenses, the “Effective Corruption Prosecutions Act of 2007” would extend the statute of limitations for bribery or unlawful gratuities involving public officials or witnesses (18 U.S.C. § 201), federal program bribery (18 U.S.C. § 666), mail and wire fraud (18 U.S.C. §§ 1341 and 1343) involving a scheme to deprive another of the intangible right of honest services of a public official, and interference with commerce or interstate travel in aid of racketeering enterprises (18 U.S.C. §§ 1951-52) from 5 to 8 years. An essentially identical bill, H.R. 1872, has been introduced in the House.

S. 118, in keeping with its explicitly stated purpose of facilitating corruption prosecutions, would make 18 U.S.C. § 666—bribery concerning programs receiving federal funds—both a predicate for federal wiretapping and a “racketeering activity” for RICO Act purposes. Making federal program bribery a predicate for Title III wiretapping under 18 U.S.C. § 2516 would give the federal government the power to seek court authorization for real-time surveillance of voice, e-mail, fax, Internet and other transmissions in criminal investigations involving potential violations of the federal program bribery statute. A judge may grant such authorization if he or she determines, based on the government’s affidavit, that (1) there is probable cause to believe that such crime has been, or is about to be, committed; (2) there is probable cause to believe that information regarding such crime will be obtained through interception; (3) normal investigative procedures have not been, or would not be, successful; and (4) there is probable cause to believe that the facilities from which communications are to be intercepted are connected with the commission of the offense or the person under investigation. 18 U.S.C. § 2518 (2006). In practice, government requests for wiretap orders are almost always granted. See Center for Democracy and Technology, The Nature and Scope of Governmental Electronic Surveillance Activity (2006). Additionally, because “roving wiretaps” are also permitted under Title III, the government would be able to pursue a court order allowing it to tap any phone line, cell phone, or Internet account that a suspect uses in the course of a bribery or fraud investigation under 18 U.S.C. § 666.

S. 118 would also include federal program bribery as a predicate for a Racketeer Influenced and Corrupt Organizations offense. The Racketeer Influenced and Corrupt Organizations (RICO) Act, intended originally as a means to combat organized crime, has been used by prosecutors in a wide variety of criminal contexts as it has been liberally construed by courts, does not require mens rea beyond that necessary for the predicate acts it encompasses, and provides severe sanctions beyond those carried by the predicate offenses. The RICO Act is codified at 18 U.S.C. §§ 1961-68 (2006). See also Ross Bagley, Dorian Hurley and Peter Mancuso, Racketeer Influenced and Corrupt Organizations, 44 Am. Crim. L. Rev. 901, 902 (2007). The RICO Act requires two or more predicate acts of racketeering activity, but a defendant need not be convicted of the predicate acts before a RICO offense is charged. Because RICO also prohibits conspiracy, it additionally permits the prosecution of individuals who cannot even be charged with the commission of a substantive predicate act. See Salinas v. United States, 522 U.S. 52 (1997); Smith v. Berg, 247 F.3d 532 (3d. Cir. 2001).

The RICO Act provides federal prosecutors with a wealth of tools to use against defendants over the course of an investigation and prosecution. A RICO prosecution opens a defendant to 20 additional years in prison beyond any sentence imposed for the commission of predicate acts, mandatory asset forfeiture on conviction, pre- and post-indictment asset restraining orders, and the potential filing of a civil action for treble damages. Permitting prosecutors the use of these powerful sanctions provides them not only with tremendous leverage over a defendant, but also with the ability to substantially hamper a defendant’s ability to muster an effective defense through asset restraint before trial. Thus, the inclusion of federal program bribery as a RICO predicate provides substantial assistance to prosecutors seeking to charge a defendant with the offense.

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