Ask any lay person for the meaning of “bribery,” and he or she will provide you with a clear definition of an unlawful exchange between two corrupt parties: an illicit quid pro quo. During the past several years, however, aggressive prosecutors and willing legislators have sought to expand that definition, creating a patchwork of often conflicting and vague definitions of this otherwise easily understood crime. In today’s world of complex multijurisdictional criminal enforcement, bribery means different things under different statutes and in different jurisdictions. A bribe, in other words, is not always a bribe. And, if the trend continues, the once-clear identifying mark of bribery — the quid pro quo — will be cast aside.

For many years, the courts seemed to grasp the meaning of bribery with little trouble. In U.S. v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), the U.S. Supreme Court set forth the meaning of bribery under 18 U.S.C. 201, the statute outlawing bribery of federal officials: “[F]or bribery there must be a quid pro quo,” the Court explained, “a specific intent to give or receive something of value in exchange for an official act.” Id. at 404-05. Around the same time, the U.S. Court of Appeals for the 4th Circuit applied the same definition to bribery under 18 U.S.C. 666, the federal-program bribery statute. U.S. v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) (holding that § 666 requires a quid pro quo).

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