Small is Beautiful: Seventh Circuit Rules $1200 Bribe Not Enough To Constitute A Bribe Under Federal Law

There is an interesting decision out of Chicago in which  Judge William Bauer (left) finds that a Chicago zoning inspector is innocent of federal bribery because the bribes were too modest to constitute the prescribed crime. Dominick Owens was convicted under a federal statute  for taking two $600 bribes to issue certificates of occupancy for four homes.  However, the federal law states a $5000 threshold and the court ruled that the value of the bribes fell below that definition. It is a curious bribery statute that effectively distinguishes between federal non-criminal and criminal bribes on the basis of their worth.

At the center of the case is a uniquely Chicago figure who worked as an “expediter.” For those of us from Chicago, someone known as an expediter is inherently suspicious. Here is how the court explained it:

Christoir McPhillip, the government cooperator in this case, was an acquaintance of Owens and an “expediter” —someone who performs the “legwork” of the zoning process on behalf of developers, contractors, and members of the public by making appointments, completing paperwork, and attending meetings with Zoning Department employees. Prior to the bribes at issue in this case, McPhillip had paid Owens bribes for the expedited issuance of certificates of occupancy on at least eight occasions.

In the summer of 2006, McPhillip became a confidential informant for the FBI and recorded phone calls and two In the summer of 2006, McPhillip became a confidential informant for the FBI and recorded phone calls and two meetings with Owens that led to the charges in this case. On July 10, 2006, McPhillip called Owens and said that he needed certificates of occupancy for two single- family homes. After learning the addresses of the two homes, Owens created computer records indicating that both homes had passed inspection; neither home, however, was ever inspected. The next day, after several recorded phone calls, McPhillip and Owens met on the side of a road, and McPhillip paid Owens $600 in cash. Owens acknowledged after his arrest that he accepted the money on July 11 “in exchange for issuing quick certificates of occupancy” and “expediting the process for [McPhillip].”

It is not clear why Owens was not prosecuted under state law. The federal program bribery statute prohibits agents of federally funded entities from soliciting or accepting “anything of value . . . intending to be influenced . . . in connection with any business, transaction, or series of transactions . . . involving any thing of value of $5,000 or more[.]” 18 U.S.C. § 666(a)(1)(B).

Many would ask why any bribe in a federal program is not sufficient for a prosecution and why more modest thieves effectively get a pass from prosecution. However, the case is particularly interesting in the discussion of how to value a bribe:

The easiest and most obvious way is by looking at how much someone in the market was willing to pay for the benefit and an official was willing to take to provide the benefit—the value of the bribe. This means that the bribe amount “may suffice as a proxy for value; at least it provides a floor for the valuation question.” Robinson, 663 F.3d at 275; see also United States v. Townsend, 630 F.3d 1003, 1012 (11th Cir. 2011) . . . This method of valuation does not help the Government meet its burden in this case; Owens’ acceptance of two $600 bribes in exchange for the issuance of the certificates falls far short of the $5,000 threshold.

Another approach to valuing the subject matter of the bribe is by looking to the value of the benefit the bribe-giver will receive if the bribe is successful. . . This method of valuation is not limited to the bribe-giver; courts may also consider the value of the benefit to related parties “with an immediate interest in the transaction.” See United States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008).

The government advanced a “benefit-of-the-bribe approach” that was pretty loose and undefined — insisting that the mortgage values and construction costs for the homes, “coupled with the fact that homes could not be occupied without certificates” could be simply accepted as creating “the reasonable inference that the certificates involved something valued at $5,000 or more.” The Seventh Circuit didn’t buy it. The panel held “[s]uch a broad reading of “involving” would render the $5,000 threshold meaningless.” The result is that Owen accepted bribes but did not commit the federal crime of bribery — one lucky corrupted man.

A bizarre outcome to be sure but in my view the correct one. The problem is with the threshold amount not the court’s rather straightforward interpretation. The case proves the genius of E.F. Schumacher’s “Small is Beautiful” and the observation that “[t]he fundamental task is to achieve smallness within the large organization.” Just ask Dominick Owens.

Here is the opinion: United States v. Owens

27 thoughts on “Small is Beautiful: Seventh Circuit Rules $1200 Bribe Not Enough To Constitute A Bribe Under Federal Law

  1. If it did not meet the statutory definition then federal jurisdiction did not apply. What I find a little disconnected is how with regard to violations involving interstate commerce, my interpretation is that de minimis values can trigger interstate commerce and hence federal jurisdiction. But with regard to this bribery statute, $5,000 is the limit.

    I wonder if the federal charge was sought to get the case out of local jurisdiction due to a belief that at the local level, the case would have been dismissed or not prosecuted due to local corruption concerns in a similar manner of during past times where racial discrimination civil rights violations were prosecuted federally because of the unwillingness to do so at the local level.

  2. Please do not denigrate this thread with issues that are not Germaine to the topic. Thank you for your thought and anticipated cooperation.

  3. Taking into account Darren’s speculation: ” …if the federal charge was sought to get the case out of local jurisdiction due to a belief that at the local level, the case would have been dismissed or not prosecuted due to local corruption concerns in a similar manner of during past times where racial discrimination civil rights violations were prosecuted federally because of the unwillingness to do so at the local level”

    and Jonathan Turley’s opinion: “The problem is with the threshold amount not the court’s rather straightforward interpretation.”,

    should we surmise that corruption on a small scale is acceptable to lawmakers?

  4. In answer to the question of how much of a bribe the judge took: $4,999.

    On to another issue: It would be better never to try to prosecute for ANY bribes. Simply ADVERTISE the amount needed for each particular official. Put up on the Internet, as soon as you discover the amount needed for any official, “THIS IS THE BRIBE NEEDED TO GET [whatever] FROM [whomever]” Then put in the citation.

    Charge a modest fee of $10 or so for anyone to post there.

  5. “should we surmise that corruption on a small scale is acceptable to lawmakers?”

    Congress has done next to nothing to overturn Citizens United so I think it’s safe to assume that corruption on a large scale is acceptable to the vast majority of lawmakers, Blouise. “Pocket change” should be of no consequence at all.

  6. This is a phenological event for Chicago. I know a dude that paid the city man 800 US dollars to ticket and have vehicles impounded that parked in front of his flat. This continued until the city man got shot some by some Italian guy.

  7. Not having read the other comments, here is mine.

    I disagree with the Professor. The panel’s decision disregards an important consideration in evaluating a bribe as to its significance as a crime.

    Two other aspects can be described:

    —-the low bribe value was in light of keeping a contiuous source of income that over time was worth far more than 5,000 dollars.

    —-the actual sum exchanged was irrelevant to the evaluation by the court, as it was also to the partiicipants. The “you owe me” chits value was far higher than the sum exchanged. This is particularly so in circles such as those serviced by George Zimmerman’s father as magistrate in VA, in a nice district near DC.

    A third and obvious point it that it gives small “receivers of bribes” a green light. Was that their intention.

    And please, no one come with a plea that we can’t clog up the courts with small crimes.

    Anyway, we know the big bribers are well hidden.
    Whaddaya say Koch Bros?

  8. Holy cow!!! WTF. Yet, if he was an impoverished inner city young male who robbed or coerced someone out of that money, he would looking at a long stretch in prison. Justice truly is blind…..not in a good way.

  9. Blouise-

    Being a little corrupt is known as “greasing the wheels of commerce”. If you grease enough wheels, you are promoted to “Lobbyist”. If you are corrupt, but not very good at it, you go on television and sell reverse mortgages.

  10. In our state court, it can be argued that values involved in fraud can be aggregated together so that in total they can constitute a felony. i.e. 10 $1,000 frauds = $10,000 making it a felony instead of 10 gross misdemeanors. If, that is, they involve the same “scheme, plan or design”.

    I wonder if an investigation can reveal that the accused had accepted multiple bribes from multiple people and therefore would meet the threashold in total.

    Possibly it might be the case now the statute of limitations on state side might have expired but I do not know.

  11. It seem Chicago zoning inspectors can passout occupancy certificates at $4,000.00 each without a problem. Where can one apply for the job,who do you have to know?

  12. “My client admits he shot the victim, Mr. T. Joad, but my client, the citizen accused, is not guilty of murder, because Mr. Joad, being a God-fearing man,is not dead, he is in Heaven, with the angels. and other Christians who
    accepted the gift of Eternal life given by their Lord and Savior Jesus Christ.

  13. Oh my goodness, this reminds me of a limerick.

    There was a defendant named Rex,
    accused of exposing his sex.
    But he was acquitted,
    the reason submitted:
    De minimus non curat lex. :twisted:

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