H.R. 2438, Clean Up Government Act of 2007

The "Clean Up Government Act of 2007" would dramatically expand several white collar criminal statutes, H.R. 2438 proposes to both broaden the scope of an array of federal offenses and to increase prison sentences for certain bribery and theft crimes. In addition to altering statutes dealing with bribery of and unlawful gratuities given to public officials and witnesses and embezzlement or theft of public funds or concerning programs receiving federal funding, the bill would also expand the federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343.

The federal mail and wire fraud statutes have long been used by federal prosecutors as broad, “catch-all” provisions under which an expansive range of activities may be prosecuted in the federal courts. H.R. 2438 now proposes to further expand the range of conduct that might be federally prosecuted under these statutes. Currently, the statutes apply to use of the mails or interstate wires in connection with a scheme to fraudulently obtain “money or property.” The new bill would expand the definition of federal mail and wire fraud to include schemes to obtain “money, property, or any other thing of value.” These amendments would explicitly permit the federal prosecution of fraud involving state-granted licenses, an area not covered by the current federal fraud statutes. See Cleveland v. United States, 531 U.S. 12 (2000). The bill would also expand venue for offenses taking place in more than one district to include any district in which “any conduct in furtherance of” the offense took place.

H.R. 2438 would also expand from 10 to 20 years the maximum sentence for embezzlement or theft of public money (18 U.S.C. § 641) and theft or bribery concerning programs receiving federal funds (18 U.S.C. § 666). It would similarly increase the maximum sentence for bribery of a public official or witness (18 U.S.C. § 201(b)) from 15 to 30 years and for providing unlawful gratuities to a public official or witness (18 U.S.C. § 201(c)) from 2 to 5 years. Similarly, the bill would direct the Sentencing Commission to review its sentencing guidelines for offenses under 18 U.S.C. §§ 201, 641, 666, and 1962 with an eye toward increasing the penalties for those offenses.

In addition to increasing the penalty for its violation, H.R. 2438, apparently seeking to overturn the Supreme Court’s decision in United States v. Sun Diamond Growers of California, 526 U.S. 398 (1999) . would broaden the range of conduct proscribed by the unlawful gratuities statute. Whereas the current statute criminalizes the giving or promising of anything of value to a public official “for or because of any official act performed, or to be performed, by such public official,” the new bill would additionally proscribe giving anything of value to a public official for or because of “the official’s official position.” Thus, the current statute requires that at the time a gift is given, the donor intends the gift as a reward to a public official who, he or she believes, has already performed, or committed to perform, a particular official act. In contrast, criminalizing the giving of a gift because of official position removes the requirement that prosecutors must tie the gift to a particular official decision or act and thereby allows the prosecution of virtually any circumstance in which a thing of value is given to a public official without regard to the gift giver’s intent. Additionally, the bill would broaden the definition of an official act to include “any decision or action within the range of official duty of a public official.” This expansion would apply to both the bribery and unlawful gratuity sections of the statute.

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