BRIBERY BY FIDUCIARY - ELEMENTS
No person may be convicted of bribery unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, a/n agent/employee/trustee/guardian/lawyer/ (officer of a corporation)/ partner/(Specify Other Fiduciary Listed in 21 O.S. 1991, § 380);
Second, with a corrupt intent;
Third, without the consent of the employer/beneficiary/client/corporatio n/ partnership/(the person for whom he/she is acting);
Fifth, solicits/accepts(agrees to accept) a bribe;
Sixth, to influence the conduct of the agent/employee/trustee/guardian/lawyer / (officer of a corporation)/partner/(Specify Other Fiduciary Listed in 21 O.S. 1991, § 380);
Seventh, in relation to the affairs of the employer/beneficiary/client/ corporation/partnership/(the person for whom he/she is acting).
Statutory Authority: 21 O.S. 1991, § 380(A).
The crimes created by sections 266, 309, 318 (second part), 382, 384, and 400 of Title 21 involve solicitation of bribes by certain persons, primarily government officials. These crimes are the obverse of crimes created by section 265, 308, 318 (first part), 381, 383, and 399, which are discussed above under the heading "Offering, Giving, or Promising." Although the statutory language of sections 266, 309, 318 (second part), 382, 384, and 400 varies, it is the opinion of the Commission that the crimes created by these sections have substantially identical elements. The Commission reached this conclusion because the social interest meant to be protected is identical, i.e., to prevent specified persons from peddling their influence. Very few Oklahoma cases have construed these statutes.
The first element sets forth the prohibited conduct. Sections 266, 309, and 384 contain the language, "asks, receives, or agrees to receive," that has been adopted for use in these instructions. Sections 382 and 400 contain the language "accepts or requests," while section 318 (second part) uses the language "accepts." The Commission has used the language "asking for, receiving or agreeing to receive" to promote uniformity in language and because these words are, in the opinion of the Commission, synonymous with the words of sections 318 (second part), 382, and 400.
It should be emphasized that the crime of bribery is complete when a bribe is asked for or received regardless of whether or not an agreement exists or receipt is formally acknowledged. Of course, the crime is also complete if an agreement is involved. In the opinion of the Commission, language in sections 266, 309, and 384, which seems to indicate that an agreement must always be reached between the person asking for or receiving the bribe and the person from whom the bribe is requested or received before the crime is committed, is surplusage. What is relevant for the completion of the crime is that the person who is asking for or receiving the bribe intend to peddle his authority or power, and not whether a meeting of minds, in a contractual sense, has occurred. People v. Brigham, 72 Cal. App. 2d 1, 163 P.2d 891 (1946). Contra, State v. Ferraro, 67 Ariz. 397, 198 P.2d 120 (1948). See Note, 2 Okla. L. Rev. 221 (1949).
The second element indicates what must be asked for, received, or agreed to be received in order to constitute a bribe. Although the statutory language concerning what must be asked for, received, or agreed to be received varies among the sections, the Commission has used the language from the definition of "bribe" in 21 O.S. 1991, § 97, for the same reasons stated in the comment on the second element under the previous heading.
The third element indicates who must ask for, receive, or agree to receive the bribe. The bribery crimes discussed under the heading "Offering, Giving, or Promising" can be committed by any person as long as that person offers, gives, or promises a bribe to certain persons statutorily protected from improper attempts to influence them. In contrast, the bribery crimes discussed under the heading "Asking for, Agreeing to Receive, or Receiving" can be committed only by certain governmental officials, governmental employees, and persons connected with athletic contests. It should be pointed out, however, that a person who aids or abets or conspires with a governmental official or other person listed in the third element can be convicted of bribery under these statutes. Aiders and abettors and conspirators are considered principals in Oklahoma although by themselves they could not have committed the crime. Wilkins v. State, 70 Okl. Cr. 1, 104 P.2d 289 (1940); Capshaw v. State, 69 Okl. Cr. 440, 104 P.2d 282 (1940). Moreover, a person who holds public office de facto can be convicted of bribery under these sections, even though as a matter of law that person was not authorized to hold the office. Ex parte Winters, 10 Okl. Cr. 592, 140 P. 164 (1914).
Section 382 is a general bribery statute. Passage of section 382 may have impliedly repealed section 266. Pettiti v. State, 7 Okl. Cr. 12, 121 P. 278 (1912). But see Ex parte Winters, supra (habeas corpus relief from conviction under section 266 denied). The Court of Criminal Appeals has also held that, if sections overlap, the prosecutor has discretion to bring the charge under either section. Wilkins, supra.
The bribery crimes of section 266, 309, 318 (second part), 382, 384, and 400 should be distinguished from the crime of petit extortion under 21 O.S. 1991, §§ 1481 and 1484. Petit extortion is extortion under color of official right. Petit extortion is apparently committed when the person from whom the property is obtained believes that the person requesting the property is making a lawful request. By contrast, if the person from whom the property is sought believes that it is being requested unlawfully, then the crime of bribery is the appropriate charge. Finley v. State, 84 Okl. Cr. 309, 181 P.2d 849 (1947).
The fourth element sets forth the mens rea requirement of these bribery crimes. The language in the several sections varies, but the Commission has concluded that the intent to permit influence most accurately and simply states the required mens rea. Since the crimes created by section 266, 309, 318 (second part), 382, 384, and 400 are the obverse of the bribery crimes discussed under the previous heading, the Commission has patterned the fourth element after the mens rea requirement, the fifth element of the previous crimes. The fourth element has been tailored to the specific statute, however, to indicate the kinds of activities which are subject to influence.
As a final comment, it should be pointed out that only one instruction was drafted for sections 309 and 318 (second part). This was done because, in the opinion of the Commission, the two statutes have identical elements. No appellate case has involved either section.