BRIBERY OF 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, offering/giving/(promising to give);
Second, money/goods/(right in action)/property/(valuable thing);
Third, to a/n agent/employee/trustee/guardian/lawyer/(officer of a corporation)/partner/(Specify Other Fiduciary Listed in 21 O.S. 1991, § 380);
Fourth, known by defendant(s) to be a/n agent/employee/trustee/guardian/ lawyer/(officer of a corporation)/partner/(Specify Other Fiduciary Listed in 21 O.S. 1991, § 380);
Fifth, with intent to influence his/her conduct in relation to the affairs of his/her employer/beneficiary/client/corporation/partnership/ (the person for whom he/she is acting);
Sixth, which if accepted by the agent/employee/ trustee/guardian/lawyer/ (officer of a corporation)/partner/(Specify Other Fiduciary Listed in 21 O.S. 1991, § 380) would constitute the crime of accepting a bribe, the elements of which are as follows:
1. a/n agent/employee/trustee/guardian/lawyer/(officer of a corporation)/partner/(Specify Other Fiduciary Listed in 21 O.S. 1991, § 380);
2. with a corrupt intent;
3. without the consent of the employer/beneficiary/client/corporation/ partnership/(the person for whom he/she is acting);
5. solicits/accepts/(agrees to accept) a bribe;
6. 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);
7. 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(B).
Sections 265, 308, 381, 383, 399, and 456 of Title 21 concern crimes for conduct whereby any person attempts to influence the actions, decisions, or opinions of certain specified people through a bribe. Although the language of the specific sections varies, the Commission has concluded that the crimes created by these sections have almost identical elements. In the opinion of the Commission, the same social interest is meant to be protected by all these sections, i.e., to prevent improper influence on certain kinds of activities, primarily in the area of governmental decision-making. Very few Oklahoma cases have construed these bribery statutes.
The first element sets forth the prohibited conduct. Although the statutory language of sections 265, 308, and 383 is "gives or offers," with no mention of "promises," the Commission has concluded that a promise is also prohibited by these sections, in view of the definition of "bribe" given in 21 O.S. 1991, § 97. Section 97 provides:
The term "bribe" signifies any money, goods, right in action, property, thing of value or advantage, present or prospective, or any promise or undertaking, asked, given or accepted, with a corrupt intent to influence unlawfully the person to whom it is given, in his action, vote or opinion, in any public or official capacity.
The statutory language of sections 381, 399, and 456 specifically includes "promises."
It should be emphasized that the conduct prohibited is the offer, gift, or promise of a bribe regardless of whether or not such offer, gift, or promise is accepted or acknowledged. In the opinion of the Commission, the language in section 456 seems to indicate that no crime of bribery has been committed unless an agreement has been reached between the person who offers the bribe and the person to whom the offer is made, and this language is surplusage. Whether or not an agreement has been reached is irrelevant for conviction. The only relevant mental state is that of the person who offers, gives, or promises the bribe as set forth in the fifth element. See Note, 2 Okla. L. Rev. 221 (1949); cf. People v. Brigham, 72 Cal. App. 2d 1, 163 P.2d 891 (1946) ("agrees to receive a bribe" within the meaning of California bribery statute refers to the bribe seeker's state of mind, not the victim's).
The second element indicates what must be offered, promised, or given in order to constitute a bribe. The language used in the second element is taken from the definition of "bribe" set forth in section 97, supra. The Commission has chosen to use the language from the definition of "bribe," rather than the word "bribe" itself, to promote clarity and simplicity in the instruction. In the opinion of the Commission, the Legislature did not mean to create any distinctions between a bribe under sections 265, 308, 383, 399, and 456, and the language of section 381, which uses "gift or gratuity whatever," instead of "money, position, thing of value." Hence, for purposes of uniformity of language, the Commission has used only the language from the definition of "bribe." The Court of Criminal Appeals has held that what constitutes a bribe is to be interpreted broadly. Handley v. State, 69 Okl. Cr. 321, 102 P.2d 947 (1940).
The third element indicates to whom the bribe must be offered. Any person can commit the bribery crimes created by section 265, 308, 383, 399, and 456, so long as the bribe is given, offered, or promised to those classes of people enumerated in the third element of the various element instructions. The bribery statute protects only limited kinds of people from improper attempts to influence their actions, opinions, and decisions. Bribery has been committed, however, when a person offers, promises, or gives a bribe to a public officer even though the public officer does not have the authority to do what the person who offers the bribe intends. Ex parte Covell, 63 Okl. Cr. 256, 74 P.2d 626 (1937). For a definition of public officer, see State v. Sowards, 64 Okl. Cr. 430, 444, 82 P.2d 324, 330-31 (1938), overruled on other grounds, Parker v. State, 917 P.2d 980, 986 n.4 (Okl.Cr. 1996). The various statutes under discussion may be distinguished from one another with respect to the third element.
Except for section 399, concerning athletic contest personnel, all sections described above provide protection for persons who are exercising governmental or public duties. Moreover, bribery has generally been classified as a crime against the administration of governmental functions. W. Clark & W. Marshall, A Treatise on the Law of Crimes § 14.02, at 1032-38 (7th ed. 1967); R. Perkins, Criminal Law 469 (2d ed. 1969). Hence, even though sections 265 and 381 use the term "executive officer," the Commission is of the opinion that only executive officers of governmental units are meant to be protected. The Commission does not believe private corporate executive officers are meant to be protected by the bribery statutes. (See also the language of the companion statutes, sections 266 and 382.)
Section 381 is a general bribery statute. Passage of section 381 may have impliedly repealed section 265. Pettiti v. State, 7 Okl. Cr. 12, 121 P. 278 (1912). But see McCormick v. State, 279 P.2d 359 (Okl. Cr. 1954). (Here the Court of Criminal Appeals indicates a prosecution under section 265 would have been proper.)
The fourth element, a special mens rea requirement, is not specifically stated in any statute. Two cases have clearly held, however, that the accused must know the position held by the person to whom the bribe is offered. Allen v. State, 63 Okl. Cr. 16, 72 P.2d 516 (1937) (section 243, now repealed); Pettiti v. State, supra, (section 381). Since the Commission considers that sections 265, 308, 318 (first part), 383, 399, and 456 create similar bribery crimes, it has included the fourth element in the instructions for all the bribery crimes created by these sections.
The fifth element sets forth the primary mens rea element for the crime of bribery. While section 243 did not use the language "influence," the Commission has concluded that the mens rea element under all the sections is an "intent to influence." Allen, supra. The fifth element has been tailored to the specific statute, however, to indicate what kinds of activities were intended to be influenced.
One final comment: Section 456 seems to indicate that, if a witness actually takes the witness stand and commits perjury, the appropriate charge is not bribery, but rather subornation of perjury. (See the Subornation of Perjury instructions at OUJI-CR 3-20 through 3-22, infra.)