PUBLIC CORRUPTION TRIALS FRANK MONTALVO U.S . District Judge Texas

1. PUBLIC CORRUPTION TRIALSFRANK MONTALVOU.S. District Judge Texas

2. PublicCorruption:Intolerable at anylevel

3. A problem in the U.S. as well • 8 national priorities in prosecutions • Three are directed to national security • Five are directed to domestic issues

4. Domestic Priorities • Public Corruption • Civil Rights • White Collar Crimes • Organized Crime • Violent Crimes and Major Theft

5. A lot of work! • FBI has about 2500 on-going investigations of public corruption • Between 2006 and 2008 there were approximately 1800 convictions involving public corruption offenses

6. CHALLENGES • Sophisticated methods used to cover-up the corrupt actions • Direct evidence often requires covert, electronically recorded conversations or videotape • Lengthy investigations

7. Evaluating the evidence • Specific intent is not always easy to discern • The corrupt actions must be undertaken knowingly • The evidence of corrupt actions or a scheme is often circumstantial

8. Directevidence: itisrarelythe case thatsomeonesaworheard…

9. Circumstantial evidence • More often evidence is of a chain of events and circumstances indicating something is or is not a fact

10. How is the evidence, direct or circumstantial, weighed and evaluated? • Is it through an objective standard or through a subjective standard?

11. Evaluating evidence Objective SUBJECTIVE • Evidence pertaining to each element of offense is identified • Only evidence presented at trial is considered • Each witness’ credibility is carefully evaluated • Generalized evaluation • Also considers matters not presented at trial • Guides itself through sympathy, bias or prejudice

12. Evaluating witness testimony Three fundamental questions: 1) Who is the witness? 2) What is the witness testifying about--his connection to the case? 3) Why should the witness be believed--any part(s) of testimony not trustworthy or credible?

13. Elements of evaluation • Did the witness appear honest? -way the witness answer question -the physical demeanor • Did the witness have a motive to lie? • Did the witness have a personal interest in the outcome of the case? • Does the witness have a relationship with prosecutor or the defendant?

14. Elements of evaluation • Did the witness appear to understand the questions he was asked? • Did the witness answer the specific question he was asked? • How is this witness different from other witnesses’ testimony? • Has the witness made contradictory statements about the same facts? • Has the witness said or done things that affect his credibility?

15. Bribery-Extortion-Gratuities

16. Hypothetical: • A non elected government official for the Thailand-Texas Railroad Commission (TTRC a fictitious entity) is responsible for ensuring that companies that supply train parts comply with contract specifications. His title is Quality Control Inspector (QCI). This TTRC official earns a low salary but his decisions are not typically subject to review by his superiors. Usually, on his recommendation alone, the Chief Inspector will require suppliers to make expensive modifications of parts that do not precisely comply with the TTRC “quality control” standards.

17. Hypothetical_continued • El Paso Train Parts Company (EPTPC) is a supplier to TTRC. Its profits depend in large measure in TTRC’s acceptance of its parts without modification. In order to gain favor with the QCI, EPTPC sends him on various free golf trips worth thousands of bahts. EPTPC did not directly or explicitly ask the QCI for anything in return for accepting the free golf trips.

18. Hypothetical_continued: • Both the QCI and the EPTPC representative are sophisticated professionals who have worked in the train industry for many years. It is well known that suppliers like TTPRC pay-off quality control inspectors. • The QCI gladly accepted all the free trips and has since only reported EPTPC for a few minor quality control violations.

19. Bribery- Charging the offeror U.S.A. 18 U.S.C. § 201(b)(1) Thailand (CPC § 144) • Defendant gave or offered something of value • Recipient of offer is a public official • Defendant acted with corrupt intent • Defendant scheme was designed to: ·influence public official in official act, or ·influence public official to commit fraud, or ·induce public official violate lawful duty • To give, offer, or agree to give • Property or other benefit • To any official or assembly member • To induce act, delay, or omission • Contrary to functions

20. Bribery- Charging the official U.S.A. 18 U.S.C. § 201(b)(1) Thailand (CPC § 149) • Defendant receives or agrees to receive something of value • Defendant is a public official • Defendant acted with corrupt intent • Defendant scheme was designed to: ·influence public official in public act ·influence public official commit fraud against U.S. ·induce public official violate lawful duty • To wrongfully demand, accept, or agree to accept • Property or other benefit • For exercising or not exercising any of his functions whether wrongful or not

21. Analyzing the hypothetical-applying it to the offeror • El Paso Train Parts Company, gave or offered something of value - golf trips • The train official is a public official- someone acting for or on behalf of a government agency • Did El Paso Train Parts Company act corruptly? Yes; as the goal of the scheme was to receive favorable reviews when evaluating the quality of the parts

22. Analyzing the hypothetical-applying it to the official • It does not matter that the public official did not explicitly request the golf trip because the U.S. statute makes it illegal to accept a bribe even if it wasn’t demanded • The rest of the analysis regarding a bribe is the same if it is for the offeror or the public official

23. What else is needed? • Subjectively it looks corrupt • To objectively find a violation detailed evidence describing the change in conduct of the official is helpful • Changes tend to be consistent with corrupt influence -- for example: after the first golf trip, TTRC never rejected a parts shipment from EPTPC; the percentage of parts from EPTPC that were discarded by TTRC as useless increased

24. Scheme Quid Pro Quo • Because corrupt intent is hard to establish through direct evidence, it is essential to focus on the Quid Pro Quo. • Quid Pro Quo -- “this for that” • What was the benefit or gain or favor to the corrupt public official in exchange for his actions?

25. Gratuity: charging the offeror18 U.S.C. 201(c) • Defendant gave, offered or promised to give something of value • The recipient or offeree was a public official • The defendant intended that the thing of value be given as compensation for an official act already performed or to be performed other than as provided by law for the proper discharge of official duty

26. Gratuity: charging the official18 U.S.C. 201(c) • Defendant received or agreed to receive something of value • The defendant is a public official • The defendant intended that the thing of value be given as compensation for an official act already performed or to be performed other than as provided by law for the proper discharge of official duty

27. Difference between Gratuity and Bribe • Gratuity does not require a Quid Pro Quo • Gratuity can be for a past act, but bribery is always for a future act • Gratuity can be for an act that would ordinarily be done by the official; preferential treatment is given to the donor by the official • Gratuity has been described as income supplementation

28. Extortion- 18 U.S.C. §1951Hobbs Act • Defendant obtained, or attempted or conspired to obtain property of another • Property was obtained, or would have been obtained with the other person’s consent • Defendant acted intentionally • The property was obtained, or would have been obtained, either: i. by the wrongful use of fear of economic harm, force or violence, or ii. under color of law • Defendant’s act affects interstate commerce

29. Difference between bribery and extortion? • In bribery both sides are voluntarily in the exchange • In extortion the official is in control- the coercive element is provided by the public office itself

30. Did the QCI extort the golf trips from EPTPC • The QCI, a public official, obtained golf trips, which is something of value, from the El Paso Train Parts Company • The trips were obtained with the El Paso Train Parts Company’s consent as they provided payments for the golf trips • Was EPTPC’s consent obtained through fear or under color of law?

31. Mail Fraud and other offenses18 U.S.C. §1341 et al. • Due to the prevalent use of the mail system and the internet, some of the most commonly used statues for prosecuting public corruption are the mail and wire fraud statutes • Up to 20 years in prison

32. Honest Services U.S. 18 U.S.C. §§1341, 1343 Thailand (CPC § 157) • Elected official • Participates in Scheme or Artifice involving bribes or kickbacks • Co –conspirators can be guilty even if not elected officials • Official • Wrongfully exercises or omits to exercise • Injury of any person, or • dishonestly exercises or omits to exercise any of his functions.

33. Conspiracy Mrs. Lopez ABX Corp. - - - - - - - Kim Mr. Lopez - - - - - - - - - - - Smith Diaz Hu ??? Isik Partners in Crime

34. ¡GRACIAS POR SU ATENCION!