Bribery offenses are common in the public sector. However, it is possible to be convicted for bribery in the private sector. Commercial bribery charges often arise when an employee solicits or accepts a valuable item in exchange for using their position to benefit a third party. Commercial bribery is a serious offense that could result in felony charges. Get in touch with us at Los Angeles Criminal Attorney for criminal defense services if you are facing charges of commercial bribery.
Commercial Bribery Overview and Legal Definition
Commercial bribery under PC 641.3 occurs when an employee solicits or accepts a bribe from another person in exchange for using their employment position to benefit the bribing party. For you to be convicted of commercial bribery, the prosecution must prove that your actions had all the elements of the offense.
These elements include:
- You were an employee of a company
- You took or gave a valuable item worth more than $250 from another party other than your employer.
- a consent
- You took or gave the valuable item in exchange for using your position as the company's employee to benefit the third party.
You act with a corrupt intent when your actions are meant to purposely injure or defraud your employer, an employer of the party offering the bribe, or a competitor of either employer. As an employee, you must act in a manner that serves your employer's best interests. Therefore, taking or giving a bribe to allow for an action that hurts your employee to happen is criminal.
Under California bribery laws, a bribe is an item of present or future value offered or given with a corrupt intent to unlawfully influence the receiver. You are also guilty whether or not you gave or took the bribe.
This statute also punishes the intent to bribe or solicit a bribe if you take action to further that intention. For instance, thinking about asking for bribes to cater to your current financial worries is not a crime. However, if you ask for bribes to perform your duties or grant another person an undue favor, you will be guilty of bribery.
Commercial bribery is harder to detect in the private sector, but thanks to its widespread acceptance in negotiations, it can be hard to detect its occurrence. It can occur in different forms, including kickbacks, commissions, match-fixing, payola, and bid-rigging.
Kickback schemes are a popular form of bribery in the private sector. They are pre-negotiated agreements between two parties to receive money or other valuables in exchange for fulfilling certain services.
Kickbacks are common in the medical sector, where a healthcare professional receives money to refer patients to a certain provider.
The problem with kickback schemes is that they create an incentive for the bribe receiver to act in a manner that could compromise their employer. For instance, instead of referring patients to a qualified lab technician, you refer them to the one offering a pay cut.
Commissions, by themselves, are not illegal. However, when they are issued for offering another party an unfair financial advantage, they become a form of commercial bribery.
Bid-rigging schemes are a common form of collusion. It is common among procurement bodies and departments of an organization. The participants often engage in market allocation and price fixing. It can involve activities such as:
- Change a low bid into a higher one after a lower one is already approved
- Excluding certain bidders from bidding by setting unreasonable qualification metrics, intimidating some bidders, bundling contracts, or advertising bids to a select pool of bidders.
- Leaking bid information to give certain parties an advantage
- Manipulating bids to give others an unfair advantage
- Cover bidding is where bidders collude to present bids intended to be unsuccessful in favor of another bidder. These bidders can repeat this process as often as they desire.
- Phantom bids are common among auctioneers where they collude with another party who calls out phantom bids to get a legitimate bidder to bid at a higher price. When the phantom bidder bids higher and the legitimate bidder doesn't counterbid, the auctioneer claims that the phantom bidder could not pay.
Payola is a form of commercial bribery typically committed by record labels. The offense involves paying money or using a radio station to play certain songs. In this case, the radio station fails to report that the songs are paid for, thus creating the illusion that said songs are popular.
Match fixing is a form of commercial bribery in the organized sports sector. Match-fixing is often motivated by gambling, where bookmarkers or sports bettors offer a team or certain team members a bribe to sabotage the game in favor of the bribing party. Match-fixing may also be done to gain an advantage in the future.
Fighting your charges is your only choice when faced with commercial bribery. Some of the defenses to commercial bribery include:
No Corrupt Intent
The prosecution must prove that you had corrupt intent for you to be charged with commercial bribery. The prosecution must show that you intended to defraud or give an undue advantage to the other party at your employer’s expense.
For instance, John is an employee at Company A. He meets up with Chad who works for a software company. Chad offers to buy John lunch at a 5-star hotel, and he pitches his company's software to John. After reviewing his sales pitch and the product offering, John encourages his company to buy software from Chad's company.
In this case, John does his due diligence, and the lunch purchase does not influence his decision. Neither does the software harm Company A. In this case, accepting lunch from Chad was not done with corrupt intent.
It would be different if Chad, knowing their software was substandard, offered lunch if John encouraged his company to take on Chad’s software.
You can also demonstrate that the valuables you received were meant as a gift with no strings attached.
The Item Was Worth Less than $250
Commercial bribery occurs when you accept a bribe worth $250 or more. However, if the item you received was less than this amount, you cannot be guilty of commercial bribery.
The prosecution must meet the legal standard of presenting evidence that proves beyond a reasonable doubt that you are guilty of commercial bribery. Without adequate evidence, your attorney can fight for your charges to be dropped or for a felony to be reduced to a misdemeanor.
You Had Your Employer’s Consent
Commercial bribery occurs when the employer of the giver or receiver of a bribe is unaware and does not consent to the taking or giving of a valuable item. But, if your employer consented to the action, then you are not guilty of the offense.
Anger, malice, or revenge are some of the primary reasons someone could falsely accuse you of commercial bribery. However, if you can prove that you were not involved in any form of bribery, then you cannot be charged for the offense.
Since false accusations could ruin your reputation, it’s best to consult an attorney as soon as you learn of a commercial bribery charge based on false accusations.
The quality of the defense you present during the criminal proceeding can impact your sentence and other post-conviction matters. For example, working with an attorney who challenges the evidence resulting in a probation sentence, ensures that it is easier to clear your record later on.
Therefore, you should work closely with an attorney with a record of passionately defending their clients.
Penalties and Sentencing
When you are found guilty of commercial bribery, the penalties will depend on the value of the bribe. You would face misdemeanor charges if the bribe was $250 to $1000. The penalty for a misdemeanor conviction is up to a year in county jail. If the value of the bribe was more than $1,000, you face up to three years in state prison.
Your employer is also entitled to sue you in civil court for any damages the company suffers due to your actions. If they win the case against you, you must pay restitution.
What to Expect When Charged with Commercial Bribery
Employers are often the ones who report commercial bribery to the relevant authorities. But, the police could initiate an investigation into kickbacks involving medical insurance.
Most employers become aware of an ongoing bribery scheme in their organization after:
- A rise in unnecessary purchases, especially those that do not meet a business needs
- Questionable invoices, such as those without supporting documents of the services offered
- Continuous supply of substandard goods or services in the organization, despite ongoing complaints about their poor quality.
- The employee has a conflict of interest when dealing with certain suppliers or vendors.
- Incomplete travel and hospitality expenses (especially those without proper supporting documentation
When your employers discover that you are engaging in commercial bribery, you will likely lose your job and face charges after they report the offense to authorities.
Once reported, the police begin their investigations before presenting the prosecution with a police report. The prosecution evaluates your case and decides whether to file charges.
If the prosecution files charges, you will officially begin the criminal process. The process begins with your arrest and booking at the police station. The second procedure is an arraignment, where the court determines whether to release you on bail.
The investigators will evaluate your and your family's personal lives in commercial bribery cases. They will look at your lifestyle during or around the time when the bribery offenses allegedly occurred. They will look at what vacations you attended, where you ate, what clothes you bought, any financial changes in your life, etc.
They will evaluate your communication records to determine whether you had unofficial communication with the other parties allegedly involved in the offense.
It is also common for investigators to work with the co-accused, where they convince the latter to give evidence against you.
All the evidence gathered during the investigation will be used to build a misdemeanor or felony case against you. Your attorney can negotiate with the prosecution during the pretrial stage to challenge the evidence presented.
These negotiations could result in a conviction, reduced charges, or dismissal. However, the case might not be resolved at this stage, thus proceeding to trial.
During the trial, the prosecution and defense present evidence for or against the case before a judge and jury. The outcome of a trial could be an acquittal or conviction. If convicted, you will be sentenced.
Can You Be Charged for Commercial Bribery in Federal Court?
Being a white-collar crime, bribery can sometimes be considered a federal offense. Federal bodies typically handle highly complex, high-dollar, and high-impact white-collar crimes. Therefore, you will be less likely to face federal commercial bribery charges for accepting a bribe worth $1000.
Federal investigators become interested in these offenses when the bribery scheme is so extensive that it spreads to other states and greatly impacts society.
When federal authorities are involved, investigations often last weeks to months before the defendant is aware that they are being investigated for a bribery offense. They investigate by auditing a company's records and communications or obtaining information through subpoenas.
Often, the investigations are conducted by multiple agencies depending on the severity of the suspected commercial bribery scheme.
If the federal investigators choose to file charges against you in federal court, you have no chance of expunging the crime from your records.
It is also possible for you to be charged with commercial bribery offenses, even when you were unaware of the crime in a company you are in charge of. For instance, if your employees participate in a kickback scheme, you could be held responsible simply for being a high-ranking corporate official.
Can Your Conviction Be Expunged?
Whether or not you can have your criminal record expunged depends on whether you were convicted of a felony or misdemeanor. A misdemeanor conviction can be expunged once you meet all the conditions of expungement. These conditions include completing your sentence or probation.
Other eligibility conditions for a record expungement include the following:
- You are not currently facing charges for another offense
- You are not on probation or serving time for another crime
If you meet the eligibility requirements, you should file with the court to request an expungement of your records. An expungement makes it easier to deal with the collateral consequences a criminal conviction has on your employment prospects.
For instance, employers cannot discriminate against you based on an expunged conviction. However, you must disclose the conviction if you are running for public office.
However, a certificate of rehabilitation is the only way to clear a felony conviction for commercial bribery from your record, especially if you were sentenced to prison instead of probation.
A certificate of rehabilitation is a way of clearing your criminal record after a felony conviction for which you served prison time. It indicates that you are a rehabilitated person. You must prove that you meet the eligibility requirements.
- You have not served time in jail or prison for another offense after your release from prison
- You are not currently on probation for another offense
- You have been a California resident for five consecutive years before your application
- You have met the minimum number of years for rehabilitation, usually two years for bribery offenses
- You do not have a factor that makes you ineligible for a certificate of rehabilitation
Some of the factors that make you ineligible for a certificate of rehabilitation include the following:
- You have a federal crime on your record
- Your criminal record includes another crime from a state other than California
- You were convicted of certain sex crimes against a child
- You have a convicted for an eligible sex crime, but the court determines that you are still a threat to minors
- You are a member of the military
A certificate of rehabilitation also relieves you of the burden of a conviction on your criminal record. It makes it easier to obtain state licensing.
A certificate of rehabilitation also serves as an application for the governor’s pardon. The governor’s pardon is available to people who have proven that they are fully rehabilitated after a criminal conviction.
Pursuing the governor's pardon is ideal if you have crimes on your record that exclude you from other forms of post-conviction relief. Usually, you don’t need a governor’s pardon for a commercial bribery conviction unless you have other serious offenses on your record.
Whether you are obtaining post-conviction relief or fighting criminal charges, working with an experienced criminal defense attorney who will guide you through the legal complexities is a good idea.
Commercial bribery is one of the forms of bribery categorized in the California penal code as a crime. It is related to other forms of bribery, including those committed in the public and judicial sectors.
Some of the offenses related to commercial bribery include:
Bribing a County Board Member
PC 165 makes it a crime for local government members or board trustees of a county or city in California to accept a bribe, where the bribe is intended to influence the member's decision or vote corruptly.
Accepting a bribe as a county board member will result in a sentence of up to four years either in county jail or state prison. It also results in collateral consequences, such as the permanent ban on running for any public office or trust. You will also lose your current position.
Bribing an Executive Officer
PC 67 makes it a crime to bribe an executive officer to influence the officer. Executive officers include law enforcement officials, district attorneys, and city coroners.
Bribing an executive officer is a felony in California.
A conviction carries a four-year sentence in state prison. You will also lose your right to own a firearm.
A conviction for bribing an executive officer can have negative immigration consequences if the court determines that the offense is an aggravated felony.
Bribery by an Executive Officer
Bribing an executive official is an offense, as is bribery committed by an executive officer. PC 68 makes it a crime for an executive officer, ministerial officer, or public employee of California to request, take, or agree to receive a bribe to influence a decision using their position.
Receiving bribes as an executive officer, a public employee of the state, or a ministerial officer is a felony. You face up to four years in prison when convicted.
Offering a bribe to a witness to influence their testimony is a crime under PC 137. The offense is a felony, and a conviction could result in up to four years in prison.
It is also a crime for a witness to solicit or accept a bribe from a person to change their statement, withhold material information, or fail to show up as a witness. Under PC 138, accepting a bribe as a witness is a felony carrying a sentence of up to four years.
Bribery Involving Judges or Jurors
PC 92 makes it a crime to offer a bribe to a juror, judge, or another legally allowed to determine a legal matter. The offense is a felony with a sentence of up to four years. It is also a crime for a judge or juror to solicit or accept a bribe to influence their official act or opinion. The offense also carries a jail or prison sentence of up to four years.
Find a Bribery Defense Attorney Near Me
Charges of commercial bribery can lead to several years in prison. When you or a loved one is facing charges of commercial bribery, the first step is to contact an attorney for representation. Los Angeles Criminal Attorney has worked with people facing commercial bribery and bribery cases for years. Book your free consultation at 424-333-0943 to discuss your case and what you can expect.