- The Devil's in the Intent: Does 18 U.S.C. § 666 Require Proof of Quid Pro Quo Intent?, 42 Sw. L. Rev. 229 (2012).
In this article I explore the split that has arisen in the United States Courts of Appeals over the mens rea required by 18 U.S.C. § 666, which is commonly referred to as federal programs bribery. The section prohibits a covered official from receiving "anything of value" "in connection with" an official act. The split lies in the proper interpretation of the "in connection with" language. Some courts have held that the section does not require a federal prosecutor to prove a specific connection between the thing of value and the official act, i.e., that the prosecutor does not need to prove a quid pro quo relationship. A more generalized connection will suffice with courts frequently relying on the plain language of the statute and approving of jury instructions that simply use the words "in connection with." Others hold that a quid pro quo relationship must be proved.After exploring the labyrinthine legislative history of § 666, which was enacted as part of the Comprehensive Crime Control Action of 1984, I delve into issues of statutory interpretation, especially in light of the United States Supreme Court's case of Sun-Diamond Growers of California v. United States, in which the Court interpreted language in a related section, 18 U.S.C. § 201, and determined that the bribery proscription under that section required a quid pro quo relationship whereas the gratuity proscription did not. After reviewing these and other facets of the interpretational issue, I conclude that § 666 requires a federal prosecutor to prove a quid pro quo relationship between the thing of value and the official act and offer a "but-for" test to establish this proof.
- No Remedy for this Wrong? Analyzing the Appropriate Remedy for Violations of California Penal Code § 834c, http://ssrn.com/abstract=2135119 (currently seeking publication)
Many students of either constitutional law or public international law will be familiar with the series of United States Supreme Court cases culminating in Medellin v. Texas. This series of cases exposes the dramatic interplay of international legal obligations vis-a-vis domestic law in the United States. The United States is a state-party to the Vienna Convention on Consular Relations, a multilateral treaty currently with 173 signatories that governs many aspects of consulates and consular officials. Of all of the articles contained within the Convention, perhaps none has received as much attention and engendered as much controversy as Article 36(1)(b), which provides that a foreign national has a right to have her consulate contacted if she is detained in a foreign state that is a party to the VCCR. Law enforcement in the United States routinely violates this provision, though the issue is often not litigated for the first time until the appellate stage. Courts have also diverged on whether or not Article 36(1)(b) is self-executing, as there is no implementing legislation for the VCCR, and whether the treaty creates enforceable private rights.Foreclosing many of those issues, the California Legislature enacted Penal Code § 834c, which codifies as state law the right to consular notification embodied in Article 36(1)(b), though with some minor deviations from the treaty's text. California courts have split, however, on what remedy, if any, to apply to violations by law enforcement of this section. In this article, I explore four remedies that have been applied by state and federal courts for violations of both VCCR Article 36(1)(b) and Penal Code § 834c. I conclude that, given the limitations imposed by the California Constitution's Victims' Bill of Rights, exclusion of confessions obtained from a defendant who has not been advised of her right to consular notification is not a legally viable option. Thus, the failure to advise of a foreign national of her § 834c right should be included in the broader voluntariness inquiry for the confession under the Fourteenth Amendment.Note: This article is available for publication. If you represent an interested publication, please contact me with the relevant details. The abstract and full text of the article can be viewed at http://ssrn.com/abstract=2135119.