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University of Chicago Law Review

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2287

Abstract

This Comment addresses a question left unanswered by the Supreme Court’s recent decision in Snyder v. United States. Snyder held that the federal funds bribery statute, 18 U.S.C. § 666, covers only bribes, not gratuities. That is, an agreement to exchange payment for an official act by a state or local government official is criminally prohibited (if the official’s agency receives a certain amount of federal funding). But § 666 does not prohibit payments made after official acts so long as there was no agreement to conduct a quid pro quo exchange beforehand. Thus, the key issue in cases with this factual posture is whether a quid pro quo agreement occurred. The Snyder Court did not suggest any answer for how courts, juries, and attorneys can go about resolving this issue.

This Comment formulates a response to Snyder’s unanswered question by turning to antitrust law. Litigation under § 1 of the Sherman Antitrust Act faces the same basic problem as § 666 cases after Snyder: determining whether an illegal agreement has occurred when both parties benefit from it and are therefore interested in keeping it hidden. Out of all the areas of law that consider this general issue, antitrust has the best-organized response. It has developed, through case law and scholarly commentary, a set of “plus factors” that explain to litigants, judges, and juries what circumstantial evidence will suffice to prove an illegal agreement in restraint of trade. This Comment’s innovation is to convert that framework from antitrust law into the bribery context. After providing relevant background on bribery law, the Snyder case, and permissive inference jury instructions, it explains the relevant similarities between antitrust and bribery law. It then develops a set of ten bribery plus factors: four that it directly converts from the antitrust plus factors and six that it draws from federal appellate case law on quid pro quo bribery under § 666. It concludes by offering some recommendations for the application and further refinement of these plus factors in both the jury instruction and appellate review contexts.

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