Pubdate: Sat, 29 Mar 2014
Source: San Francisco Chronicle (CA)
Copyright: 2014 Hearst Communications Inc.
Contact: http://www.sfgate.com/chronicle/submissions/#1
Website: http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko
Bookmark: http://www.mapinc.org/corrupt.htm (Corruption - United States)
Page: A1

BAN ON 'PAY TO PLAY': HOW THE LAW WORKS

An undercover FBI agent posing as a medical marijuana supplier met
with state Sen. Leland Yee in Sacramento in June and, according to the
FBI's transcript of a secret tape recording, said he was willing to
make campaign contributions in exchange for support of
legislation.

Yee's reply, the FBI reported, was, "You can't do that, man. You go to
jail for that."

Yee was right. His problem, if the government's account of his actions
is accurate, is that he didn't listen to his own advice.

Of the seven felony charges unveiled Wednesday against the San
Francisco Democrat, six - each punishable by up to 20 years in federal
prison - were for scheming to deprive his constituents of his "honest
services."

The 1988 law that established the crime was worded broadly, and it
could have encompassed such commonplace political actions as failing
to keep a campaign promise or disclose a conflict of interest, or even
a private-sector employee's personal use of the company's e-mail
system. But the U.S. Supreme Court, in a 2010 ruling that narrowed the
fraud convictions of former Enron executive Jeffrey Skilling, said the
law must be interpreted to apply only to bribes and kickbacks -
specific exchanges of favors for benefits.

Rebuffed approach

As Yee put it when asked by an aide, in a secretly recorded phone
conversation in May, whether he had contacted another lawmaker about
marijuana legislation at the request of a purported campaign
contributor, "That's pay to play, and you can't do that."

Though the law has been narrowed, it's still potent - the "typical
catch-all federal charge for political corruption," said Christopher
Kutz, a UC Berkeley law professor. Among the politicians convicted and
imprisoned under the law is former Illinois Gov. Rod
Blagojevich.

The law draws a distinction, Kutz said, between the typical
politician-contributor relationship - donors give money to
office-seekers who generally share their views - and a promise of
specific favors in exchange for funds.

"The test is whether the relationship between the contributor and the
server (in office) becomes too much of an explicit transaction," he
said.

The FBI says that's just what happened when Yee agreed to do various
favors for agents posing as donors to his debt-ridden campaign for
mayor of San Francisco in 2011 and his planned run for California
secretary of state this year.

The alleged favors included making a phone call to a supposed state
health official - actually another FBI agent - to recommend a software
company for a possible contract, telephoning another agent with an
update on marijuana legislation, and arranging a state Senate
proclamation honoring a local Chinese association at the behest of
another undercover donor.

Interstate activity

In each case, an FBI affidavit said, the transactions involved
interstate phone calls or electronic messages relayed across state
lines, a prerequisite for charging Yee under the federal
honest-services law rather than California's bribery law.

If charged under state law, Yee might claim he had been entrapped -
which, in California, means that the officers' conduct would have
induced a normally lawabiding person to commit a crime.

Under federal law, a defendant must also show that, regardless of the
officers' actions, he or she wasn't predisposed to break the law
before being approached, a virtually insurmountable burden in most
cases.

"You have no chance on entrapment," said Robert Weisberg, a Stanford
University criminal law professor. The only viable defenses, he said,
are "I didn't do it" or "I was misunderstood."

Weisberg said such charges often involve government sting operations,
like the FBI's "shrimp scam" investigation of the late 1980s, which
netted several California lawmakers for agreeing to do favors for a
fictitious shrimp company created by federal agents. In such cases, he
said, law enforcement agencies usually "have information that the guy
has already solicited or accepted a bribe."

Law's thin line

The FBI disclosed no such information in the 137-page affidavit
detailing charges against Yee and his codefendants. But the accounts
of undercover agents' interactions with Yee showed that the agents
were well aware of the line between legal and illegal conduct - and
that Yee had at least an inkling that there was a line he shouldn't
cross.

For example, an undercover agent offering to contribute to Yee's 2011
mayoral campaign told the senator, according to the FBI affidavit,
that he wanted help for his business in exchange. Yee, the affidavit
said, told the agent he could not discuss policy while asking for
money. Yee later said he could be "helpful," but no criminal charges
resulted, evidently because he never explicitly promised a specific
benefit.

When the purported medical marijuana supplier offered to contribute
$10,000 to $15,000 to Yee's secretary of state campaign in May 2013
and sought help with legislation, Yee told a government informant,
according to the FBI affidavit, that he played by the rules and
couldn't take money for himself. But he said he would be willing to
help those who helped him get elected - a "long-term investment," as
he described it to an aide.

He then allegedly agreed to brief the agent on marijuana legislation
and arrange a meeting with a fellow senator - two express promises
resulting in two criminal charges.
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MAP posted-by: Matt