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Contours of Bribery Analyzed By Second Circuit In Bank Corruption Case
Since the 1980s, the U.S. Supreme Court has sought to clarify the boundaries of federal bribery and corruption law. The overall effect has been to complicate, perhaps even curtail, such prosecutions. This pattern began with McNally v. United States, 483 U.S. 350 (1987), which limited the scope of the mail/wire fraud statutes, and continued after Congress enacted the "honest services" statute (18 U.S.C. §1346), through Skilling v. United States, 561 U.S. 358 (2010), McDonnell v. United States, 579 U.S. 550 (2016), Kelly v. United States, 590 U.S. —, 140 S. Ct. 1565 (2020), and last term in Ciminelli v. United States, 598 U.S. 306 (2023) and Percoco v. United States, 598 U.S. 319 (2023).
Bribes and kickbacks of public and private officials in the United States are still prosecuted under the mail/wire fraud statutes and the Hobbs Act, but departures from paradigmatic cases have become more vulnerable to challenge.
The U.S. Court of Appeals for the Second Circuit's recent affirmance in the case of a bank officer convicted of corruption is noteworthy when viewed against that backdrop. United States v. Calk, 87 F.4th 164 (2d Cir. 2023). In that case, Stephen Calk was charged with "corruptly" causing a bank to make loans to Paul Manafort in exchange for help securing a position in the Trump administration. The prosecution was brought under 18 U.S.C. §215(a)(2), a statute that prohibits bribery in connection with the business of a financial institution.
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