Public Corruption—FEMA

Two FEMA employees have pleaded guilty “to soliciting kickbacks from a food contractor during post-Katrina recovery efforts.”^[1] Andrew Rose and Loyd Holliman, who were volunteer firefighters who came to New Orleans to assist in Search-and-Rescue operations, pleaded guilty to soliciting and receiving bribes as public officials.^[2]

By signing on with FEMA, they became public officials, and they “were put to work managing a camp housing disaster relief workers in the city’s Algiers neighborhood.”^[3] The solicitation and attempted bribery occurred when the two men “allegedly approached a local contractor and offered to inflate the head count for meals at the camp in exchange for a payoff,” but the contractor contacted the FBI about the offer, and the two men were arrested in January “after receiving two envelops containing $10,000 each.”^[4]

Under 18 U.S.C. § 201(b)(2), it is a crime to be a public official and corruptly demand, seek, receive, or accept anything of value in return for being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States. A public official is defined as “an officer or employee of person acting for or on behalf of the United States, or any department, agency or branch of the US government.^[5]

The base offense level for a public official during sentencing is 14.^[6] This translates to 15-21 months in prison. Because the attempted bribery involved an up-front $10,000 payment with weekly payments of $2,500, the government will likely argue that this constitutes more than one bribe, and therefore should be subject to an increase of 2 levels.^[7] The defense, however, should argue that the payment structure was “in essence” a single incident of bribery because it involved a number of installment payments for a single action, and therefore “are to be treated as a single bribe or extortion.”^[8] The offense level can be raised by 4 levels, because it involved more than $10,000.^[9] The government, however, will argue that the loss should be calculated by the amount of profit expected to be received by the contractor, which would likely be more than the $20,000 demanded by the defendants.^[10] After the guidelines calculation is finished, the defendants could be looking at an offense level of more than 20, which translates to a prison sentence of 33-41 months.

---

[1] Chevel Johnson, FEMA Employees Plead Guilty to Bribery, Associated Press (via Houston Chronicle), Apr. 5, 2006.
[2] Id.
[3] Id,
[4] Id.
[5] 18 U.S.C. § 201(a)(1).
[6] U.S. Sentencing Guidelines Manual § 2C1.1(a)(1).
[7] See Id. § 2C1.1(b)(2).
[8] See Id. § 2C1.1 commentary note 2.
[9] See Id. § 2C1.1(b)(2) (incorporating by reference the loss table found in § 2B1.1(b)).
[10] See Id § 2C1.1 commentary note 3.