U.S.S.G. §2B4.1

(a) Base Offense Level: 8

(b) Specific Offense Characteristics

(1) If the greater of the value of the bribe or the improper benefit to be

conferred (A) exceeded $2,500 but did not exceed $6,500, increase by

1 level; or (B) exceeded $6,500, increase by the number of levels from

the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.

(2) (Apply the greater) If—

(A) the defendant derived more than $1,000,000 in gross receipts

from one or more financial institutions as a result of the offense,

increase by 2 levels; or

(B) the offense substantially jeopardized the safety and soundness of

a financial institution, increase by 4 levels.

If the resulting offense level determined under subdivision (A) or (B)

is less than level 24, increase to level 24.

(c) Special Instruction for Fines ― Organizations

(1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base

Fine), use the greatest of: (A) the value of the unlawful payment;

(B) the value of the benefit received or to be received in return for the

unlawful payment; or (C) the consequential damages resulting from

the unlawful payment.

Commentary

Statutory Provisions: 18 U.S.C. §§ 215, 220, 224, 225; 26 U.S.C. §§ 9012(e), 9042(d); 41 U.S.C.

§§ 8702, 8707; 42 U.S.C. §§ 1395nn(b)(1), (2), 1396h(b)(1),(2); 49 U.S.C. § 11902. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1. This guideline covers commercial bribery offenses and kickbacks that do not involve officials of

federal, state, or local government, foreign governments, or public international organizations.

See Part C, Offenses Involving Public Officials, if any such officials are involved.

2. The “value of the improper benefit to be conferred” refers to the value of the action to be

taken or effected in return for the bribe. See Commentary to §2C1.1 (Offering, Giving, Soliciting,

or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of

the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference

with Governmental Functions).

3. “Financial institution,” as used in this guideline, is defined to include any institution described

in 18 U.S.C. §§ 20, 656, 657, 1005–1007, and 1014; any state or foreign bank, trust company,

credit union, insurance company, investment company, mutual fund, savings (building and loan)

association, union or employee pension fund; any health, medical or hospital insurance association; brokers and dealers registered, or required to be registered, with the Securities and Exchange Commission; futures commodity merchants and commodity pool operators registered, or

required to be registered, with the Commodity Futures Trading Commission; and any similar

entity, whether or not insured by the federal government. “Union or employee pension fund” and

“any health, medical, or hospital insurance association,” as used above, primarily include large

pension funds that serve many individuals (e.g., pension funds of large national and international

organizations, unions, and corporations doing substantial interstate business), and associations

that undertake to provide pension, disability, or other benefits (e.g., medical or hospitalization

insurance) to large numbers of persons.

4. Gross Receipts Enhancement under Subsection (b)(2)(A).—

(A) In General.—For purposes of subsection (b)(2)(A), the defendant shall be considered to

have derived more than $1,000,000 in gross receipts if the gross receipts to the defendant

individually, rather than to all participants, exceeded $1,000,000.

(B) Definition.—“Gross receipts from the offense” includes all property, real or personal,

tangible or intangible, which is obtained directly or indirectly as a result of such offense.

See 18 U.S.C. § 982(a)(4).

5. Enhancement for Substantially Jeopardizing the Safety and Soundness of a Financial

Institution under Subsection (b)(2)(B).—For purposes of subsection (b)(2)(B), an offense

shall be considered to have substantially jeopardized the safety and soundness of a financial

institution if, as a consequence of the offense, the institution (A) became insolvent; (B) substantially reduced benefits to pensioners or insureds; (C) was unable on demand to refund fully any

deposit, payment, or investment; (D) was so depleted of its assets as to be forced to merge with

another institution in order to continue active operations; or (E) was placed in substantial jeopardy of any of subdivisions (A) through (D) of this note.

6. If the defendant is convicted under 18 U.S.C. § 225 (relating to a continuing financial crimes

enterprise), the offense level is that applicable to the underlying series of offenses comprising the

“continuing financial crimes enterprise.”

Background: This guideline applies to violations of various federal bribery statutes that do not involve governmental officials. The base offense level is to be enhanced based upon the value of the

unlawful payment or the value of the action to be taken or effected in return for the unlawful payment,

whichever is greater.

One of the more commonly prosecuted offenses to which this guideline applies is offering or accepting a fee in connection with procurement of a loan from a financial institution in violation of

18 U.S.C. § 215.

As with non-commercial bribery, this guideline considers not only the amount of the bribe but

also the value of the action received in return. Thus, for example, if a bank officer agreed to the offer

of a $25,000 bribe to approve a $250,000 loan under terms for which the applicant would not otherwise

qualify, the court, in increasing the offense level, would use the greater of the $25,000 bribe, and the

savings in interest over the life of the loan compared with alternative loan terms. If a gambler paid a

player $5,000 to shave points in a nationally televised basketball game, the value of the action to the

gambler would be the amount that he and his confederates won or stood to gain. If that amount could

not be estimated, the amount of the bribe would be used to determine the appropriate increase in

offense level.

This guideline also applies to making prohibited payments to induce the award of subcontracts

on federal projects for which the maximum term of imprisonment authorized is ten years. 41 U.S.C.

§§ 8702, 8707. Violations of 42 U.S.C. § 1320a-7b involve the offer or acceptance of a payment to refer

an individual for services or items paid for under a federal health care program (e.g., the Medicare and

Medicaid programs).

This guideline also applies to violations of law involving bribes and kickbacks in expenses incurred for a presidential nominating convention or presidential election campaign. These offenses are

prohibited under 26 U.S.C. §§ 9012(e) and 9042(d), which apply to candidates for President and Vice

President whose campaigns are eligible for federal matching funds.

This guideline also applies to violations of 18 U.S.C. § 224, sports bribery, as well as certain

violations of the Interstate Commerce Act.

Subsection (b)(2)(A) implements, in a broader form, the instruction to the Commission in section 961(m) of Public Law 101–73.

Subsection (b)(2)(B) implements the instruction to the Commission in section 2507 of Public

Law 101–647.