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PURPOSE: To provide the opinion of Legal Counsel Division
LCD! on the question of whether a Congressman who
turns down a bribe offer violates any law by failing to
report the offer.
RECOMMENDATION: None, for information only; q
nsenovs 1 dm.Smvs unxmnuvg :§ 9k cnh I I" 8| Public Affs.Director
Exec. AD-Adm.
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SYNOPSIS AND DETAILS: On January 27, 1982, Assistant
Director Monroe, Criminal
Investigative Division CID!, telephonically advised
Assistant Director Mintz, LCD, that the Director requested
an opinion on whether there is any law that requires any of ,.§
the Congressmen who were offered, and refused to accept
bribes during ABSCAM to have reported such offers to the FBI
or Department of Justice. Based upon the facts and law
outlined below, LCD concludes that the simple failure to
report the offer of a bribe violates no law '
On January 29, 1982, this matter was discussed
with SA| L CID, who provided the following
factual ackground. During the ABSCAM investigation, six
Congressmen were contacted by intermediaries and were
proffered money in return for the use of their influence to A
obtain quick entry into the United States for certain P5
foreign nationals. None of the six accepted the bribe b7c
offers, but the manner of the refusals varied slight» , Y =
When interviewed, none of the Congressmen attempted I any
the fact that a bribe offer had been made. The Cong k A '
involved are: - - ""= ?7/"/ >7$437-
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Memorandum to Director from Legal Counsel
RE: ABSCAM
' 1. Representative Edward J. Patten of New Jersey.
Rep. Patten was offered a bribe on one occasion, but Rep.
Patten made no response to the offer and never directly
indicated that he perceived that a bribe offer was being
made. Rep. Patten is no longer in Congress.
~ 2; Representative John P. Murtha of Pennsylvania.
Rep. Murtha, a member of the Committee on Standards of '
Official Conduct, was contacted on several occasions. In
response to the bribe offer, Rep. Murtha stated he would get
"back in touch with the offeror. Rep. Murtha never
recontacted the offeror, and later testified for the Govern-
ment at the trial of Rep. Thompson§and Rep. Murphy. J
3. Senator Larry Pressler of South Dakota. Sen.
Pressler was contacted on one occasion. Sen. Pressler is
the only Congressman who flatly declined to accept the
offer.
4. Representative Peter W._Rodino of New Jersey. ~
Rep. Rodino himself was never personally contacted by FBI
representatives, but on several occasions offers for Rep.
Ib6Rodino s assistance were made to his[:::::::::::::::] b7@[;:::;:;::]and others. Rep. Rodino later disclaimed all
now e ge of any offers being made, and at this point the_
Government cannot prove the offers were communicated to him.
5. Representative Raphael Musto of Pennsylvania.
Rep. Musto was offered a bribe on one occasion and did not
accept. '
6. Representative James Mattox of Texas._ Rep.
Mattox did not accept the offer and later testified as a
defense character witness at the trial of Reps. Thompson and
Murphy. Rep. Mattox testified that he knewihe had been
offered a bribe. - ' -
A review of applicable statutes and regulations
reveals that none of them require the offeree of a bribe to
take any steps toward reporting the offer. Title 18, United
States Code U.S.C.!, Section 201, the general~bribery
statute, and Section 203, the section covering compensation
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~; :25 Q
Memorandum to Director from Legal Counsel
RE: ABSCAM
to Members of Congress, are silent on any such duty. Both
sections target the transfer or agreement to transfer
something of value. _The Ethics in Government Act of 1978,
Pub. L. No. 95-521, 92 Stat. 1824, imposes a duty to report
certain financial activities, but its focus is upon income
which is actually realized. In any event, its reporting
requirements are not directed toward reporting to a law
enforcement agency. Similarly, the rules of ethics for both
the House of Representatives and the Senate only prohibit
the receipt of unauthorized income and impose no duty to
report improper offers. Rules of the House of
Representatives, Sections 939 and 940, H.R. Doc. No. 95-403,
95th Cong., 2d Sess. 631-652 978!; Senate Manual, Standing
Rules of the Senate, Sections 42, 43, and 45, S. Doc. No.
95-1, 95th Cong., lst Sess. 68-93, 96-101, 977!.
As a general rule, persons are not required to
report offenses they may know about, and mere failure to
notify an officer is no crime. R. Perkins, Criminal Law 517
d ed. 1969!. Punishment under modern criminal law for
mere nondisclosure of knowledge of a crime is considered to
be wholly inconsistent with American law and procedure.
l§., 516. A rule to the contrary would allow law
enforcement to target and prosecute individuals almost
regardless of what action they took. If a Congressman
accepted a bribe offered by an undercover officer, then he
could be prosecuted for bribery. If, however, he did not
accept it, a contrary rule would allow prosecution if he
took no action at all. Apparently only one jurisdiction has
made it a criminal offense to fail to report an offer of a
bribe. §gg, Perkins, supra, 480. The federal Misprison of
Felony statute, Title 18, U.S.C., Section 4, comes closest
to the facts at hand here, but still does not apply. That
section requires not only failure to disclose knowledge of a
federal felony, but also some affirmative act of concealment
beyond mere failure to report the felony. U.S. v. Johnson,
546 F.2d 1225 th Cir. 1977!; U.S. V. Daddano, 432 F.2d
1119, 1124 th Cir. 1970!, cert. denied, 402 U.S. 905, 91
S.Ct. 1366, 28 L.Ed. 2d 645 971!. Under the facts in the
abovedescribed situations, no affirmative act of
concealment is present, and therefore one element of the
offense is lacking.
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