1. Ethics: A Peek Inside the Government’s Playbook
John L. Brownlee, Esq. – Panelist
Anthony “Tony” F. Troy, Esq. – Panelist
J. Neal Insley, Esq. - Moderator

2. The Honest Services Act
18 U.S.C. § 1341 (Frauds and swindles):
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.

3. The Honest Services Act
18 U.S.C. § 1343 (Fraud by wire, radio, or television):
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

4. The Honest Services Act
“Scheme or artifice to defraud” defined by Congress in 1988 as “a scheme or artifice to deprive another of the intangible right of honest services” (18 U.S.C. § 1346)
The four elements to the Honest Services Act:
1) a scheme to defraud that includes a material deception;
2) with the intent to defraud;
3) while using the mails, private commercial carriers, and/or interstate wires in furtherance of that scheme; and
4) that result in the deprivation of the intangible right of honest services.

5. The Hobbs Act
18 U.S.C. § 1951 : US Code - Section 1951: Interference with commerce by threats or violence.
a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

6. The Hobbs Act The Act defines extortion as:
“Obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
The three elements of extortion under the Hobbs Act:
1) That Defendant took property from victim;
2) The defendant did so knowingly and willfully by extortion; and
3) That as a result of defendant’s actions, interstate commerce was obstructed, delayed, or affected.

7. Federal Obstruction
18 U.S. Code § Statements or entries generally (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.

8. Federal Obstruction
The four elements under Section 1001's statutory terms: 1) falsifies, conceals or covers up by any trick, scheme or device a material fact; 2) makes any false, fictitious or fraudulent statements or representations; 3) makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry; and 4) the item at issue was material.

9. Federal Obstruction
For the acts to be criminal in nature, there must be an affirmative response to each of the following questions: 1) Was the act or statement material? 2) Was the act within the jurisdiction of a department or agency of the United States? and 3) Was the act done knowingly and willfully?

10. Federal Investigative Process
Typically begins with a complaint or information provided to or obtained by federal law enforcement.
Some sources of complaints can come from:
Media accounts, social media;
Request from State or local law enforcement agencies;
Internal sources.

11. Federal Investigative Process
Federal Grand Juries: How and why they are impaneled Subpoena power The actual investigation Witness statements: interviews/interrogations. Search warrants/gathering evidence

12. Internal Investigations
Why and when an internal investigation should be done
To determine facts necessary to make a workplace decision
Objectivity is a critical component to the overall process
Investigation should be conducted in a prompt manner to preserve relevant evidence and enable witnesses to more accurately recall the facts

13. Internal Investigations
Why and when an internal investigation should be done
Entire process should be documented, including interviews, evidence and any action that is taken
The Five W’s
What happened?
When did it happen?
Where did it happen?
Who was involved?
Why did it happen?
Promises of confidentiality should be avoided; explain who you represent
Communicate that there will be no retaliation for registering a complaint or for participating in the investigation

14. Internal Investigations
Who should conduct the investigation
Attorneys, more than one, should conduct any interviews
Outside counsel helps protect confidentiality
Interview should be broad, open-ended questions that require more than “yes” or “no” responses
Give the witness an opportunity to describe events
Follow-up should include asking more specific questions to clarify what was said

15. Internal Investigations
Who should conduct the investigation
At the conclusion of the investigation, a written report should be prepared that documents:
steps followed,
information obtained,
decisions reached,
actions taken, and
other pertinent information

16. Synopsis of legal landscape
Quid pro quo: this for that, or this for the possibility of that? Future acts vs. Immediate Acts. What is an official act? Official acts of Office vs. Acts not explicitly assigned by law. What about discrepancies between state and federal law? State Conflict of Interest laws vs. The Hobbs Act and Honest Services Act.

17. Questions?

18. Thank You. John L. Brownlee Anthony “Tony” F. Troy
Holland & Knight, LLP th Street N.W. Suite 1100 Washington, District of Columbia
Eighth and Main Building 707 East Main Street Suite Richmond, VA