" 1911. Receiver mismanaging property

"Whoever, being a receiver, trustee, or manager in possession of any property in any case pending in any court of the United States, willfully fails to manage and operate such property according to the requirements of the valid laws of the State in which such property shall be situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof, shall be fined not more than $10,000 or imprisoned not more than one year, or both and shall be replaced as receiver, trustee, or manager and be disqualified from holding any such position or any office of honor, trust, or profit under the United States." SEC. 5. Section 190 of the Revised Statutes (5 U. S. C. 99) and section 113 of the Renegotiation Act of 1951 (Public Law 9, 82nd Congress) are hereby repealed.

SECTION E

Memorandum on suggested bill to amend criminal laws.

MEMORANDUM ON PROPOSED AMENDMENTS OF CHAPTERS 11, 15, 23, and 93 of TITLE 18, UNITED STATES CODE

201. Offer to officer or other person

$202. Acceptance or solicitation by officer or other person

GENERAL

The sections would be greatly broadened and refined, Definitions of offenses, and application of the sections, would be extended, and penalties made heavier. The sections would be fully conformed for the first time. The briber and the bribed would be put on the same footing. As the Comptroller General pointed out at hearings on Senate Resolution 21, no one was ever bribed without a briber. Also, to the extent practicable, all officers and employees are brought under these sections so as to subject them to reasonably uniform requirements of conduct. Necessary exceptions are spelled out, but no preferential treatment is given them. The new language would substantially raise the standard of conduct required of public officials. The new standards would approximate those for Members of Congress more closely than has been the case, but would remain somewhat less stringent.

SPECIFIC CHANGES

Added language would include indirect as well as direct bribery, and the overt act intended or designed to be or lead thereto.

The quid pro quo would be extended to other considerations just as useful to bribers as hard cash. They are defined as any "emoluments, fee, profit, advantage, benefit, position, future position, employment, future employment, opportunity, future opportunity, advancement [or] future advancement."

Application of the sections would be extended to officers and employees of Members of Congress and congressional committees. It would be extended to revenue and customs people and persons connected in any capacity with the office of United States attorney or United States marshal-classes previously given special treatment by sections 203, 211, 212, and 213 of title 18 United States Code, which sections would be repealed. See Curione et al v. United States (11 F.2d 471). Also, it would include a gift or offer to another with the consent, connivance, or concurrence of an officer or employee, as is now the case with respect to Members of Congress.

Now, proof is required that the gift or offer was with intent to influence the decision or action of the direct recipient thereof in a matter in his official jurisdiction. This would be greatly widened. It would include, also, the gift or offer and the like to an officer or employee because of, for attention to and services on, any such matter, or with intent to influence him or induce him to influence another officer or employee or a Member of Congress. Under new language, the gift or offer, etc., would be a crime if it was with intent to induce the recipient to influence another to commit, aid, collude in, or allow any fraud on the United

States.

Penalties would be greatly increased. A flat $5,000 fine would be added to the present one. Briber and bribed would be forever barred from office or service in any agency or under Congress. They would be barred from participating in all important Federal business activities.

New language would stipulate that offenses and penalties in these sections are separate from and in addition to special ones in other sections.

§ 203. Offer to Member of Congress

§ 204. Acceptance or solicitation by Member of Congress

As with preceding sections, these sections would be broadened and refined. They would be substantially conformed with each other. There would be technical variances from sections 201 and 202, necessary to suit these sections to Members of Congress in place of officers and employees.

§ 205. Offer to judge or judicial officer

This already strong penal section would be broadened, to an extent not inconsistent with its application to the judiciary. The objective, of course, would be to preserve and continue the exceptional standards of conduct required of persons dealing with the judiciary. The section as changed would apply generally to persons dealing with the judiciary broader definitions, tests, standards, and penalties, just as broader tests have been applied in other sections to people dealing with Members of Congress or officers and employees-along with the special ones at present applicable to dealings with the judiciary.

§ 206. Acceptance by judge

The present penalties would be stiffened by adding thereto disbarment from practice before any Federal court, commission, committee, or agency, and disqualification from participating in any important business activities of the Government.

§ 207. Acceptance or solicitation by judicial officer

The section would be broadened to apply to judicial officers the broader definitions, tests, standards, and penalties, in the same manner as those are set out for officers and employees in section 202, with appropriate language suiting them to one in the capacity of a judicial officer. The major substantive difference would be the additional penalty of disbarment from practice, which is taken from the preceding section covering judges.

§ 208. Offer to witness

§ 209. Acceptance by witness

The sections would be substantially conformed, and apply equally to briber and bribed. Witnesses before congressional committees, commissions, or agencies would be clearly covered by the section. The present $2,000 flat fine would be increased to $5,000, and there would be added thereto a fine of three times the amount of the bribe. The maximum term of imprisonment would be increased from 2 to 3 years. Other added penalties would be disqualification from Federal office or service, and barring from participation in important business activities of the Government. In short, the parties to bribery in these cases would be put in substantially the same respective positions as are those in cases covered by sections 201 and 202.

§ 210. Offer to procure appointive public office

§ 211. Acceptance or solicitation to obtain appointive public office No change except in numbering of sections.

§ 212. Procurement of contract or other thing by officer or Member of Congress Officers and employees of all agencies, or of Congress or its committees, would be brought under the section. Asking, demanding, exacting, soliciting, or seeking any money or thing of value would be made a crime, along with actual receipt thereof as now provided. Definition of the res procured would be extended far beyond the present "contract,' to include any "loan, grant, award, subsidy, license, right, permit, franchise, use, authority, privilege, service, benefit, product, certificate, ruling, decision, opinion, or rate schedule.'

All of the above would apply to briber and bribed alike, as in other sections. Added penalties would be an increase from 2 to 3 years in the maximum term of imprisonment, disqualification for membership in Congress or working for either House or any committee thereof, and barring from receipt or award of anything with respect to which a penalty is prescribed in the section.

§ 213, 214, 215, 216, 217, and 218

No change except renumbering of sections

§ 219. Voiding transactions in violation of chapter, and recovery by United States This section would give the President, and agency heads to whom he may delegate the authority, the right (permissive) to declare void any transaction_consummated or thing done in violation of chapter 11 of title 18, United States Code, and to recover, besides any penalty, whatever had been put out by the Govern

ment.

The above section numbers 203 et seq. are new ones, made necessary by the repealer of old sections numbered 203, 211, 212, 213, which no longer are necessary by virtue of broadening of the scope of sections 201 and 202 to include classes of officers and employees now given special treatment in the sections to be repealed.

CHAPTER 15

$281. Compensation to Members of Congress, officers, and others in matters affecting the Government.

The section would more explicitly cover officers and employees of Congress, of its committees, and of individual Members.

While it may be implicit therein, the section now makes no specific provision (as is found in sec. 283, for example) for receipt of lawful compensation. Such specific provision would be supplied by adding before the prohibition the modifying clause "otherwise than as provided by law for the proper discharge of his official duties."

Present law covers only receipt or agreement to receive compensation. This would be widened to include any asking, demanding, exacting, soliciting, or seeking of such compensation.

Matters in which the United States is interested would be further defined by specific reference to "cause, action, hearing, demand, application, request, petition, motion, complaint, appeal, proposal, [and] invitation" along with the ones now in the law.

The second paragraph of the section, exempting retired officers of the Armed Forces from the application thereof except for representation of others in the sale of anything to their own agencies, would be stricken, along with the last paragraph exempting members of the District of Columbia National Guard and others specially excepted by act of Congress. The exemptions would be rewritten separate and apart from any exceptions thereto in a new section 284 entitled "Exemptions." Exceptions to these exemptions would be combined with all corresponding provisions of chapter 15, and materially changed and extended, in a new section 285, described hereinafter.

§ 283. Officers and employees interested in claims [against] and other matters affecting the Government

The section would be extended to officers and employees of individual Members of Congress and of congressional committees. The existing prohibition on acting as agent or attorney for a claim against the United States would be widened to include "any cause, action, proceeding, demand, complaint, appeal, or proposal" in or before any agency or congressional committee-conforming generally to proposed changes in section 281. "Advancement" has been inserted to strengthen the language on aiding in "prosecution or support" thereof.

Disqualification from holding office of honor, trust, or profit under the United States has been added to the present penalties.

The last two paragraphs, with their special exemptions and exceptions thereto, would be stricken for the same reasons pointed out above under section 281.

§ 284. Exemptions

As pointed out in explaining section 281, above, this section provides specific exemptions to the application of sections 281, 282, and 283. It does not affect the proposed new section 285.

§ 285. Disqualification of former officers and employees in matters connected with former [duties] agencies.

This section would replace and greatly broaden the present section 284 and section 99 of U. S. Code, chapter 5.

As shown in the title, matters connected with agencies, rather than just with a person's duties, would be the focal point.

Two broad, general categories would be established for treating dealings of former Federal personnel with the Government. The first, for retired personnel,

would be the broader, and would bar such personnel from virtually all dealings for others before their former agencies. The second, for personnel separated other than by retirement, would be divided again into two subrules: One would be absolute, regarding such personnel dealing with their former agencies on matters with which they were directly connected before separation; the other would be a time-limit prohibition on top-level officers, subject to exceptions "otherwise specifically provided by law," on dealings with the agency (regardless of the former employee's connection with that particular matter) involving any types of agency activities.

An absolute and perpetual ban would be placed on retired civilian and military officers and employees acting as agents or attorneys, or appearing for or representing, anyone, in or before their former agencies in connection with certain types of agency activities. Activities subject to the ban would be specified in new language as "any contract, claim, sale, purchase, loan, borrowing, subsidy, franchise, license, permit, use, right, authority, privilege, benefit, ruling, decision, opinion, rate schedule, collection, assessment, tax, charge, payment, or expendi ture" within the agencies' jurisdiction. These are deemed to include all of the more important agency activities.

Civilian personnel or military officers who serve 180 or more days in any 12month period and are separated for any reason but retirement likewise would be put under an absolute and perpetual ban. However, unlike the ban on retired people, ones separated would be thus banned from transacting business with their former agencies only on a matter with which they had been directly connected before separation. The ban would extend, though, to direct or indirect transaction by any separated officer or employee himself, by any corporation, firm, company, or association he dominates or controls, or by a spouse or anyone else in trust for him or for his use, benefit, or account.

Such separated-not retired-personnel of rate GS-15 and above, would be under a special, 2-year ban, also on direct or indirect transaction of business with their former agencies involving "any contract, claim, sale, purchase, loan, borrowing, subsidy, franchise, license, permit, use, right, authority, privilege, benefit, ruling, decision, opinion, rate schedule, collection, assessment, tax, charge, payment, or expenditure" in the agency's jurisdiction. In other words, this 2-year ban on separated officers and employees would cover the same ground as does the perpetual ban on retired officers and employees.

The penalties in the old section 284 would be made applicable to all offenses provided for in the proposed new section 285 which would replace that old section. Appropriate renumbering would be necessary for the present sections 285 through 291; they would become sections 286 through 292.

§ [285] 286. Taking or using official papers [relating to claims]

This is a renumbered section 285, considerably broadened.

The old section applied only to the taking or using of papers relating to claims against the United States. The new one would extend to anyone who causes, aids, secures, or obtains such taking and carrying away. New language would penalize one who seeks or endeavors to consummate such taking or carrying away or to cause, aid, secure, or obtain the same. It would penalize a Government officer or employee responsible for the safekeeping of official papers and the like who willfully permits such taking and carrying away.

The new language would be extended far beyond present coverage of specific papers related to claims or money demands on the United States. It would include under the same penalty such specific papers, and additional things such as any contract, letter, memorandum, writing, or correspondence or any evidence, infor mation, or material of any kind, which is part of or necessary to the complete record of the official transaction or business concerned or which was prepared, fitted, or intended to be used or presented in support thereof or in connection therewith.

In short, the proposed amendments would be designed to prevent the unauthor ized removal, or attempted removal, from its proper public repository of any matter whatever concerning official business of the United States.

§ 293. Reporting compensation for representation in or before agencies

This section would require, under criminal penalty for failure to do so, reports at twelve-month intervals to each agency concerned by (1) anyone spending more than $10,000 in the aggregate for representation and the like in or before all agencies, and (2) anyone receiving more than $10,000 in toto in connection with such representation or the like, whether he keeps it all or passes some of it on to others. The reports would have to show what made up the expenditures

or

receipts, as the case might be, by and to whom paid, what went for salaries, fees, commissions, expenses, gifts, donations, entertainment, or other thing, and any other data needed reasonably to inform the agencies of what goes on in this field. The proposed new section, along with the next one, undoubtedly would have a deterrent effect on any improprieties or excesses.

§ 294. Docket for representation in or before agencies

Each agency would be required to set up a registration docket wherever it performs its assigned tasks.

Each person dealing with an agency would have to register, showing his capacity and whom he represents, if anyone, under penalty (misdemeanor) for failure to do so. The same penalty would apply to any Government officer or employee who willfully causes or aids such failure, or who grants an exemption from the requirement to register, otherwise than in purpose discharge of his official duties.

CHAPTER 23

§ 431. Contracts by Members of Congress [;], officers and thus, with Government Top ranking civilian executive officers, and all commissioned officers on active duty, would be brought under the same ban as now applied to Members of Congress. All officers and employees would be prohibited from entering into transactions with their own agencies.

The subject matter of the section would be extended beyond the bare words "contract made or entered into" to include, also, any "agreement, sale, purchase, loan, subsidy, franchise, license, or permit, * * awarded or granted."

*

Present language on voiding of contracts and recovery of monies under this section would be adapted to cover, also, the new subject matter. It would be broadened to cover recovery of anything "paid, given, or transferred by the United States * * * in connection therewith" as well as "money advanced * * * in consideration thereof."

§ 432. Officer or employee contracting or having other dealings with Member of Congress or other officer or employee

The ban on making or entering into contracts would be extended to any award or grant thereof and to such additional specific subject matter as any "agreement, sale, purchase, loan, subsidy, franchise, license, or permit."

Present bans on such dealings by officers and employees with Congressmen would be extended to such dealings with top civilian executives and with all commissioned officers.

§ 433. Exemptions with respect to certain contracts

This section would be conformed to sections 431 and 432, which its exemptions delimit, by adding the words "sale, purchase, subsidy, franchise, license, or permit."

One important substantive change would be the insertion of the words "after reasonable competition" as a condition precedent to exemption applying to any corporation accepting a contract or the like which is spoken of in sections 431 and 432.

Another substantive change would be the deletion of the exemption, now in the section, for advances, loans, discounts, purchase or repurchase agreements, releases, etc., under the Reconstruction Finance Corporation Act.

Reference to the Home Owners Loan Act of 1933 would be deleted as no longer needed, since HOLC is in liquidation and no new loans are being made. § 434. Interested persons acting as Government agents

The present language is confined to a ban on anyone who is an officer or agent of, or interested in the profits of, any corporation, joint stock company, or association, or of any firm, partnership, or other business entity, acting on behalf of the Government in dealings with such entity.

The new language would by definition extend the ban to cases of anyone who either himself, or through any other business entity which he controls or dominates, or spouse or other person for him, is interested in the profits of a business entity doing business with the Government. The definition of business entity would be widened to include specifically proprietorships along with corporations, joint stock companies, or associations, and firms or partnerships.

Existing penalties would be greatly strengthened. Offenders would be disqualified (1) from ever holding office under the United States and (2) from ever participating, except as otherwise specifically provided for by law, in the more important business activities of the Government.