14.5: End-of-Chapter Material

Summary

Bribery undermines our trust in government. Bribery is offering or agreeing to offer a benefit to a public servant with the intent that the public servant will alter their official decision. A public servant is guilty of Receiving a Bribe if the public servant accepts (or offers to accept) a benefit to alter their official decision. The term “public servant” includes any state government employee but does not include jurors, witnesses, or private employees working with the state. Jurors and witnesses are prohibited from accepting bribes but under a different statute. Just as it is illegal to accept a bribe, it is illegal to fail to report a bribe. Some low-level, de minimis gratuities are excluded from the criminal code and are treated under the respective ethics rules instead. A public servant can also commit the crimes of official misconduct and misuse of confidential information. Such crimes do not require the exchange or acceptance of a benefit.

Truthful testimony is essential to our legal system and those who lie under oath erode our belief in that system. Perjury occurs if the person knowingly makes a false sworn statement. The statement must be objectively false, and the person must know that the statement is false. The term “statement” is broadly defined and does not require the statement to be made during a court proceeding. A statement in an affidavit or made on a document under the “penalty of perjury” is sufficient for purposes of perjury. If a person makes two irreconcilably inconsistent statements under oath to the degree that one of the statements must necessarily be false, the person has committed the crime of perjury by inconsistent statements. A person can avoid criminal liability for perjury if the person retracts the false statement during the same proceeding. Retraction is an affirmative defense and is extremely limited in scope. Unsworn falsification is similar to perjury but occurs when a person makes an unsworn false statement to a public servant on an application for a benefit. Unsworn falsification is generally a misdemeanor. If a person makes a knowingly false statement on an application for the Alaska Permanent Fund Dividend, the crime is aggravated to a felony.

Obstruction of justice crimes interfere with the orderly administration of justice. Interference with official proceedings is the more serious offense within this category. It criminalizes threatening a witness or juror and bribing a witness or juror. These statutes can raise constitutional concerns if they target protected speech. Recall, however, that the First Amendment does not protect against “true threats”. The code also criminalizes witness tampering. If a person induces a witness to testify falsely, offer misleading testimony, unlawfully withhold testimony, or causes the witness to be absent from the proceeding, the person is guilty of witness tampering. Providing a witness with legal advice about the court process or preparing a witness to testify is not witness tampering.

Finally, tampering with physical evidence is a felony in Alaska. Evidence tampering is a specific intent crime. The crime is committed in one of three ways: first, a person may not destroy, mutilate, conceal, or remove physical evidence with the intent to interfere with a criminal investigation; second, a person may not make, present, or use false evidence with the intent that it will be used in a criminal investigation; finally, a person may not use or threaten the use of force to prevent the production of physical evidence during a criminal investigation. Tampering with physical evidence is always a felony offense regardless of the severity of the underlying offense to which it relates.

Answers to “You be the Judge” Exercises

From “You be the Judge” in Bribery and Related Offenses

• In State v. Mullin, 778 P.2d 233 (Alaska App. 1989), the Alaska Court of Appeals ruled that Mullin was not a public servant under the bribery states. Under the Rule of Lenity – that is, ambiguous criminal statutes must be interpreted in favor of the accused – the public servant definition did not include employees of private companies working under a contract with the state. Since the statutory definition of “public servant” was not sufficiently clear, private employees must be excluded. You can access the opinion using Westlaw Campus Research through the Consortium Library at the University of Alaska Anchorage using your UA credentials.

From “You be the Judge: William” in Obstruction of Justice

• In Melguin v. Hames, 38 F.3d 1478, 1484 (9th Cir. 1994), the Ninth Circuit Court of Appeals noted that the defendant’s threats “to kill things” were directed at a state judicial officer, which squarely falls within the proscribed conduct of AS 11.56.510(a)(1)(D). Such threats were not mere “political hyperbole”. Although the court must distinguish between true threats and protected speech, context matters. In this case, a threat to “kill the things” made in a private communication to a state judicial officer with the intent to obtain an immediate jury trial, was a true threat (as opposed to “crackpot communication” that should be disregarded by the Court).

From “You be the Judge: Boggess” in Obstruction of Justice

• In Boggess v. State, 783 P.2d 1173 (Alaska App 1989), the Court of Appeals found that Boggess’s instruction to his wife for her to plead the Fifth Amendment or break down and cry if asked about incriminating information was sufficient to establish that Boggess was guilty of witness tampering. The jury could have reasonably concluded that Boggess was attempting to persuade his wife that she should testify misleadingly or illegally withhold testimony.

From “You be the Judge: Anderson” in Obstruction of Justice

• In Anderson v. State, 123 P.2d 1110 (Alaska App. 2005), the Court of Appeals held that the act of tossing the handgun, the magazine, and the ammunition from the car did not satisfy the actus reus of evidence tampering. According to the court, the crucial inquiry is whether the defendant’s action disguises the evidentiary value of the article – that is, whether the defendant disposed of the evidence in a manner that destroyed it or that made its recovery substantially more difficult or impossible. Under the facts of Anderson, the defendant’s act of tossing the handgun, magazine, and ammunition out of the car did nothing to disguise the evidentiary value of the items, especially when the defendant did it in the sight of the police. See id. at 1119.

Answers to End of Chapter Exercises

From Perjury and Related Offenses

1. As to John, John has committed unsworn falsification in the second degree. See AS 11.56.210(a)(1). He made a false statement in an application for a government benefit, the hunting license at the reduced, resident fee. Because there was a motive for the false statement, it is fair to infer that he acted with the intent to mislead a public servant. As to Mary, she made a false statement but there was no advantage to her to making the false statement (it would not have led to a benefit), so it is unlikely that a jury would infer that she acted with an intent to mislead a public servant. Instead, it is fair to conclude that she acted out of mistake or, more likely, vanity.
2. Don has committed the crime of perjury. See AS 11.56.200(a). He made a false sworn statement that he did not believe to be true. There is no requirement that the sworn statement be made in court.

From Obstruction of Justice

1. Frink has committed the crime of interference with official proceedings, under 11.56.510(a)(1)(A) for threatening the witness with intent to influence the witness not to testify – that is, Frink threatened Bobby so he would not show up, testify, or cooperate with the police. As the legislative commentary makes clear, the term “witness” includes anyone the suspect “believes may be called as a witness” in the future. It is irrelevant that the detectives did not know Bobby’s identity.
2. Investigator Rick has not committed a crime. Tampering with a witness under AS 11.56.540 prohibits a person from inducing or attempting to induce a witness to testify falsely. Investigator Rick has reason to believe that Bobby will be a witness in the civil action. Under these facts, Investigator Risk did not attempt to induce false or misleading statements or testimony.