Of the seven felony charges unveiled Wednesday against the San Francisco Democrat, six - each punishable by up to 20 years in federal prison - were for scheming to deprive his constituents of his "honest services."
The 1988 law that established the crime was worded broadly, and it could have encompassed such commonplace political actions as failing to keep a campaign promise or disclose a conflict of interest, or even a private-sector employee's personal use of the company's e-mail system. But the U.S. Supreme Court, in a 2010 ruling that narrowed the fraud convictions of former Enron executive Jeffrey Skilling, said the law must be interpreted to apply only to bribes and kickbacks - specific exchanges of favors for benefits.
In each case, an FBI affidavit said, the transactions involved interstate phone calls or electronic messages relayed across state lines, a prerequisite for charging Yee under the federal honest-services law rather than California's bribery law.
If charged under state law, Yee might claim he had been entrapped - which, in California, means that the officers' conduct would have induced a normally law-abiding person to commit a crime.
Under federal law, a defendant must also show that, regardless of the officers' actions, he or she wasn't predisposed to break the law before being approached, a virtually insurmountable burden in most cases.
"You have no chance on entrapment," said Robert Weisberg, a Stanford University criminal law professor. The only viable defenses, he said, are "I didn't do it" or "I was misunderstood."
Weisberg said such charges often involve government sting operations, like the FBI's "shrimp scam" investigation of the late 1980s, which netted several California lawmakers for agreeing to do favors for a fictitious shrimp company created by federal agents. In such cases, he said, law enforcement agencies usually "have information that the guy has already solicited or accepted a bribe."At KQED, Scott Detrow notes another FBI case:
FBI raids are on their way to becoming a state Capitol ritual. On Wednesday morning, FBI agents carted boxes of documents out of state Sen. Leland Yee’s offices. Hours later, the San Francisco Democrat sat in federal court, hearing the seven corruption and weapons-trafficking charges he faces. (Click here to read an annotated copy of the federal charges.)
Last month, federal prosecutors announced charges against Sen. Ron Calderon, a Democrat from the Los Angeles area. The FBI raided his office last June.
“When public officials choose to callously betray the trust of the people they serve, and selfishly line their pockets, then it’s up to us to take the steps responsible to make sure we hold these individuals accountable,” said U.S. Attorney Andre Birotte when he announced Calderon’s indictment.
And federal agents have certainly been taking a lot of those steps lately. The two cases feature numerous agents going undercover, posing as shady businessmen and movie producers and bribing lawmakers for official favors. Yee allegedly delivered Senate proclamations, set up meetings with other legislators and made calls to state agencies on behalf of the undercover agents — in addition to allegedly participating in a scheme to help an undercover agent buy weapons. Calderon allegedly pushed to lower a film tax credit threshold he thought would help an agent posing as an independent film producer.
The day agents raided Calderon’s office, Yee warned an associate to “be really, real careful. Got to double check, triple check everything.” Unfortunately for Yee, federal agents were listening in on that conversation.
According to court documents, the FBI spent nearly $70,000 bribing Yee. And the FBI says it delivered nearly $90,000 to Calderon.