Penal Code 641.3 PC - Commercial Bribery Law in California
Most people typically think of criminal bribery in the context of bribing public officials, such as paying off a police officer to "look the other way" or offering a government employee a kickback in exchange for awarding a lucrative government contract.
But bribery happens in the commercial world, too—and in California, it's just as much of a crime. Under Penal Code 641.3 PC, it is a crime for an employee of any company to take a bribe from someone in exchange for leveraging their position for that person's benefit, a crime referred to as "commercial bribery."
Simply put, this statute makes it illegal for an employee to take a bribe from someone in exchange for using their employment position to benefit the other person. Violations can result in felony charges and state prison time.
PC 641.3 says, “(a) Any employee who solicits, accepts, or agrees to accept money or anything of value from a person other than their employer, other than in trust for the employer, corruptly and without the knowledge or consent of the employer, in return for using or agreeing to use his or her position for the benefit of that other person, and any person who offers or gives an employee money or anything of value, under those circumstances, is guilty of commercial bribery.”
Subsection (b) explains that this statute does “not apply where the amount of money or monetary worth of the thing of value is $250 or less.”
“Corruptly” means that the alleged perpetrator intended to injure or defraud their employer, the employer of the person to whom they offered or received something of value or a competitor of any such employer.
If you're convicted of such a crime, you could be sentenced to up to three years in state prison. Let's review this state law in more detail below.
What Does the Law Say?
Under California law, commercial bribery occurs when an employee "solicits, accepts, or agrees to accept money or anything of value" over $250 from anyone other than their employer, "corruptly and without the consent of the employer," in exchange for using their position to benefit the person giving the bribe.
For example, let's say you are an employee of a large computer company, and someone offers you a bribe to give them an "inside track" on new products or access to restricted information.
If you accept the offer and the bribe, Penal Code 641.3 has been violated. Other things to know about this law:
- For purposes of this law, an employer refers to any "corporation, association, organization, trust, partnership, or sole proprietorship." Essentially, any business.
- An employee refers to "an officer, director, agent, trustee, partner, or employee" of that business.
- The criminal act applies to both the giver and the bribe recipient. In other words, if the bribe is offered and accepted, both parties can be charged with the same act of commercial bribery.
To convict you under PC 641.3, prosecutors must prove the following elements:
- You were an employee of a company;
- You solicited or took a bribe valued at more than $250 from someone other than your employer;
- You did so with corrupt intent (meaning, precisely, with intent to defraud or harm the employer or a competitor of the employer); AND
- You used your position to the other party's advantage in exchange; OR
- You were the person offering the bribe under the conditions mentioned above.
What Are Some Examples?
EXAMPLE 1: Jason is an employee of a company looking to add a new wing to their factory and is responsible for hiring the contractor.
One contractor known for subpar work offers Jason $50,000 as an "appreciation fee" for giving him the contract. Jason takes the money and hires the subpar contractor. Both Jason and the contractor can be charged under PC 641.3 PC.
EXAMPLE 2: Darlene is the maître d'at a fine restaurant that takes reservations months in advance. Danny shows up with a party of 4 and hands "Darlene" a $200 "tip" to find them a table. Darlene took the money and agreed.
Neither Darlene nor Danny would be charged with commercial bribery because the value was less than $250, and the action was not intended to harm or defraud the restaurant.
What Are the Related Crimes?
Several California crimes are related to Penal Code 641.3 PC commercial bribery, such as the following:
- Penal Code 137 and 138 PC – bribery of a witness;
- Penal Code 85 and 86 PC – bribery by or of legislators;
- Penal Code 67 and 68 PC – bribery of executive officer;
- Penal Code 92 and 93 PC – bribery of judges and jurors;
- Penal Code 165 PC - bribery of county supervisors.
What Are the Penalties for PC 641.3?
Violations of PC 641.3 can be charged either as a misdemeanor or a felony, depending solely on the valued amount of the bribe or kickback in question:
- If the value is $1000 or less: it will be charged as a misdemeanor, with a maximum penalty of one year in county jail.
- If the value exceeds $1000: it will be charged as a felony, with a maximum penalty of three years in prison.
What Are the Defenses for PC 641.3?
If you are facing charges under PC 641.3, remember that the prosecutors must prove each element of their case beyond a reasonable doubt. If they cannot, then you could be acquitted of the charges.
Thus, the most common defenses employed by California criminal defense attorneys seek to disprove one or more of these elements, discussed below.
Perhaps we can argue that the value of the bribe was less than $250. Regardless of your guilt or innocence in offering/receiving a bribe, if the total value exchanged is less than $250, PC 641.3 does not apply.
Perhaps we can argue that there was no corrupt intent. If you can show that your actions were not intended to harm or defraud the company or its competitors and indeed did not harm them, you can't be convicted of this crime.
Perhaps we can argue that you had your employer's knowledge and consent. If your employer approves the offer, you're not guilty under PC 641.3. This is so employers can't press charges after the fact, even if the company suffered harm.
Perhaps we can negotiate with the prosecutor for reduced charges or persuade them not to file formal criminal charges in the first place, known as a “DA reject.”
You can contact our law firm for an initial case review by phone or using the contact form. Eisner Gorin LLP is located in Los Angeles, California.