2423. Form Indictment -- Solicitation And Receipt Of Bribery And Graft Affecting Employee Pension Or Welfare Plan In The Private Sector -- (18 U.S.C. 1954)

THE GRAND JURY CHARGES:

1. At all times material to this Indictment the defendant ______________, was (a)n [administrator/officer/trustee/ custodian/counsel/agent/employee of the (name of affected plan) ] [officer/counsel/agent/employee of (name of sponsoring employer) , an employer whose employees were covered by (name of affecting plan) ,] [officer/counsel/agent/employee of the (name of sponsoring union , an employee organization, whose members were covered by the (name of affected plan) ] [person who provided benefit plan services to the (name of affected plan) ,] [officer/counsel/agent/employee of (name of service provider), an organization which provided benefit plan services to the (name of affected plan) ,], an employee [pension/welfare] benefit plan subject to Title I of Employee Retirement Income Security Act.*
2. That on or about (date) in the __________ District of ______________ the defendant _________________, did solicit and receive and agree to receive a fee, kickback, commission, gift, loan, money, and thing of value, (thing of value or approximate amount of money) from (payor) [because of] [and] [with intent to be influenced]** with respect to his/her actions, decisions, and other duties relating to [a] question[s] and matter[s] concerning the (name of affected plan) , that is, (plan matter connected to bribery or graft payment) .

All in violation of Title 18, United States Code, Sections 1954 and 2.

* 29 U.S.C. 1001-1169; see definitions at 29 U.S.C. 1002 and 1003; certain employee benefit plans are omitted from coverage including plans which federal or state governments fund or administer for their employees.

** Although the "bribery," or "intent to be influenced" provision, has a more difficult burden of proof than the "graft," or "because of" provision, it carries no higher penalty. Omission of the "bribery" language should not affect the admissibility of evidence indicating a "quid pro quo" inasmuch as a connection between the prohibited payment and the recipient's actions affecting plan matters is required for "graft." See United States v. Soares, 998 F.2d 671 (9th Cir. 1993) and cases cited in that decision.

[cited in JM 9-134.010]