Sunday, October 30th, 2011

2B, Or Not 2B?

United States v. Bahel, No. 08-3327 (2d Cir. October 26, 2011) (Pooler, Raggi, CJJ, Korman, DJ)

Sanjaya Bahel, a chief procurement officer at the United Nations, was convicted of honest services fraud and bribery offenses in connection with a kickback scheme in which he improperly steered lucrative U.N. procurement contracts to a friend, in exchange for money. This long opinion covers a lot of very fact-specific issues. This post focuses only on the sentencing claim.

Both U.S.S.G. § 2B1.1 and U.S.S.G. § 2C1.1 can apply to fraud convictions. The difference is that § 2C1.1 applies to specifically to “public officials” and carries a higher base offense level. The district court sentenced Bahel under § 2C1.1, over objection; on appeal, and the circuit rejected his claim that the court should have used § 2B1.1.

Under the relevant definition, which is to be “construed broadly,” Bahel was a “public official.” That he was employed at an international organization does not take him out of § 2C1.1. Indeed, the commentary to § 2B4.1 specifically indicates that that “officials” of, inter alia, “public international organizations” are covered by Chapter 2, Part C. And other guideline provisions support this analysis. For example, the commentary to § 2C1.1 defines “public official” to include anyone who is “in a position of public trust with official responsibility for carrying out a government program or policy.”

As Chief of Commodity Procurement, Bahel was clearly a “high ranking U.N. official” and not the “baggage porter” with a “ministerial job” that he compared himself to, in reliance on a 1921 Supreme Curt decision. Rather, Bahel’s position was “closer to that of a foreign diplomat, political party official, or a tribal leader, all of whom are expressly covered by” § 2C1.1, not § 2B1.1.

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