Menendez Bribery Trial Offers Chance to Revisit ‘Dual Intent’

Bloomberg Law

Authored Article


New Jersey Sen. Robert Menendez (D), his wife, Nadine, and two businessmen are scheduled to face trial on bribery charges on May 6. They’ll become the latest example where the dual intent, or mixed motive, concept turns the reasonable doubt standard on its head by essentially requiring defendants to prove their innocence.

The businessmen allegedly gave over $500,000 in cash, gold bars worth over $100,000, home furnishings, a luxury car and other items to the senator and his wife for corrupt purposes. The men allegedly provided these benefits to secure Robert Menendez’s agreement to take action to protect and enrich them, and to benefit the government of Egypt.

While the government acknowledges that Nadine Menendez and one of the businessmen “were friends for many years,” the indictment nevertheless charges that the benefits provided were motivated by criminal intent. If true, that makes those payments bribes rather than mere tokens of friendship.

Even those lacking a legal background understand that payments motivated largely by corrupt purposes can’t be legitimized simply because the giver and receiver are also friends. But few realize that in the context of a bribery charge, the question isn’t whether the primary motivation behind the payment was good or bad.

Instead, the rule is all or nothing: Conviction results unless the jury finds that the good purpose was the sole reason the benefits were provided. The payments are deemed bribes even if just a sliver of the motivation behind them was improper.

Applying this concept, known as dual intent, effectively flips the burden of proof in bribery cases. In those types of prosecutions, the government offers evidence of the payment and the desired (or resulting) action by the defendant.

That evidence seldom directly shows corrupt intent. Instead, the jury is asked to infer from the surrounding circumstances—which typically involve the giver needing the recipient to take some action that the giver wouldn’t otherwise be entitled to receive—that the benefit was corruptly provided as payment for the action sought.

The government is always required to shoulder the burden of proving the accused’s criminal intent beyond a reasonable doubt. But in bribery cases, the dual intent theory effectively forces the defendant to demonstrate that his motives were entirely pure.

At trial, the government offers evidence of the parties’ respective status, the benefits provided, and the action sought or taken, and then asks the jury to conclude that the payment was made for the purpose of obtaining the action. Absent further explanation, the jury’s process will be relatively straightforward: The defendant paid money and then received something to which the defendant wasn’t otherwise entitled.

Even though the defendant bears no legal burden to offer a justification for the payment made, as a practical matter, a jury will usually expect an explanation of why the benefit would be provided other than to corrupt to recipient. The parties’ personal relationship—as opposed to a corrupt intent to influence—often serves as that explanation.

The jury then weighs the competing explanations. In that context, applying the dual intent theory heavily favors the government.

If the jury finds there were two purposes behind the payment, the case is over. Under the standard jury instruction, unless the jury determines that there was only one motive, and that motive was purely friendship or some other legitimate purpose, conviction results.

Convincing a jury that absolutely none of the giver’s aim was for a bad purpose can be exceedingly difficult when the payment is made in a setting where the giver stands to receive some benefit he otherwise might not.

The burden isn’t insurmountable—indeed, Menendez was successful in defeating a prior, separate bribery charge by arguing that the money he received from a longtime friend was motivated by their personal relationship rather than by corrupt purposes. But as a practical matter, juries almost always struggle to rule out entirely the possibility that the payment might have been motivated, even to the tiniest degree, by a desire to secure an illegitimate advantage.

It makes sense to require the jury to find clear evidence of corrupt purpose, lest conviction result from the defendant’s failure to rule out entirely the possibility of even the smallest amount of bad purpose. This is particularly important in criminal cases, where the defendant isn’t supposed to have any burden, much less one that forecloses completely the prosecution’s theory.

Cases interpreting the Mann Act, which prohibits transporting an individual across state lines for immoral purposes, implicate dual intent questions with respect to the reasons for the travel. An older Supreme Court case under the Act suggested in dictum that conviction can only result when the forbidden purpose of the travel was the dominant one, which lower courts defined to mean significant, efficient and compelling, predominating, motivating, or at least not incidental.

More recently, at least one court has taken a slightly modified approach: allowing conviction only if the travel wouldn’t have been made but for the desire to carry out the immoral purpose. In the bribery context, that concept permits the jury to convict only if they find the benefit would not have been provided absent corrupt motivation.

The Menendez prosecution presents an opportunity to revisit the dual intent approach currently used in bribery cases and adopt a more realistic framework that aligns with other “mixed motive” type cases and avoids the risk of burden shifting.

While the law regarding bribery prosecutions has been narrowed significantly over the past 25 years, the dual intent concept has remained constant. It is long past time to consider a more realistic and fairer approach.

The case is Unites States v. Menendez, S.D.N.Y., 1:23-cr-00490, trial starts 5/6/24.

Republished with permission. The article "Menendez Bribery Trial Offers Chance to Revisit ‘Dual Intent’" was originally published by Bloomberg Law on March 20, 2024.