Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting the Operation

of an Employee Welfare or Pension Benefit Plan; Prohibited Payments or Lending of Money by Employer or Agent to Employees, Representatives, or Labor Organizations (a) Base Offense Level: (1) 10, if a bribe; or (2) 6, if a gratuity. (b) Specific Offense Characteristics (1) If the defendant was a fiduciary of the benefit plan or labor organiza- tion, increase by 2 levels. (2) If the value of the prohibited payment or the value of the improper benefit to the payer, whichever is greater (A) exceeded $2,500 but did not exceed $6,500, increase by 1 level; or (B) exceeded $6,500, increase by the number of levels from the table in §2B1.1 (Theft, Property De- struction, and Fraud) corresponding to that amount. (c) Special Instruction for Fines ― Organizations (1) In lieu of the pecuniary loss under subsection (a)(3) of §8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful payment; (B) if a bribe, the value of the benefit received or to be received in return for the unlawful payment; or (C) if a bribe, the consequential damages resulting from the unlawful payment. Commentary Statutory Provisions: 18 U.S.C. § 1954; 29 U.S.C. § 186. Application Notes: 1. “Bribe” refers to the offer or acceptance of an unlawful payment with the specific understanding that it will corruptly affect an official action of the recipient. 2. “Gratuity” refers to the offer or acceptance of an unlawful payment other than a bribe. 206 ║ Guidelines Manual (November 1, 2024) §2E5.3 3. 4. “Fiduciary of the benefit plan” is defined in 29 U.S.C. § 1002(21)(A) to mean a person who exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to management or disposition of its assets, or who ren- ders investment advice for a fee or other direct or indirect compensation with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or who has any discretionary authority or responsibility in the administration of such plan. “Value of the improper benefit to the payer” is explained in the Commentary to §2C1.1 (Of- fering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspir- acy to Defraud by Interference with Governmental Functions). 5. If the adjustment for a fiduciary at §2E5.1(b)(1) applies, do not apply the adjustment at §3B1.3 (Abuse of Position of Trust or Use of Special Skill). Background: This section covers the giving or receipt of bribes and other unlawful gratuities involv- ing employee welfare or pension benefit plans, or labor organizations. The seriousness of the offense is determined by several factors, including the value of the bribe or gratuity and the magnitude of the loss resulting from the transaction. Historical Note Effective November 1, 1987. Amended effective November 1, 1989 (amendment 149); November 1, 1991 (amendment 422); November 1, 1993 (amendment 481); November 1, 2001 (amendment 617); November 1, 2004 (amendment 666); November 1, 2015 (amendment 791). §2E5.2. [Deleted] Historical Note Section 2E5.2 (Theft or Embezzlement from Employee Pension and Welfare Benefit Plans), effective Novem- ber 1, 1987, amended effective June 15, 1988 (amendment 28), November 1, 1989 (amendment 150), and November 1, 1991 (amendment 399), was deleted by consolidation with §2B1.1 effective November 1, 1993 (amendment 481).