Bribery of an Executive Officer – What is Required?

Penal Code § 67, “Bribery of an Executive Officer” states: “Every person who gives or offers any bribe to any executive officer in this state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in the state prison for two, three or four years, and is disqualified from holding any office in this state.”

However, this is a crime that often involves offenses that some may call “gray area” behavior where there really is no intent to influence another person directly, but arguably involve giving another person something, or exchanging mutual favors.

To understand this crime better, it is helpful to review the recent California Court of Appeal ruling from the Sixth District in People v. Thomas Moyer, which was filed on August 25, 2023.

Mr. Moyer was head of Apple, Inc.’s global security department. In 2015 and 2016, Apple began receiving threats against Tim Cook, Apple’s CEO, and became concerned about its ability to respond to such threats.

Therefore, in 2017, Apple decided that its executive protection team should be armed, so it began efforts to obtain concealed-carry weapon (CCW) licenses for its team members, most of whom were based in Santa Clara County.

The Penal Code authorizes, but does not require, county sheriffs to issue licenses to carry concealed weapons to applicants who are of good moral character, have good cause for a license, reside or work in the county, and have completed a specified course of training. Penal Code § 26150(a); but see New York State Rifle Pistol Association, Inc. v. Bruen (2022) 597 U.S. ___, 142 S. Ct. 211, 2123-2124, 2156.

In the Santa Clara County Sheriff’s Office, CCW applications are processed by the public information officer, who is responsible for conducting background checks, arranging fingerprinting, and ensuring that applicants complete the required training. During the relevant time frame, the Santa Clara County Sheriff’s Office rarely issued CCW licenses. Indeed, the office’s practice was to not even process an application absent a special instruction to do so.

In August 2017, after several initial approaches to the Santa Clara County Sheriff’s Officer were rebuffed, two Apple officers met with Undersheriff Rick Sung, who ran Sheriff Laurie Smith’s re-election campaign. Sung had authority to place CCW license application on hold even after the licenses were signed by the sheriff.

In the past, Mr. Sung had abused his authority over CCW licenses to extract favors and apparently Apple was aware of this history. They then met with him and Sung demanded political support from Apple, which Apple refused.

However, for the next year, Apple’s CCW applications made little progress, so Mr. Moyer met with Sheriff Laurie, who promised the applications would be processed.

After more delays, Moyer then met with Mr. Sung and promised to donate two hundred iPads (worth $50,000) to the Santa Clara Sheriff’s Office for its new training facility. Mr. Sung increased the number of donated iPads, rebuffing Moyer’s first proposed donation of fifty iPads by telling Moyer he needed to “think bigger,” at which time Moyer increased his offer to 200 iPads. Mr. Sung was manipulative during the meeting, telling Apple that the Sheriff was upset that during the last election, in 2018, one of Apple’s security officials had endorsed the Chief’s main opponent..

Shortly thereafter, the Apple executive protection team received their CCW licenses and Moyer took steps to fulfill the donation promise, even asking the Sheriff’s office if it had any color preference for the donation iPads. Ultimately, however, Moyer found out that the Santa Clara County sheriff’s office was being investigated for its treatment of CCW applications and so he terminated the donation.

In November 2020, a grand jury indicted Moyer for making a bribe in violation of Penal Code § 67. The indictment also named Undersheriff Sung with violating Penal Code § 68(a), also relating to bribery.

Moyer moved to dismiss the indictment under Penal Code § 995, arguing that the prosecutor erroneously instructed the grand jury that it could charge him with bribery based on a promise to give a thing of value to a third party rather than to the target of the bribe.

The trial court in the Santa Clara County Superior Court granted the motion to dismiss, not based on Moyer’s argument, but based on a finding an insufficiency of evidence that Moyer had the intent required. It found that Moyer had no “corrupt intent” in promising the iPad donation. It found that before Moyer made his donation, he was repeatedly informed that the Santa Clara County Sheriff would approve the CCW applications.

The People appealed the ruling to the Sixth Appellate District, which reversed the trial court, finding that bribery may be committed by directing payment to anyone associated with the intended target, if benefitting that person, i.e., Undersheriff Sung, would benefit the sheriff’s department and the fact that the iPads ultimately were never delivered did not matter. It was the promise that Moyer made that constituted the criminal act, as it was made in anticipation of the sheriff’s office releasing the accepted CCW licenses, which was the real issue.