Theft or Bribery Concerning Programs Receiving Federal Funds 18 USC 666 - Criminal Law -

8/9/2019 Theft or Bribery Concerning Programs Receiving Federal Funds 18 USC 666 - Criminal Law -

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I . HISTORY OF THE STATUTE 1

Secion 666 is a broad ederal saue aimed explicily a corrupion a he sae and local levels,including privae organizaions ha receive ederal unds.2 Congress adoped he provision in1984 ou o ear ha a narrow inerpreaion o § 201 by he Supreme Cour in Dixson v. Unied

Saes , which was hen pending, would exemp virually all nonederal offi cers rom prosecuion

under he anicorrupion saue. Te increasing number o sae and local programs unded, a

leas in par, by he ederal governmen in he 1970s raised he quesion o wheher § 201 was

broad enough o cover corrupion a he local level.3

1. Tis chaper is based in par on Peer J. Henning, Federalism and he Federal Prosecuion o Sae and Local Corrupion ,92 K. L.J. 75 (2003).

2. For an overview o he saue, see George D. Brown, Care Blanche: Federal Prosecuion o Sae and Local Offi cials Afer Sabri, 54 C. U. L. . 403 (2005).

3. In Dixson v. Unied Saes , he Cour reviewed convicions or violaions under § 201 or acceping bribes relaed o

he disribuion o ederal unds by a local social service organizaion designaed o adminiser ederal block grans orhousing. Te deendans were offi cials o a local organizaion unded by he ederal governmen, bu hey were neiheremployees o he ederal governmen nor paries o any conrac wih i. Te Supreme Cour rejeced he argumenha he deendans ell ouside he jurisdicional boundaries o § 201, holding ha hey could be prosecued underhe law because a “public offi cial” includes any person who “occupies a posiion o public rus wih offi cial ederalresponsibiliies,” regardless o wheher here was an employmen or oher direc agency relaionship. 465 U.S. 482, 496(1984). Te Cour noed ha he saue required proo ha he deendan acually carried ou ederal policy, saingha “we do no mean o sugges ha he mere presence o some ederal assisance brings a local organizaion and isemployees wihin he jurisdicion o he ederal bribery saue or even ha all employees o local organizaions respon-sible or adminisering ederal gran programs are public offi cials wihin he meaning o secion 201(a).” Id . a 499.

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THEFT OR BRIBERY CONCERNING

PROGRAMS RECEIVING FEDERALFUNDS (18 U.S.C § 666)


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Theft or Bribery Concerning Programs Receiving Federal Funds | 73

(A) embezzles, seals, obains by raud, or oherwise wihou auhoriy knowingly

convers o he use o any person oher han he righul owner or inenionally

misapplies, propery ha–

(i) is valued a $5,000 or more, and(ii) is owned by, or is under he care, cusody, or conrol o such organizaion,

governmen, or agency; or

(B) corruply solicis or demands or he bene o any person, or acceps or agrees o

accep, anyhing o value rom any person, inending o be inuenced or rewarded in

connecion wih any business, ransacion, or series o ransacions o such organiza-

ion, governmen, or agency involving any hing o value o $5,000 or more; or

(2) corruply gives, offers, or agrees o give anyhing o value o any person, wih inen o inu-

ence or reward an agen o an organizaion or o a Sae, local or Indian ribal governmen,

or any agency hereo, in connecion wih any business, ransacion, or series o ransac-

ions o such organizaion, governmen, or agency involving anyhing o value o $5,000

or more;

shall be ned under his ile, imprisoned no more han 10 years, or boh.

(b) Te circumsance reerred o in subsecion (a) o his secion is ha he organizaion,

governmen, or agency receives, in any one year period, benes in excess o $10,000 under a Federal

program involving a gran, conrac, subsidy, loan, guaranee, insurance, or oher orm o Federal

assisance.

Unlike § 201, which reaches only ederal employees and hose who direcly exercise ederal

auhoriy, § 666 applies o any “agen o an organizaion, or o a Sae, local, or Indian ribal govern-

men, or any agency hereo. . . .”9 Insead o limiing he saue o hose occupying paricular

offi cial posiions, § 666 condiions ederal jurisdicion on he requiremen ha he deendan be

an agen o an “organizaion, governmen, or agency [ha] receives, in any one-year period,

benes in excess o $10,000 under a Federal program involving a gran, conrac, subsidy, loan,

guaranee, insurance, or oher orm o Federal assisance.”10 Te saue also limis ederal jurisdic-

ion by requiring proo ha he bribe occurred in connecion wih ransacions o he agency or

governmenal uni wih a value o $5,000 or more. Te corrup paymen isel need no have any

specic valuehe saue only requires he offer and accepance o “anyhing o value” bu he

subjec mater o he corrupion mus mee he $5,000 hreshold or ederal jurisdicion.11

9. Te original saue did no include Indian ribal governmens, which was added in 1986. P. L. N. 99-646, §

59(a), 100 Sa. 3612 (1986). See Unied Saes v. Barquin, 799 F.2d 619 (10h Cir. 1986) (direcing dismissal o indic-men o deendan charged wih bribing an offi cial o an Indian ribe because he business council o an Indian ribe wasno a “local governmen agency” under § 666).

10. 18 U.S.C. § 666(b).

11. 18 U.S.C. § 666(a)(1)(B) (“[I]nending o be inuenced or rewarded in connecion wih any business, ransacion,or series o ransacions o such organizaion, governmen, or agency involving any hing o value o $5,000 or more.”).Noe ha he offer or soliciaion involves “anyhing o value,” while he business or ransacion o he agency involves“any hing o value o $5,000 or more.” I is no clear wheher he space beween “any” and “hing” carries a paricularmeaning.


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74 | P R O S E C U T I O N A N D D E F E N S E O F P U B L I C C O R R U P T I O N

III . STATUTORY TERMS

Secion 666(c) denes he ollowing erms used in is operaive provisions:

(1) he erm “agen” means a person auhorized o ac on behal o anoher person or a

governmen and, in he case o an organizaion or governmen, includes a servan or

employee, and a parner, direcor, offi cer, manager, and represenaive;

(2) he erm “governmen agency” means a subdivision o he execuive, legislaive, judicial,

or oher branch o governmen, including a deparmen, independen esablishmen,

commission, adminisraion, auhoriy, board, and bureau, and a corporaion or oher

legal eniy esablished, and subjec o conrol, by a governmen or governmens or he

execuion o a governmenal or inergovernmenal program;(3) he erm “local” means o or peraining o a poliical subdivision wihin a Sae;

(4) he erm “Sae” includes a Sae o he Unied Saes, he Disric o Columbia, and any

commonwealh, erriory, or possession o he Unied Saes;12 and

(5) he erm “in any one-year period” means a coninuous period ha commences no earlier

han welve monhs beore he commission o he offense or ha ends no laer han welve

monhs afer he commission o he offense. Such period may include ime boh beore

and afer he commission o he offense.13

IV. THE FEDERAL FUNDS

Te rs elemen he governmen mus prove is he “circumsance” o ederal unding o he agency,

governmen, or organizaion. Tis “circumsance” is he basis or ederal jurisdicion over he

offense, grounded in he congressional power o oversee he expendiure o ederal unds. Te

requiremen is ha he ederal governmen provided “benes” in excess o $10,000 in any one- year period “under a Federal program involving a gran, conrac, subsidy, loan, guaranee, insur-

ance, or oher orm o Federal assisance.” An issue he Supreme Cour has deal wih is he

connecion beween he ederal unding and he offense, including he consiuional quesion

wheher he saue comes wihin he power o Congress o enac legislaion reaching corrup

acions o sae and local offi cials.

12. Congress expanded he deniion o “Sae” o include ederal possession and erriories or a number o differensaues, including § 666, as par o he Crime Conrol Ac o 1990. P. L. N. 101-647, ile XII, § 1205(d), 104 Sa.4831 (1990). In Unied Saes v. Bordallo , 857 F.2d 519 (9h Cir. 1988), he Ninh Circui reversed he convicion o heormer governor o Guam or bribery under § 666 because Guam is no a sae, and he saue did no include erriorieso he Unied Saes. See id . a 524 (“Guam is no a sae. In he absence o express congressional inen o include Guam wihin he proscripions o his saue, we canno hold ha he sauory provisions apply o Guam.”).

13. Congress added his deniion o he welve-monh period or receiving $10,000 o ederal benes ha provides he basis or ederal jurisdicion as par o he Crime Conrol Ac o 1990. P. L. N. 101-647, ile XII, § 1209, 104 Sa.4832 (1990).


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A. Salinas v. United States: Effect on Federal Funds

In Salinas v. Unied Saes , he deendan was a depuy sheriff conviced o acceping bribes rom

a ederal prisoner, housed in he couny jail, in exchange or preerenial reamen oward he

prisoner. Te amoun o ederal unds received by he jail easily exceeded he sauory $10,000

minimum, so he jurisdicional elemen was undispued. Te Cour rejeced he deendan’s

argumen ha, o esablish ederal jurisdicion under he saue, he governmen mus also prove

ha he subjec mater o he bribe involved he ederal unds provided o he agency or govern-

men. Te Cour held, “Te prohibiion is no conned o a business or ransacion which affecs

ederal unds. Te word ‘any,’ which preaces he business or ransacion clause, undercus he

atemp o impose his narrowing consrucion.”14

Te Cour recognized ha Congress adoped § 666 o expand ederal anicorrupion law, so

resricing he saue o only hose bribes which direcly implicaed he use or expendiure oederal unds “would be incongruous” wih he legislaive inen or he provision. 15 Te Cour

also rejeced he deendan’s argumen ha he saue implicily required a nexus beween he

alleged misconduc and ederal unds because i did no plainly sae he conrary. Te Cour,

however, dodged he issue o wheher he governmen needed o prove any oher ype o nexus o

he ederal unds, saing ha “[w]e need no consider wheher he saue requires some oher

kind o connecion beween a bribe and he expendiure o ederal unds, or in his case he bribe

was relaed o [a program] paid or in signican par by ederal unds hemselves.”16

Alhough he Cour ound he saue unambiguous, i urher assered “here is no seriousdoub abou he consiuionaliy o § 666(a)(1)(B) as applied o he acs o his case.”17 I is no

clear why he Cour saw a need o address urher he consiuionaliy o he provision, especially

i here was “no serious doub” on an issue ha was no relevan o he sauory analysis and

ouside he quesion presened by he deendan. Despie Salinas ’s holding ha he governmen

need no show a connecion beween he bribe and he ederal unds, he Cour reerred obliquely

o ederalism, saing ha “[w]haever migh be said abou § 666(a)(1)(B)’s applicaion in oher

cases, he applicaion o § 666(a)(1)(B) o Salinas did no exend ederal power beyond is proper

bounds.”18

14. 522 U.S. 52, 57 (1997).

15. Id . a 58.

16. Id . a 59.

17. Id . a 60.

18. Id . a 61. Te consiuionaliy o § 666 was a quesion o congressional auhoriy o regulae, no he propriey oan applicaion o a saue in a paricular prosecuion. Salinas ’s o and reerence o he consiuionaliy o he saue“as applied” missaed he proper consiuional analysis by giving he impression ha he Consiuion migh requireaddiional proo o some relaionship beween he ederal ineres and a deendan’s conduc beyond he elemensconained in he saue. Te majoriy in Salinas may have been rying o assuage ears ha § 666 creaed a crime whollyouside he ederal ineres, bu he Cour’s vague invocaion o an as-applied consiuional challenge had he effec oencouraging lower cours o consider argumens ha he Consiuion requires an exra-sauory limi on he applicaiono he saue, a leas unil is decision in Sabri v. Unied Saes , discussed below.


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B. Sabri v. United States: Federalism and

the Nexus Requirement

Te ederal governmen’s role in applying corrupion laws o prosecue sae and local offi cials

raised quesions abou wheher § 666 violaed he consiuional principle o ederalism. In Salinas ,

he Cour gave a sligh nod in he direcion o a poenial ederalism limi on § 666 when i saed

ha perhaps “some oher kind o connecion” o he ederal unds migh be required. 19 In wo

oher cases no involving corrupion saues, Unied Saes v. Lopez and Unied Saes v. Morrison ,

he Supreme Cour invalidaed provisions o ederal law because hey exceeded congressional

auhoriy o regulae in areas already subjec o he police power o he saes. In Lopez , he Cour

ound he Gun Free School Zone Ac unconsiuional, noing ha he saes are he “primary

auhoriy or dening and enorcing he criminal law,” so ha “[w]hen Congress criminalizes

conduc already denounced as criminal by he Saes, i effecs a ‘change in he sensiive relaion

beween ederal and sae criminal jurisdicion.’”20 In Morrison , he Cour explicily relied on

ederalism as a raionale or invalidaing he civil remedy provision o he Violence Agains Women

Ac, holding ha “[]he Consiuion requires a disincion beween wha is ruly naional and

wha is ruly local. . . . Te regulaion and punishmen o inrasae violence ha is no direced a

he insrumenaliies, channels, or goods involved in inersae commerce has always been he

province o he Saes.”21

In ligh o he ederalism views expressed in Lopez and Morrison , along wih Salinas ’s

acknowledgmen ha here was no ederalism problem in ha paricular case, lower cours aced

a number o consiuional challenges o § 666, boh acially and as applied o paricular deen-

dans. Te saue does no expressly require ha he corrupion affec he ederal unds provided

o he governmen, agency, or organizaion, and deendans argued ha, o avoid any ederalism

problem rom applicaion o he saue o an area usually reserved o he saes, he prosecuion

should be required o prove a nexus beween he violaion and he ederal unding. A spli in he

circui cours developed on wheher he governmen mus prove as an elemen o he offense a

nexus beween he corrupion and ederal unding.22

Some cours adoped a limied reading o he saue which required he governmen oesablish some ederal connecion, alhough no a direc effec, beween he corrupion and he

ederal role in he program or organizaion. In Unied Saes v. Zwick , he Tird Circui held ha

he prosecuion mus prove a ederal ineres in he deendan’s conduc, bu he exen o ha

relaionship was unclear because “we surmise ha a highly atenuaed implicaion o a ederal

ineres will suffi ce or purposes o § 666.”23 Alhough he governmen inroduced proo ha he

19. Id . a 59.

20. 514 U.S. 549, 561 n.3 (1995) (quoing Brech v. Abrahamson , 507 U.S. 619, 635 (1993), and Unied Saes v. Enmans ,410 U.S. 396, 411–12 (1973)).

21. 529 U.S. 598, 617–18 (2000).

22. Compare Unied Saes v. Dakoa, 197 F.3d 821 (6h Cir. 1999) (he governmen need no show any nexus beweenederal unds and he alleged corrupion) wih Unied Saes v. Sanopiero, 166 F.3d 88 (2nd Cir. 1999) (he governmenmus show “a leas some connecion beween he bribe and a risk o he inegriy o he ederal unded program”).

23. 199 F.3d 672. 687 (3rd Cir. 1999).


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ownship in which he deendan was a member o he Board o Commissioners received ederal

unds or emergency snow removal and a sream erosion projec, he circui cour ound his

insuffi cien because he unds “bear no obvious connecion o Zwick’s offense conduc, which

involved sewer access, use permis and landscaping perormance bonds.”24

Te Second Circuiadoped a similar inerpreaion o § 666 in Unied Saes v. Sanopiero , holding ha he govern-

men mus demonsrae “a leas some connecion beween he bribe and a risk o he inegriy o

he ederal[ly] unded program. . . .”25

Oher circui cours rejeced any nexus requiremen as an elemen o he offense. In Unied

Saes v. Valenine , he Sixh Circui held, “[W]e nd ha he saue does no require he govern-

men o demonsrae he ederal characer o he solen propery. Te saue addresses he rela-

ionship beween he ederal governmen and he local governmen rom which he propery was

solen, no he relaionship beween he ederal governmen and he convered propery.”

26

InUnied Saes v. Wesmorland , he Fifh Circui held, “Subsecion (b) [o § 666] conains nohing o

indicae ha ‘any ransacion involving $5,000’ means ‘any ederally unded ransacion involving

$5,000’ or ‘any ransacion involving $5,000 o ederal unds,’ and oher subsecions o he saue

conain no inconsisen provisions ha migh sugges such a qualicaion.”27

In Sabri v. Unied Saes ,28 he Supreme Cour resolved he spli and pu an end o consiu-

ional challenges, boh acial and as-applied, in § 666 prosecuions based on he need o avoid

ederalism concerns by requiring proo o a ederal nexus.29 Te deendan was conviced or offer-

ing hree bribes o a member o he Minneapolis Ciy Council o help build a hoel and reail

developmen in he ciy. Deendan made a acial challenge o § 666, assering ha he saue

24. Id . a 688. Te vague connecion requiremen imposed by Zwick required he ac-nder o race he unds rom aederal program o he organizaion involved in he misconduc, and o deermine wheher he unds were suffi cienlyrelaed o he alleged corrupion o permi he prosecuion o proceed. Tese acs may no have been apparen unilafer rial.

25. 166 F.3d 88, 93 (2nd Cir. 1999). See Unied Saes v. Brunshein, 344 F.3d 91, 99 (2nd Cir. 2003) (“We conclude haa ederal nexus is an elemen o § 666 ha mus be charged in he indicmen, submited o he jury, and proved beyond areasonable doub.”).

26. 63 F.3d 459, 464 (6h Cir. 1995). Ineresingly, none o he cours imposing he ederal unding connecion require-men ound § 666 unconsiuional. Insead, hey adoped an as-applied approach ha purpored o rely on he ederalismraionale advanced in Lopez and Morrison o declare he prosecuion unconsiuional absen proo o he requisieconnecion o ederal unding. Te lower cours never acknowledged ha he Supreme Cour did no use ederalism inhose cases o rewrie he elemens o he offenses a issue, bu insead i declared he enire provision unconsiuional asexceeding congressional auhoriy.

27. 841 F.2d 572, 576 (5h Cir. 1988).

28. 541 U.S. 600 (2004).

29. See Unied Saes v. Hines, 541 F.3d 833, 836 (8h Cir. 2008) (“Hines’s as-applied challenge ails, or he plain lan-guage o he saue does no require, as an elemen o be proved beyond a reasonable doub, a nexus beween he aciviyha consiues a violaion and ederal unds.”); Unied Saes v. v. Caro-Muniz, 406 F.3d 22, 27 (1s Cir. 2005) (rejecingdeendan’s as-applied challenge, he cour “join[s] our siser circuis in holding ha he governmen is no required oprove a nexus beween he bribery charged and he municipaliy’s receip o ederal unds.”); Unied Saes v. Kranovich,401 F.3d 1107, 1111–12 (9h Cir. 2005) (ciing Sabri , “we hereore hold he governmen was no required o esablishany connecion beween he embezzled unds and a ederal ineres, apar rom he express requiremen in secion 666(b)ha he Couny received ederal benes in excess o $10,000.”); Unied Saes v. Spano, 401 F.3d 837, 841 (7h Cir.2005) (“[A]lhough Sabri involved a acial consiuional challenge only, he opinion also orecloses he deendans’as-applied challenge.”).


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could never be applied consiuionally because i ailed o require as an elemen o he crime proo

o any connecion beween he bribe (or kickback) and ederal unds.

Te Cour rejeced he argumen ha wihou his addiional elemen he provision exceeded

Congress’s power o enac he law. Te Cour saed:

Congress has auhoriy under he Spending Clause o appropriae ederal moneys o promoe

he general welare, Ar. I, § 8, cl. 1, and i has corresponding auhoriy under he Necessary

and Proper Clause, Ar. I, § 8, cl. 18, o see o i ha axpayer dollars appropriaed under ha power

are in ac spen or he general welare, and no ritered away in graf or on projecs undermined

when unds are siphoned off or corrup public offi cers are derelic abou demanding value or

dollars.30

Te Cour explained ha corrupion can have a broad impac beyond jus he misuse o ederal

dollars or derelicion o a duy unded by he ederal governmen. Tereore, i concluded ha

Congress’s power o punish such conduc is no limied solely o cases in which here is specic

proo o an effec on he naional governmen’s unding. Te scope o § 666 is a permissibly broad

exercise o congressional auhoriy because “[m]oney is ungible, bribed offi cials are unrus-

worhy sewards o ederal unds, and corrup conracors do no deliver dollar-or-dollar value.

Liquidiy is no a nancial erm or nohing; money can be drained off here because a ederal gran

is pouring in here.”

Te raionale or he anicorrupion provision is no simply o punish he misuse or hef o

ederal unds, a crime already prohibied by 18 U.S.C. § 641, bu o accomplish he broader goal o

ensuring he inegriy o he programs ha receive he requisie amoun o ederal money or heir

operaion. Proessor George D. Brown describes he analysis in Sabri as applying he “inegriy

raionale” o ensure ha “[w]ha is needed is a broad ne ha achieves proecion hrough sweep-

ing up all corrup ransacions in order o guaranee he inegriy o he recipien eniy.”31 Tereore,

according o he Cour, or ederal jurisdicion, “I is cerainly enough ha he saues condiion

he offense on a hreshold amoun o ederal dollars dening he ederal ineres, such as ha

provided” in § 666.32 Sabri eliminaed he requiremen imposed by some lower cours ha he

governmen boh explicily ideniy he ederal nexus in is indicmen and hen prove i a rial,

hereby depriving deendans o an argumen ha could exemp hem rom he applicaion o

ederal power o heir conduc.33

30. 541 U.S. a 605.

31. Brown , supra noe 2, a 428.

32. 541 U.S. a 606.

33. Cours requiring he nexus elemen had spli over wheher i was a jury quesion or a quesion o law reservedor he cours. Compare Unied Saes v. Brunshein , 344 F.3d 91, 99 (2nd Cir. 2003) (requiring he ederal nexusquesion be submited o he jury) wih Unied Saes v. Bynum , 327 F.3d 986, 993 (9h Cir. 2003) (i a ederal nexus

was required, i was a quesion o law o be resolved by he cour and no an elemen o he offense o be ound byhe jury).


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C. Fischer v. United States: Benefits

1. A Broad Reading of Benefits

In Fischer v. Unied Saes , he Supreme Cour gave a broad reading o “benes” in deermining wheher an organizaion or agency mees he $10,000 ederal benes requiremen in § 666(b). A

rial, he deendan was conviced or derauding a hospial auhoriy receiving unds under he

Medicare program and or paying a kickback o an offi cer o an organizaion receiving Medicare

unding. In upholding he convicion, he Supreme Cour held ha wheher a governmen

paymen consiues a “bene” under § 666 depended on an examinaion o he program’s “naure

and purposes.”34 Te Cour rejeced he deendan’s argumen ha because Medicare unds are

only reimbursemen or services provided o he ulimae beneciaries here is no bene o

he hospial. Insead, he Cour held ha he unding was provided “no simply o reimburse orreamen o qualiying paiens bu o assis he hospial in making available and mainaining a

cerain level and qualiy o medical care, all in he ineres o boh he hospial and he greaer

communiy.”35

Te Cour noed ha he providers who process he ederal unds “derive signican advanage”

rom heir paricipaion in he Medicare program, and “[]hese advanages consiue benes

wihin he meaning o he ederal bribery saue. . . .” Even hough he ulimae beneciaries were

he individual paricipans in Medicare, ha did no preven nding benes conerred on he

hospials receiving unds hrough he program. Disinguishing Medicare rom he siuaion in which he governmen eners ino a conrac o obain services, he Cour ocused on he degree

and naure o he governmen regulaion as par o he program in nding ha he paymens

consiued benes. I saed:

Medicare is designed o he end ha he Governmen receives no only reciprocal value rom

isolaed ransacions bu also long-erm advanages rom he exisence o a sound and effecive

healh care sysem or he elderly and disabled. Te Governmen enaced specic saues and

regulaions o secure is own ineress in promoing he well being and advanage o he healh careprovider, in addiion o he paien who receives care. Te healh care provider is receiving a bene

in he convenional sense o he erm, unlike he case o a conracor whom he Governmen does

no regulae or assis or long-erm objecives or or signican purposes beyond perormance o an

immediae ransacion. Adequae paymen and assisance o he healh care provider is isel one o

he objecives o he program. Tese purposes and effecs suffi ce o make he paymen a bene

wihin he meaning o he saue.36

Fischer made i clear ha merely receiving ederal unds was no suffi cien o bring a case wihin

§ 666: “Any receip o ederal unds can, a some level o generaliy, be characerized as a bene.

34. 529 U.S. 667, 671 (2000).

35. Id . a 679–80.

36. Id . a 680.


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Te saue does no employ his broad, almos limiless use o he erm.”37 aking such an

expansive approach o he meaning o bene “would urn almos every ac o raud or bribery

ino a ederal offense, upseting he proper ederal balance.” Insead, he deerminaion wheher a

program receives benes requires “an examinaion. . . o he program’s srucure, operaion, andpurpose. Te inquiry should examine he condiions under which he organizaion receives

he ederal paymen. Te answer could depend, as i does here, on wheher he recipien’s own

operaions are one o he reasons or mainaining he program.”38

Te Cour did no explain wha i mean by he “proper ederal balance,” bu like Salinas , he

reerence o a limi on ederal auhoriy may have assuaged any apprehension o some Jusices ha

he saue auhorized he Deparmen o Jusice o prosecue cases in which here was no clear

link o a ederal ineres.39 Fischer never explained exacly wha he ederalism limis were or

offenses involving corrupion in programs receiving ederal unds, so ha deendans can coninueo argue ha he prosecuion in heir paricular case was unconsiuional.

Unlike § 201, which only reaches ederal offi cials and hose acually exercising ederal auhor-

iy, § 666 applies o all public offi cials and privae persons working or a wide range o organiza-

ions or programs ha receive subsanial ederal unding. Te saue does no condiion ederal

jurisdicion on he source o auhoriy or on a direc connecion beween he offi ce and he ederal

unds.40 Fischer made i clear ha no every eniy receiving ederal unds came wihin § 666, quo-

ing rom he Senae epor on he law ha disinguished commercial ransacions involving he

governmen rom hose ha involve conerring ederal benes.41

2. Relationship to Federal Funding

One issue or he deense in a § 666 prosecuion is deermining he naure o he organizaion

and is relaionship o he ederal unding program. I he ransacion is closer o a sandard

arms-lengh conracual agreemen in which he governmen is a purchaser (or seller) like any

37. Id . a 668.

38. Id . a 681.

39. See Unied Saes v. Lipscomb, 299 F.3d 303, 313 (5h Cir. 2002) (“Te Salinas Cour merely observed inpassing ha, even i a ederal ineres were required, such an ineres clearly exised. . . Similarly, he Fischer Courconsrued a erm in § 666 broadly, simply musing ha ederalism principles migh somehow limi he saue’s sweep. As eiher a sauory or consiuional mater, hen, he Cour migh be seen as harboring inchoae qualms abou wheher, or § 666 o apply, here migh be some need or a direc ineres in he unds involved in he prohibiedconduc. . .”).

40. In a dissening opinion, Jusice Tomas argued ha he breadh o he Cour’s analysis made him “doub ha here isany ederal assisance program ha does no provide ‘benes’ o organizaions. . .” He poined o sores ha accep oodsamps as coming wihin he deniion o an organizaion receiving ederal benes because he program “helps o addresshe ‘grocery gap,’ ha is, he lack o availabiliy o reasonably priced nuriional oods in some low-income and ruralareas.” 529 U.S. a 692 (Tomas, J., dissening).

41. Id . a 679 (quoing S. . N. 98-225 a 370 (1984)) (“[N]o every Federal conrac or disbursemen o unds would be covered [under § 666]. For example, i a governmen agency lawully purchases more han $10,000 inequipmen rom a supplier, i is no he inen o his secion o make a hef o $5,000 or more rom he suppliera Federal crime.”).


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oher marke paricipan, hen he organizaion does no come wihin he sauory prohibiion

and a § 666 prosecuion canno proceed. For example, in Unied Saes v. Sewar , a pre-Fischer

decision, he disric cour graned a moion o dismiss § 666 charges alleging hef o ools and

pars rom deendan’s employer, Bell Helicoper. Te governmen argued ha is conracs wihhe company was no a normal supplier arrangemen because i purchased cusom manuacured

goods ha would be illegal o sell o ohers because o heir classied naure. Te disric cour

rejeced ha argumen, nding “he saue was no inended o apply o purely commercial

ransacions,” so ha “monies paid in consideraion or goods provided, even i cusomized, are

no benes wihin he meaning o he saue.”42 Sewar ’s analysis is correc in ocusing on he

naure o he governmen program. Te exen o which he organizaion is suppored by ederal

unds as par o a broad naional policy program raher han engaging in marke ransacions will

make i more like he hospial ha received Medicare paymens in Fischer . Afer Fischer , wheher an organizaion received ederal unding direcly, or is only an indirec

beneciary o ederal dollars, is no he decisive quesion or he applicaion o § 666. Te analysis

ocuses more on he ype o program involved han racing money direcly rom ederal coffers

o an organizaion’s bank accoun. In Unied Saes v. Dubón-Orero , he Firs Circui upheld he

convicion o wo owners o a or-pro corporaion ha received ederal unds only hrough a

local governmen wih which i conraced o provide AIDS esing and educaion. Te circui

cour saed, “I makes no difference ha [deendans’ company] Healh Services received his

money indirecly. I is now well esablished ha benes under § 666 are no limied solely o

primary arge recipiens or beneciaries.”43 Te Firs Circui ound ha he conrac o provide

services “conemplaed a relaionship beween Healh Services and he Federal Governmen”

ha would urher he goals o a ederal program or disease conrol and AIDS prevenion, and

hereore § 666 applied o he corporaion.44

Unied Saes v. Hildenbrand also illusraed he expansive view o benes no condiioned

on he direc receip o ederal unds. Te deendans purchased homes a a discoun hrough

he Deparmen o Housing and Urban Developmen’s Single Family Affordable Housing

Program (SFAHP) and hen improperly inaed he value o he repairs made, hus increasing

he allowable price a which he homes could be sold. Te deendans argued ha § 666 did no

apply because hey neiher received nor disbursed ederal unds hrough he SFAHP, and he

discouns on he properies were merely an incenive o purchase he homes in a purely commer-

cial ransacion beween HUD and he organizaion. Te Fifh Circui rejeced he argumen,

nding ha he organizaion “received a quaniaive moneary bene rom HUD hrough he

discouns,” and he program “urhers he public policy objecives o boh expanding home

ownership opporuniies or low- and moderae-income purchasers and srenghening neighbor-

hoods. . . .”45 While he ulimae purchasers were also beneciaries o he discouns, as in Fischer ,

42. 727 F. Supp. 1068, 1072 (N.D. ex. 1989).

43. 292 F.3d 1, 9 (1s Cir. 2002).

44. Id . a 9–10.

45. 527 F.3d 466, 478 (5h Cir. 2008). In a pre-Fischer case, he disric cour in Unied Saes v. Richards , 925F. Supp. 1097 (D. N.J. 1996), reached a similar conclusion abou he applicaion o § 666 o privae parnerships


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here can be muliple beneciaries o a governmen program, and he ac ha an organizaion

aciliaes he ranser o he bene o he ulimae recipien does no preclude i rom § 666’s

coverage.46

No every organizaion receiving benes rom a ederal program comes wihin § 666. InUnied Saes v. Wyncoop , a pre-Fischer decision, he Ninh Circui held ha he embezzlemen o

unds rom a privae college ha received no direc ederal unding did no come wihin § 666. Te

governmen’s heory was ha he college’s paricipaion in he ederal suden loan program ha

guaraneed loans made by privae banks o is sudens, which unds are paid o he school, was a

ederal bene suffi cien o mee he jurisdicional requiremen o § 666. Te Ninh Circui held

ha “he saue was no inended o cover hefs rom insiuions like rend College ha do no

hemselves receive and adminiser ederal unds.”47

Te circui cour poined ou ha he school was only an “indirec” beneciary o he ederalunds, an analysis ha does no remain good law in ligh o Fischer ’s ocus on he srucure, opera-

ion, and purpose o he organizaion raher han how he unding is acually received or disbursed.

Bu he Ninh Circui’s analysis o he school’s enuous connecion o ederal unds, ha § 666

does no reach every ac o raud involving an organizaion receiving in some way ederal benes,

may sill survive in ligh o he Supreme Cour’s admoniion in Fischer .48 Te embezzlemen in

Wyncoop had nohing o do wih he suden loan program, which was only incidenally involved,

nor was he inegriy o he ederal program affeced by he diversion o money rom he school’s

accoun, so he circui cour’s decision overurning he convicion appears o be he correc resul

even afer Fischer .49

ha owned low-income renal housing subsidized by he Farmers Home Adminisraion. In Unied Saes v. Dranseld ,913 F. Supp. 702, 709 (E.D. N.Y. 1998), anoher pre-Fischer decision, he disric cour ound ha a school consrucionauhoriy reained o repair school buildings received benes even hough he paymens were no made o heauhoriy isel, holding ha “i canno reasonably be inerred rom he language o he saue ha he ederalunding elemen is resriced o unds which are direcly received by he agency under a ederal program.” (ialics inoriginal).

46. In Unied Saes v. Webb , 691 F. Supp. 1164 (N.D. Ill. 1988), a ederal disric cour held ha a privae accouningrm ha managed and adminisered ederal unds as par o a subsidized housing program did no receive ederal bene-s because here was no “direc” bene and he rm did no conrol he ederal unds, o which ile remained in heederal governmen. Te disric cour urher ound ha 18 U.S.C. § 641, applicable o hefs o governmen propery,could be applied o he case, and hereore § 666 was no available. I is no clear why he availabiliy o anohersaue prohibis charging under § 666, and he ocus on conrol o he unds is no consisen wih Fischer ’s analysis ohe naure o he ederal program. See also Unied Saes v. Paradies, 98 F.3d 1266, 1289 (11h Cir. 1998) (decliningo apply a connecion o ederal unds elemen in a convicion o a sae offi cial acceping enirely privae money romindividuals).

47. 11 F.3d 119, 122 (9h Cir. 1993).48. “Any receip o ederal unds can, a some level o generaliy, be characerized as a bene. Te saue does noemploy his broad, almos limiless use o he erm. Doing so would urn almos every ac o raud or bribery ino a ederaloffense, upseting he proper ederal balance.” 529 U.S. a 681.

49. Much o he Ninh Circui’s analysis ocused on he ac ha he school was only an indirec beneciary o he ederalunds, which calls ino quesion wheher Wyncoop has much precedenial value. Te circui cour compared he school’sparicipaion in he program o sores ha are par o he ederal ood samp program, which Jusice Tomas, in hisdissening opinion in Fischer , assered would now come wihin § 666. A a minimum, Wyncoop represens he ouer limio § 666(b)’s applicaion o an organizaion.


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3. Conclusion

Te challenge or boh he governmen and deense counsel in a § 666 prosecuion is deermining

he naure o he organizaion ha is alleged o have received he ederal benes.50 Fischer ’s analy-

sis is highly ac specic, looking o he overall goals o he ederal program and manner in whichhe ederal unds are disbursed o achieve hose goals. Te ocus is no jus on wheher he organi-

zaion received ederal money direcly, alhough ha can go a long way oward bringing i wihin

§ 666. o he exen he ranser is more like a commercial ransacion, in which he governmen

is only a buyer (or seller) o goods or services, he greaer he possibiliy ha i will no come

wihin he saue. Bu, as Hildenbrand illusraes, he ac ha he ransacion is similar o an

ordinary sale o propery does no preclude nding ha here is a ederal bene conerred on he

organizaion because broader policy goals can be achieved hrough he ederal paricipaion in

ordinary marke ransacions. While Fischer recognized ha here were limis on he scope o§ 666, i is diffi cul o see how he benes analysis urnishes much o a consrain on he applica-

ion o he saue.

D. $10,000 in Any One-Year Period

Te ederal jurisdicional nexus is receip o $10,000 o benes rom he ederal governmen by

he sae or local governmen, agency, or organizaion wihin one year o he offense. Tis nexus isdened in § 666(d)(5) as including “ime boh beore and afer he commission o he offense.”

Te sauory requiremen is effecively a swinging door, requiring proo o he receip o ideni-

ed benes provided by he ederal governmen in any welve-monh period he prosecuor

designaes, so long as he offense occurred a any poin in ime during ha idenied period. Te

saue does no peg he one-year period o a scal or calendar year, nor mus all o he criminal

aciviy occur wihin ha one-year period.51

Secion 666 is a coninuing offense, so he offense conduc, such as soliciaion o a bribe or

raud, need no occur in a single momen bu can ake place over an exended period o ime. Forexample, a misapplicaion o he unds o a program receiving $10,000 in governmen benes can

ake place hrough a series o nancial ransacions, and so long as any one o hem ake place

wihin he one-year period idenied in he indicmen as providing ederal jurisdicion, hen his

elemen o he offense is esablished.

As an elemen o he offense, he governmen mus prove beyond a reasonable doub ha

he organizaion, governmen, or agency idenied in he indicmen received over $10,000 in

benes during he specied one-year period. While ha proo seems airly simple, Unied Saes v.

Jackson illusraes ha his elemen is no proven by simply showing ha an unrelaed uni o he

50. See Anhony A. Joseph, Public Corrupion: Te Governmen’s Expansive View in Pursui o Local and Sae Offi cials , 38C. L. . 567, 575 (2008) (“§ 666 does no give he ederal governmen jurisdicion o bring a charge agains any‘organizaion’ simply by alleging ha he sae (or example, a ‘governmen’ wih no ormal connecion o a non-proorganizaion) received ederal unds.”).

51. See Unied Saes v. Baldridge, 559 F.3d 1126, 1138 (10h Cir. 2009).


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governmen received ederal unding. In Jackson , he Fifh Circui overurned convicions because

he governmen ailed o offer suffi cien proo o he acual amouns received by he ciy during he

alleged period when he offense occurred. Te governmen sough o prove he benes received

by showing indirec benes received by he ciy, based on amouns paid by he ederal govern-men o he sae or local or regional ars projecs. Te prosecuion ailed o inroduce suffi cien

evidence o he acual amoun o unds received, he daes when he unds were disbursed o he

ciy, or how much o he money received was raceable o ederal grans. Te circui cour saed

ha “he Governmen mus presen more han a mere scinilla o evidence” o he ederal benes

by inroducing evidence ha “affords a subsanial basis” o suppor he jury’s nding.52 Tus, i

is imporan or he prosecuion o offer clear proo o his elemen hrough esimony or docu-

mens showing he paricular daes and amouns o any disbursemens used o esablish ederal

jurisdicion.

53

V. AGENT

Secion 666 applies o any “agen o an organizaion, or o a Sae, local, or Indian ribal governmen,

or any agency hereo” ha receives he $10,000 o ederal benes in he one-year period. Te

saue denes an agen as “a person auhorized o ac on behal o anoher person or a governmen

and, in he case o an organizaion or governmen, includes a servan or employee, and a parner,direcor, offi cer, manager, and represenaive.”54 Te breadh o he sauory deniion o an “agen”

would seem o preclude mos argumens over is scope, bu in ac his is among he mos liigaed

issues in § 666 prosecuions because i provides one o he ew grounds, afer Fischer , or he deense

o argue ha he person alls ouside he saue once he ederal nexus argumen ailed.

A. Authority over Funds

Prior o he Supreme Cour’s decision in Salinas , one disric cour limied he scope o § 666

by requiring ha he governmen prove he agen was responsible or he adminisraion o he

organizaion’s unds, alhough i was no necessary o show ha ederal unds were involved. Tis

limiaion was designed o ensure ha he prohibiion proeced a ederal ineres by linking he

agen’s wrongdoing o he risk ha ederal unds would be misspen. In Unied Saes v. Frega , he

disric cour dismissed a charge o conspiracy o violae § 666 agains wo sae cour judges

and an atorney arising rom bribery o he judges o avor he lawyer’s cliens in cases beore hem.

52. 313 F.3d 231, 236–38 (5h Cir. 2002); see also Fischer v. Unied Saes, 529 U.S. 667, 677 (2000) (holding haMedicare paymens are benes under § 666 wih acceping he governmen’s proposed reading o benes o includinganyhing ha has he ederal governmen as he source o he paymen).

53. See Unied Saes v. Frega, 933 F. Supp. 1536, 1542 (S.D. Cal. 1996) (unding mus be shown a a airly specic level,and no jus a he general governmen level).

54. 18 U.S.C. § 666(d)(1).


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Te disric judge noed ha he saue was designed o proec he inegriy o ederal unds, and

ound he indicmen insuffi cien because i did “no allege ha ederal unds were corruply

adminisered, were in danger o being corruply adminisered, or even could have been corruply

adminisered.”55

Afer Salinas , ha analysis is awed because he Supreme Cour held ha heorganizaion or agency’s receip o he $10,000 in ederal unds is suffi cien in isel o esablish

ederal jurisdicion, and no urher ederal nexus is required or a prosecuion under he saue.

In Unied Saes v. Viillo , he Tird Circui saed quie succincly ha “§ 666(d)(1) does no dene

an ‘agen’ as someone who necessarily conrols ederal unds.”56

Te Elevenh Circui relied on Frega , however, o overurn he convicion o wo Mississippi

judges and he rial atorney who bribed hem o receive avorable reamen in wo cases beore

hem because here was an insuffi cien nexus beween he bribery and he ederal unding.

In Unied Saes v. Whield , he circui cour held ha he deendans were agens o he Mississippi Adminisraive Offi ce o he Cours (AOC) in heir nonjudicial roles o hiring saff and adminiser-

ing unds provided by ha offi ce. Te bribery involved heir judicial auhoriy, which was unrelaed

o he unding hey received. Te Elevenh Circui held ha “insoar as [Judges] Whield and

eel may have been agens o he AOC, heir role as such had nohing o do wih heir capaciy as

judicial decisionmakers.”57 Te circui cour noed ha he resul would be differen i hey had

been bribed o hire someone o work heir chambers, bu he bribes relaed o cases ha had no

connecion wih he affairs o he sae agency.

Whield akes a biurcaed view o he erm “agen,” nding ha an individual may be acing as

an agen in one capaciy bu no in anoher, even i he person only occupied a single posiion and

aced in ha capaciy. Tis appears o be conrary o he language o § 666, which only requires

ha he person be an “agen o an organizaion, or o a Sae, local, or Indian ribal governmen”

receiving he $10,000 o ederal unding. Te Elevenh Circui ocused on he ac ha he bribery

had nohing o do wih “any business, ransacion, or series o ransacions” o he sae offi ce ha

provided he unding, bu ha is conrary o Salinas ’s analysis ha dispenses wih requiring a nexus

o he ederal unding. Whield ’s approach allows a deendan o argue ha he bribe or grauiy is

unrelaed o he person’s role as an agen o he organizaion or governmen receiving he unding,

hus opening a poenial avenue o avoid liabiliy under he saue.

B. Agent’s Authority

1. Employees

An imporan issue is he relaionship o he deendan o he organizaion, bu here is no

requiremen ha he person occupy a paricular posiion or have specied responsibiliies, such as

55. 933 F. Supp. 1536, 1543 (S.D. Cal. 1996).

56. 490 F.3d 314, 323 (3rd Cir. 2007). See also Unied Saes v. Ollison, 555 F.3d 152, 160 (5h Cir. 2009) (“Te saueisel does no disinguish beween ‘high-level’ and ‘ low-level’ employees.”).

57. 590 F.3d 325, 346 (11h Cir. 2009).


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auhoriy over budges or managemen o he organizaion, o be an agen. In Unied Saes v.

Ollison , he Fifh Circui rejeced he argumen by a secreary o a school disric superinenden

ha she did no come wihin § 666 because she was a low-level employee who did no have

auhoriy over programs ha would affec he ederal unds received by he disric. Te circuicour ound ha he deendan’s misuse o disric unds or personal expenses had a suffi cien

relaionship o he ederal unding so ha he saue properly applied o her, rejecing a

consiuional as-applied challenge o he convicion.58

2. Nonemployees

Once he case moves away rom he more radiional siuaion o an employee, a deendan’srelaionship o he organizaion or agency’s exercise o auhoriy assumes grea imporance in

deermining wheher he label “agen” can be applied. In Unied Saes v. Ferber , he disric cour

dismissed § 666 charges agains an ouside nancial adviser or he Massachusets Waer esources

Agency (MWR) accused o aking bribes in connecion wih he award o securiies underwri-

ing business on he agency’s behal. Te disric judge ound ha he deendan was no “auho-

rized o ac” on MWR’s behal under general principles o agency law. While he deendan owed

a duciary duy o he agency, he only provided nancial planning advice, and “[]here was no

evidence presened in he governmen’s case ha ended o show ha Ferber was ever given he

auhoriy o aler he legal relaionship beween he [agency] and hird paries.” 59

For nonemployees, he auhoriy o ac on behal o he organizaion or agency is crucial o

come wihin § 666. In Unied Saes v. Viillo , he Tird Circui considered wheher he deendans,

an individual and he corporaions he conrolled, were agens o an airpor owned by a municipal-

iy ha hey managed as independen conracors. ejecing he argumen ha an “independen

conracor” does no come wihin he saue, he circui cour ound ha he use o he word

“includes” in § 666(d)(1) mean ha he lis o relaionships which makes a person an agen was

“no exhausive,” nor was he governmen required o prove ha he deendans conrolled ederal

unds as a condiion or being ound an agen. Te Tird Circui concluded ha “as a mater o

58. Id . a 161. Te Fifh Circui noed he language in wo oher cases ha appeared o require he deendan o havesome auhoriy over he organizaion’s ransacions ha would hreaen he inegriy o he ederal unds. In Unied Saesv. Wesmoreland , 841 F.2d 572, 578 (5h Cir. 1988), one o he earlies appellae decisions consruing § 666, he circuicour, in he course o rejecing a deendan’s claim ha he governmen had o race he ederal unds o prove a violaion,saed ha he saue is limied “o agens who have he auhoriy o effec signican ransacions.” In Unied Saes v. Lipscomb , 299 F.3d 303, 336 (5h Cir. 2002), a pre-Sabri case reviewing he consiuionaliy o he saue, he FifhCircui reerred o he deendan’s “high rank and his broad inuence over many programs ha receive ederal unds” asa basis or rejecing an as-applied challenge o he prosecuion. In neiher case was he issue o he deendan’s saus as an“agen” squarely presened o he cour, and he saemens abou he auhoriy o he deendans were made in passing o butress he circui cour’s ulimae conclusion upholding he convicions. While Ollison pays lip service o he apparenrequiremen ha he deendan have some auhoriy over unds, i was suffi cien ha he deendan’s conduc affeced hedisbursemen o disric unds. I does no appear o be a specic requiremen o prove agency ha he governmen showhe person exercised some measure o conrol over he organizaions unds, only ha he unds were affeced by heagen’s conduc. No oher circuis recognize his as a limiaion on he scope o § 666.

59. 966 F. Supp. 90, 100 (D. Mass. 1997).


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sauory inerpreaion, § 666(d)(1) does no by deniion exclude an independen conracor

who acs on behal o a § 666(b) eniy as a manager or represenaive o ha eniy.”60

Te Sevenh Circui reached he same conclusion in Unied Saes v. Lupon regarding a real

esae broker reained by he sae o assis in he sale o one o is buildings who sough a kickbackrom a poenial purchaser in exchange or recommending him as having he bes offer or he

propery. Te conrac beween he sae and he real esae agency provided ha i was only

an “independen conracor” and did no have any auhoriy o ac on behal o he sae in a

ransacion, and he deendan argued ha his agreemen mean he could no be an agen under

§ 666(d)(1).61 Te circui cour rejeced ha argumen, saing ha wheher a person was an agen

was deermined by he saue and “no by he erms o a privae conrac.”62 Te Sevenh Circui

explained ha “[p]aries canno conrac around deniions provided in criminal saues; even

i Lupon could no be considered a common law agen under Equis’s conrac, i is nonehelesspossible or him o be an ‘agen’ under he erms o 18 U.S.C. § 666(d)(1).”63 Similarly, he Sixh

Circui explained ha o be an agen under his provision “[e]mploymen labels . . . may bring

some employmen relaionships wihin he sphere o agency saus bu hey do no necessarily

squeeze all oher employmen relaionships ou o ha sphere.”64

C. Agent of the Organization

Te agency elemen ocuses on he person’s role in he organizaion, and he effec o corrupion

on ederal unding or is operaions. Te Supreme Cour’s emphasis in Sabri on he raionale o

§ 666 as a means o preserving he inegriy o he organizaion makes i clear ha he agen mus

be acing on behal o he organizaion ha receives he ederal unds, and no jus an organizaion

ha realizes an indirec bene rom ederal disbursemens.

In Unied Saes v. Abu-Shawish , he Sevenh Circui explained ha “he agen who is poen-

ially criminally liable mus have raudulenly obained propery ha is under he care, cusody or

conrol o he same organizaion or which he is an agen.”

65

Te deendan was he direcor oa nonpro organizaion receiving unds rom he Ciy o Milwaukee o pu on a esival, and he

ciy received ederal block grans ha were used or he esival. Te deendan raudulenly

divered some o he money ino his personal accoun, and was charged under § 666(a)(1)(A)

wih hef rom an organizaion receiving ederal unds. Alhough he was an agen o he nonpro

organizaion rom which he ook he money, he ederal unding was direced o he ciy, no

Abu-Shawish’s organizaion. Te circui cour explained ha when he charge is hef “[]he plain

language o he saue a issue here seems o require ha he individual ac as an agen on behal

60. 490 F.3d 314, 323 (3rd Cir. 2007).

61. 620 F.3d 790, 800 (7h Cir. 2010).

62. Id .

63. Id .

64. Unied Saes v. Hudson, 491 F.3d 590, 595 (6h Cir. 2007).

65. 507 F.3d 550, 556 (7h Cir. 2007).


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o he organizaion ha he or she derauded or he purposes o obaining unds.”66 While he

governmen is no required o show ha ederal unds were direcly affeced,67 only an agen o

he organizaion ha acually receives ederal unds, and no a uure beneciary o ha unding,

comes wihin § 666, a leas when he charge involves hef raher han bribery.68

Te governmen mus prove ha he deendan is an agen o he paricular organizaion,

governmen, or agency idenied in he indicmen as receiving he $10,000 o ederal unding

during he welve-monh period.69 In deermining wheher a person is auhorized o ac on behal

o he organizaion, he governmen mus inroduce evidence abou he person’s employmen, job

descripion, and auhoriy. Once i is shown ha he person is an employee, heir posiion in he

organizaion does no mater in applying § 666 o he conduc.70

In Unied Saes v. Phillips , he Fifh Circui overurned he convicion o a Louisiana parish ax

assessor because he was no an agen o he parish bu o he sae ax assessor’s offi ce, a separaegovernmenal uni. Te prosecuion inroduced evidence ha he parish received over $10,000 in

unding or ood samps rom he ederal governmen, bu

because Phillips, as a mater o law, was no an employee or offi cer o he parish and because he was

no auhorized o ac on behal o he parish wih respec o is unds, Phillips’s acions did no and

could no have hreaened he inegriy o ederal unds or programs. Wihou an agency relaion-

ship o he recipien o ederal unds, § 666 does no reach he misconduc o local offi cials.71

Phillips highlighs he imporance o esablishing he relaionship o he deendan o he

organizaion ha received he ederal unding, and simply showing ha a governmenal offi ce

66. Id . a 555. Te circui cour noed ha “surely Congress did no inend o criminalize, wih his provision, an ac hadoes no implicae he inegriy o ederal unds (eiher direcly or indirecly) in any way.” Id . a 557.

67. Te Sevenh Circui made i clear in a oonoe ha “[]he governmen is no required o prove, in he conex o hisprovision, ha ederal unds were acually affec by he agen’s acions.” Id . a 557 n.6.

68. Te Sevenh Circui rejeced he governmen’s argumen ha a deendan could be held liable or deraudingan organizaion ha laer received unds raceable o a ederal gran. Among he reasons he circui cour rejeced hisposiion was ha

he governmen’s inerpreaion would require a emporal leap o logic. In paricular, he saue punishes anagen who raudulenly obains propery ha is owned by heir organizaion. Tere is no change o ense in hesaue: only one ime rame is conemplaed. Te governmen’s reading, however, would also punish an agen who raudulenly obains propery ha is hen subsequenly owned by heir organizaion (i.e., he evens haranspired in he insan case).

Id . a 556.69. An agen can be an independen conracor o he organizaion receiving he ederal unds. See Unied Saes v.Lupon, 2009 WL 357904 *1 (E.D. Wis. 2009).

70. See Unied Saes v. Brann, 990 F.2d 98 (3rd Cir. 1993) (“Te deniion hus includes in he erm ‘agen’ an employeeo any level rom he lowes clerk o he highes adminisraor. I does no, however, include or require ha he employeehold a posiion o rus.”).

71. 219 F.3d 404, 413 (5h Cir. 2000). Phillips is a pre-Sabri decision, and he Fifh Circui discusses he need o avoidany ederalism problems by limiing he saue. While he circui cour discusses he need or a ederal nexus, he agencyanalysis was no affeced by Sabri and remains good law.


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received ederal money is no enough wihou considering wheher he deendan is an agen o

ha paricular organizaion.

Cours can rely on sae and local laws o ascerain wheher he person is an agen o he

organizaion. In Unied Saes v. Madrzyk , he disric cour relied on he Ciy o Chicago MunicipalCode o conclude ha an alderman was an agen o he ciy and no jus he ciy council. 72 In

Unied Saes v. Pety , he enh Circui ound ha a depuy sae reasurer aced on behal o he

sae, and no jus he reasurer’s Offi ce, because she invesed unds provided o he sae ha were

placed in a general accoun or all o is agencies.73

Cours underaking he agency analysis mus consider he legal saus o he organizaion o

undersand how i s wihin he hierarchy o a governmen, which allows a cour o deermine

wheher he organizaion is a separae body or inegraed ino a larger uni ha received ederal

unding. Once is saus is ascerained, he cour can examine he ederal unding provided oensure ha he person is an agen o he idenied organizaion ha mees he jurisdicional

requiremen o § 666.

In Unied Saes v. Moeller , deendans who were agens o he exas Federal Inspecion Service

(FIS) challenged heir convicions or violaing § 666 on he ground ha he evidence only

showed ha he exas Deparmen o Agriculure (DA) received over $10,000 o ederal unds.

Te Fifh Circui looked o he cooperaive agreemen beween he U.S. Deparmen o Agriculure

and he DA ha creaed he FIS o nd ha he agency “perormed discreionary uncions on

behal o DA” and remited is unds direcly o he sae.74 Tus, he circui cour concluded ha

he deendans were also agens o he DA, so he evidence esablished he ederal unding

elemen. In Unied Saes v. Forse , a disric cour ound ha a serviceman in a sae Air Naional

Guard uni was an agen o he sae and no o he ederal governmen because “a leas during

imes ha i is no ordered o acive duy,” he Naional Guard is a sae agency. 75

Te analysis o which sae agency acually employed he deendan was crucial in Unied Saes

v. Langson . Te Elevenh Circui overurned he deendan’s § 666 convicion or divering unds

rom he Alabama Fire College, where he was he execuive direcor, because he indicmen

charged him wih being an agen o he Sae o Alabama raher han he Fire College. Te circui

cour reviewed he saue creaing he organizaion and ound ha he Fire College was indepen-

den, so ha he was no a dual agen o boh, unlike Moeller . Te Elevenh Circui ound ha

“[b]ecause Langson’s employmen wih he Fire College does no auhorize him o ac on behal

o he sae under he applicable sae law, evidence o his employmen wih he Fire College is no

relevan o he charges assering he aced as an agen o he sae.”76 Te evidence ha he circui

72. 970 F. Supp. 642, 644 (N.D. Ill. 1997) (“Secion 2-74-030 caegories all Ciy employees in Ciy service. Te rscaegory o Ciy employees is eleced offi cials. See Ciy o Chicago, Ill., Municipal Code § 2-74-030(1). I is undispuedha Madrzyk was he eleced Alderman or he 13h Ward during he relevan ime period. As an eleced offi cial, Madrzyk was an agen o he Ciy.”).

73. 98 F.3d 1213, 1219 (10h Cir. 1996) (“Because Whiehead was in charge o invesing he sae’s unds, no merely hereasurer’s unds, we nd ha she was indeed an agen o he sae.”).

74. 987 F.2d 1134, 1137–38 (5h Cir. 1993).

75. 980 F. Supp. 395, 398 (D. Kan. 1997).

76. 590 F.3d 1226, 1234 (11h Cir. 2009).


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cour considered in nding insuffi cien evidence o esablish an agency relaionship wih he sae

included he W-2 orms he received and his employmen conrac, boh o which only reerenced

he Fire College. Langson makes i clear ha prosecuors mus be careul in ideniying he proper

agency relaionship as he oundaion or he § 666 charge, and deense counsel should scruinizehe proo o ha relaionship o deermine wheher he wrong offi ce or organizaion was charged.

VI. THE OFFENSE CONDUCT

Secion 666 punishes wo differen ypes o criminal conduc, boh o which involve harm o an

organizaion, governmen, or agency receiving ederal unding. Firs, § 666(a)(1)(A) punishes

any person who “embezzles, seals, obains by raud, or oherwise wihou auhoriy knowinglyconvers o he use o any person oher han he righul owner or inenionally misapplies

propery” worh $5,000 ha is owned by, or under he care, cusody, or conrol o an organizaion.

Tis offense is similar o oher ederal hef saues, such as § 641. Second, § 666(a)(1)(B) is he

bribery and unlawul grauiies par o he saue, making i a crime or any person who

corruply solicis or demands or he bene o any person, or acceps or agrees o accep, anyhing

o value rom any person, inending o be inuenced or rewarded in connecion wih any business,

ransacion, or series o ransacions o such organizaion, governmen, or agency involving anyhing o value o $5,000 or more.

Secion 666(a)(2) exends he corrupion offense o he offeror or payer, similar o he

coverage o § 201 or boh paries o a bribe or unlawul grauiy involving a ederal offi cial.

A. Embezzle, Steal, Defraud, Conversion, or Misapplication

(18 U.S.C. § 666(a)(1)(A))

Embezzlemen, hef, and raud are radiional common law offenses, and he incorporaion o

hem ino § 666 means ha he usual elemens o hose crimes are also applicable o agens o

organizaions, governmens, and agencies which receive he requisie ederal unding. Tese

crimes are no requenly charged by ederal prosecuors because embezzlemen and hef in local

governmens is usually deal wih by sae or local prosecuors. Tere are no repored ederal cases

analyzing he scope and applicaion o hese wo crimes in a § 666 prosecuion.

Fraud is a much broader concep han embezzlemen and hef, covering no only he radi-ional offense o larceny by rick bu also, under oher ederal saues, omissions causing a loss and

even he deprivaion o he righ o hones services under 18 U.S.C. § 1346.77 While raud has been

77. In McNally v. Unied Saes , 483 U.S. 350 (1987), he Supreme Cour saed ha “he words ‘o deraud’ commonlyreer ‘o wronging one in his propery righs by dishones mehods or schemes,’ and ‘usually signiy he deprivaion o


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applied expansively under he ederal saues relaed o he mails (§ 1341), inersae wires

(§ 1343), banks (§ 1344), insurance (§ 1346), and securiies (§ 1348), he § 666 prosecuions

based on raud involve more run-o-he-mill schemes, such as he diversion o unds hrough alse

billings.78

Te prohibiion on conversion or misapplicaion is he broades crime lised in § 666(a)(1)

(A), and hey are no dened in he saue. Te legislaive hisory o § 666 makes no menion o

hese crimes.79 Tis porion, which is se off rom embezzlemen, hef, and raud, makes i an

offense i a person “oherwise wihou auhoriy knowingly convers o he use o any person oher

han he righul owner or inenionally misapplies.” Tese are really wo differen offenses, one

being larceny by conversion and he oher misapplicaion o propery. Te conversion offense

involves lawully obaining possession o propery and hen subsequenly convering i o one’s

own use.

80

A misapplicaion, on he oher hand, does no enail aking possession o he properyor any personal use o i, insead, i involves only direcing is use improperly. Unlike he oher

offenses in § 666(a)(1)(A), which all involve some orm o hef, misapplicaion ocuses on he

somehing o value by rick, decei, chicane or overreaching.’ ” (quoing Hammerschmid v. Unied Saes , 265 U.S. 182(1924)).

I does no appear ha an allegaion o raud in violaion o § 666 can be based on he righ o hones servicesheory in 18 U.S.C. § 1346, which has been used in a number o corrupion prosecuions (see Chaper 6). Taprovision saes, “For he purposes o his chaper, he erm ‘scheme or arice o deraud’ includes a scheme orarice o deprive anoher o he inangible righ o hones services.” Te reerence o “his chaper” means hahe provision applies o he crimes in ile 18, Par I, Chaper 63, bu § 666 is no par o ha chaper o heederal criminal code. While corrupion can be charged under boh § 666 and he mail and wire raud saues,he limiaion o he righ o hones services heory o saues in “his chaper” should preclude is applicaiono § 666, alhough i would no be much o a srech o apply § 1346 o § 666. See George D. Brown, SealhSaue Corrupion, he Spending Power, and he Rise o § 666 , 73 N D L. . 247, 274 (1998)(“I migh no be a big sep o ranser he concep o hones services raud o § 666.”). Te Supreme Cour’sdecision in Skilling v. Unied Saes , __ S. C. __ (2010), limiing righ o hones services prosecuions o

conduc involving bribery or kickbacks does bring § 666 much closer o he mail and wire raud cases hainvolve § 1346.

78. See, e.g. , Unied Saes v. Abu-Shawish, 507 F.3d 550 (7h Cir. 2007). Te deendan’s convicion was overurned because he was no he agen o an organizaion receiving $10,000 o ederal benes, bu he circui cour poined ouha his raud could easily have been charged under oher ederal saues:

I is likely ha Abu-Shawish could have been charged wih mail or wire raud, since he used boh he mail and ele-phone as a par o his raudulen scheme. I is no or his Cour o reec on why he governmen chose o chargehim wih a violaion o § 666(a)(1)(A) as opposed o mail raud and/or wire raud. A botom, Abu-Shawishderauded he Ciy o Milwaukee, bu he governmen is sill required o charge him wih he appropriae crime.

Id . a 558.

79. Te Senae epor on § 666 saes only ha he provision “creae[s] new offenses o augmen he abiliy o he UniedSaes o vindicae signican acs o hef, raud, and bribery involving Federal monies ha are disbursed o privaeorganizaions o Sae and local governmens pursuan o a Federal program.” S.. N. 225, reprined in 1984U.S.C.C.A.N. 3182. Tere is no specic menion o conversion or misapplicaion.

80. See People v. Chrisenson, 312 N.W.2d 618, 620 (Mich. 1981) (“Te purpose o he larceny by conversion saue iso cover one o he siuaions lef unaccouned or by common-law larceny, ha is, where a person obains possessiono anoher’s propery wih lawul inen, bu subsequenly convers he oher’s propery o his own use.”); Iin v. Ungar,17 P.3d 129, 135 n.10 (Colo. 2000) (he common law offense o conversion “is disinc rom he crime o hef in ha idoes no require ha a wrongdoer ac wih he specic inen o permanenly deprive he owner o his propery.”).


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criminal ransgression. Likewise he sin is civil (i i is any wrong a all) when a public employee

manipulaes he rules, as Tompson did, o save he sae money or avor a home-sae producer ha

suppors eleced offi cials.84

Te noion o harm advanced in Tompson does no require ha he governmen lose

money, only ha he misapplicaion mus involve a corrup decision-making process or a

diversion o resources rom heir proper applicaion as deermined by hose responsible or heir

allocaion. In Unied Saes v. Urlacher , he Second Circui rejeced a police offi cial’s deense

ha here was no violaion o § 666(a)(1)(A) when unds were applied o oher purposes o

he police deparmen han hose or which hey were supposed o be used. Te circui

cour saed, “Inenional misapplicaion, in order o avoid redundancy, mus mean inenional

misapplicaion or oherwise legiimae purposes; i i were or illegiimae purposes, i would

be covered by he prohibiions agains embezzlemen, sealing, obaining by raud, or

conversion.”85

While he deendan usually gains a bene rom he misapplicaion, inenionally direcing

he unds in a way ha subvers he organizaion’s legiimae ineres or he requiremens imposed

by he organizaion receiving he unds abou how hey should be expended consiues a violaion

o § 666 because i calls ino quesion he inegriy o he organizaion’s inernal procedures or

conrolling he disbursemen o unds.86 Misapplicaion does no require a personal bene o he

agen rom he misconduc.

For example, in Unied Saes v. Frazier , he enh Circui upheld he deendan’s convicion or

misapplying unds rom a ederal job raining gran o purchase compuers or his organizaion

raher han providing he compuer raining required by he gran.87 In Unied Saes v. Cornier-

Oriz , he Firs Circui affi rmed he deendan’s convicion or misapplying unds o hire he

broher o a governmen employee o perorm work in violaion o a conic-o-ineres policy.

Te circui cour held, “Te prohibiion agains inenional misapplicaion covers he siuaion

presened here: paymens made or wha was an underlying legiimae purpose bu inenionally

misapplied o undermine a conic o ineres prohibiion.”88

84. Id .

85. Unied Saes v. Urlacher, 979 F.2d 935, 938 (2nd Cir. 1992).

86. I he Second Circui mean o limi misapplicaion o only hose siuaions in which he use o he unds waslegiimae, hen is analysis is misaken. Wha consiues a misapplicaion can involve boh legiimae and illegiimaeuses o propery and is no conned o only legiimae ones. In Tompson , he Sevenh Circui saed ha “[a]s long as he

sae ges wha i conracs or, a he marke price, no unds have been misapplied, even i he sae’s rules should haveled i o buy somehing more expensive (and perhaps o higher qualiy, oo).” 484 F.3d a 881–82. Tompson ’s ocus on wheher organizaion received he inended bene rom he use o is unds is consisen wih Urlacher ’s ocus on wheherhe money is being spen in a permissible manner, regardless o wheher he ulimae use o he unds is or somehinglegiimae or illegiimae. I he organizaion ges wha i inended o receive hrough he use o is unds, hen here is nomisapplicaion under Tompson , bu i he unds are used or a purpose or which hey should no have been expended,hen under Urlacher i is no a deense o argue ha he organizaion a leas go somehing in reurn or is money.

87. 53 F.3d 1105, 1109 (10h Cir. 1995).

88. 361 F.3d 29, 37 (1s Cir. 2004).


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Te misapplicaion mus be done “inenionally,” so he governmen is required o prove he

deendan’s specic inen o misapply he propery o he organizaion and no jus ha i was

used negligenly. I an agen’s use o he propery is auhorized, hen ha can be srong evidence

ha he did no have he requisie inen. In Unied Saes v. De la Cruz , he Sevenh Circui saed,“Auhorizaion, or raicaion, rom hose wih auhoriy can be an imporan evideniary acor in

avor o he deense, miliaing agains a nding o inenional misapplicaion.”89 I is no a com-

plee deense, however, and in De la Cruz , he circui cour ound he raicaion o he conracs

quesionable because “offi cials atemped o immunize hemselves rom ederal prosecuion by

simply samping heir criminal misapplicaion o unds as approved.”90

B. Bribery and Unlawful Gratuities

1. The Broader Approach of § 666(a)(1)(B)

Congress enaced § 666 o exend he prohibiions on bribery and unlawul grauiies conained in

18 U.S.C. § 201 o sae and local governmens, along wih organizaions ha received signican

ederal unding. Te wo saues are no coexensive, however, due o differences in he ex

making § 666 broader han § 201. Secion 666(a)(1)(B) provides ha an agen o an organizaion,

governmen, or agency who “corruply solicis or demands or he bene o any person, or acceps

or agrees o accep, anyhing o value rom any person, inending o be inuenced or rewarded” isguily o he crime, while § 201 does no include soliciaions. Like § 201, § 666 also reaches he

offeror or payer o a bribe or grauiy.91

Te inclusion o he erm “solici” in § 666 expands he saue’s coverage beyond quid pro quo

arrangemens. Te Sixh Circui explained in Unied Saes v. Abbey ha “he saue does no

require he governmen o prove ha Abbey conemplaed a specic ac when he received he

bribe; he ex says nohing o a quid pro quo requiremen o susain a convicion, express or

oherwise. . . .”92 Te Sevenh Circui, in Unied Saes v. Gee , summarized he scope o § 666(a)(1)(B)

succincly when i saed ha a “quid pro quo o money or a specic legislaive ac is suffi cien o violae he saue, bu i is no necessary .”93 Te use o he erm “solici” means ha even he

preliminary seps ha would lead o a quid pro quo arrangemen are enough o violae he saue,

so long as he soliciaion is corrup.

89. 469 F.3d 1064, 1068 (7h Cir. 2006). Te Sevenh Circui reerred o he bank misapplicaion saue, 18 U.S.C.§ 656, which does no recognize a complee deense based on approval o a ransacion by he bank’s board o direcors oroffi cers.

90. Id .

91. Secion 666(a)(2) provides ha “Whoever . . . corruply gives, offers, or agrees o give anyhing o value o anyperson, wih inen o inuence or reward an agen o an organizaion or o a Sae, local or Indian ribal governmen, orany agency hereo” shall be guily o he offense.

92. 560 F.3d 513, 520 (6h Cir. 2009).

93. 432 F.3d 713, 714 (7h Cir. 2005).


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Te Elevenh Circui in Unied Saes v. McNair adoped he same posiion when rejecing a

requiremen ha he governmen prove a quid pro quo agreemen. Te circui cour ound ha he

plain language o § 666 did no require ha he soliciaion or receip o a bribe be “in exchange or

a specic offi cial ac,” and noed ha “[]o accep he deendans’ argumen would permi a persono pay a signican sum o a Cour employee inending he paymen o produce a uure, as ye

unidenied avor wihou violaing § 666.”94

Te original language o § 666 mimicked § 201 by making i a crime o solici, demand, or

accep anyhing o value “ or or because o he recipien’s conduc in any ransacion or mater or a

series o ransacions or maters.”95 Te grauiies offense under § 201(c)(1)(B) applies o any

demand or accepance o a hing o value “or or because o any offi cial ac.” Te 1986 amendmen

o § 666 changed he language o he offense o is curren orm ha covers any corrup soliciaion

or demand by an agen “inending o be inuenced or rewarded.”

96

Te use o he erm “rewarded”means ha § 666 applies o boh bribes (“inuenced”) and grauiies (“rewarded”). In Unied

Saes v. Bonio , he Second Circui held ha he language o he amended provision was o

he same effec as he original saue, so ha “he curren saue coninues o cover paymens

made wih inen o reward pas offi cial conduc, so long as he inen o reward is corrup.”97

An imporan change in he 1986 amendmen was he deleion o “or or because o ” as an

elemen o he offense. Ta phrase was he key o he Supreme Cour’s decision in Unied Saes v.

Sun-Diamond Growers o Caliornia , which required in a § 201(c) prosecuion or an unlawul

grauiy ha he governmen prove “a link beween a hing o value conerred upon a public offi cial

and a specic ‘offi cial ac’ or or because o which i was given.”98 As discussed in Chaper 2, a gif

given or he purpose o buying access o an offi cial would no come wihin § 201 i i were given

a a poin in ime when he offi cial did no have a paricular “offi cial ac” beore him o which he

gif was relaed. Secion 666(a)(1)(B), however, does no require proo ha he grauiy was

relaed o a specic offi cial ac, only ha he bene is conneced o some business or ransacion

o he organizaion.

In Unied Saes v. Abbey , he Sixh Circui saed, “Sun-Diamond . . . is no germane o our

decision,” and ha “[]here is hus no good reason, eiher in ex or policy, o injec Sun-

Diamond ’s heighened requiremens ino § 666. . . .”99 In Unied Saes v. Redzic , he Eighh Circui

explained ha

[]o prove he paymen o an illegal bribe, he governmen mus presen evidence o a quid pro quo ,

bu an illegal bribe may be paid wih he inen o inuence a general course o conduc. I was no

94. 605 F.3d 1152, 1187–88 (11h Cir. 2010). Te Elevenh Circui poined ou ha “[]o be sure, many § 666 briberycases will involve an ideniable and paricularized offi cial ac, bu ha is no required o convic.” Id . a 1188.

95. P. L. N. 98-473, § 1104(a), 98 Sa. 2143 (1984).

96. P. L. N. 99-646, § 59(a), 100 Sa. 3612 (1986).

97. 57 F.3d 167, 171 (2nd Cir. 1995). In Unied Saes v. Ganim , 510 F.3d 134, 150 (2nd Cir. 2007), he Second Circuiaffi rmed is reading o § 666 in Bonio ha he saue covers boh bribery and unlawul grauiies.

98. 526 U.S. 398, 414 (1999).

99. 560 F.3d a 521.


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necessary or he governmen o link any paricular paymen o any paricular acion underaken

[by he deendan].100

Similarly, he Elevenh Circui in Unied Saes v. McNair rejeced reliance on Sun-Diamond olimi he scope o he provision by requiring proo o a specic offi cial ac, poining ou ha “§ 666

sweeps more broadly han §§ 201(b) or (c). Secion 666 requires only ha money be given wih

inen o inuence or reward a governmen agen ‘in connecion wih any business, ransacion, or

series o ransacions.’ ”101

Te requiremen ha he soliciaion or paymen be sough wih he inen “o be inuenced”

does no mean ha he agen mus have he acual auhoriy o direc he business or ransac-

ions on behal o he organizaion. In Unied Saes v. Gee , he Sevenh Circui ook an expan-

sive view o he erm “inuence” o include he clou ha a sae legislaor wields over he

governmen, even hough he acual decision on wheher o award a conrac resided in he

execuive branch o he sae governmen. ejecing he deendan’s argumen ha he paymens

o a sae senaor did no come wihin § 666 because he “had no power or auhoriy o inuence”

he nal decision, he circui cour saed ha “[]his conuses inuence wih power o ac

unilaerally.”102

2. Intent

Secion 666(a)(1)(B) requires proo o wo inens: ha he deendan aced “corruply” in solici-

ing or demanding anyhing o value, and ha i be done “inending o be inuenced or rewarded.”

Te original language in § 666 did no include any express inen requiremen or a convicion, so

ha i could have been read o require only a general inen. Using he erm “inending” indicaes

ha Congress imposed a higher proo requiremen on he governmen, requiring evidence o he

deendan’s specic inen ha he soliciaion or demand be or he purpose o inuencing he

business or ransacions o he organizaion.

100. 569 F.3d 841, 849 (8h Cir. 2009).

101. 605 F.3d 1152,1191 (11h Cir. 2010).

102. 432 F.3d a 715. Te Sevenh Circui explained raher colorully how a member o he legislaure can use he auhor-

iy o his offi ce o inuence decisions o he oher branches o governmen, and hereore he accepance o a bribe orgrauiy can be prosecued:

A legislaor wih he abiliy o conrol he senae’s agenda can hrow a monkey wrench ino a Governor’sprogram, and his power coners inuence over execuive decisions even when he legislaure does no passany paricular law. Te absence o new laws may show he successul applicaion o inuence. One does noneed o live in Chicago o know ha a job descripion is no a complee measure o clou. Te evidence permi-ed a reasonable jury o nd ha George had pleny o clou and used i o OIC’s bene, or which he was well paid.

Id .


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A . INTENT TO INFLUENCE

In Unied Saes v. Ford , he Second Circui held ha “inending o be inuenced” means “here

mus be a quid pro quo ” o esablish he inen o he person demanding he hing o value.103 Te

jury was insruced ha he deendan’s awareness o he offeror’s purpose in giving a hing o value was suffi cien o esablish he inen o be inuenced, which he Second Circui rejeced as

insuffi cien. Te circui cour’s saemen abou he need o show a quid pro quo was no imposing

a requiremen on he governmen o prove an acual agreemen beween he offeror and agen

because § 666(a)(1)(B) also covers soliciaion by an agen, which would ake place beore any

agreemen. Te Second Circui mean ha he inen o he deendan mus be suffi cien o show

ha he person enered ino, or a leas sough o ener ino, a quid pro quo agreemen. As he circui

cour explained,

Te recipien’s “awareness” ha he donor gave somehing o value or he purpose o inuencing

he recipien migh well consiue srong circumsanial evidence ha he recipien aced wih he

requisie culpable sae o mind in acceping he iem, bu a jury should be clearly insruced ha i

is he recipien’s inen o make good on he bargain, no simply her awareness o he donor’s inen

ha is essenial o esablishing guil under Secion 666.104

B. CORRUPTLY

“Corruply” is a word used in a number o ederal saues, and he cours have sruggled o explain

is exac meaning. In Arhur Andersen LLP v. Unied Saes , a case involving obsrucion o jusice,

he Supreme Cour noed ha “‘[c]orrup’ and ‘corruply’ are normally associaed wih wrongul,

immoral, depraved, or evil.”105 Inerpreing a saue ha required proo o “knowingly. . . corruply

persuading” anoher person o obsruc jusice as “limiing criminaliy o persuaders conscious o

heir wrongdoing ” was he mos sensible inerpreaion.106 In Unied Saes v. Ogle , he enh Circui

described “corruply” as “[a]n ac done wih an inen o give some advanage inconsisen wihoffi cial duy and he righs o ohers. . . . I includes bribery bu is more comprehensive; because

an ac may be corruply done hough he advanage o be derived rom i be no offered by

anoher.”107

Proo ha a deendan aced “corruply” involves showing ha he person consciously devi-

aed subsanially rom he duies and responsibiliies o he posiion or auhoriy enrused o

hem, or ha he offer o a hing o value was o induce such deviaion. In Unied Saes v. Rooney ,

he Second Circui held ha “a undamenal componen o a ‘corrup’ ac is a breach o some

103. 435 F.3d 204, 213 (2nd Cir. 2006).

104. Id .

105. 544 U.S. 696, 705 (2005).

106. Id . a 706.

107. 613 F.2d 233, 238 (10h Cir. 1979).


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offi cial duy owed o he governmen or he public a large.”108 In Unied Saes v. Ford , he Second

Circui explained ha “[a] recipien who knows o he donor’s inen o arrange a quid-pro-quo or

o seek special consideraion may, in cerain circumsances, be said o be acing ‘corruply’” when

he person acceps he hing o value.109

C. POLITICAL LOYALTY

Documents

Theft or Bribery Concerning Programs Receiving Federal Funds 18 USC 666 - Criminal Law -