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

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THEFT OR BRI B ER Y C ONC E R NING

PROGRA MS RECEI VING FE DE R AL
FU ND S (18 U. S . C 6 6 6 )
I . H I STO RY O F TH E ST AT UT E 1
ection 666 is a broad federal statute aimed explicitly at corruption at the state and local levels,
including private organizations that receive federal funds.2 Congress adopted the provision in
1984 out of fear that a narrow interpretation of 201 by the Supreme Court in Dixson v. United
States, which was then pending, would exempt virtually all nonfederal officers from prosecution
under the anticorruption statute. The increasing number of state and local programs funded, at
least in part, by the federal government in the 1970s raised the question of whether 201 was
broad enough to cover corruption at the local level.3
1. This chapter is based in part on Peter J. Henning, Federalism and the Federal Prosecution of State and Local Corruption,
92 Ky. L.J. 75 (2003).
2. For an overview of the statute, see George D. Brown, Carte Blanche: Federal Prosecution of State and Local Officials After
Sabri, 54 Cath. U. L. Rev. 403 (2005).
3. In Dixson v. United States, the Court reviewed convictions for violations under 201 for accepting bribes related to
the distribution of federal funds by a local social service organization designated to administer federal block grants for
housing. The defendants were officials of a local organization funded by the federal government, but they were neither
employees of the federal government nor parties to any contract with it. The Supreme Court rejected the argument
that the defendants fell outside the jurisdictional boundaries of 201, holding that they could be prosecuted under
the law because a public official includes any person who occupies a position of public trust with official federal
responsibilities, regardless of whether there was an employment or other direct agency relationship. 465 U.S. 482, 496
(1984). The Court noted that the statute required proof that the defendant actually carried out federal policy, stating
that we do not mean to suggest that the mere presence of some federal assistance brings a local organization and its
employees within the jurisdiction of the federal bribery statute or even that all employees of local organizations responsible for administering federal grant programs are public officials within the meaning of section 201(a). Id. at 499.
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PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION
Before the Court issued its opinion in Dixson, Congress expressed its concern that a narrow
interpretation of 201s applicability to nongovernmental officials involved in the administration
of federal programs and grants would give rise to a serious gap in the law, since even though title
to the monies may have passed, the federal government clearly retains a strong interest in assuring
the integrity of such program funds.4 Thus, Congress enacted 666 to augment the ability of the
United States to vindicate significant acts of theft, fraud, and bribery involving federal monies that
are disbursed to private organizations or state and local governments pursuant to a federal
program.5
Section 666 is a logical extension of the federal interest in combating corruption, an interest recognized by the Supreme Court in 1947 in Oklahoma v. United States Civil Service Commission.6 The
federal law at issue in that case, which is now part of the Hatch Act (see Chapter 11), prohibited any
officer or employee of any State or local agency whose principal employment is in connection with any
activity which is financed in whole or in part by loans or grants made by the United States or by any
Federal agency . . . [from] tak[ing] any active part in political management or in political campaigns.7
Although Congress did not have the constitutional authority to impose the requirement
directly on the states, it could attach conditions to the states receipt of federal benefits by requiring those who administer funds for national needs to abstain from active political partisanship.8
The rationale for the federal anticorruption statutes is to enhance the integrity of all levels of
government, an important interest of the national government.
I I . SC O PE O F TH E ST AT UT E
Congress adopted 666 to broaden the scope of federal anticorruption law by permitting the
prosecution of those working for state or local governments, or organizations receiving federal
funding, who receive corrupt payments, along with those who offer or make such payments. The
statute further prohibits other forms of corruption such as embezzlement, theft, and fraud from
governmental organizations. The statute provides:
(a) Whoever, if the circumstance described in subsection (b) of this section exists
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any
agency thereof
4. S. Rep. No. 98-225, at 369 (1983). The Senate Report specifically discussed, and sought to mitigate the effect of, the
Second Circuits decision in United States v. Del Toro, 513 F.2d 656 (2nd Cir. 1975), which read 201 narrowly so that it
did not cover state and local officials.
5. S. Rep. No. 98-225, at 369 (1983).
6. 330 U.S. 127 (1947).
7. Id. at 129 (citing 18 U.S.C. 61).
8. Id. at 143.
Theft or Bribery Concerning Programs Receiving Federal Funds | 73
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly

converts to the use of any person other than the rightful owner or intentionally
misapplies, property that
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization,
government, or agency; or
(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to
accept, anything of value from any person, intending to be influenced or rewarded in
connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or
(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government,
or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000
or more;
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization,
government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal
program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal
assistance.
Unlike 201, which reaches only federal employees and those who directly exercise federal
authority, 666 applies to any agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof. . . .9 Instead of limiting the statute to those occupying particular
official positions, 666 conditions federal jurisdiction on the requirement that the defendant be
an agent of an organization, government, or agency [that] receives, in any one-year period,
benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan,
guarantee, insurance, or other form of Federal assistance.10 The statute also limits federal jurisdiction by requiring proof that the bribe occurred in connection with transactions of the agency or
governmental unit with a value of $5,000 or more. The corrupt payment itself need not have any
specific valuethe statute only requires the offer and acceptance of anything of valuebut the
subject matter of the corruption must meet the $5,000 threshold for federal jurisdiction.11
9. The original statute did not include Indian tribal governments, which was added in 1986. Pub. L. No. 99-646,
59(a), 100 Stat. 3612 (1986). See United States v. Barquin, 799 F.2d 619 (10th Cir. 1986) (directing dismissal of indictment of defendant charged with bribing an official of an Indian tribe because the business council of an Indian tribe was
not a local government agency under 666).
10. 18 U.S.C. 666(b).
11. 18 U.S.C. 666(a)(1)(B) ([I]ntending to be influenced or rewarded in connection with any business, transaction,
or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more.).
Note that the offer or solicitation involves anything of value, while the business or transaction of the agency involves
any thing of value of $5,000 or more. It is not clear whether the space between any and thing carries a particular
meaning.
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I I I . STATU TO RY T E RMS
Section 666(c) defines the following terms used in its operative provisions:
(1) the term agent means a person authorized to act on behalf of another person or a
government and, in the case of an organization or government, includes a servant or
employee, and a partner, director, officer, manager, and representative;
(2) the term government agency means a subdivision of the executive, legislative, judicial,
or other branch of government, including a department, independent establishment,
commission, administration, authority, board, and bureau, and a corporation or other
legal entity established, and subject to control, by a government or governments for the
execution of a governmental or intergovernmental program;
(3) the term local means of or pertaining to a political subdivision within a State;
(4) the term State includes a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States;12 and
(5) the term in any one-year period means a continuous period that commences no earlier
than twelve months before the commission of the offense or that ends no later than twelve
months after the commission of the offense. Such period may include time both before
and after the commission of the offense.13
I V. TH E FED ERA L FUNDS

The first element the government must prove is the circumstance of federal funding of the agency,
government, or organization. This circumstance is the basis for federal jurisdiction over the
offense, grounded in the congressional power to oversee the expenditure of federal funds. The
requirement is that the federal government provided benefits in excess of $10,000 in any oneyear period under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. An issue the Supreme Court has dealt with is the
connection between the federal funding and the offense, including the constitutional question
whether the statute comes within the power of Congress to enact legislation reaching corrupt
actions of state and local officials.
12. Congress expanded the definition of State to include federal possession and territories for a number of different
statutes, including 666, as part of the Crime Control Act of 1990. Pub. L. No. 101-647, Title XII, 1205(d), 104 Stat.
4831 (1990). In United States v. Bordallo, 857 F.2d 519 (9th Cir. 1988), the Ninth Circuit reversed the conviction of the
former governor of Guam for bribery under 666 because Guam is not a state, and the statute did not include territories
of the United States. See id. at 524 (Guam is not a state. In the absence of express congressional intent to include Guam
within the proscriptions of this statute, we cannot hold that the statutory provisions apply to Guam.).
13. Congress added this definition of the twelve-month period for receiving $10,000 of federal benefits that provides the
basis for federal jurisdiction as part of the Crime Control Act of 1990. Pub. L. No. 101-647, Title XII, 1209, 104 Stat.
4832 (1990).
A. Salinas v. United States: Effect on Federal Funds

In Salinas v. United States, the defendant was a deputy sheriff convicted of accepting bribes from
a federal prisoner, housed in the county jail, in exchange for preferential treatment toward the
prisoner. The amount of federal funds received by the jail easily exceeded the statutory $10,000
minimum, so the jurisdictional element was undisputed. The Court rejected the defendants
argument that, to establish federal jurisdiction under the statute, the government must also prove
that the subject matter of the bribe involved the federal funds provided to the agency or government. The Court held, The prohibition is not confined to a business or transaction which affects
federal funds. The word any, which prefaces the business or transaction clause, undercuts the
attempt to impose this narrowing construction.14
The Court recognized that Congress adopted 666 to expand federal anticorruption law, so
restricting the statute to only those bribes which directly implicated the use or expenditure of
federal funds would be incongruous with the legislative intent for the provision.15 The Court
also rejected the defendants argument that the statute implicitly required a nexus between the
alleged misconduct and federal funds because it did not plainly state the contrary. The Court,
however, dodged the issue of whether the government needed to prove any other type of nexus to
the federal funds, stating that [w]e need not consider whether the statute requires some other
kind of connection between a bribe and the expenditure of federal funds, for in this case the bribe
was related to [a program] paid for in significant part by federal funds themselves.16
Although the Court found the statute unambiguous, it further asserted there is no serious
doubt about the constitutionality of 666(a)(1)(B) as applied to the facts of this case.17 It is not
clear why the Court saw a need to address further the constitutionality of the provision, especially
if there was no serious doubt on an issue that was not relevant to the statutory analysis and
outside the question presented by the defendant. Despite Salinass holding that the government
need not show a connection between the bribe and the federal funds, the Court referred obliquely
to federalism, stating that [w]hatever might be said about 666(a)(1)(B)s application in other
cases, the application of 666(a)(1)(B) to Salinas did not extend federal power beyond its proper
bounds.18
14. 522 U.S. 52, 57 (1997).

15. Id. at 58.
16. Id. at 59.
17. Id. at 60.
18. Id. at 61. The constitutionality of 666 was a question of congressional authority to regulate, not the propriety of
an application of a statute in a particular prosecution. Salinass offhand reference to the constitutionality of the statute
as applied misstated the proper constitutional analysis by giving the impression that the Constitution might require
additional proof of some relationship between the federal interest and a defendants conduct beyond the elements
contained in the statute. The majority in Salinas may have been trying to assuage fears that 666 created a crime wholly
outside the federal interest, but the Courts vague invocation of an as-applied constitutional challenge had the effect of
encouraging lower courts to consider arguments that the Constitution requires an extra-statutory limit on the application
of the statute, at least until its decision in Sabri v. United States, discussed below.
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B. Sabri v. United States: Federalism and

the Nexus Requirement
The federal governments role in applying corruption laws to prosecute state and local officials
raised questions about whether 666 violated the constitutional principle of federalism. In Salinas,
the Court gave a slight nod in the direction of a potential federalism limit on 666 when it stated
that perhaps some other kind of connection to the federal funds might be required.19 In two
other cases not involving corruption statutes, United States v. Lopez and United States v. Morrison,
the Supreme Court invalidated provisions of federal law because they exceeded congressional
authority to regulate in areas already subject to the police power of the states. In Lopez, the Court
found the Gun Free School Zone Act unconstitutional, noting that the states are the primary
authority for defining and enforcing the criminal law, so that [w]hen Congress criminalizes
conduct already denounced as criminal by the States, it effects a change in the sensitive relation
between federal and state criminal jurisdiction.20 In Morrison, the Court explicitly relied on
federalism as a rationale for invalidating the civil remedy provision of the Violence Against Women
Act, holding that [t]he Constitution requires a distinction between what is truly national and
what is truly local. . . . The regulation and punishment of intrastate violence that is not directed at
the instrumentalities, channels, or goods involved in interstate commerce has always been the
province of the States.21
In light of the federalism views expressed in Lopez and Morrison, along with Salinass
acknowledgment that there was no federalism problem in that particular case, lower courts faced
a number of constitutional challenges to 666, both facially and as applied to particular defendants. The statute does not expressly require that the corruption affect the federal funds provided
to the government, agency, or organization, and defendants argued that, to avoid any federalism
problem from application of the statute to an area usually reserved to the states, the prosecution
should be required to prove a nexus between the violation and the federal funding. A split in the
circuit courts developed on whether the government must prove as an element of the offense a
nexus between the corruption and federal funding.22
Some courts adopted a limited reading of the statute which required the government to
establish some federal connection, although not a direct effect, between the corruption and the
federal role in the program or organization. In United States v. Zwick, the Third Circuit held that
the prosecution must prove a federal interest in the defendants conduct, but the extent of that
relationship was unclear because we surmise that a highly attenuated implication of a federal
interest will suffice for purposes of 666.23 Although the government introduced proof that the
19. Id. at 59.

20. 514 U.S. 549, 561 n.3 (1995) (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1993), and United States v. Enmans,
410 U.S. 396, 41112 (1973)).
21. 529 U.S. 598, 61718 (2000).
22. Compare United States v. Dakota, 197 F.3d 821 (6th Cir. 1999) (the government need not show any nexus between
federal funds and the alleged corruption) with United States v. Santopietro, 166 F.3d 88 (2nd Cir. 1999) (the government
must show at least some connection between the bribe and a risk to the integrity of the federal funded program).
23. 199 F.3d 672. 687 (3rd Cir. 1999).
township in which the defendant was a member of the Board of Commissioners received federal
funds for emergency snow removal and a stream erosion project, the circuit court found this
insufficient because the funds bear no obvious connection to Zwicks offense conduct, which
involved sewer access, use permits and landscaping performance bonds.24 The Second Circuit
adopted a similar interpretation of 666 in United States v. Santopietro, holding that the government must demonstrate at least some connection between the bribe and a risk to the integrity of
the federal[ly] funded program. . . .25
Other circuit courts rejected any nexus requirement as an element of the offense. In United
States v. Valentine, the Sixth Circuit held, [W]e find that the statute does not require the government to demonstrate the federal character of the stolen property. The statute addresses the relationship between the federal government and the local government from which the property was
stolen, not the relationship between the federal government and the converted property.26 In
United States v. Westmorland, the Fifth Circuit held, Subsection (b) [of 666] contains nothing to
indicate that any transaction involving $5,000 means any federally funded transaction involving
$5,000 or any transaction involving $5,000 of federal funds, and other subsections of the statute
contain no inconsistent provisions that might suggest such a qualification.27
In Sabri v. United States,28 the Supreme Court resolved the split and put an end to constitutional challenges, both facial and as-applied, in 666 prosecutions based on the need to avoid
federalism concerns by requiring proof of a federal nexus.29 The defendant was convicted for offering three bribes to a member of the Minneapolis City Council to help build a hotel and retail
development in the city. Defendant made a facial challenge to 666, asserting that the statute
24. Id. at 688. The vague connection requirement imposed by Zwick required the fact-finder to trace the funds from a
federal program to the organization involved in the misconduct, and to determine whether the funds were sufficiently
related to the alleged corruption to permit the prosecution to proceed. These facts may not have been apparent until
after trial.
25. 166 F.3d 88, 93 (2nd Cir. 1999). See United States v. Brunshtein, 344 F.3d 91, 99 (2nd Cir. 2003) (We conclude that
a federal nexus is an element of 666 that must be charged in the indictment, submitted to the jury, and proved beyond a
reasonable doubt.).
26. 63 F.3d 459, 464 (6th Cir. 1995). Interestingly, none of the courts imposing the federal funding connection requirement found 666 unconstitutional. Instead, they adopted an as-applied approach that purported to rely on the federalism
rationale advanced in Lopez and Morrison to declare the prosecution unconstitutional absent proof of the requisite
connection to federal funding. The lower courts never acknowledged that the Supreme Court did not use federalism in
those cases to rewrite the elements of the offenses at issue, but instead it declared the entire provision unconstitutional as
exceeding congressional authority.
27. 841 F.2d 572, 576 (5th Cir. 1988).
28. 541 U.S. 600 (2004).
29. See United States v. Hines, 541 F.3d 833, 836 (8th Cir. 2008) (Hiness as-applied challenge fails, for the plain language of the statute does not require, as an element to be proved beyond a reasonable doubt, a nexus between the activity
that constitutes a violation and federal funds.); United States v. v. Caro-Muniz, 406 F.3d 22, 27 (1st Cir. 2005) (rejecting
defendants as-applied challenge, the court join[s] our sister circuits in holding that the government is not required to
prove a nexus between the bribery charged and the municipalitys receipt of federal funds.); United States v. Kranovich,
401 F.3d 1107, 111112 (9th Cir. 2005) (citing Sabri, we therefore hold the government was not required to establish
any connection between the embezzled funds and a federal interest, apart from the express requirement in section 666(b)
that the County received federal benefits in excess of $10,000.); United States v. Spano, 401 F.3d 837, 841 (7th Cir.
2005) ([A]lthough Sabri involved a facial constitutional challenge only, the opinion also forecloses the defendants
as-applied challenge.).
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could never be applied constitutionally because it failed to require as an element of the crime proof
of any connection between the bribe (or kickback) and federal funds.
The Court rejected the argument that without this additional element the provision exceeded
Congresss power to enact the law. The Court stated:
Congress has authority under the Spending Clause to appropriate federal moneys to promote
the general welfare, Art. I, 8, cl. 1, and it has corresponding authority under the Necessary
and Proper Clause, Art. I, 8, cl. 18, to see to it that taxpayer dollars appropriated under that power
are in fact spent for the general welfare, and not frittered away in graft or on projects undermined
when funds are siphoned off or corrupt public officers are derelict about demanding value for
dollars.30
The Court explained that corruption can have a broad impact beyond just the misuse of federal
dollars or dereliction of a duty funded by the federal government. Therefore, it concluded that
Congresss power to punish such conduct is not limited solely to cases in which there is specific
proof of an effect on the national governments funding. The scope of 666 is a permissibly broad
exercise of congressional authority because [m]oney is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value.
Liquidity is not a financial term for nothing; money can be drained off here because a federal grant
is pouring in there.
The rationale for the anticorruption provision is not simply to punish the misuse or theft of
federal funds, a crime already prohibited by 18 U.S.C. 641, but to accomplish the broader goal of
ensuring the integrity of the programs that receive the requisite amount of federal money for their
operation. Professor George D. Brown describes the analysis in Sabri as applying the integrity
rationale to ensure that [w]hat is needed is a broad net that achieves protection through sweeping up all corrupt transactions in order to guarantee the integrity of the recipient entity.31 Therefore,
according to the Court, for federal jurisdiction, It is certainly enough that the statutes condition
the offense on a threshold amount of federal dollars defining the federal interest, such as that
provided in 666.32 Sabri eliminated the requirement imposed by some lower courts that the
government both explicitly identify the federal nexus in its indictment and then prove it at trial,
thereby depriving defendants of an argument that could exempt them from the application of
federal power to their conduct.33
30. 541 U.S. at 605.

31. Brown, supra note 2, at 428.
32. 541 U.S. at 606.
33. Courts requiring the nexus element had split over whether it was a jury question or a question of law reserved
for the courts. Compare United States v. Brunshtein, 344 F.3d 91, 99 (2nd Cir. 2003) (requiring the federal nexus
question be submitted to the jury) with United States v. Bynum, 327 F.3d 986, 993 (9th Cir. 2003) (if a federal nexus
was required, it was a question of law to be resolved by the court and not an element of the offense to be found by
the jury).
C. Fischer v. United States: Benets

1. A Broad Reading of Benets
In Fischer v. United States, the Supreme Court gave a broad reading to benefits in determining
whether an organization or agency meets the $10,000 federal benefits requirement in 666(b). At
trial, the defendant was convicted for defrauding a hospital authority receiving funds under the
Medicare program and for paying a kickback to an officer of an organization receiving Medicare
funding. In upholding the conviction, the Supreme Court held that whether a government
payment constitutes a benefit under 666 depended on an examination of the programs nature
and purposes.34 The Court rejected the defendants argument that because Medicare funds are
only reimbursement for services provided to the ultimate beneficiaries there is no benefit to
the hospital. Instead, the Court held that the funding was provided not simply to reimburse for
treatment of qualifying patients but to assist the hospital in making available and maintaining a
certain level and quality of medical care, all in the interest of both the hospital and the greater
community.35
The Court noted that the providers who process the federal funds derive significant advantage
from their participation in the Medicare program, and [t]hese advantages constitute benefits
within the meaning of the federal bribery statute. . . . Even though the ultimate beneficiaries were
the individual participants in Medicare, that did not prevent finding benefits conferred on the
hospitals receiving funds through the program. Distinguishing Medicare from the situation in
which the government enters into a contract to obtain services, the Court focused on the degree
and nature of the government regulation as part of the program in finding that the payments
constituted benefits. It stated:
Medicare is designed to the end that the Government receives not only reciprocal value from
isolated transactions but also long-term advantages from the existence of a sound and effective
health care system for the elderly and disabled. The Government enacted specific statutes and
regulations to secure its own interests in promoting the well being and advantage of the health care
provider, in addition to the patient who receives care. The health care provider is receiving a benefit
in the conventional sense of the term, unlike the case of a contractor whom the Government does
not regulate or assist for long-term objectives or for significant purposes beyond performance of an
immediate transaction. Adequate payment and assistance to the health care provider is itself one of
the objectives of the program. These purposes and effects suffice to make the payment a benefit
within the meaning of the statute.36
Fischer made it clear that merely receiving federal funds was not sufficient to bring a case within
666: Any receipt of federal funds can, at some level of generality, be characterized as a benefit.
34. 529 U.S. 667, 671 (2000).

35. Id. at 67980.
36. Id. at 680.
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The statute does not employ this broad, almost limitless use of the term.37 Taking such an
expansive approach to the meaning of benefit would turn almost every act of fraud or bribery
into a federal offense, upsetting the proper federal balance. Instead, the determination whether a
program receives benefits requires an examination. . . of the programs structure, operation, and
purpose. The inquiry should examine the conditions under which the organization receives
the federal payment. The answer could depend, as it does here, on whether the recipients own
operations are one of the reasons for maintaining the program.38
The Court did not explain what it meant by the proper federal balance, but like Salinas, the
reference to a limit on federal authority may have assuaged any apprehension of some Justices that
the statute authorized the Department of Justice to prosecute cases in which there was no clear
link to a federal interest.39 Fischer never explained exactly what the federalism limits were for
offenses involving corruption in programs receiving federal funds, so that defendants can continue
to argue that the prosecution in their particular case was unconstitutional.
Unlike 201, which only reaches federal officials and those actually exercising federal authority, 666 applies to all public officials and private persons working for a wide range of organizations or programs that receive substantial federal funding. The statute does not condition federal
jurisdiction on the source of authority or on a direct connection between the office and the federal
funds.40 Fischer made it clear that not every entity receiving federal funds came within 666, quoting from the Senate Report on the law that distinguished commercial transactions involving the
government from those that involve conferring federal benefits.41
2. Relationship to Federal Funding
One issue for the defense in a 666 prosecution is determining the nature of the organization
and its relationship to the federal funding program. If the transaction is closer to a standard
arms-length contractual agreement in which the government is a purchaser (or seller) like any
37. Id. at 668.

38. Id. at 681.
39. See United States v. Lipscomb, 299 F.3d 303, 313 (5th Cir. 2002) (The Salinas Court merely observed in
passing that, even if a federal interest were required, such an interest clearly existed. . . Similarly, the Fischer Court
construed a term in 666 broadly, simply musing that federalism principles might somehow limit the statutes sweep.
As either a statutory or constitutional matter, then, the Court might be seen as harboring inchoate qualms about
whether, for 666 to apply, there might be some need for a direct interest in the funds involved in the prohibited
conduct. . .).
40. In a dissenting opinion, Justice Thomas argued that the breadth of the Courts analysis made him doubt that there is
any federal assistance program that does not provide benefits to organizations. . . He pointed to stores that accept food
stamps as coming within the definition of an organization receiving federal benefits because the program helps to address
the grocery gap, that is, the lack of availability of reasonably priced nutritional foods in some low-income and rural
areas. 529 U.S. at 692 (Thomas, J., dissenting).
41. Id. at 679 (quoting S. Rep. No. 98-225 at 370 (1984)) ([N]ot every Federal contract or disbursement of funds
would be covered [under 666]. For example, if a government agency lawfully purchases more than $10,000 in
equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from the supplier
a Federal crime.).
other market participant, then the organization does not come within the statutory prohibition
and a 666 prosecution cannot proceed. For example, in United States v. Stewart, a pre-Fischer
decision, the district court granted a motion to dismiss 666 charges alleging theft of tools and
parts from defendants employer, Bell Helicopter. The government argued that its contracts with
the company was not a normal supplier arrangement because it purchased custom manufactured
goods that would be illegal to sell to others because of their classified nature. The district court
rejected that argument, finding the statute was not intended to apply to purely commercial
transactions, so that monies paid in consideration for goods provided, even if customized, are
not benefits within the meaning of the statute.42 Stewarts analysis is correct in focusing on the
nature of the government program. The extent to which the organization is supported by federal
funds as part of a broad national policy program rather than engaging in market transactions will
make it more like the hospital that received Medicare payments in Fischer.
After Fischer, whether an organization received federal funding directly, or is only an indirect
beneficiary of federal dollars, is not the decisive question for the application of 666. The analysis
focuses more on the type of program involved than tracing money directly from federal coffers
to an organizations bank account. In United States v. Dubn-Ortero, the First Circuit upheld the
conviction of two owners of a for-profit corporation that received federal funds only through a
local government with which it contracted to provide AIDS testing and education. The circuit
court stated, It makes no difference that [defendants company] Health Services received this
money indirectly. It is now well established that benefits under 666 are not limited solely to
primary target recipients or beneficiaries.43 The First Circuit found that the contract to provide
services contemplated a relationship between Health Services and the Federal Government
that would further the goals of a federal program for disease control and AIDS prevention, and
therefore 666 applied to the corporation.44
United States v. Hildenbrand also illustrated the expansive view of benefits not conditioned
on the direct receipt of federal funds. The defendants purchased homes at a discount through
the Department of Housing and Urban Developments Single Family Affordable Housing
Program (SFAHP) and then improperly inflated the value of the repairs made, thus increasing
the allowable price at which the homes could be sold. The defendants argued that 666 did not
apply because they neither received nor disbursed federal funds through the SFAHP, and the
discounts on the properties were merely an incentive to purchase the homes in a purely commercial transaction between HUD and the organization. The Fifth Circuit rejected the argument,
finding that the organization received a quantitative monetary benefit from HUD through the
discounts, and the program furthers the public policy objectives of both expanding home
ownership opportunities for low- and moderate-income purchasers and strengthening neighborhoods. . . .45 While the ultimate purchasers were also beneficiaries of the discounts, as in Fischer,
42. 727 F. Supp. 1068, 1072 (N.D. Tex. 1989).

43. 292 F.3d 1, 9 (1st Cir. 2002).
44. Id. at 910.
45. 527 F.3d 466, 478 (5th Cir. 2008). In a pre-Fischer case, the district court in United States v. Richards, 925
F. Supp. 1097 (D. N.J. 1996), reached a similar conclusion about the application of 666 to private partnerships
82
there can be multiple beneficiaries of a government program, and the fact that an organization
facilitates the transfer of the benefit to the ultimate recipient does not preclude it from 666s
coverage.46
Not every organization receiving benefits from a federal program comes within 666. In
United States v. Wyncoop, a pre-Fischer decision, the Ninth Circuit held that the embezzlement of
funds from a private college that received no direct federal funding did not come within 666. The
governments theory was that the colleges participation in the federal student loan program that
guaranteed loans made by private banks to its students, which funds are paid to the school, was a
federal benefit sufficient to meet the jurisdictional requirement of 666. The Ninth Circuit held
that the statute was not intended to cover thefts from institutions like Trend College that do not
themselves receive and administer federal funds.47
The circuit court pointed out that the school was only an indirect beneficiary of the federal
funds, an analysis that does not remain good law in light of Fischers focus on the structure, operation, and purpose of the organization rather than how the funding is actually received or disbursed.
But the Ninth Circuits analysis of the schools tenuous connection to federal funds, that 666
does not reach every act of fraud involving an organization receiving in some way federal benefits,
may still survive in light of the Supreme Courts admonition in Fischer.48 The embezzlement in
Wyncoop had nothing to do with the student loan program, which was only incidentally involved,
nor was the integrity of the federal program affected by the diversion of money from the schools
account, so the circuit courts decision overturning the conviction appears to be the correct result
even after Fischer.49
that owned low-income rental housing subsidized by the Farmers Home Administration. In United States v. Dransfield,
913 F. Supp. 702, 709 (E.D. N.Y. 1998), another pre-Fischer decision, the district court found that a school construction
authority retained to repair school buildings received benefits even though the payments were not made to the
authority itself, holding that it cannot reasonably be inferred from the language of the statute that the federal
funding element is restricted to funds which are directly received by the agency under a federal program. (italics in
original).
46. In United States v. Webb, 691 F. Supp. 1164 (N.D. Ill. 1988), a federal district court held that a private accounting
firm that managed and administered federal funds as part of a subsidized housing program did not receive federal benefits because there was no direct benefit and the firm did not control the federal funds, to which title remained in the
federal government. The district court further found that 18 U.S.C. 641, applicable to thefts of government property,
could be applied to the case, and therefore 666 was not available. It is not clear why the availability of another
statute prohibits charging under 666, and the focus on control of the funds is not consistent with Fischers analysis of
the nature of the federal program. See also United States v. Paradies, 98 F.3d 1266, 1289 (11th Cir. 1998) (declining
to apply a connection to federal funds element in a conviction of a state official accepting entirely private money from
individuals).
47. 11 F.3d 119, 122 (9th Cir. 1993).
48. Any receipt of federal funds can, at some level of generality, be characterized as a benefit. The statute does not
employ this broad, almost limitless use of the term. Doing so would turn almost every act of fraud or bribery into a federal
offense, upsetting the proper federal balance. 529 U.S. at 681.
49. Much of the Ninth Circuits analysis focused on the fact that the school was only an indirect beneficiary of the federal
funds, which calls into question whether Wyncoop has much precedential value. The circuit court compared the schools
participation in the program to stores that are part of the federal food stamp program, which Justice Thomas, in his
dissenting opinion in Fischer, asserted would now come within 666. At a minimum, Wyncoop represents the outer limit
of 666(b)s application to an organization.
3. Conclusion
The challenge for both the government and defense counsel in a 666 prosecution is determining
the nature of the organization that is alleged to have received the federal benefits. 50 Fischers analysis is highly fact specific, looking to the overall goals of the federal program and manner in which
the federal funds are disbursed to achieve those goals. The focus is not just on whether the organization received federal money directly, although that can go a long way toward bringing it within
666. To the extent the transfer is more like a commercial transaction, in which the government
is only a buyer (or seller) of goods or services, the greater the possibility that it will not come
within the statute. But, as Hildenbrand illustrates, the fact that the transaction is similar to an
ordinary sale of property does not preclude finding that there is a federal benefit conferred on the
organization because broader policy goals can be achieved through the federal participation in
ordinary market transactions. While Fischer recognized that there were limits on the scope of
666, it is difficult to see how the benefits analysis furnishes much of a constraint on the application of the statute.
D. $10,000 in Any One-Year Period

The federal jurisdictional nexus is receipt of $10,000 of benefits from the federal government by
the state or local government, agency, or organization within one year of the offense. This nexus is
defined in 666(d)(5) as including time both before and after the commission of the offense.
The statutory requirement is effectively a swinging door, requiring proof of the receipt of identified benefits provided by the federal government in any twelve-month period the prosecutor
designates, so long as the offense occurred at any point in time during that identified period. The
statute does not peg the one-year period to a fiscal or calendar year, nor must all of the criminal
activity occur within that one-year period.51
Section 666 is a continuing offense, so the offense conduct, such as solicitation of a bribe or
fraud, need not occur in a single moment but can take place over an extended period of time. For
example, a misapplication of the funds of a program receiving $10,000 in government benefits can
take place through a series of financial transactions, and so long as any one of them take place
within the one-year period identified in the indictment as providing federal jurisdiction, then this
element of the offense is established.
As an element of the offense, the government must prove beyond a reasonable doubt that
the organization, government, or agency identified in the indictment received over $10,000 in
benefits during the specified one-year period. While that proof seems fairly simple, United States v.
Jackson illustrates that this element is not proven by simply showing that an unrelated unit of the
50. See Anthony A. Joseph, Public Corruption: The Governments Expansive View in Pursuit of Local and State Officials, 38
Cumb. L. Rev. 567, 575 (2008) ( 666 does not give the federal government jurisdiction to bring a charge against any
organization simply by alleging that the state (for example, a government with no formal connection to a non-profit
organization) received federal funds.).
51. See United States v. Baldridge, 559 F.3d 1126, 1138 (10th Cir. 2009).
84
government received federal funding. In Jackson, the Fifth Circuit overturned convictions because
the government failed to offer sufficient proof of the actual amounts received by the city during the
alleged period when the offense occurred. The government sought to prove the benefits received
by showing indirect benefits received by the city, based on amounts paid by the federal government to the state for local or regional arts projects. The prosecution failed to introduce sufficient
evidence of the actual amount of funds received, the dates when the funds were disbursed to the
city, or how much of the money received was traceable to federal grants. The circuit court stated
that the Government must present more than a mere scintilla of evidence of the federal benefits
by introducing evidence that affords a substantial basis to support the jurys finding.52 Thus, it
is important for the prosecution to offer clear proof of this element through testimony or documents showing the particular dates and amounts of any disbursements used to establish federal
jurisdiction.53
V. AG ENT
Section 666 applies to any agent of an organization, or of a State, local, or Indian tribal government,
or any agency thereof that receives the $10,000 of federal benefits in the one-year period. The
statute defines an agent as a person authorized to act on behalf of another person or a government
and, in the case of an organization or government, includes a servant or employee, and a partner,
director, officer, manager, and representative.54 The breadth of the statutory definition of an agent
would seem to preclude most arguments over its scope, but in fact this is among the most litigated
issues in 666 prosecutions because it provides one of the few grounds, after Fischer, for the defense
to argue that the person falls outside the statute once the federal nexus argument failed.
A. Authority over Funds

Prior to the Supreme Courts decision in Salinas, one district court limited the scope of 666
by requiring that the government prove the agent was responsible for the administration of the
organizations funds, although it was not necessary to show that federal funds were involved. This
limitation was designed to ensure that the prohibition protected a federal interest by linking the
agents wrongdoing to the risk that federal funds would be misspent. In United States v. Frega, the
district court dismissed a charge of conspiracy to violate 666 against two state court judges
and an attorney arising from bribery of the judges to favor the lawyers clients in cases before them.
52. 313 F.3d 231, 23638 (5th Cir. 2002); see also Fischer v. United States, 529 U.S. 667, 677 (2000) (holding that
Medicare payments are benefits under 666 with accepting the governments proposed reading of benefits of including
anything that has the federal government as the source of the payment).
53. See United States v. Frega, 933 F. Supp. 1536, 1542 (S.D. Cal. 1996) (funding must be shown at a fairly specific level,
and not just at the general government level).
54. 18 U.S.C. 666(d)(1).
The district judge noted that the statute was designed to protect the integrity of federal funds, and
found the indictment insufficient because it did not allege that federal funds were corruptly
administered, were in danger of being corruptly administered, or even could have been corruptly
administered.55 After Salinas, that analysis is flawed because the Supreme Court held that the
organization or agencys receipt of the $10,000 in federal funds is sufficient in itself to establish
federal jurisdiction, and no further federal nexus is required for a prosecution under the statute.
In United States v. Vitillo, the Third Circuit stated quite succinctly that 666(d)(1) does not define
an agent as someone who necessarily controls federal funds.56
The Eleventh Circuit relied on Frega, however, to overturn the conviction of two Mississippi
judges and the trial attorney who bribed them to receive favorable treatment in two cases before
them because there was an insufficient nexus between the bribery and the federal funding.
In United States v. Whitfield, the circuit court held that the defendants were agents of the Mississippi
Administrative Office of the Courts (AOC) in their nonjudicial roles of hiring staff and administering funds provided by that office. The bribery involved their judicial authority, which was unrelated
to the funding they received. The Eleventh Circuit held that insofar as [ Judges] Whitfield and
Teel may have been agents of the AOC, their role as such had nothing to do with their capacity as
judicial decisionmakers.57 The circuit court noted that the result would be different if they had
been bribed to hire someone to work their chambers, but the bribes related to cases that had no
connection with the affairs of the state agency.
Whitfield takes a bifurcated view of the term agent, finding that an individual may be acting as
an agent in one capacity but not in another, even if the person only occupied a single position and
acted in that capacity. This appears to be contrary to the language of 666, which only requires
that the person be an agent of an organization, or of a State, local, or Indian tribal government
receiving the $10,000 of federal funding. The Eleventh Circuit focused on the fact that the bribery
had nothing to do with any business, transaction, or series of transactions of the state office that
provided the funding, but that is contrary to Salinass analysis that dispenses with requiring a nexus
to the federal funding. Whitfields approach allows a defendant to argue that the bribe or gratuity is
unrelated to the persons role as an agent of the organization or government receiving the funding,
thus opening a potential avenue to avoid liability under the statute.
B. Agents Authority
1. Employees
An important issue is the relationship of the defendant to the organization, but there is no
requirement that the person occupy a particular position or have specified responsibilities, such as
55. 933 F. Supp. 1536, 1543 (S.D. Cal. 1996).

56. 490 F.3d 314, 323 (3rd Cir. 2007). See also United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009) (The statute
itself does not distinguish between high-level and low-level employees.).
57. 590 F.3d 325, 346 (11th Cir. 2009).
86
authority over budgets or management of the organization, to be an agent. In United States v.

Ollison, the Fifth Circuit rejected the argument by a secretary to a school district superintendent
that she did not come within 666 because she was a low-level employee who did not have
authority over programs that would affect the federal funds received by the district. The circuit
court found that the defendants misuse of district funds for personal expenses had a sufficient
relationship to the federal funding so that the statute properly applied to her, rejecting a
constitutional as-applied challenge to the conviction.58
2. Nonemployees
Once the case moves away from the more traditional situation of an employee, a defendants
relationship to the organization or agencys exercise of authority assumes great importance in
determining whether the label agent can be applied. In United States v. Ferber, the district court
dismissed 666 charges against an outside financial adviser for the Massachusetts Water Resources
Agency (MWRA) accused of taking bribes in connection with the award of securities underwriting business on the agencys behalf. The district judge found that the defendant was not authorized to act on MWRAs behalf under general principles of agency law. While the defendant owed
a fiduciary duty to the agency, he only provided financial planning advice, and [t]here was no
evidence presented in the governments case that tended to show that Ferber was ever given the
authority to alter the legal relationship between the [agency] and third parties.59
For nonemployees, the authority to act on behalf of the organization or agency is crucial to
come within 666. In United States v. Vitillo, the Third Circuit considered whether the defendants,
an individual and the corporations he controlled, were agents of an airport owned by a municipality that they managed as independent contractors. Rejecting the argument that an independent
contractor does not come within the statute, the circuit court found that the use of the word
includes in 666(d)(1) meant that the list of relationships which makes a person an agent was
not exhaustive, nor was the government required to prove that the defendants controlled federal
funds as a condition for being found an agent. The Third Circuit concluded that as a matter of
58. Id. at 161. The Fifth Circuit noted the language in two other cases that appeared to require the defendant to have
some authority over the organizations transactions that would threaten the integrity of the federal funds. In United States
v. Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988), one of the earliest appellate decisions construing 666, the circuit
court, in the course of rejecting a defendants claim that the government had to trace the federal funds to prove a violation,
stated that the statute is limited to agents who have the authority to effect significant transactions. In United States v.
Lipscomb, 299 F.3d 303, 336 (5th Cir. 2002), a pre-Sabri case reviewing the constitutionality of the statute, the Fifth
Circuit referred to the defendants high rank and his broad influence over many programs that receive federal funds as
a basis for rejecting an as-applied challenge to the prosecution. In neither case was the issue of the defendants status as an
agent squarely presented to the court, and the statements about the authority of the defendants were made in passing to
buttress the circuit courts ultimate conclusion upholding the convictions. While Ollison pays lip service to the apparent
requirement that the defendant have some authority over funds, it was sufficient that the defendants conduct affected the
disbursement of district funds. It does not appear to be a specific requirement to prove agency that the government show
the person exercised some measure of control over the organizations funds, only that the funds were affected by the
agents conduct. No other circuits recognize this as a limitation on the scope of 666.
59. 966 F. Supp. 90, 100 (D. Mass. 1997).
statutory interpretation, 666(d)(1) does not by definition exclude an independent contractor

who acts on behalf of a 666(b) entity as a manager or representative of that entity.60
The Seventh Circuit reached the same conclusion in United States v. Lupton regarding a real
estate broker retained by the state to assist in the sale of one of its buildings who sought a kickback
from a potential purchaser in exchange for recommending him as having the best offer for the
property. The contract between the state and the real estate agency provided that it was only
an independent contractor and did not have any authority to act on behalf of the state in a
transaction, and the defendant argued that this agreement meant he could not be an agent under
666(d)(1).61 The circuit court rejected that argument, stating that whether a person was an agent
was determined by the statute and not by the terms of a private contract.62 The Seventh Circuit
explained that [p]arties cannot contract around definitions provided in criminal statutes; even
if Lupton could not be considered a common law agent under Equiss contract, it is nonetheless
possible for him to be an agent under the terms of 18 U.S.C. 666(d)(1).63 Similarly, the Sixth
Circuit explained that to be an agent under this provision [e]mployment labels . . . may bring
some employment relationships within the sphere of agency status but they do not necessarily
squeeze all other employment relationships out of that sphere.64
C. Agent of the Organization

The agency element focuses on the persons role in the organization, and the effect of corruption
on federal funding for its operations. The Supreme Courts emphasis in Sabri on the rationale of
666 as a means of preserving the integrity of the organization makes it clear that the agent must
be acting on behalf of the organization that receives the federal funds, and not just an organization
that realizes an indirect benefit from federal disbursements.
In United States v. Abu-Shawish, the Seventh Circuit explained that the agent who is potentially criminally liable must have fraudulently obtained property that is under the care, custody or
control of the same organization for which he is an agent.65 The defendant was the director of
a nonprofit organization receiving funds from the City of Milwaukee to put on a festival, and the
city received federal block grants that were used for the festival. The defendant fraudulently
diverted some of the money into his personal account, and was charged under 666(a)(1)(A)
with theft from an organization receiving federal funds. Although he was an agent of the nonprofit
organization from which he took the money, the federal funding was directed to the city, not
Abu-Shawishs organization. The circuit court explained that when the charge is theft [t]he plain
language of the statute at issue here seems to require that the individual act as an agent on behalf
60. 490 F.3d 314, 323 (3rd Cir. 2007).

61. 620 F.3d 790, 800 (7th Cir. 2010).
62. Id.
63. Id.
64. United States v. Hudson, 491 F.3d 590, 595 (6th Cir. 2007).
65. 507 F.3d 550, 556 (7th Cir. 2007).
88
of the organization that he or she defrauded for the purposes of obtaining funds.66 While the
government is not required to show that federal funds were directly affected,67 only an agent of
the organization that actually receives federal funds, and not a future beneficiary of that funding,
comes within 666, at least when the charge involves theft rather than bribery.68
The government must prove that the defendant is an agent of the particular organization,
government, or agency identified in the indictment as receiving the $10,000 of federal funding
during the twelve-month period.69 In determining whether a person is authorized to act on behalf
of the organization, the government must introduce evidence about the persons employment, job
description, and authority. Once it is shown that the person is an employee, their position in the
organization does not matter in applying 666 to the conduct.70
In United States v. Phillips, the Fifth Circuit overturned the conviction of a Louisiana parish tax
assessor because he was not an agent of the parish but of the state tax assessors office, a separate
governmental unit. The prosecution introduced evidence that the parish received over $10,000 in
funding for food stamps from the federal government, but
because Phillips, as a matter of law, was not an employee or officer of the parish and because he was
not authorized to act on behalf of the parish with respect to its funds, Phillipss actions did not and
could not have threatened the integrity of federal funds or programs. Without an agency relationship to the recipient of federal funds, 666 does not reach the misconduct of local officials.71
Phillips highlights the importance of establishing the relationship of the defendant to the
organization that received the federal funding, and simply showing that a governmental office
66. Id. at 555. The circuit court noted that surely Congress did not intend to criminalize, with this provision, an act that
does not implicate the integrity of federal funds (either directly or indirectly) in any way. Id. at 557.
67. The Seventh Circuit made it clear in a footnote that [t]he government is not required to prove, in the context of this
provision, that federal funds were actually affect by the agents actions. Id. at 557 n.6.
68. The Seventh Circuit rejected the governments argument that a defendant could be held liable for defrauding
an organization that later received funds traceable to a federal grant. Among the reasons the circuit court rejected this
position was that
the governments interpretation would require a temporal leap of logic. In particular, the statute punishes an
agent who fraudulently obtains property that is owned by their organization. There is no change of tense in the
statute: only one time frame is contemplated. The governments reading, however, would also punish an agent
who fraudulently obtains property that is then subsequently owned by their organization (i.e., the events that
transpired in the instant case).
Id. at 556.
69. An agent can be an independent contractor of the organization receiving the federal funds. See United States v.
Lupton, 2009 WL 357904 *1 (E.D. Wis. 2009).
70. See United States v. Brann, 990 F.2d 98 (3rd Cir. 1993) (The definition thus includes in the term agent an employee
of any level from the lowest clerk to the highest administrator. It does not, however, include or require that the employee
hold a position of trust.).
71. 219 F.3d 404, 413 (5th Cir. 2000). Phillips is a pre-Sabri decision, and the Fifth Circuit discusses the need to avoid
any federalism problems by limiting the statute. While the circuit court discusses the need for a federal nexus, the agency
analysis was not affected by Sabri and remains good law.
received federal money is not enough without considering whether the defendant is an agent of
that particular organization.
Courts can rely on state and local laws to ascertain whether the person is an agent of the
organization. In United States v. Madrzyk, the district court relied on the City of Chicago Municipal
Code to conclude that an alderman was an agent of the city and not just the city council.72 In
United States v. Petty, the Tenth Circuit found that a deputy state treasurer acted on behalf of the
state, and not just the Treasurers Office, because she invested funds provided to the state that were
placed in a general account for all of its agencies.73
Courts undertaking the agency analysis must consider the legal status of the organization to
understand how it fits within the hierarchy of a government, which allows a court to determine
whether the organization is a separate body or integrated into a larger unit that received federal
funding. Once its status is ascertained, the court can examine the federal funding provided to
ensure that the person is an agent of the identified organization that meets the jurisdictional
requirement of 666.
In United States v. Moeller, defendants who were agents of the Texas Federal Inspection Service
(TFIS) challenged their convictions for violating 666 on the ground that the evidence only
showed that the Texas Department of Agriculture (TDA) received over $10,000 of federal funds.
The Fifth Circuit looked to the cooperative agreement between the U.S. Department of Agriculture
and the TDA that created the TFIS to find that the agency performed discretionary functions on
behalf of TDA and remitted its funds directly to the state.74 Thus, the circuit court concluded that
the defendants were also agents of the TDA, so the evidence established the federal funding
element. In United States v. Forste, a district court found that a serviceman in a state Air National
Guard unit was an agent of the state and not of the federal government because at least during
times that it is not ordered to active duty, the National Guard is a state agency.75
The analysis of which state agency actually employed the defendant was crucial in United States
v. Langston. The Eleventh Circuit overturned the defendants 666 conviction for diverting funds
from the Alabama Fire College, where he was the executive director, because the indictment
charged him with being an agent of the State of Alabama rather than the Fire College. The circuit
court reviewed the statute creating the organization and found that the Fire College was independent, so that he was not a dual agent of both, unlike Moeller. The Eleventh Circuit found that
[b]ecause Langstons employment with the Fire College does not authorize him to act on behalf
of the state under the applicable state law, evidence of his employment with the Fire College is not
relevant to the charges asserting he acted as an agent of the state.76 The evidence that the circuit
72. 970 F. Supp. 642, 644 (N.D. Ill. 1997) (Section 2-74-030 categories all City employees in City service. The first
category of City employees is elected officials. See City of Chicago, Ill., Municipal Code 2-74-030(1). It is undisputed
that Madrzyk was the elected Alderman for the 13th Ward during the relevant time period. As an elected official, Madrzyk
was an agent of the City.).
73. 98 F.3d 1213, 1219 (10th Cir. 1996) (Because Whitehead was in charge of investing the states funds, not merely the
Treasurers funds, we find that she was indeed an agent of the state.).
74. 987 F.2d 1134, 113738 (5th Cir. 1993).
75. 980 F. Supp. 395, 398 (D. Kan. 1997).
76. 590 F.3d 1226, 1234 (11th Cir. 2009).
90
court considered in finding insufficient evidence to establish an agency relationship with the state
included the W-2 forms he received and his employment contract, both of which only referenced
the Fire College. Langston makes it clear that prosecutors must be careful in identifying the proper
agency relationship as the foundation for the 666 charge, and defense counsel should scrutinize
the proof of that relationship to determine whether the wrong office or organization was charged.
VI . TH E O FFENSE CONDUCT
Section 666 punishes two different types of criminal conduct, both of which involve harm to an
organization, government, or agency receiving federal funding. First, 666(a)(1)(A) punishes
any person who embezzles, steals, obtains by fraud, or otherwise without authority knowingly
converts to the use of any person other than the rightful owner or intentionally misapplies
property worth $5,000 that is owned by, or under the care, custody, or control of an organization.
This offense is similar to other federal theft statutes, such as 641. Second, 666(a)(1)(B) is the
bribery and unlawful gratuities part of the statute, making it a crime for any person who
corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything
of value from any person, intending to be influenced or rewarded in connection with any business,
transaction, or series of transactions of such organization, government, or agency involving any
thing of value of $5,000 or more.
Section 666(a)(2) extends the corruption offense to the offeror or payer, similar to the
coverage of 201 for both parties to a bribe or unlawful gratuity involving a federal official.
A. Embezzle, Steal, Defraud, Conversion, or Misapplication

(18 U.S.C. 666(a)(1)(A))
Embezzlement, theft, and fraud are traditional common law offenses, and the incorporation of
them into 666 means that the usual elements of those crimes are also applicable to agents of
organizations, governments, and agencies which receive the requisite federal funding. These
crimes are not frequently charged by federal prosecutors because embezzlement and theft in local
governments is usually dealt with by state or local prosecutors. There are no reported federal cases
analyzing the scope and application of these two crimes in a 666 prosecution.
Fraud is a much broader concept than embezzlement and theft, covering not only the traditional offense of larceny by trick but also, under other federal statutes, omissions causing a loss and
even the deprivation of the right of honest services under 18 U.S.C. 1346.77 While fraud has been
77. In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court stated that the words to defraud commonly
refer to wronging one in his property rights by dishonest methods or schemes, and usually signify the deprivation of
applied expansively under the federal statutes related to the mails ( 1341), interstate wires
( 1343), banks ( 1344), insurance ( 1346), and securities ( 1348), the 666 prosecutions
based on fraud involve more run-of-the-mill schemes, such as the diversion of funds through false
billings.78
The prohibition on conversion or misapplication is the broadest crime listed in 666(a)(1)
(A), and they are not defined in the statute. The legislative history of 666 makes no mention of
these crimes.79 This portion, which is set off from embezzlement, theft, and fraud, makes it an
offense if a person otherwise without authority knowingly converts to the use of any person other
than the rightful owner or intentionally misapplies. These are really two different offenses, one
being larceny by conversion and the other misapplication of property. The conversion offense
involves lawfully obtaining possession of property and then subsequently converting it to ones
own use.80 A misapplication, on the other hand, does not entail taking possession of the property
or any personal use of it, instead, it involves only directing its use improperly. Unlike the other
offenses in 666(a)(1)(A), which all involve some form of theft, misapplication focuses on the
something of value by trick, deceit, chicane or overreaching. (quoting Hammerschmidt v. United States, 265 U.S. 182
(1924)).
It does not appear that an allegation of fraud in violation of 666 can be based on the right of honest services
theory in 18 U.S.C. 1346, which has been used in a number of corruption prosecutions (see Chapter 6). That
provision states, For the purposes of this chapter, the term scheme or artifice to defraud includes a scheme or
artifice to deprive another of the intangible right of honest services. The reference to this chapter means that
the provision applies to the crimes in Title 18, Part I, Chapter 63, but 666 is not part of that chapter of the
federal criminal code. While corruption can be charged under both 666 and the mail and wire fraud statutes,
the limitation of the right of honest services theory to statutes in this chapter should preclude its application
to 666, although it would not be much of a stretch to apply 1346 to 666. See George D. Brown, Stealth
StatuteCorruption, the Spending Power, and the Rise of 666, 73 Notre Dame L. Rev. 247, 274 (1998)
(It might not be a big step to transfer the concept of honest services fraud to 666.). The Supreme Courts
decision in Skilling v. United States, __ S. Ct. __ (2010), limiting right of honest services prosecutions to
conduct involving bribery or kickbacks does bring 666 much closer to the mail and wire fraud cases that
involve 1346.
78. See, e.g., United States v. Abu-Shawish, 507 F.3d 550 (7th Cir. 2007). The defendants conviction was overturned
because he was not the agent of an organization receiving $10,000 of federal benefits, but the circuit court pointed out
that his fraud could easily have been charged under other federal statutes:
It is likely that Abu-Shawish could have been charged with mail or wire fraud, since he used both the mail and telephone as a part of his fraudulent scheme. It is not for this Court to reflect on why the government chose to charge
him with a violation of 666(a)(1)(A) as opposed to mail fraud and/or wire fraud. At bottom, Abu-Shawish
defrauded the City of Milwaukee, but the government is still required to charge him with the appropriate crime.
Id. at 558.
79. The Senate Report on 666 states only that the provision create[s] new offenses to augment the ability of the United
States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private
organizations of State and local governments pursuant to a Federal program. S.Rep. No. 225, reprinted in 1984
U.S.C.C.A.N. 3182. There is no specific mention of conversion or misapplication.
80. See People v. Christenson, 312 N.W.2d 618, 620 (Mich. 1981) (The purpose of the larceny by conversion statute is
to cover one of the situations left unaccounted for by common-law larceny, that is, where a person obtains possession
of anothers property with lawful intent, but subsequently converts the others property to his own use.); Itin v. Ungar,
17 P.3d 129, 135 n.10 (Colo. 2000) (the common law offense of conversion is distinct from the crime of theft in that it
does not require that a wrongdoer act with the specific intent to permanently deprive the owner of his property.).
92
misuse of authority to direct the expenditure of funds for a purpose other than that designated by
the organization.
In United States v. Thompson, the Seventh Circuit engaged in an extensive analysis of what
constitutes misapplication of an organizations funds under 666. The defendant was a state
official convicted for violating state administrative rules related to the selection of a travel agent
for state agencies. After the first round of bids was received, a travel agency from outside the state
was the lowest bidder. The official wanted the contract awarded to an in-state agency, and made
reference to politics or how political the decision would be in ordering that the contract be
re-bid. The owner of the in-state travel agency who bid on the contract was a contributor to the
governors campaign. After reviewing the new bids, a board on which the state official served
awarded the contract to the in-state travel agency based on the scores each received, which was
done properly, and three months later the official received a $1,000 raise. The government argued
that the raise was a reward for the misapplication of state funds when the contract was given to the
in-state travel agency.
The Seventh Circuit began by noting that even if there was a mistake in the bidding process
that violated state administrative rules, that alone would not constitute a misapplication of state
funds. It stated, Approving a payment for goods or services not supplied would be a misapplication, but hiring the low bidder does not sound like misapplication of funds.81 The circuit court
explained that there are two possible readings of misapplies in 666:
We could read that word broadly, so that it means any disbursement that would not have occurred had
all state laws been enforced without any political considerations. Or we could read it narrowly, so that
it means a disbursement in exchange for services not rendered (as with ghost workers), or to suppliers
that would not have received any contract but for bribes, or for services that were overpriced (to cover
the cost of baksheesh), or for shoddy goods at the price prevailing for high-quality goods.82
Relying on the caption for 666 that connotes targeting corruption and applying the Rule
of Lenity, the Seventh Circuit opted for the narrower reading.83 The focus on harm from the violation is consistent with Sabris emphasis on the statutes role in preserving the integrity of the
organization which receives federal funds.
In analyzing what it means to misapply funds, Thompson emphasized that 666 is designed to
prosecute conduct which results in the government not getting what it paid for, or the use of its
funds through a process tainted by corruption, not just a violation of administrative rules based on
questionable considerations. According to the court,
An erroreven a deliberate one, in which the employee winks at the rules in order to help
out someone he believes deserving but barely over the eligibility thresholdis a civil rather than a
81. 484 F.3d 877, 881 (7th Cir. 2007).

82. Id.
83. The Seventh Circuit noted that Section 666 is captioned Theft or bribery concerning programs receiving Federal
funds, and the Supreme Court refers to it as an anti-bribery rule. Id.
criminal transgression. Likewise the sin is civil (if it is any wrong at all) when a public employee
manipulates the rules, as Thompson did, to save the state money or favor a home-state producer that
supports elected officials.84
The notion of harm advanced in Thompson does not require that the government lose
money, only that the misapplication must involve a corrupt decision-making process or a
diversion of resources from their proper application as determined by those responsible for their
allocation. In United States v. Urlacher, the Second Circuit rejected a police officials defense
that there was no violation of 666(a)(1)(A) when funds were applied to other purposes of
the police department than those for which they were supposed to be used. The circuit
court stated, Intentional misapplication, in order to avoid redundancy, must mean intentional
misapplication for otherwise legitimate purposes; if it were for illegitimate purposes, it would
be covered by the prohibitions against embezzlement, stealing, obtaining by fraud, or
conversion.85
While the defendant usually gains a benefit from the misapplication, intentionally directing
the funds in a way that subverts the organizations legitimate interest or the requirements imposed
by the organization receiving the funds about how they should be expended constitutes a violation
of 666 because it calls into question the integrity of the organizations internal procedures for
controlling the disbursement of funds.86 Misapplication does not require a personal benefit to the
agent from the misconduct.
For example, in United States v. Frazier, the Tenth Circuit upheld the defendants conviction for
misapplying funds from a federal job training grant to purchase computers for his organization
rather than providing the computer training required by the grant.87 In United States v. CornierOrtiz, the First Circuit affirmed the defendants conviction for misapplying funds to hire the
brother of a government employee to perform work in violation of a conflict-of-interest policy.
The circuit court held, The prohibition against intentional misapplication covers the situation
presented here: payments made for what was an underlying legitimate purpose but intentionally
misapplied to undermine a conflict of interest prohibition.88
84. Id.
85. United States v. Urlacher, 979 F.2d 935, 938 (2nd Cir. 1992).
86. If the Second Circuit meant to limit misapplication to only those situations in which the use of the funds was
legitimate, then its analysis is mistaken. What constitutes a misapplication can involve both legitimate and illegitimate
uses of property and is not confined to only legitimate ones. In Thompson, the Seventh Circuit stated that [a]s long as the
state gets what it contracts for, at the market price, no funds have been misapplied, even if the states rules should have
led it to buy something more expensive (and perhaps of higher quality, too). 484 F.3d at 88182. Thompsons focus on
whether organization received the intended benefit from the use of its funds is consistent with Urlachers focus on whether
the money is being spent in a permissible manner, regardless of whether the ultimate use of the funds is for something
legitimate or illegitimate. If the organization gets what it intended to receive through the use of its funds, then there is no
misapplication under Thompson, but if the funds are used for a purpose for which they should not have been expended,
then under Urlacher it is not a defense to argue that the organization at least got something in return for its money.
87. 53 F.3d 1105, 1109 (10th Cir. 1995).
88. 361 F.3d 29, 37 (1st Cir. 2004).
94
The misapplication must be done intentionally, so the government is required to prove the
defendants specific intent to misapply the property of the organization and not just that it was
used negligently. If an agents use of the property is authorized, then that can be strong evidence
that he did not have the requisite intent. In United States v. De la Cruz, the Seventh Circuit stated,
Authorization, or ratification, from those with authority can be an important evidentiary factor in
favor of the defense, militating against a finding of intentional misapplication.89 It is not a complete defense, however, and in De la Cruz, the circuit court found the ratification of the contracts
questionable because officials attempted to immunize themselves from federal prosecution by
simply stamping their criminal misapplication of funds as approved.90
B. Bribery and Unlawful Gratuities

1. The Broader Approach of 666(a)(1)(B)
Congress enacted 666 to extend the prohibitions on bribery and unlawful gratuities contained in
18 U.S.C. 201 to state and local governments, along with organizations that received significant
federal funding. The two statutes are not coextensive, however, due to differences in the text
making 666 broader than 201. Section 666(a)(1)(B) provides that an agent of an organization,
government, or agency who corruptly solicits or demands for the benefit of any person, or accepts
or agrees to accept, anything of value from any person, intending to be influenced or rewarded is
guilty of the crime, while 201 does not include solicitations. Like 201, 666 also reaches the
offeror or payer of a bribe or gratuity.91
The inclusion of the term solicit in 666 expands the statutes coverage beyond quid pro quo
arrangements. The Sixth Circuit explained in United States v. Abbey that the statute does not
require the government to prove that Abbey contemplated a specific act when he received the
bribe; the text says nothing of a quid pro quo requirement to sustain a conviction, express or
otherwise. . . .92 The Seventh Circuit, in United States v. Gee, summarized the scope of 666(a)(1)(B)
succinctly when it stated that a quid pro quo of money for a specific legislative act is sufficient
to violate the statute, but it is not necessary.93 The use of the term solicit means that even the
preliminary steps that would lead to a quid pro quo arrangement are enough to violate the statute,
so long as the solicitation is corrupt.
89. 469 F.3d 1064, 1068 (7th Cir. 2006). The Seventh Circuit referred to the bank misapplication statute, 18 U.S.C.
656, which does not recognize a complete defense based on approval of a transaction by the banks board of directors or
officers.
90. Id.
91. Section 666(a)(2) provides that Whoever . . . corruptly gives, offers, or agrees to give anything of value to any
person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or
any agency thereof shall be guilty of the offense.
92. 560 F.3d 513, 520 (6th Cir. 2009).
93. 432 F.3d 713, 714 (7th Cir. 2005).
The Eleventh Circuit in United States v. McNair adopted the same position when rejecting a
requirement that the government prove a quid pro quo agreement. The circuit court found that the
plain language of 666 did not require that the solicitation or receipt of a bribe be in exchange for
a specific official act, and noted that [t]o accept the defendants argument would permit a person
to pay a significant sum to a Court employee intending the payment to produce a future, as yet
unidentified favor without violating 666.94
The original language of 666 mimicked 201 by making it a crime to solicit, demand, or
accept anything of value for or because of the recipients conduct in any transaction or matter or a
series of transactions or matters.95 The gratuities offense under 201(c)(1)(B) applies to any
demand or acceptance of a thing of value for or because of any official act. The 1986 amendment
of 666 changed the language of the offense to its current form that covers any corrupt solicitation
or demand by an agent intending to be influenced or rewarded.96 The use of the term rewarded
means that 666 applies to both bribes (influenced) and gratuities (rewarded). In United
States v. Bonito, the Second Circuit held that the language of the amended provision was to
the same effect as the original statute, so that the current statute continues to cover payments
made with intent to reward past official conduct, so long as the intent to reward is corrupt.97
An important change in the 1986 amendment was the deletion of for or because of as an
element of the offense. That phrase was the key to the Supreme Courts decision in United States v.
Sun-Diamond Growers of California, which required in a 201(c) prosecution for an unlawful
gratuity that the government prove a link between a thing of value conferred upon a public official
and a specific official act for or because of which it was given.98 As discussed in Chapter 2, a gift
given for the purpose of buying access to an official would not come within 201 if it were given
at a point in time when the official did not have a particular official act before him to which the
gift was related. Section 666(a)(1)(B), however, does not require proof that the gratuity was
related to a specific official act, only that the benefit is connected to some business or transaction
of the organization.
In United States v. Abbey, the Sixth Circuit stated, Sun-Diamond. . . is not germane to our
decision, and that [t]here is thus no good reason, either in text or policy, to inject SunDiamonds heightened requirements into 666. . . .99 In United States v. Redzic, the Eighth Circuit
explained that
[t]o prove the payment of an illegal bribe, the government must present evidence of a quid pro quo,
but an illegal bribe may be paid with the intent to influence a general course of conduct. It was not
94. 605 F.3d 1152, 118788 (11th Cir. 2010). The Eleventh Circuit pointed out that [t]o be sure, many 666 bribery
cases will involve an identifiable and particularized official act, but that is not required to convict. Id. at 1188.
95. Pub. L. No. 98-473, 1104(a), 98 Stat. 2143 (1984).
96. Pub. L. No. 99-646, 59(a), 100 Stat. 3612 (1986).
97. 57 F.3d 167, 171 (2nd Cir. 1995). In United States v. Ganim, 510 F.3d 134, 150 (2nd Cir. 2007), the Second Circuit
affirmed its reading of 666 in Bonito that the statute covers both bribery and unlawful gratuities.
98. 526 U.S. 398, 414 (1999).
99. 560 F.3d at 521.
96
necessary for the government to link any particular payment to any particular action undertaken
[by the defendant].100
Similarly, the Eleventh Circuit in United States v. McNair rejected reliance on Sun-Diamond to
limit the scope of the provision by requiring proof of a specific official act, pointing out that 666
sweeps more broadly than 201(b) or (c). Section 666 requires only that money be given with
intent to influence or reward a government agent in connection with any business, transaction, or
series of transactions. 101
The requirement that the solicitation or payment be sought with the intent to be influenced
does not mean that the agent must have the actual authority to direct the business or transactions on behalf of the organization. In United States v. Gee, the Seventh Circuit took an expansive view of the term influence to include the clout that a state legislator wields over the
government, even though the actual decision on whether to award a contract resided in the
executive branch of the state government. Rejecting the defendants argument that the payments
to a state senator did not come within 666 because he had no power or authority to influence
the final decision, the circuit court stated that [t]his confuses influence with power to act
unilaterally.102
2. Intent
Section 666(a)(1)(B) requires proof of two intents: that the defendant acted corruptly in soliciting or demanding anything of value, and that it be done intending to be influenced or rewarded.
The original language in 666 did not include any express intent requirement for a conviction, so
that it could have been read to require only a general intent. Using the term intending indicates
that Congress imposed a higher proof requirement on the government, requiring evidence of the
defendants specific intent that the solicitation or demand be for the purpose of influencing the
business or transactions of the organization.
100. 569 F.3d 841, 849 (8th Cir. 2009).

101. 605 F.3d 1152,1191 (11th Cir. 2010).
102. 432 F.3d at 715. The Seventh Circuit explained rather colorfully how a member of the legislature can use the authority of his office to influence decisions of the other branches of government, and therefore the acceptance of a bribe or
gratuity can be prosecuted:
A legislator with the ability to control the senates agenda can throw a monkey wrench into a Governors
program, and this power confers influence over executive decisions even when the legislature does not pass
any particular law. The absence of new laws may show the successful application of influence. One does not
need to live in Chicago to know that a job description is not a complete measure of clout. The evidence permitted a reasonable jury to find that George had plenty of clout and used it to OICs benefit, for which he was
well paid.
Id.
A . INTENT TO INFLUENCE
In United States v. Ford, the Second Circuit held that intending to be influenced means there
must be a quid pro quo to establish the intent of the person demanding the thing of value.103 The
jury was instructed that the defendants awareness of the offerors purpose in giving a thing of
value was sufficient to establish the intent to be influenced, which the Second Circuit rejected as
insufficient. The circuit courts statement about the need to show a quid pro quo was not imposing
a requirement on the government to prove an actual agreement between the offeror and agent
because 666(a)(1)(B) also covers solicitation by an agent, which would take place before any
agreement. The Second Circuit meant that the intent of the defendant must be sufficient to show
that the person entered into, or at least sought to enter into, a quid pro quo agreement. As the circuit
court explained,
The recipients awareness that the donor gave something of value for the purpose of influencing
the recipient might well constitute strong circumstantial evidence that the recipient acted with the
requisite culpable state of mind in accepting the item, but a jury should be clearly instructed that it
is the recipients intent to make good on the bargain, not simply her awareness of the donors intent
that is essential to establishing guilt under Section 666.104
B . CORRUPTLY
Corruptly is a word used in a number of federal statutes, and the courts have struggled to explain
its exact meaning. In Arthur Andersen LLP v. United States, a case involving obstruction of justice,
the Supreme Court noted that [c]orrupt and corruptly are normally associated with wrongful,
immoral, depraved, or evil.105 Interpreting a statute that required proof of knowingly. . . corruptly
persuading another person to obstruct justice as limiting criminality to persuaders conscious of
their wrongdoing was the most sensible interpretation.106 In United States v. Ogle, the Tenth Circuit
described corruptly as [a]n act done with an intent to give some advantage inconsistent with
official duty and the rights of others. . . . It includes bribery but is more comprehensive; because
an act may be corruptly done though the advantage to be derived from it be not offered by
another.107
Proof that a defendant acted corruptly involves showing that the person consciously deviated substantially from the duties and responsibilities of the position or authority entrusted to
them, or that the offer of a thing of value was to induce such deviation. In United States v. Rooney,
the Second Circuit held that a fundamental component of a corrupt act is a breach of some
103. 435 F.3d 204, 213 (2nd Cir. 2006).

104. Id.
105. 544 U.S. 696, 705 (2005).
106. Id. at 706.
107. 613 F.2d 233, 238 (10th Cir. 1979).
98
official duty owed to the government or the public at large.108 In United States v. Ford, the Second
Circuit explained that [a] recipient who knows of the donors intent to arrange a quid-pro-quo or
to seek special consideration may, in certain circumstances, be said to be acting corruptly when
the person accepts the thing of value.109
C . POLITICAL LOYALTY
The Third Circuit in United States v. Cicco analyzed whether a demand for political loyalty by a
public official constituted a bribe under 666(a)(1)(B). The defendants, a mayor and a town
councilman, denied two special police officers further work from the city because they had not
supported the partys candidates in a recent election. Determining that 666 was ambiguous, the
circuit court found if solicitation of party loyalty came within the statute, then it would be unconstitutionally vague. The Third Circuit concluded that there was not a violation of 666 because
demanding political support in exchange for a governmental position was not within the usual
meaning of bribery.110
That does not mean, however, that soliciting campaign contributions as a quid pro quo for a
government job falls outside of 666. In United States v. Grubb, the Fourth Circuit upheld 666
convictions because the payment to the campaign was clearly designed to obtain the government
job, a form of bribery that came squarely within the literal meaning of section 666[(a)(1)(B)].111
Unlike party loyalty, which is not clearly the typical thing of value used in a bribe, campaign
contributions can be the basis for a bribery prosecution.
C. The $5,000 Requirement

1. Embezzlement, Theft, Fraud, and Misapplication
In creating a federal offense by agents of state and local governments and organizations receiving
federal funding, Congress imposed a minimum threshold of $5,000 affected by the misconduct in
order to limit federal prosecutions to substantial cases and not those involving petty amounts.112
108. 37 F.3d 847, 852 (2nd Cir. 1994).

109. 435 F.3d 204, 212 (2nd Cir. 2006).
110. 938 F.2d 441, 44546 (3rd Cir. 1991). The Third Circuit also noted that 18 U.S.C. 601, which prohibits depriving
a person of employment for not making a campaign contribution, proscribes the type of conduct that occurred in Cicco,
and that [t]he omission of any mention of 601 in [ 666s] legislative history is further evidence that 666 is addressed
to a separate and distinct category of criminal activity. Id. at 446. Section 601 is discussed in Chapter 11.
111. 11 F.3d 426, 434 (4th Cir. 1993).
112. See United States v. Ferraro, 990 F. Supp. 146, 150 (E.D.N.Y. 1998) (Yet, a plain reading of the statute seems to
indicate that the purpose of the $5,000 requirement is to assure that only corrupt transactions which may be categorized
as significantas measured against that dollar amountwill activate.); United States v. Webb, 691 F. Supp. 1164, 1168
(N.D. Ill. 1988) (Congress recognized that the statute constituted a significant intrusion of federal law enforcement into
traditional areas of local concern; thus, it made the new statute applicable only to crimes involving substantial sums of
money.)
For violations of 666(a)(1)(A) for embezzlement, theft, fraud, and misapplication, the government must prove that the property involved had a value of $5,000 or more, and that it is owned
by, or is under the care, custody, or control of such organization, government, or agency at
the time of the offense. For a bribery or unlawful gratuity violation under 666(a)(1)(B), the
corruption must be in connection with any business, transaction, or series of transactions of such
organization, government, or agency involving any thing of value of $5,000 or more.
Common law larceny was limited to thefts of personal, tangible propertygoods and
chattelsbut modern statutes take a much more expansive view to include intangible property,
such as patents or trademarks along with electronic files and the use of telecommunications
facilities.113 The theft of federal property statute, 18 U.S.C. 641 (see Chapter 3), is not limited to
tangible property, and includes any record, voucher, money, or thing of value, which has been
interpreted to include intangible property. While the use of the single term property in 666(a)
(1)(A) can be read to indicate that it is limited to tangible property, the Sixth Circuit in United
States v. Sanderson interpreted the statute as having the same broad coverage as 641 because the
prohibition on theft by agents of organizations, governments, and agencies was designed to
enhance federal authority over crimes that could not be reached through 641.114 Therefore, the
circuit court upheld the conviction of a defendant who was a supervisor in a county sheriff s office
and used deputies to do work on behalf of his private construction firm even though it involved no
tangible property taken, only the time of the deputies.
2. Bribery and Unlawful Gratuities
Courts apply the same analysis in bribery and unlawful gratuities cases. In United States v.
Marmolejo, the Fifth Circuit held that the plain meaning of the statute compels our conclusion
that the term anything of value in 666(a)(1)(B) includes transactions involving intangible
items, such as the conjugal visits at issue in this case.115 In United States v. Mongelli, the district
court found a bribery scheme involving the award of licenses came within the statute because the
term thing of value, used in 666 but not in 18 U.S.C. 13414[3], has long been construed in
other federal criminal statutes to embrace intangibles.116
113. See Wayne R. LaFave, Criminal Law 19.4(a) (4th ed.) (At common law, larceny was limited to misappropriations of goods and chattelsi.e., tangible personal property.).
114. 966 F.2d 184, 189 (6th Cir. 1992) (Congress seems to have intended section 666 to expand the ability of prosecutors to prosecute persons who were for technical reasons out of section 641s reach. Consequently, we find section 666s
notion of property was intended to dovetail with the notion of property in section 641 and to be coextensive in its
reachSandersons theft of employee time is as much a theft of property as his theft of paint supplies, for the purposes of
his section 666(a)(1)(A) conviction.).
115. 89 F.3d 1185, 1191 (5th Cir. 1996).
116. 794 F. Supp. 529, 531 (S.D. N.Y. 1992). The district court distinguished 666 from the mail and wire fraud statutes,
which the Supreme Court held in Cleveland v. United States, 531 U.S. 12 (2000), did not include unissued licenses as
property within the meaning of those provisions. See Chapter 6.
100
3. Aggregation
To meet the $5,000 requirement for 666(a)(1)(A) charges, the government can aggregate
separate acts of theft if they are part of a single scheme or plan. In Sanderson, the Sixth Circuit
stated that under section 666, where multiple conversions are part of a single scheme, it seems
appropriate to aggregate the value of property stolen in order to reach the $5,000 minimum
required for prosecution.117 In United States v. Webb, the district court stated that [b]ecause
aggregation is permissible where the thefts are part of a single plan, an individual who seeks to
avoid the statute by so structuring his crime will find his efforts unavailing.118 The Eighth Circuit
took the same approach to a 666(a)(1)(B) charge in United States v. Hines, holding that the
statute permits the government to aggregate multiple transactions in [a] single count to reach
the $5,000 minimum as long as they were part of a single plan or scheme.119 When aggregating the
amounts, the government must show that the thefts or transactions occurred in the one-year
period during which the organization received federal funding and not over a more extended
period of time.120
For bribery and unlawful gratuities charges under 666(a)(1)(B), the amount of the payment
given or received need not be worth $5,000, although if it was, then that can be one way to establish the requisite value for this element of the offense. The statute requires that the solicitation or
demand be made in connection with any business, transaction, or series of transactions of such
organization, government, or agency involving any thing of value of $5,000 or more. The focus is
on the underlying business or transactions of the organization tainted by the corruption, so that
even a small bribe could be prosecuted if the underlying business had the requisite value.
4. Proof of $5,000
The value of the business or transactions is an element of the offense, so it is a question for the jury
to decide whether the government proof establishes the minimum amount. A wide range of
evidence can be used as the basis for the jurys determination that the $5,000 value was involved.
In United States v. Fernandes, the Seventh Circuit upheld the conviction of a deputy prosecutor
accepting payments to help defendants avoid drunken driving convictions over the objection that
the government did not prove the value element. The circuit court concluded that documentary
evidence showed the defendant received a number of payments from which the jury could infer
totaled over $5,000, so there was no need to consider the issue further.121
117. 966 F.2d at 189.

118. 691 F. Supp. 1164, 1168 (N.D. Ill. 1988).
119. 541 F.3d 833, 837 (8th Cir. 2008).
120. See United States v. Valentine, 63 F.3d 459, 464 (6th Cir. 1995) ([W]e hold that a natural reading of the statute
requires the $5,000 theft to occur during a one-year period.).
121. 272 F.3d 938, 944 (7th Cir. 2001) (The overpayment and the existence of the list, in and of themselves, could allow
a jury to conclude, beyond a reasonable doubt, that the thing of value in this bribery scheme exceeded $5,000.).
In United States v. Mills, however, the Sixth Circuit found that the only evidence sufficient to
establish the value was the amounts paid as bribes, and [t]he indictment returned against the
defendants clearly and specifically assigns values ranging from $3,500 to $3,930 to those jobs.
Because those amounts are below the $5,000 statutory floor, the district court correctly dismissed
those counts premised upon alleged violations of 18 U.S.C. 666.122
In United States v. Marmolejo, a Fifth Circuit decision affirmed by the Supreme Court in Salinas,
the circuit court rejected the defendants argument that payments made to county sheriff deputies
to allow a federal prisoner to receive conjugal visits from his wife and girlfriend could not meet the
$5,000 value requirement. The circuit court stated, We conclude that the conjugal visits in this
case did have a value which exceeded $5,000. We arrive at this estimate in the same way that an
appraiser would value an assetby looking at how much a person in the market would be willing
to pay for them.123 The prisoner paid the sheriff $6,000 per month plus $1,000 per visit, so the
amounts easily met the statutory minimum for federal prosecution. Taking a similar approach, the
district court in United States v. Mongelli explained that licenses issued by the state could be valued
in a variety of ways, including looking at the amount of the bribes paid, the amount of business or
profits obtainable under the license, or the market value of the license if it were sold.124
Proof of the value of the business or transaction is not limited to just the valuation that the
organization, government, or agency involved in the corruption places on it.125 In United States v.
Zwick, the Third Circuit held that the plain language of the statute does not require that value be
measured from the perspective of the organization, government, or agency.126 In assessing
the jurys value determination, the circuit court looked to the amount of the bribe, the loss
the payer would suffer if the government action was not undertaken, the tax benefits to the local
government, and the permit fees for the project, all of which were greater than $5,000.127
122. 140 F.3d 630, 633 (6th Cir. 1998).

123. 89 F.3d 1185, 1194 (5th Cir. 1996).
124. 794 F. Supp. 529, 531 (S.D. N.Y. 1992). See also United States v. Marlinga, 2006 WL 2086027, at *4 (E.D. Mich.
2006) (rejecting defendants argument that the drafters of 666 only intended it to apply to business or transactions
that are commercial in nature, not the work of a county prosecutor allegedly bribed to support reversal of the convictions
of two defendants).
125. In United States v. Foley, 73 F.3d 484 (2nd Cir. 1996), a pre-Sabri decision, the Second Circuit sought to avoid any
federalism problems by requiring that the thing of value be worth $5,000 to the organization, government, or agency
receiving the $10,000 in federal benefits and not just any other person or entity. In overturning the conviction of a state
legislator, the circuit court held that the government did not show that the exemption legislation had any financial value
to the State of Connecticut; nor did it show that the exemption had any connection whatever with a federal program. In
short, insofar as the evidence presented in this case reveals, the exemption affected neither the financial interests of the
protected organization nor federal funds directly. Id. at 493. This analysis is clearly wrong after Sabri and even Salinas,
which upheld the conviction of a county sheriff for accepting bribes to allow conjugal visits for a federal prisoner,
a transaction that had no financial impact on the jail or any federal funds.
126. 199 F.3d 672, 689 (3rd Cir. 1999).
127. The circuit court summarized the various amounts this way:
There is substantial evidence establishing that the present value of the transactions and business involved in
each of counts one, two, and three was at least $5,000. The sewer taps that Zwick offered to obtain for Kaclik
were clearly worth more than $5,000, as Kaclik was willing to pay $17,500 to ensure that he received them; the
contracts that were the subject of the bribery at count three were worth $45,000; and the permits in count two
were worth more than $5,000 to the Fosnights, because, as detailed above, they were willing to pay Zwick
102
The Second Circuit took the same approach in United States v. Santoprieto, holding that there is
no requirement that the corrupt transactions are worth $5,000 or more to the entity receiving the
federal funds, and the evidence was sufficient when it showed that the favorable treatment was clearly
worth more than $5,000 to them.128 In United States v. Hines, the Eighth Circuit rejected the argument
that value is limited to what the briber or recipient considered it worth, holding that [t]he plain
language of the statute does not require a restricted, technical interpretation that would prevent the
consideration of the things value to other parties with an immediate interest in the transaction.129
The valuation of the business or transactions can include the potential value of property if the
corrupted official takes the intended action favoring the offeror or payer of the bribe. In United
States v. Zimmerman, the Eighth Circuit noted that while the alleged gratuities to a city councilman
in two counts were only $1,200 and $1,000, respectively, and given by a developer to obtain rezoning of property which would result in condominiums the developer hoped to sell for $200,000
each. The circuit court stated that [s]ince there was sufficient evidence that the benefit to Carlson
from the gratuities paid to Zimmermann for the development of a new Somali mall was of greater
value than $5000, the jury could reasonably find Zimmermann guilty of those counts.130 The Third
Circuit in Zwick noted that the future benefits of the transaction can be taken into account in determining a parcel of propertys current value for ascertaining whether it meets the $5,000 element.
5. Intent Not Required
While there are a variety of means to establish the $5,000 value element, the government is not
required to prove that the defendant intended or knew that the bribe or gratuity affected business
or transactions of that value. This element establishes a minimum for federal prosecution, but it is
jurisdictional and does not require proof of any knowledge or even awareness on the defendants
part regarding value. In United States v. Abbey, the Sixth Circuit rejected the defendants argument
that the government failed to prove that a city administrator subjectively thought the land he
received from a developer was worth more than $5,000. The circuit court stated:
Indeed, it is not evident how 666s mens rea element (corruptly) would modify a persons
subjective interpretation of how much something was worth. (No one would say that someone
$15,000 to ensure that they received them and would have lost $10,000 if they did not receive them in a timely
manner.
Id. at 691.
128. 166 F.3d 88, 93 (2nd Cir. 1999). The Second Circuit reversed its earlier holding in United States v. Foley, 73 F.3d 484
(2nd Cir. 1996), in light of the Supreme Courts decision in Salinas, that the valuation could only be assessed from the
perspective of the organization, government, or agency that was the victim of the offense because the statute had to be
limited to actual threats to federal funds to avoid any federalism issues. The circuit court stated in Santoprieto, [T]o the
extent that Foley required the Government to plead and prove that the transaction involved something of value to
the governmental entity that received the requisite amount of federal funds, that narrowing construction of the statute must
also be discarded. Id.
129. 541 F.3d 833, 837 (8th Cir. 2008).
130. 509 F.3d 920, 927 (8th Cir. 2007).
nefariously believed that some property was worth over $5000.) Instead, that term does the job
Congress intended it to do: officials are only guilty if they take a bribe with corrupt intent. The
government and jury need not read Abbeys mind to know how much he thought the property was
worth to sustain a proper conviction.131
V I I . STATU TO RY EXE MP T ION

Section 666(c) provides that the criminal prohibition does not apply to bona fide salary, wages,
fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.
Congress added this subsection in the 1986 amendment to the statute, and the only legislative
history to the exemption is the statement in the House Report that the provision amends 18
U.S.C. 666 to avoid its possible application to acceptable commercial and business practices.132
The key issue is whether the payment is bona fide, which is defined in Blacks Law Dictionary as
1. Made in good faith; without fraud or deceit. 2. Sincere; genuine.133
Defendants usually raise the exemption in cases charging a violation of 666(a)(1)(A) involving allegations of inflated salaries (or reimbursements) or payments to ghost employees. For
example, in United States v. Tampas, the Eleventh Circuit upheld convictions of a defendant
for using his organizations funds to pay workers doing work at his home, and for using the credit
card issued by the organization for personal purchases, rejecting his claim that the payments were
bona fide.134
A. Bona Fide Salary

Determining whether a payment was legitimate compensation or involved the misuse of an organizations resources constituting theft or misapplication is often dependent on an assessment of
the work done in light of the amount paid. Courts emphasize that whether payments are bona fide
salary is a jury question.135 In United States v. Williams, the Fifth Circuit upheld the embezzlement
conviction of a defendant, a deputy city clerk, who authorized the issuance of extra paychecks to
herself and the city clerk. Rejecting the argument that she was only taking advance paychecks
which constituted bona fide salary, the circuit court stated that a salary is not bona fide or earned
131. 560 F.3d 513, 522 (6th Cir. 2009).

132. H.R.Rep. No. 99-797, at 30 (1986), reprinted in 1986 U.S.C.C.A.N. 6138, 6153.
133. Blacks Law Dictionary (8th ed. 2004).
134. 493 F.3d 1291, 1299 (11th Cir. 2007). See United States v. Baldridge, 559 F.3d 1126, 1139 (10th Cir. 2009)
(Because this was not work for which he could have been paid by the County, the payment was not a bona fide wage paid
in the usual course of business.).
135. See United States v. Cornier-Ortiz, 361 F.3d 29, 36 (1st Cir. 2004).
104
in the usual course of business under 666(c) if the employee is not entitled to the money.136 In
United States v. Grubb, the Fourth Circuit upheld a bribery conviction in which the defendant
arranged for a campaign contribution in exchange for the candidate hiring the contributor to work
in the county sheriff s department. The circuit court found that the wages were not bona fide
and in the usual course of business within the meaning of the statutory exception of 666(c)
when the contributor did little work for the sheriff s department for the two years he worked
there.137
Even if the decision to hire a worker is based on improper considerations, the salary the person
receives is bona fide so long as the person does the work required for the position. In United States
v. Mills, the defendant took payments in exchange for arranging to have the payers hired as deputy
sheriffs. The Sixth Circuit rejected the governments argument that because the appointments
were tainted the payments to the deputy sheriffs were not bona fide salary, holding that
the indictment does not allege that the jobs in question were unnecessary or that the individuals
who obtained those employment positions did not responsibly fulfill the duties associated
with their employment. In the absence of such allegations, the government has no support for its
claims that the salaries paid to the deputy sheriffs were not properly earned in the usual course of
business.138
Applying Webbs analysis in United States v. Mann, the Sixth Circuit, in an unreported decision,
took a similar approach to charges against a vocational school principal when alleging that he was
only certified to be a teacher, and therefore the payment to him of the higher principals salary that
he was not qualified to receive constitutes a violation of 666(a)(1)(B). Upholding the dismissal
of the indictment, the circuit court held:
[T]he position of principal. . . is clearly a real and necessary one, and the government concedes that
Mann performed the duties of his job. He was paid in the usual course of business despite the fact
136. 507 F.3d 905, 908 (5th Cir. 2007). The Fifth Circuit distinguished the case from one in which an employee works
fewer hours than required: An employee who receives three years of additional compensation amounting to over
$30,000which represents more than twice Williamss regular annual salaryis more culpable than an employee who
simply works fewer hours than her regular paycheck requires. Id. at 909.
137. 11 F.3d 426, 434 (4th Cir. 1993).
138. 140 F.3d 630, 63334 (6th Cir. 1998). The Sixth Circuit considered whether the salaries were bona fide in the
context of a challenge to the governments evidence that the transactions had a value of $5,000 to the sheriff s office. The
circuit court found that 666(c) applies to all aspects of the statute, and therefore bona fide salaries could not be used
to account for the $5,000 value element of the offense. This analysis seems flawed because the exemption in 666(c)
determines whether the conduct constitutes an offense as defined in 666(a), not whether the jurisdictional element is
present. Even an otherwise legitimate expenditure can satisfy the $5,000 value element, which is not contingent on proof
that it is tainted by corruption. If the charge in Webb had been that the payments to the deputy sheriffs constituted a
misapplication of government funds, or that by paying to obtain their jobs they embezzled money from the county, then
the bona fide salary analysis would be correct. The charge, however, involved the bribery to obtain the positions, which is
irrelevant in this case to whether the salaries are bona fide. Id. at 631.
that his employer had knowledge of his lack of certification. . . [T]hus, Manns salary comes within
the purview of 18 U.S.C. 666(c), and he is exempted from prosecution under this statute.139
The district court in United States v. Harloff reached a questionable conclusion that there was
no 666(a)(1)(A) violation when the defendant worked fewer hours than what he should have
because the statute does not apply to that situation. In a terse decision that contains little legal
analysis, the district court asserted:
While the exception stated at subsection (c) would not preclude a prosecution involving wages
which are clearly not bona fide, its plain language would prevent making a federal crime out of an
employees working fewer hours than he or she is supposed to work, and the scant case law. . . does
not support a contrary conclusion.140
It is not clear how the court determined that being paid for work not performed was bona fide
when it only involved leaving early. Presumably, a ghost employee who did little or no work
would violate the provision, but if the person only did half the work required by the position,
would that salary be bona fide or a violation of 666(a)(1)(A)?141 The district court relied on
the Rule of Lenity in determining that [a]bsent a clearer mandate from Congress, either in its
statutory language or in the history of its deliberations, I cannot be persuaded that it intended to
criminalize an employees early departure from work, or even a group of employees agreement to
depart work early.142 Harloff gives defendants a plausible basis for arguing that minimal violations
at the workplace are insufficient for 666(a) charges.
139. 1999 WL 17647 *3 (6th Cir. 1999).

140. 815 F. Supp. 618, 619 (W.D. N.Y. 1993). Compare United States v. Darnsfield, 913 F. Supp. 702, 712 (E.D.N.Y. 1996)
(payments received by an organization to pay contractors are not protected by the exemption for bona fide salary).
141. The district court stated, [T]he statute certainly authorizes the federal prosecution of an employee who invents
fictitious workers and collects their wages for his/her own use. The government argues that the difference between such
ghost employees and the defendants in this case is only one of degree. I disagree. Id. The basis for finding that working
fewer hours is a difference of kind and not of degree is not explained, and the district court does not explain whether there
is a particular economic impact or abuse of authority that must occur before a violation arises. The distinction is not based
on any language in the statute, which applies to any embezzlement, theft, fraud, conversion, or misapplication so long as
the jurisdictional elements are met.
142. Id. The indictment alleged the defendants, who were police officers, worked substantially fewer hours than the
forty hours of work they were paid for. Presumably the government was not bringing the case based on only a difference
of an hour or two, and the district court may have been concerned that permitting the charges to go forward in this case
would allow the government to prosecute a person for an long lunch or extra breaks. The $5,000 value element would
appear to eliminateor at least limitthe possibility of a prosecution based on a de minimis violation, but the district
court may have decided to draw a clearer line by limiting 666(a) to obvious violations, such as ghost employees.
106
B. Usual Course of Business

Section 666(c) requires that the payment be made in the usual course of business of the organization.143 Even if a defendant is entitled to the payment as bona fide salary, the transfer of the funds
must be proper. In United States v. Paul, an unreported decision, the Ninth Circuit held that
[a]lthough she may have been entitled to overtime compensation, Paul admittedly misappropriated the funds in an unauthorized manner and thus did not receive bona fide wages in the ordinary
course of business.144
A bribe can take the form of a salary given to a government official. Section 666(c) does not
provide any protection for this means of giving a thing of value in exchange for influencing
the exercise of authority. In United States v. Bryant, the government alleged that a state legislator
was hired for a position in a state medical school by its dean in order to ensure that the school
continued to receive state funding for its operations. The district court refused to dismiss the
charges, holding that
because the. . . salary itself constitutes the bribethe thing of value accepted with the intent to be
influenced for purposes of 666(a)(1)(B), and offered with the intent to influence for purposes of
666(a)(2)it was not bona fide or paid in the regular course of business.145
In United States v. Cornier-Ortiz, the First Circuit found that payments for work actually
performed were not protected by 666(c) when the payments were made for what was an
underlying legitimate purpose but intentionally misapplied to undermine a conflict of interest
prohibition of the organization. The misapplication of funds was not made in the usual course of
business, even if the transaction involved payment of a salary.146
143. In United States v. Edgar, 304 F.3d 1320 (11th Cir. 2002), the Eleventh Circuit rejected defendants argument that
usual course of business was unconstitutionally vague. The circuit court stated:
[A]ny reasonable person would understand that the phrase usual course of business in 666(c) would not bar
prosecution for the conduct alleged in the 666 counts in the Indictment. Among the transactions for which
Ward was convicted were the following: converting hospital monies into unauthorized bonuses to himself;
profiting from the Hospitals use of a warehouse that he, Edgar, and another officer in effect sold to the Hospital
on two separate occasions; participating in the diversion of Hospital funds to himself and others through the
use of fictional invoices; collecting a finders fee from the Hospital in connection with an investment of the
Hospitals parent company; using Hospital monies to pay premiums on insurance policies for which he was
solely responsible; and profiting from the Hospitals purchase, at an inflated price, of a real estate option from a
partnership in which he held an undisclosed interest.
Id. at 1328.
144. 2007 WL 2384234, at *1 (9th Cir. 2007).
145. 556 F. Supp. 2d 378, 42829 (D. N.J. 2008).
146. 361 F.3d 29, 37 (1st Cir. 2004).
| 5 |
THE HOBBS ACT (18 U. S. C . 1 9 5 1 )
I . H I STO RY O F TH E ST AT UT E 1
n important tool in the federal effort to prosecute corruption at lower levels of government
is the Hobbs Act, 18 U.S.C. 1951, which specifically prohibits extortion, not bribery.
Congress adopted the Hobbs Act as a successor to the Anti-Racketeering Act of 1934, which was
designed to combat extortion and violence perpetrated by criminal organizations against private
individuals.2 The Supreme Courts decision in United States v. Teamsters Local 807, which held that
the Anti-Racketeering Act did not apply to extortion committed by unionized truckers who
demanded payments from out-of-town drivers before permitting them to enter the state, led to
Congress enacting the Hobbs Act in 1946.3 The Supreme Court explained the historical basis for
the Hobbs Act:
Congress used two sources of law as models in formulating the Hobbs Act: the Penal Code of
New York and the Field Code, a 19th-century model penal code. Both the New York statute and the
Field Code defined extortion as the obtaining of property from another, with his consent, induced
by a wrongful use of force or fear, or under color of official right. 4 Commissioners of the Code,
Proposed Penal Code of the State of New York 613 (1865) (reprint 1998) (Field Code); N.Y.
Penal Law 850 (1909). The Field Code explained that extortion was one of four property crimes,
1. This chapter is based in part on Peter J. Henning, Federalism and the Federal Prosecution of State and Local Corruption,
92 Ky. L.J. 75 (2003).
2. Act of June 18, 1934, 48 Stat. 979 (1934).
3. 315 U.S. 521, 530 (1942). The Hobbs Act is named for its sponsor, Representative Samuel F. Hobbs of Alabama,
who was one of several Congressmen to introduce bills to overturn Teamsters Local 807. In a floor statement on the legislation, one representative asserted that this bill is made necessary by the amazing decision of the Supreme Court in
[Local 807] . . . [which] practically nullified the anti-racketeering bill of 1934. 91 Cong. Rec. 11,900 (1945) (statement
of Rep. Hancock).
107

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| 4 |

THEFT OR BRI B ER Y C ONC E R NING

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

Theft or Bribery Concerning Programs Receiving Federal Funds | 73

(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

I V. TH E FED ERA L FUNDS

Theft or Bribery Concerning Programs Receiving Federal Funds | 75

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

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

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

B. Sabri v. United States: Federalism and

19. Id. at 59.

Theft or Bribery Concerning Programs Receiving Federal Funds | 77

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

30. 541 U.S. at 605.

Theft or Bribery Concerning Programs Receiving Federal Funds | 79

C. Fischer v. United States: Benets

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

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

2. Relationship to Federal Funding

37. Id. at 668.

Theft or Bribery Concerning Programs Receiving Federal Funds | 81

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

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

Theft or Bribery Concerning Programs Receiving Federal Funds | 83

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

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

A. Authority over Funds

Theft or Bribery Concerning Programs Receiving Federal Funds | 85

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

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

authority over budgets or management of the organization, to be an agent. In United States v.

Theft or Bribery Concerning Programs Receiving Federal Funds | 87

statutory interpretation, 666(d)(1) does not by definition exclude an independent contractor

C. Agent of the Organization

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

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

Theft or Bribery Concerning Programs Receiving Federal Funds | 89

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

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

Theft or Bribery Concerning Programs Receiving Federal Funds | 91

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

81. 484 F.3d 877, 881 (7th Cir. 2007).

Theft or Bribery Concerning Programs Receiving Federal Funds | 93

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

B. Bribery and Unlawful Gratuities

Theft or Bribery Concerning Programs Receiving Federal Funds | 95

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

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

Theft or Bribery Concerning Programs Receiving Federal Funds | 97

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

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

C. The $5,000 Requirement

108. 37 F.3d 847, 852 (2nd Cir. 1994).

Theft or Bribery Concerning Programs Receiving Federal Funds | 99

2. Bribery and Unlawful Gratuities

PROSECUTION AND DEFENSE OF PUBLIC CORRUPTION

117. 966 F.2d at 189.