United States v. Dequattro ( 2024 )

United States Court of Appeals
For the First Circuit
Nos. 23-1115
23-1116
23-1138
23-1139
UNITED STATES OF AMERICA,
Appellee, Cross-Appellant,
v.
DAVID DEQUATTRO; CEDRIC CROMWELL,
Defendants-Appellants, Cross-Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Barron, Chief Judge,
Kayatta and Gelpí, Circuit Judges.
Martin G. Weinberg, with whom Kimberly Homan and Michael
Pabian were on brief, for appellant, cross-appellee David
DeQuattro.
Robert F. Hennessy, with whom Schnipper Hennessy, PC was on
brief, for appellant, cross-appellee Cedric Cromwell.
Karen L. Eisenstadt, Assistant U.S. Attorney, with whom
Joshua S. Levy, Acting U.S. Attorney, was on brief, for appellee,
cross-appellant.
September 27, 2024
BARRON, Chief Judge. In 2020, a federal grand jury
indicted David DeQuattro, an architect with Robinson Green Beretta
Corp. ("RGB"), and Cedric Cromwell, Chairman of the Mashpee
Wampanoag Tribal Council ("Council") and President of the Mashpee
Wampanoag Gaming Authority ("Gaming Authority"). They were
charged with various federal offenses based on Cromwell allegedly
soliciting, and DeQuattro allegedly giving in return, checks and
other things of value to protect a contract between RGB and the
Gaming Authority to build a casino on Mashpee Wampanoag Tribe-
owned land.
Following a jury trial in the United States District
Court for the District of Massachusetts, DeQuattro was convicted
of one count of federal-program bribery, in violation of 18 U.S.C.
§ 666(a)(2), while Cromwell was convicted of two counts of federal
program bribery, in violation of 18 U.S.C. § 666(a)(1)(B). The
jurors also found Cromwell guilty of three counts of Hobbs Act
extortion and one count of conspiracy to commit Hobbs Act
extortion. The District Court entered a judgment of acquittal on
those Hobbs Act-related counts because it determined that the Hobbs
Act did not clearly abrogate tribal immunity.
In these consolidated appeals, DeQuattro and Cromwell
challenge their § 666 convictions, and the government challenges
the judgment of acquittal. We reverse both the § 666 convictions
and the judgment of acquittal.
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I.
A.
18 U.S.C. § 666 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-- . . .
(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 (emphasis
added).
Subsection (b) sets forth the jurisdictional element of
§ 666 by establishing the link that must be shown between the
corrupt conduct described in subsection (a) and federal-program
financial assistance. Subsection (b) provides: "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
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involving a grant, contract, subsidy, loan, guarantee, insurance,
or other form of Federal assistance." Id.
The Hobbs Act provides:
Whoever in any way or degree obstructs,
delays, or affects commerce or the movement of
any article or commodity in commerce, by
robbery or extortion or attempts or conspires
so to do, or commits or threatens physical
violence to any person or property in
furtherance of a plan or purpose to do
anything in violation of this section shall be
fined under this title or imprisoned not more
than twenty years, or both.
18 U.S.C. § 1951(a). The Act defines "extortion" as "the obtaining
of property from another, with his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or under
color of official right." Id. § 1951(b)(2).
B.
The superseding indictment charged DeQuattro and
Cromwell in Count One with conspiracy to violate § 666(a) in
violation of 18 U.S.C. § 371. The indictment also charged
DeQuattro in Counts Four and Five with violating § 666(a)(2), and
Cromwell in Counts Two and Three with violating § 666(a)(1)(b).
The § 666 counts pertained to Cromwell allegedly either soliciting
or accepting from DeQuattro various "things of value" -- including
payment for overnight lodging in a Boston hotel, gym equipment for
his residence, and checks totaling tens of thousands of
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dollars -- in return for Cromwell protecting the contract between
RGB and the Gaming Authority from being terminated.
The superseding indictment also charged Cromwell, based
on his role in the same alleged scheme to protect the RGB contract,
with Hobbs Act-related offenses. Specifically, the superseding
indictment charged him with four counts of Hobbs Act extortion, in
violation of 18 U.S.C. § 1951 (Counts Seven, Eight, Nine, and Ten),
and one count of conspiracy to commit Hobbs Act extortion, in
violation of 18 U.S.C. § 1951 (Count Six).1
The jury acquitted DeQuattro and Cromwell of Count One's
§ 666-based conspiracy charges. The jury also acquitted DeQuattro
of the substantive § 666 charges in Count Four, all but a portion
of the substantive § 666 charges in Count Five, and Cromwell of
the Hobbs Act charges in Count Nine. The jury found DeQuattro
guilty of one portion of the substantive § 666 charges in Count
Five, and Cromwell guilty of the substantive § 666 charges in
Counts Two and Three, one count of conspiracy to commit Hobbs Act
extortion (Count Six), and three counts of Hobbs Act extortion
(Counts Seven, Eight, and Ten).
Following the verdict, DeQuattro and Cromwell each moved
for judgment of acquittal under Federal Rule of Criminal Procedure
1 Thesuperseding indictment also charged Cromwell with filing
false tax returns in violation of 26 U.S.C. § 7206(1). Those
counts were severed and a trial on them has been stayed pending
the resolution of this appeal.
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29(a), after having earlier moved for judgment of acquittal at
both the close of all the evidence and the close of the
government's case. DeQuattro and Cromwell based their respective
Rule 29 motions concerning the § 666 counts in part on the ground
that the evidence did not suffice to show the intent to engage in
a corrupt quid-pro-quo exchange about the RGB contract. DeQuattro
and Cromwell also based their motions as to these charges on the
ground that the evidence did not suffice to satisfy § 666's
jurisdictional element. They did so by arguing that the RGB
contract was "business" only of the Gaming Authority and that,
unlike the Tribe, the Gaming Authority had not received the
requisite federal benefits described in subsection (b). Finally,
Cromwell argued in his motion for a judgment of acquittal as to
the Hobbs Act-related charges that (1) "the evidence failed to
establish that [he] was a public official"; and (2) there was
"insufficient evidence of a corrupt quid pro quo."
At a consolidated hearing that concerned both the Rule
29 motions and sentencing, the District Court denied DeQuattro's
motion for judgment of acquittal in full but granted Cromwell's
motion in part. More specifically, the District Court denied
Cromwell's motion with respect to his § 666 convictions but granted
it on tribal immunity grounds as to the Hobbs Act convictions.
The District Court then sentenced DeQuattro to a one-year
probationary term with home confinement for his single § 666
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conviction and Cromwell to 36 months' imprisonment for his multiple
convictions under § 666. The District Court also ordered DeQuattro
and Cromwell to pay restitution in the amount of $140,707.79 and
$209,678.54, respectively. Their appeals, and the government's
cross-appeal, followed and were then consolidated.
II.
DeQuattro and Cromwell base their challenge to their
§ 666 convictions on the same two, distinct
insufficiency-of-the-evidence grounds that they advanced below.
We focus here solely on the ground that they contend concerns
§ 666's jurisdictional element, as we conclude, based on this
ground alone, that their § 666 convictions must be reversed.
United States v. Green, 797 F.2d 855, 856 n.1 (10th Cir. 1986).
A.
In ruling that the evidence sufficed to satisfy the
jurisdictional element, the District Court reasoned as follows:
"Congress intended [§ 666] to extend to affiliates of the tribes
themselves, and [the Gaming Authority] was clearly that kind of
affiliate." Moreover, the District Court determined, the record
sufficed to show that the Tribe had received the kind of
federal-program assistance that subsection (b) describes.
The District Court did not explain what made the Gaming
Authority "that kind of affiliate," however. Nor did the District
Court explain why the Gaming Authority being such an "affiliate"
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sufficed to show that the allegedly corrupt conduct charged in the
§ 666 counts occurred "in connection with" the "business" of the
Tribe rather than only the Gaming Authority. As a result, the
District Court did not explain what exactly in the record sufficed
to show that only the Tribe -- and not the Gaming Authority
itself -- had to have received the financial assistance that
subsection (b) describes for the jurisdictional element to be
satisfied.
Because this sufficiency challenge is preserved, our
review is de novo. See United States v. Millán-Machuca, 991 F.3d
7, 17 (1st Cir. 2021). In undertaking that review, "the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt." United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Before diving into the merits of the challenge, we pause
to clarify one point. DeQuattro and Cromwell frame the challenge
as if it concerns § 666's jurisdictional element. We do not see
why it does.
Wholly independent of the jurisdictional element set
forth in subsection (b) of § 666, subsection (a)(1) and subsection
(a)(2) of the measure set forth numerous substantive elements.
One such element is that the "agent" of an entity that § 666
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covers -- whether an "Indian tribal government" or an "agency" of
such a government -- be engaged in the prohibited bribery "in
connection with any business . . . of such organization,
government, or agency." 18 U.S.C. § 666(a)(1) (emphasis added).
This substantive element ensures that the bribery is
tied to the entity that receives the federal-program assistance,
while the jurisdictional element merely ensures that the entity
that is tied to the corrupt conduct has received that assistance.
Thus, the jurisdictional element comes into play only if that
substantive element is satisfied.
Against this backdrop, it is significant that DeQuattro
and Cromwell are contending, without dispute by the government,
that the sole "agent" of a covered entity involved in the alleged
bribery was Cromwell acting as Chairman of the Tribal Council in
his role as "agent" of the Tribe (an "Indian tribal government")
and not as President of the Gaming Authority in his role as "agent"
of the Gaming Authority (a mere "agency" of that "government").2
It is significant, too, that DeQuattro and Cromwell are then
further contending, again without dispute by the government, that
2 Counts Two and Three of the superseding indictment charged
Cromwell with "being an agent of an Indian tribal government, or
any agency thereof, namely, the Mashpee Wampanoag Tribe, corruptly
solicit[ing] . . . ." Similarly, Counts Four and Five charged
Dequattro with corruptly giving, offering and agreeing to give
"anything of value to any person, with intent to influence and
reward an agent of an Indian tribal government, or any agency
thereof, namely, the Mashpee Wampanoag Tribe" (emphasis added).
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the only "business" that occurred "in connection with" the alleged
corrupt conduct involving Cromwell as the Tribe's "agent" was the
RGB contract.3 The result is that DeQuattro and Cromwell are
necessarily contending that the evidence does not suffice to show
that the allegedly corrupt conduct occurred "in connection with"
the "business" of the entity of which the person involved in that
conduct is an agent. DeQuattro and Cromwell's challenge therefore
necessarily targets this "business"-related substantive element
described above rather than the jurisdictional element itself.
This feature of the challenge, we hasten to emphasize,
does not do anything to undermine it. The challenge still plainly
has merit, just as DeQuattro and Cromwell contend it does, if the
evidence does not suffice to show that the RGB contract was
"business" of the Tribe. In that event, as we have explained, the
evidence then would fail to satisfy a necessary element of the
offense, even though that element is substantive rather than
jurisdictional.
3 Consistent with the government's position on appeal that
the "business" that the alleged corrupt conduct occurred "in
connection with" was solely the RGB contract, the jury was
instructed that the jurors had to find the contract "constituted
business of the Mashpee Wampanoag Tribe" to find the defendants
guilty of the charged § 666 offenses. See United States v. Burhoe,
871 F.3d 1, 21 n.17 (1st Cir. 2017) (holding that an "alternative
legal theory" that the government waived by not objecting to a
jury instruction that foreclosed it was "not available to the
government" as a ground for defending the verdict from a
sufficiency challenge on appeal).
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Although the government also appears to treat the
challenge as if it concerns the jurisdictional element, it
recognizes that, in substance, the challenge turns on whether the
evidence suffices to show that the RGB contract is "business" of
the Tribe. Indeed, the government makes no argument that the
convictions can stand if the evidence does not so suffice. We
therefore proceed to assess whether the evidence suffices to show
that the RGB contract is "business" of the Tribe, first by laying
out DeQuattro and Cromwell's case that the evidence does not do
so, then by reviewing the evidence that the government identifies
in arguing that the evidence does, and, finally, by explaining why
we agree with DeQuattro and Cromwell rather than the government.
B.
DeQuattro and Cromwell emphasize that the RGB contract
provides no basis in and of itself for finding that the contract
was "business" of the Tribe. They point out, as the record makes
evident, that the contract was between RGB and the Gaming
Authority, not RGB and the Tribe itself. They further contend
that nothing in the record indicates that, even though the Tribe
was not a party to the RGB contract, the relationship between the
two entities makes the contract the Tribe's "business."
DeQuattro and Cromwell point out that the record makes
clear that the Gaming Authority is a "legally separate" entity
from the Tribe. They also point out that, under § 666, the Gaming
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Authority is (unlike the Tribe itself, which is an "Indian tribal
government") an "agency" of that government. As such, it is a
separately enumerated and defined category of entity under § 666.
18 U.S.C. § 666(a)(1), (d)(2).
DeQuattro and Cromwell do not focus solely, however, on
the formal distinction between the two entities and thus on the
fact that the Gaming Authority, as an incorporated entity, has
both a separate legal personality and an independent statutory
status from the Tribe. They also point to the fact that the record
establishes that a third-party entity -- and so not the
Tribe -- provided all the funding for the Gaming Authority save
for, at most, an unspecified amount of in-kind support that the
Tribe provided to the Gaming Authority.4 Additionally, they
emphasize that the Tribe created the Gaming Authority to ensure
that the Tribe would not be liable for the Gaming Authority's
gambling-related activities. They note, too, that the record
establishes that the RGB contract itself was structured to ensure
4 In opposing DeQuattro's and Cromwell's motions for judgment
of acquittal, the government did submit bank records showing a
single transfer of funds from the Tribe to the Gaming Authority.
However, the government did not seek at any time to admit these
records into evidence, nor does the government rely on this
evidence on appeal. Indeed, the government in its briefs to us
only seeks to dispute DeQuattro's and Cromwell's description of
the Gaming Authority as being funded entirely by a third-party
entity by pointing to some evidence in the record of in-kind
funding by the Tribe.
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that it would not give rise to any such liability on the part of
the Tribe.
For these reasons, DeQuattro and Cromwell contend that
the record does not suffice to show that any of the Tribe's
funds -- and thus any of the Tribe's federal-program funds -- would
be put at risk by the Gaming Authority's RGB contract. They thus
contend that it would conflict with the congressional purpose to
"protect the integrity of the vast sums of money distributed
through Federal programs from . . . undue influence by bribery,"
Sabri v. United States, 541 U.S. 600, 606 (2004) (quoting S. Rep.
No. 98-225, at 370 (1983)), to conclude that the evidence suffices
to show that the RGB contract is the Tribe's "business." Such a
conclusion, DeQuattro and Cromwell contend, would mean that the
allegedly corrupt conduct would violate § 666 even though "the
entity that alone had a business transaction that could have been
impacted by an illegal bribe" -- the Gaming Authority -- "received
no federal program benefit," and the "entity that alone received
federal benefits" -- the Tribe -- "had no business transaction
with [DeQuattro or Cromwell] at all that related to the alleged
payment of a thing of value to Cromwell."
DeQuattro and Cromwell do not rely, however, only on
what they call the "legal independence" of the Gaming Authority in
advancing this sufficiency challenge. They also argue that the
challenge draws support from the other ways in which the record
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establishes that the Gaming Authority operated independently from
the Tribe.
Here, DeQuattro and Cromwell direct our attention to the
evidence that establishes that the Gaming Authority "exercised a
number of independent powers and a strong measure of independence
with respect to its financial affairs, including ownership of 'all
Gaming Enterprise Assets other than any interest in real property,'
as well as the 'full power of acquisition, disposition or
encumbrance' of such assets." They then also direct our attention
to the evidence that establishes that (1) the Gaming Authority
"had the explicit power 'to hire, fire, discipline or appoint
employees, contractors, consultants, attorneys and accountants or
other agents of the Authority, prescribe their duties and
compensation, and indemnify the same,'" and (2) the ordinance
creating the Gaming Authority granted it "'the exclusive power to
do any and all things necessary or desirable in connection with
the development, design, financing, construction, equipping,
leasing, operation, management . . . , maintenance, and promotion
of the Gaming Facilities and the operation or conduct of the Gaming
Enterprise'" (emphasis in original).
Finally, DeQuattro and Cromwell contend that their
position draws support from two Eleventh Circuit rulings, United
States v. McLean, 802 F.3d 1228 (11th Cir. 2015) and United States
v. Doran, 854 F.3d 1312 (11th Cir. 2017). In finding the evidence
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insufficient to satisfy the jurisdictional element of § 666 in
each of those cases, the defendants here argue, the Eleventh
Circuit treated an entity that had not itself received the
requisite federal-program assistance as being independent of the
entity that created it, even though the subordinate entity in each
instance had even more ties to its creator than the Gaming
Authority has to the Tribe.
C.
In responding to this sufficiency challenge, the
government acknowledges that the Tribe was not a party to the RGB
contract. The government nonetheless contends that the record
suffices to show that the Gaming Authority and the Tribe were
intertwined to an extent that permits a rational juror to find
beyond a reasonable doubt that the contract between RGB and the
Gaming Authority "constituted any 'business' of the Tribe."
The government relies in part on the evidence in the
record that shows that "the Tribe in 2004 adopted a constitution
that enumerates the Tribal Council's powers, including the powers
to 'establish procedures and ordinances for the conduct of all
tribal government business operations' and 'create or provide by
ordinance for the creation of organizations . . . for any lawful
purpose'" (alteration in original). The government also relies on
the evidence in the record that shows that "[i]n 2012, under
Cromwell's leadership, the Council invoked those powers to
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establish by ordinance the Gaming Authority as a 'wholly owned'
subsidiary of the Tribe to 'act as an arm and an instrumentality
of the Tribe.'"
The government further asserts that the evidence
suffices to show that the "Tribe is the Authority's 'sole member
and owner' in perpetuity, the Authority possesses only those powers
devolved to it from the Council, and should the Council ever
dissolve the Authority, its assets revert to the Tribe." The
government goes on to highlight two additional features of the
record: (1) the tribal ordinance that creates the Gaming Authority
"invests the Authority with the Tribe's sovereign immunity but
states that any waiver of immunity by the Authority is not a waiver
by the Tribe"; and (2) under that ordinance the "Authority operates
through a board, the membership of which the Council controls: the
Chairman of the Tribe is automatically the President of the board;
the Treasurer of the Tribe is automatically the Treasurer;" and
"the Council may appoint up to three additional members to the
board, one of whom must be another Council member."
These aspects of the record do suffice to show that the
two entities share significant ties. We are not persuaded, though,
that the ties suffice to show that the RGB contract is "business"
of the Tribe rather than only of the Gaming Authority itself.
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1.
Notably, the government is not arguing that the RGB
contract is the Tribe's "business" just because the Gaming
Authority, as a tribal "agency" for purposes of § 666, is a
creature of the Tribe, in the sense that the Tribe created it and
can terminate it. The government's choice not to advance such an
argument is understandable.
Section 666 defines an "agency" as "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." 18 U.S.C. § 666(d)(2) (emphasis
added). The text of § 666 thus makes plain that an "Indian tribal
government" and an "agency thereof" are distinct entities --
notwithstanding that the former in some respects controls the
latter -- for purposes of assessing whether the required amount of
federal-program funding had been received by the entity whose
"business" "involv[ed]" the relevant "thing of value." Id.
§ 666(a)(1), (a)(1)(B), (a)(2); see Bailey v. United States, 516
U.S. 137, 146 (1995) ("We assume that Congress used [different]
terms because it intended each term to have a particular,
nonsuperfluous meaning."); see also Hernández-Miranda v. Empresas
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Díaz Massó, Inc., 651 F.3d 167, 170 (1st Cir. 2011) ("Questions of
statutory interpretation are questions of law."); Transamerica
Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 847-48
(D.C. Cir. 2000) (noting, in the context of the Foreign Sovereign
Immunities Act of 1976, that a government instrumentality "is
presumed to have legal status separate from that of the sovereign"
that created it and therefore, absent certain exceptions, the
sovereign is "not amenable to suit based upon the acts of such an
instrumentality"). As a result, the text of § 666 makes clear
that we cannot simply assume that the two entities are one and the
same, such that the "business" of one is necessarily the "business"
of the other.
That said, the government is right that, "[a]s a matter
of logic, a parent entity could choose to conduct some piece of
'business' through a subsidiary while still considering it the
parent's 'business' -- i.e., something can be both the subsidiary's
'business' and the parent's 'business'" (emphasis in original).
For example, both entities may be signatories to a single contract
with a third party. There also are circumstances in the corporate
context in which the conduct -- or, if you will, the
"business" -- of one corporate entity may be attributed to another.
See, e.g., Liberty Mut. Ins. Co. v. Enjay Chem. Co., 316 A.2d 219,
222-23 (Del. Super. Ct. 1974) (principal-agent); Wallace ex rel.
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Cencom Cable Income Partners II, Inc. v. Wood, 752 A.2d 1175, 1184
(Del. Ch. 1999) (alter ego).
As we noted above, however, the government does not
suggest -- nor could it -- that the Tribe was a party to the RGB
contract. In addition, the government asks us not to look to
commercial-law concepts to decide whether the RGB contract is
"business" of the Tribe under § 666. Nor does the government
suggest that the RGB contract would in any way make the Tribe
liable for any of the Gaming Authority's contract-related
activities. Thus, although there are legal tests for attributing
a subsidiary's commercial conduct to its corporate parent for
purposes of assigning liability, the government does not suggest
that the application of any of those tests is relevant here. Cf.
Transamerica Leasing, Inc., 200 F.3d at 847-48 (noting that the
presumption of corporate separateness under the Foreign Sovereign
Immunities Act of 1976 can be overcome "where a corporate entity
is so extensively controlled by its owner that a relationship of
principal and agent is created" or "where recognition of the
instrumentality as an entity apart from the state 'would work fraud
or injustice'" (quoting First Nat'l City Bank v. Banco Para El
Comercio Exterior de Cuba, 462 U.S. 611, 629 (1983))).5
5 We note that although in the context of the Foreign
Sovereign
Immunities Act of 1976 a government instrumentality that has a
separate legal status from that of the sovereign that created it
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What, then, is the basis for the government's position
that, due to the ties between the Gaming Authority and the Tribe
described above, a rational juror could find beyond a reasonable
doubt on this record that the RGB contract is the Tribe's
"business"? According to the government, the case is, at least in
part, that the evidence suffices to show that the Gaming Authority
is an "arm" of the Tribe, in the sense that the term "arm" is used
to describe an agency or instrumentality of a sovereign entitled
to claim the sovereign's immunity from suit. And, indeed, the
government invokes one of our "arm of the Tribe" cases as support
for the contention: Ninigret Dev. Corp. v. Narragansett Indian
Wetuomuck Hous. Auth., 207 F.3d 21 (1st Cir. 2000). As we will
next explain, however, we are not persuaded, because we do not see
how the mere fact that the Gaming Authority qualifies as an "arm"
is treated as the sovereign "where a corporate entity is so
extensively controlled by its owner that a relationship of
principal and agent is created," Transamerica Leasing, 200 F.3d at
848 (quoting Banco, 462 U.S. at 629), the text of § 666
specifically defines a "government agency" as an entity
"established, and subject to control, by a government or
governments for the execution of a governmental or
intergovernmental program," id. § 666(d)(2) (emphasis added). So,
there is a question regarding whether the analysis used in the
context of the Foreign Sovereign Immunities Act of 1976 for
evaluating how separate sovereigns are from their agencies and
instrumentalities is applicable here.
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of the Tribe could make its contract with RGB the Tribe's
"business" for purposes of § 666.
2.
For starters, we see no reason in principle why a test
that is designed to determine when an agency or instrumentality of
a Tribe may claim that sovereign's immunity from suit would be a
good test for determining when a contract is sufficiently tied to
an entity that received federal-program funds to make the bribery
a federal crime under § 666. Certainly nothing in the text of
§ 666 indicates that the ability of such an entity to claim its
sovereign's immunity from suit bears on whether the bribery was
"in connection with" the "business" of only that entity and not of
the sovereign itself. Moreover, the components of the "arm"
test -- insofar as they are even clear in the context of a
tribe -- do not easily map on to the concerns that animate the
requirement in § 666 that the allegedly corrupt conduct must have
occurred "in connection with" the "business" of the same entity
whose "agent" was involved in that conduct. Rather, they would
appear to concern -- at least in key respects -- matters that
relate only to the reasons for conferring the immunity from suit
itself.
Ninigret itself does nothing to suggest otherwise. In
holding that a tribal housing authority was an "arm of the Tribe,"
Ninigret simply cited to two Eighth Circuit cases that had held
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the same based on the fact that the subordinate entities in those
cases had been created by tribal ordinance and as such were "tribal
agenc[ies]." 207 F.3d at 29 (first citing Dillon v. Yankton Sioux
Tribe Hous. Auth., 144 F.3d 581, 583-84 (8th Cir. 1998); and then
citing Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d
668, 670–71 (8th Cir. 1986)). But, of course, no argument is being
made here -- for good reason, as we have explained -- that the
contracts of all agencies are "business" of the government that
created them just because the agencies were created by those
governments.
It is possible that the government here means to be
invoking the "arm of the Tribe" test more generally. There is
authority (though not within our circuit) that has assessed whether
an entity is an "arm of the Tribe" -- and so entitled to the
Tribe's immunity from suit -- with reference to a more developed
set of considerations than merely whether it was created by Tribal
ordinance. See Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold
Casino & Resort, 629 F.3d 1173, 1185 n.9, 1187-88 (10th Cir. 2010).
Those considerations largely overlap with our two-step "arm" test
for determining a state agency's or instrumentality's entitlement
to claim a state's sovereign immunity, which we have explicated in
some detail. Compare Breakthrough, 629 F.3d at 1187-88, with
Grajales v. P.R. Ports Auth., 831 F.3d 11, 17-18 (1st Cir. 2016).
But, even if we were to use those factors as our guide here, we
- 22 -
still do not see how the fact that the Gaming Authority might
qualify as an "arm" of the Tribe would suffice to show that the
Gaming Authority's RGB contract is "business" of the Tribe.
Consider the first step of our multi-step "arm of the
state" test. Under it, the agency or instrumentality qualifies as
an "arm" of the state if the state "clearly structured the entity
to share its sovereignty." Grajales, 831 F.3d at 18 (quoting
Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & Caribbean
Cardiovascular Ctr. Corp., 322 F.3d 56, 68 (1st Cir. 2003)). To
make the assessment, courts then look to a "broad range of
structural indicators," including "how state law characterizes the
entity, the nature of the functions performed by the entity, the
entity's overall fiscal relationship to the [state] . . . , and
how much control the state exercises over the operations of the
entity." Id. at 17-18.
But, insofar as an entity is deemed to be an "arm" based
only on certain of these factors (such as whether the state has
characterized the entity as an "arm" or the degree of control that
the state exercises over the entity), we do not see why the
entity's status as an "arm" would suffice to show that a contract
that entity had entered is the state's "business" under § 666.
The characterization and control factors would seem to provide a
basis for concluding that any typical state agency would be an
"arm" of its state. Yet, as we have explained, the government
- 23 -
does not endorse -- and, in fact, at oral argument
disclaimed -- the notion that any contract that a state agency
enters is "business" of the state for purposes of § 666.
Thus, we do not see why it matters in determining whether
the RGB contract is "business" of the Tribe that the record here
shows that the Tribe's ordinance establishing the Gaming Authority
"invests the Authority with the Tribe's sovereign immunity" and
refers to the Gaming Authority as a "'wholly owned' subsidiary of
the Tribe to 'act as an arm and an instrumentality of the Tribe.'"
A typical state agency itself enjoys a state's immunity, may easily
be described as a "wholly owned subsidiary" of its state, and is
an "arm" of the state. So, we do not see how any of those factors
distinguish the Gaming Authority from such an agency.
True, the record shows that the Tribe's constitution
empowers the Tribal Council to "'create or provide by ordinance
for the creation of organizations . . . for any lawful purpose'"
(alteration in original). But, because a contract entered by a
lawfully created state agency does not for that reason alone
qualify as "business" of the state, that general grant of authority
similarly provides no support for deeming the RGB contract that
the Gaming Authority -- rather than the Tribe -- entered the
"business" of the Tribe.
The government does point out, as noted above, that the
record shows that the Tribe's constitution gave the Tribal Council
- 24 -
the authority to "establish procedures and ordinances for the
conduct of all tribal government business operations." But it is
not evident that the Gaming Authority was created pursuant to that
grant of power rather than the grant of power to "'create or
provide by ordinance for the creation of organizations . . . for
any lawful purpose'" (alteration in original). And, in any event,
the Tribe's labeling of the Gaming Authority's operations as
"tribal government business operations" cannot be dispositive of
whether the contract is "business" of the Tribe under § 666 if, as
the government itself rightly contends, what matters under § 666
is substance rather than form. Cf. Dixson v. United States, 465
U.S. 482, 494 (1984) ("Federal courts interpreting the federal
bribery laws . . . generally avoided formal distinctions, such as
the requirement of a direct contractual bond, that would
artificially narrow the scope of federal criminal jurisdiction.").
Finally, the fact that the "[Gaming] Authority operates
through a board, the membership of which the [Tribal] Council
controls" does not lead to the inference that the RGB contract was
"business" of the Tribe. That degree of control no doubt bears on
whether the Gaming Authority is an "arm" of the Tribe for immunity
purposes. Such control cannot be of similar import for present
purposes precisely because states typically control who leads
state agencies, however. For good reason, as we have noted, the
- 25 -
government disavows the view that any contract by a state agency
is "business" of the state.
Of course, under the first step of the "arm" test,
factors may matter other than how the sovereign characterizes the
agency or instrumentality or how much control the sovereign
exercises over it. As noted above, another factor is the agency
or instrumentality's "overall fiscal relationship" to the
sovereign. Grajales, 831 F.3d at 18.
The government does argue that the Gaming Authority and
the Tribe are financially related to the extent that "should the
Council ever dissolve the Authority, its assets revert to the
Tribe." But, again, the government fails to explain why this fact
has any bearing on whether the RGB contract is "business" of the
Tribe, at least when a state similarly presumably recoups the
"assets" of all its agencies upon their dissolution.
What is more, other factors under the first step of the
"arm" test seem to cut against finding the Gaming Authority to be
an "arm" of the Tribe. The test's first step also takes account
of the entity's "proprietary" function, "separate[]
incorporat[ion]," and "power to . . . enter contracts in its own
name and right." Fresenius, 322 F.3d at 62 n.6. But an agency or
instrumentality of a state that is proprietary, separately
incorporated, and can enter contracts on its own is less rather
than more likely to qualify as an "arm." And the record shows
- 26 -
here that the Gaming Authority was created by the Tribal Council
to have a proprietary function, to be separately incorporated, and
to have the power to enter its own contracts.
There is, we recognize, also a second step of the "arm"
test. It may be met if there is a "risk that the damages" owed by
the agency or instrumentality of a sovereign in a suit against it
"will be paid from the [sovereign's] treasury." Id. at 68.
The government makes no argument, however, that the
Gaming Authority would qualify as an "arm" of the Tribe via this
step. Nor is it evident (in light of the Gaming Authority's fiscal
structure and the terms of the RGB contract) that the RGB contract
could give rise to a liability that the Tribe would owe. So, here,
too, the invocation of the "arm" test fails to show that the
evidence suffices to permit a rational juror to find beyond a
reasonable doubt that -- even though the Tribe is not a party to
the RGB contract and is not at risk of being liable from it -- the
RGB contract is "business" of the Tribe.6
6 We do note that our analysis, which has focused on our
multi-step "arm of the state" test, has not addressed some factors
other courts have found to be relevant in an "arm of the Tribe"
analysis -- such as the "preservation of tribal cultural autonomy,
preservation of tribal self-determination, and promotion of
commercial dealings between Indians and non-Indians."
Breakthrough, 629 F.3d at 1188 (quoting Dixon v. Picopa Constr.
Co., 772 P.2d 1104, 1111 (Ariz. 1989)). But we do not see (nor
does the government explain) why such considerations, which stem
from "the policies underlying tribal sovereign immunity," id. at
1187, would have any bearing on whether "business" of the Gaming
Authority is also "business" of the Tribe under § 666.
- 27 -
3.
The "arm" test aside, the government does also argue
that the evidence suffices to show the RGB contract is the Tribe's
"business" because we should look to substance over form in
construing § 666. But, beyond the invocation of the "arm" test,
the government does not explain why consideration of the substance
of the RGB contract and the Gaming Authority's relationship to the
Tribe permits a finding that the contract is the Tribe's rather
than only the Gaming Authority's "business."
The evidence in the record shows, for example, that the
Gaming Authority receives almost all its funding from a third-
party entity and not the Tribe. In addition, as far as the record
shows, the Gaming Authority entered the RGB contract pursuant to
the "exclusive" powers that it had been given by the Tribe, rather
than at the direction of the Tribe.
Consistent with its contention that substance rather
than form matters, the government does argue -- although it is a
little difficult to discern the contours of that argument -- that
§ 666's scope should not "include limitations based on the terms
of a private contract like the RGB contract." Relatedly, the
government states that "otherwise, wrongdoers could avoid
punishment simply by contracting around the definitions provided
in criminal statutes" (cleaned up). As support for the contention,
the government cites United States v. Lupton, 620 F.3d 790, 800-
- 28 -
01 (7th Cir. 2010), which held that the contract that stated that
the defendant there was acting as "an independent contractor and
not as an officer, employee, or agent of the state" was not
dispositive of whether he was an "agent" of the state government
under § 666.
We are not deferring, however, to the RGB contract's
formal characterization of the relationship between the Tribe, the
Gaming Authority, and the construction work contemplated by the
RGB contract. Rather, in determining that the record does not
suffice to allow the jury to find, beyond a reasonable doubt, that
the RGB contract was the "business" of the Tribe, we are doing
exactly as the government suggests: looking to the substance of
the RGB contract.
That look reveals that, on this record, there is no
plausible basis for concluding that the Tribe would be liable for
the Gaming Authority's activities in relation to the contract or
that the Gaming Authority received any funds from the Tribe. After
all, the record at most shows that the Gaming Authority receives
some unspecified in-kind support from the Tribe. That makes it
hard to see how -- in substance -- the RGB contract implicates any
of the Tribe's funds. And, that being so, it is hard to see how,
in substance, the RGB contract is "business" of the Tribe itself.
To be sure, the government does argue that the fact that,
as the defendants assert, the alleged bribery here could not
- 29 -
"conceivably have impacted even a single federal dollar" is
irrelevant. The government rightly points out that § 666 does not
require the government to prove any "connection between the offense
conduct and a case-specific federal interest." United States v.
Cianci, 378 F.3d 71, 97 (1st Cir. 2004). But, as we have explained,
§ 666 does require proof that the allegedly corrupt soliciting of
a thing of value by an "agent" of an entity that § 666 covers -- or
corrupt giving of a thing of value to such an agent -- must have
occurred "in connection with" the "business" of that same entity.
And, as we have also explained, § 666 imposes this requirement to
ensure that, via subsection (b)'s federal-program assistance
requirement, there is a link between the bribery that § 666
prohibits and that federal assistance. Indeed, although the U.S.
Department of Justice's Criminal Resource Manual is not binding on
us, the defendants note that it states that the intent of Congress
in enacting the measure was to require "that the agent must have
illegally obtained cash or property from the [organization,
government, or] agency that received the necessary Federal
assistance." U.S. Dep't of Just., Crim. Res. Manual § 1001
(emphasis added).
Thus, it is concerning that the only "business" of a
covered entity that the government identifies here "in connection
with" the alleged bribery is the RGB contract. That agreement was
struck by an entity that itself received no federal benefits or
- 30 -
even any funding from the Tribe (save for in-kind financial
support). It is also an agreement for which the sole entity that
did receive such assistance bears no liability. The consequence
is that the things of value allegedly corruptly solicited by or
given to Cromwell in his role as an "agent" of the Tribe -- whether
the checks, the overnight lodging, or the gym equipment -- do not
appear to have come in any sense (even indirectly) from the Tribe
rather than the Gaming Authority itself. Yet, the government is
not contending that Cromwell was acting in his role as the "agent"
of the Gaming Authority in engaging in the corrupt conduct with
the "business" at issue. Rather, it is contending that he was
acting in his role as the "agent" of the Tribe.
4.
Insofar as the government means to suggest that there is
analogous precedent that supports its position in this case, we
also are not persuaded. For example, the government invokes an
unpublished Ninth Circuit opinion -- United States v. Heslop, 694
F. App'x 485, 487 (9th Cir. 2017). That case held the
jurisdictional element of § 666 satisfied in the case of the
defendant, David Heslop, despite Heslop's argument that the
stipulated facts did not show that "the business, transactions, or
- 31 -
series of transactions at issue were those of the Indian tribal
government." Id. (cleaned up).
The Ninth Circuit did reject Heslop's argument by
looking to the "clear substance of the facts" and noting that the
"Tribe consists of roughly a dozen members, and all the tribal
entities are interconnected in both theory and practice." Id.
However, the defendant there "pled guilty to stipulated facts that
refer either to the Tribe alone, or to both the Tribe and its
corporate entities together." Id. (emphasis added). Because there
were no guilty pleas involved here, there is no equivalent
evidentiary record like the "stipulated facts," id., deemed
dispositive in that case.
We note, too, that our analysis accords with the Eleventh
Circuit's in Doran, even though that case did not involve a
conviction for federal program bribery under § 666(a)(2) and
instead concerned a conviction for embezzlement under § 666(a)(1).
See 854 F.3d at 1313. The defendant there was convicted of
embezzling from an "organization" that had received the requisite
amount of federal program funds in the relevant period -- namely,
Florida State University ("FSU"). Id. The defendant argued that
he was entitled to a judgment of acquittal because the evidence
sufficed to show at most that the funds had been embezzled from
the FSU Student Investment Fund ("SIF"), which was a nonprofit
corporation that FSU had established for charitable and
- 32 -
educational purposes and had itself "received no federal
benefits." Id. at 1314.
The Eleventh Circuit agreed with Doran. Id. at 1315-16.
Relying on McLean, the court determined that the relevant
"organization" for purposes of the jurisdictional provision,
§ 666(b), was the SIF and not FSU itself. That was so, Doran
ruled, because the SIF "was the organization that was the subject
of the embezzlement" and because "[t]he Government [was] mistaken
in focusing on FSU as the victimized organization and in conflating
FSU and the SIF." Id. at 1315. The Eleventh Circuit then went on
to explain that "[d]espite the affiliation of FSU and the SIF,
there [was] simply no evidence in the record that FSU and the SIF
are alter egos so as to allow the Court to pierce the SIF's
corporate veil and to treat FSU and the SIF as one and the same."
Id.
In so ruling, Doran noted that the SIF had
characteristics that suggested it was not wholly independent from
FSU. For example, the SIF's Board of Directors included the Chair
of the FSU Board of Trustees, the FSU President, and other FSU
faculty members. But Doran stressed that the SIF's funds "came
from private donors and not from FSU," the SIF "funneled no money
to FSU, and FSU funneled no money to it," and the government there
conceded the point that "the SIF was not the recipient of any
federal funds." Id. at 1314. Given these facts, Doran explained,
- 33 -
the "Government ha[d] not demonstrated any federal interest" in
Doran's alleged wrongdoing. Id. at 1316.
The government does argue that Doran's reliance on the
Eleventh Circuit's earlier decision in McLean undermines Doran as
persuasive authority here. The government contends that, in fact,
McLean "never considered whether the parent entity's receipt of
federal benefits, rather than the subsidiary . . . agency's
receipt of federal benefits, could trigger § 666 jurisdiction
because that issue was not appealed."
But Doran held that absent "evidence in the record that
FSU and the SIF are alter egos so as to allow the Court to pierce
the SIF's corporate veil and to treat FSU and the SIF as one and
the same," SIF should be treated as distinct from FSU -- the entity
that created it -- for purposes of § 666. Id. at 1315. We reach
a similar conclusion in rejecting the government's arguments that
the evidence of the ties between the Gaming Authority and the Tribe
suffices to permit a finding that the RGB contract is the
"business" of the Tribe.
The government's other attempts to distinguish Doran are
also unavailing. The government is right that the charge there
was for § 666 embezzlement and not § 666 bribery. The government
is also right that the non-profit corporation created by the
university was "neither a subsidiary nor the university's arm and
instrumentality" (cleaned up). But § 666 embezzlement must still
- 34 -
meet the jurisdictional element of § 666,7 and, for the reasons we
have discussed above, we are unpersuaded by the government's "arm"
of the Tribe contention.
D.
For all these reasons, we conclude that the § 666
convictions must be reversed.8
III.
We move on to the government's cross-appeal, in which
the government argues that the District Court erred in granting
Cromwell's motion for judgment of acquittal on his Hobbs Act
convictions. Once again, our review is de novo, see
7 The concurrence in Doran does disagree with part of the
reasoning in the majority's opinion, stating that the "relevant
organization here is [FSU], the organization that employed Doran,
not the [SIF], the student organization he advised that was the
victim of his embezzlement." 854 F.3d at 1316 (Jill Pryor, J.,
concurring in the judgment). As such, the concurrence concludes,
"the government needed to prove beyond a reasonable doubt that
FSU -- not the SIF -- received over $10,000 in qualifying federal
benefits during the relevant period." Id. However, the
concurrence relies for this conclusion on text within § 666 that
is specific to embezzlement -- specifically, that the embezzlement
must have been of property that "is owned by, or is under the care,
custody, or control of such organization, government, or
agency" -- that does not apply to the federal-program bribery
subsections. 18 U.S.C. § 666(a)(1)(A)(ii) (emphasis added); see
Doran, 854 F.3d at 1320-21 (Pryor, J., concurring in the judgment).
8 Becausewe conclude that DeQuattro's and Cromwell's federal-
program bribery convictions must be reversed, we also need not
address the government's cross-appeal of DeQuattro's and
Cromwell's sentences on these convictions. See United States v.
Arrieta, 224 F.3d 1076, 1083 n.4 (9th Cir. 2000) ("Because we are
reversing the conviction[s], we need not reach the remaining
sentencing issues raised by the parties.").
- 35 -
Millán-Machuca, 991 F.3d at 17, and "the relevant question is
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,"
Woodward, 149 F.3d at 56 (quoting Jackson, 443 U.S. at 319)
(emphasis in original).
A.
Cromwell's sole conviction for conspiracy to commit
Hobbs Act extortion is set forth in Count Six. That Count charged
him with having committed that offense "by obtaining property not
due to [him], from [RGB], with the consent of DEQUATTRO . . . under
color of official right." His three convictions for substantive
Hobbs Act extortion are set forth in Counts Seven, Eight, and Ten.
Those counts charged him with committing those offenses "by
obtaining property not due to [him], from [RGB], with the consent
of DEQUATTRO . . . under color of official right," and are
predicated, respectively, on a "$10,000 payment on or about
11/13/15," a "Bowflex Revolution home gym valued at $1,700 on or
about 8/5/16," and a "$1,849.37 payment on or about 5/18/17 for a
stay at the Seaport Boston Hotel."
Although the jury found Cromwell guilty on all these
counts, the District Court granted his motion for judgment of
acquittal as to each count on grounds of tribal sovereign immunity,
owing to his role as Chairman of the Council. The District Court
- 36 -
explained that the Hobbs Act does not apply to tribal officials
absent a clear statement in the statute abrogating tribal sovereign
immunity.
As the government notes, however, we and other circuits
have long "recognized the United States as a superior sovereign
from whose suits the tribes enjoy no sovereign immunity." In re
Grand Jury Proceedings, 744 F.3d 211, 219 (1st Cir. 2014)
(collecting cases). Thus, the government is plainly right that
the District Court erred in granting Cromwell's motion for judgment
of acquittal as to these counts, because there is no tribal
immunity here that Congress needed to abrogate clearly.
In fact, Cromwell does not contend otherwise. He argues
only that we may affirm the District Court's granting of that
motion on either of two alternative bases.9 See United States v.
Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992) (noting that we
"may affirm a district court decision on any ground supported by
the record"). We address each of those arguments in turn.
B.
We begin with Cromwell's argument that we must affirm
the District Court's granting of his motion for judgment of
9 We do not understand Cromwell to have incorporated into his
arguments defending the judgment of acquittal on the Hobbs Act
charges either of the arguments that DeQuattro advanced as to the
appeal of the § 666 convictions regarding the exclusion of a
defense expert witness or the preclusion of the jury from reaching
a verdict prior to receiving written instructions.
- 37 -
acquittal as to the Hobbs Act counts because, "in the absence of
clear evidence of legislative intent to designate Native American
leaders like Cromwell 'public officials' for purposes of the 'under
color of official right' prong of Hobbs Act extortion, the rule of
lenity precludes conviction of Mr. Cromwell on that distinct theory
of liability" (cleaned up). We disagree.
The rule of lenity only "properly comes into play when,
at the end of a thorough inquiry, the meaning of a criminal statute
remains obscure." United States v. O'Neil, 11 F.3d 292, 301 n.10
(1st Cir. 1993). In other words, "the Court will not interpret a
federal criminal statute so as to increase the penalty that it
places on an individual when such an interpretation can be based
on no more than a guess as to what Congress intended." Ladner v.
United States, 358 U.S. 169, 178 (1958).
The Hobbs Act broadly applies, however, to "[w]hoever in
any way or degree obstructs, delays, or affects
commerce . . . by . . . extortion . . . under color of official
right." 18 U.S.C. § 1951 (emphasis added). And the Supreme Court
has construed extortion "under color of official right," id.§ 1951(b)(2), to be an "offense committed by a public official,"
Evans v. United States, 504 U.S. 255, 260, 261-64 (1992) (emphasis
added). It therefore follows that the Hobbs Act prohibition at
issue applies to any public official.
- 38 -
That being so, the only question that we must resolve is
whether there is a lenity-triggering ambiguity as to whether
Cromwell -- having been elected by tribal members to be Chairman
of the Council and therefore having been an official of that
Tribe's government -- qualifies as a "public official" under the
Hobbs Act. Id. We see no basis for concluding that there is.
Cromwell plainly holds a position within the Tribe's
government. Thus, unless there is some reason to doubt that an
Indian tribal government is the kind of government whose officials
the Hobbs Act covers, there is no basis for doubting that he is a
"public official," id., and so is covered by that statute, see
United States v. Percoco, 317 F. Supp. 3d 822, 832 (S.D.N.Y. 2018)
("[O]nly public officials -- that is, persons who hold official
positions within the government -- are capable of committing the
substantive offense of extortion under color of official
right . . . ."); see also United States v. Alexander, 287 F.3d
811, 820 (9th Cir. 2002) (noting, in a different context, that
"[t]he word 'official' refers to a person 'holding an office or
serving in a public position'"); Durflinger v. Artiles, 727 F.2d
888, 909 (10th Cir. 1984) (noting that Black's Law Dictionary has
defined "public official" as "the holder of a public office . . .
[whose] position requires the exercise of some portion of the
sovereign power, whether great or small" (citing Black's Law
Dictionary (5th ed. 1979))).
- 39 -
As an initial matter, we see no ambiguity as to whether
an Indian tribal government is a government. See Fletcher v.
United States, 116 F.3d 1315, 1326-27 (10th Cir. 1997) ("Indian
tribes are separate sovereigns with the power to regulate their
internal and social relations, including their form of government
and tribal membership." (citing Santa Clara Pueblo v. Martinez,
436 U.S. 49, 62-63 (1978); and United States v. Wheeler, 435 U.S.
313, 322-23, 322 n.18 (1978))). And, while it is true that the
Hobbs Act does not expressly refer to Indian tribal governments or
to the officials serving in them, the Hobbs Act also does not refer
to any other type of government or government official. See 18
U.S.C. § 1951. Yet there is no reason to doubt that, in broadly
referring to "[w]hoever" is acting "under color of official right,"
the Hobbs Act applies to state and local governments and their
officials generally. Id. § 1951(a), (b)(2) (emphasis added); see
United States v. Boggi, 74 F.3d 470, 475 (3d Cir. 1996) ("[The
Hobbs Act] applies to extortionate conduct by, among others,
officials and employees of state and local governments." (quoting
U.S.S.G. § 2C1.1 cmt. background)). Indeed, as we have noted, the
Supreme Court has construed that broad language to describe an
encompassing class of persons that is comprised of "public
officials" generally. Evans, 504 U.S. at 260, 264.
This context also is not one in which there is special
reason to think that Congress would have made express reference to
- 40 -
officials in Indian tribal governments if it had intended to bring
them within the ambit of a statute otherwise encompassing
government officials generally. As we explained above, officials
in Indian tribal governments enjoy no tribal immunity from criminal
prosecution by the United States itself. See Grand Jury
Proceedings, 744 F.3d at 219-20. Furthermore, as the government
points out, states themselves enjoy sovereign immunity, but not
even Cromwell suggests that the Hobbs Act has no application to
state officials just because it fails expressly to mention them or
their governments.
In any event, the language that Congress chose to use to
identify those government officials subject to the Hobbs Act
"exudes comprehensiveness." Lac du Flambeau Band of Lake Superior
Chippewa Indians v. Coughlin, 599 U.S. 382, 388 (2023). And that
is because the measure refers to "[w]hoever" is engaged in the
prohibited conduct while acting under "color of official right."
18 U.S.C. § 1951(a), (b)(2) (emphasis added). Language of a
similarly sweeping sort -- and that also makes no express mention
of Indian tribal governments -- recently has been deemed broad
enough to "clearly" and "unequivocally" encompass those
governments along with all others. Coughlin, 599 U.S. at 399. We
thus do not see how here there is the kind of reason to doubt
whether this statute encompasses such governments that would
trigger the rule of lenity. United States v. Musso, 914 F.3d 26,
- 41 -
32 n.3 (1st Cir. 2019) (quoting Abramski v. United States, 573
U.S. 169, 188 n.10 (2014)).
C.
Cromwell also argues in the alternative that we "may and
must affirm the judgments of acquittal below on the additional
basis of insufficient evidence to establish the quid-pro-quo
element of Hobbs Act extortion 'under color of official right'"
(cleaned up). More specifically, Cromwell contends that "in order
to convict [him] on any [of] the Hobbs Act counts, the government
was required to prove his intent to effect a quid pro quo in
exchange for [his] performance of, or agreement to perform,
specific official acts to 'protect' RGB's casino contract from
termination." He contends that none of the evidence in the record
suffices, however, to permit a rational juror to find beyond a
reasonable doubt that Cromwell had the required intent. We are
again unpersuaded.
A "quid pro quo" is the giving of "something of
value" -- the quid -- in exchange "for influence over some official
conduct of the recipient" -- the quo. United States v. Gracie,
731 F.3d 1, 3 (1st Cir. 2013). As we have detailed previously:
[T]he requirement of a quid pro quo means
only[] "that without pretense of any
entitlement to the payment, a public official
violates § 1951 if he intends the payor to
believe that absent payment the official is
likely to abuse his office and his trust to
the detriment and injury of the prospective
- 42 -
payor or to give the prospective payor less
favorable treatment if the quid pro quo is not
satisfied."
United States v. Correia, 55 F.4th 12, 35 (1st Cir. 2022) (quoting
Evans, 504 U.S. at 274 (Kennedy, J., concurring)).
Cromwell argues that none of the evidence is sufficient
to "prove his intent to effect a quid pro quo exchange for [his]
performance of, or agreement to perform, specific official acts to
'protect' RGB's casino contract from termination." But "tak[ing]
the facts and all reasonable inferences therefrom in the light
most favorable to the jury verdict," United States v. Sasso, 695
F.3d 25, 27 (1st Cir. 2012), and recognizing that "bribes are
seldom accompanied by written contracts, receipts or public
declarations of intentions," United States v. McDonough, 727 F.3d
143, 153 (1st Cir. 2013), we disagree. See also Evans, 504 U.S.
at 274 (Kennedy, J., concurring) (stating that an official and
bribe-payer "need not state the quid pro quo in express terms, for
otherwise the law's effect could be frustrated by knowing winks
and nods"); United States v. Blagojevich, 794 F.3d 729, 738 (7th
Cir. 2015) ("Few politicians say, on or off the record, 'I will
exchange official act X for payment Y.'").
The government argues that the "quids in this case were
RGB's payments to Cromwell" (i.e., multiple monetary checks
ranging from $4,000 - $10,000, the Bowflex, and the Seaport Boston
Hotel stay), and "the quo in each instance was Cromwell's
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protection of the RGB [c]ontract." That is, the government
contends, Cromwell intended for DeQuattro to believe that he had
to provide, through RGB, monetary checks and other things of value
to Cromwell so that Cromwell would ensure that the RGB contract
survived and that the no-cause termination provision of the
contract would not be utilized to end the contract.
Cromwell does not dispute that RGB made the payments and
the contract survived; that the Bowflex and Seaport Boston Hotel
stay were for his personal use; or that the evidence sufficiently
showed he used all the checks -- except for part of the check paid
on January 12, 2017, for $4,000 -- solely on personal expenses.
He contends only that the evidence is not sufficient to show that
he intended DeQuattro to believe the payments were in exchange for
his protection of the RGB contract (i.e., that the quid was for
the quo). We disagree.
The record shows that Cromwell requested multiple
specific things of value from RGB and DeQuattro and acted like he
was entitled to them (e.g., giving DeQuattro instructions on how
to get him the cash and calling him for updates when one of the
checks was delayed). These facts undermine Cromwell's contention
that the evidence is not sufficient to show he intended DeQuattro
to understand that he was being asked to enter a quid-pro-quo
arrangement.
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The government correctly points out that "though people
may solicit gifts or contributions, they generally do not demand
them in specific amounts, and $50,000 over sixteen months is not
a typical token of goodwill." See United States v. Biaggi, 853
F.2d 89, 99-100 (2d Cir. 1988) (stating that the jury could infer
from the size of the "gifts" worth "several thousands of
dollars . . . each year" that they "were not intended simply as
kindness-of-the-heart gifts" and that the official "was not
requesting [them] without offering something more than his
friendship in return"). Indeed, Cromwell's complaint to DeQuattro
that the Bowflex was used rather than new further reinforces the
conclusion that the checks and other things of value given were
not -- as Cromwell contends -- gifts since, as the government
notes, "adults generally do not complain to gift-givers about the
quality of their voluntary gifts."
We recognize that Cromwell sometimes did offer
noncriminal explanations to DeQuattro for the checks -- including
that they were to be used as campaign contributions. But the fact
that Cromwell used most of the checks for personal expenses rather
than for reasons that he gave DeQuattro could lead a reasonable
juror to find that Cromwell's explanations were pretextual and
intended to create plausible deniability should the payments be
discovered. Furthermore, because of the small size of the Tribe
and the fact that most members already know each other, campaigning
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for a Council seat typically costs from a few hundred dollars to
a couple thousand dollars for an elaborate campaign, making it
even more unlikely that Cromwell needed multiple $10,000 payments
for a tribal election campaign. Thus, this evidence cuts against
Cromwell's contention that he intended to request ordinary gifts,
rather than quos.
Furthermore, the evidence in the record that Cromwell
and RGB, both together and independently, took steps to conceal
the monetary payments cuts against Cromwell's argument that he did
not intend DeQuattro to believe that there was an impermissible
quid pro quo. The evidence in the record shows that DeQuattro and
Cromwell agreed to funnel the money through personal checks and
shell companies; Cromwell had his close friend withdraw the funds
for him in multiple treasurer's checks (mostly structured to be
less than $10,000 each); and RGB reimbursed DeQuattro through
"bonuses" and one-time salary increases that did not match the
amounts DeQuattro had given Cromwell. In short, "the extent to
which the parties went to conceal their bribes is powerful evidence
of their corrupt intent." United States v. McNair, 605 F.3d 1152,
1197 (11th Cir. 2010). Indeed, that such steps were taken to
conceal the monetary payments further undermines Cromwell's
explanation that the payments were "borne of friendship between
Cromwell and DeQuattro and/or the desire to promote RGB's interest
in cultivat[ing] future business opportunities." And Cromwell
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likewise provides no explanation as to why such steps to conceal
the payments would be necessary if they were indeed "borne of
friendship" or being paid "to promote RGB's interest in
cultivat[ing] future business opportunities."
"[T]ak[ing] the facts and all reasonable inferences
therefrom in the light most favorable to the jury verdict," Sasso,
695 F.3d at 27, we also disagree with Cromwell that none of the
evidence proves "his intent to effect a quid pro quo in exchange
for" his protection of the casino contract from termination. The
evidence shows that Cromwell had influence over the fate of the
RGB contract, and the contract not only provided a large portion
of RGB's revenue but also had the potential to last for years.
Moreover, the record shows that RGB had no guarantee of its
continuation, regardless of its performance on the casino project,
due to the no-cause termination provision of the contract. Indeed,
the Gaming Authority board had used a similar provision to push
out RGB's predecessor in the casino project, and Cromwell was the
Gaming Authority board member who had "pushed" to bring in RGB to
replace the predecessor that was pushed out, suggesting that he
could try to persuade the Gaming Authority board to similarly "push
out" RGB.
Also undercutting Cromwell's argument that he did not
intend for the benefits to be given as part of a quid-pro-quo
agreement to protect the RGB contract is the way Cromwell's
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requests paralleled the life of the RGB contract. Cf. Woodward,
149 F.3d at 53 (deeming "noteworthy" the "pattern formed by the[]
amounts" of the payments over time, which increased when the
official became chair of the relevant committee and ceased when he
resigned from office). Even though DeQuattro and Cromwell were
"friends" before the contract, and RGB had previously worked with
the Tribe on a different project, Cromwell began making these
requests only after RGB started invoicing on the more valuable
casino contract. While the project was proceeding apace, Cromwell
requested $10,000 every few months. Then, a lawsuit was filed by
certain Taunton residents, and, after an initial adverse ruling,
the casino project slowed down. Cromwell subsequently scaled back
his requests, leading to the requests for a Bowflex, a check worth
$4,000, and the Seaport Boston Hotel stay. Only when it became
clear the adverse ruling would stand and the contract was no longer
valuable did the requests from Cromwell cease entirely. So, taken
"in the light most flattering to the prosecution, together with
all reasonable inferences favorable" to the verdict, the evidence
was such that a rational jury could have inferred Cromwell's
"intent to effect a quid pro quo" for his Hobbs Act convictions.
United States v. Olbres, 61 F.3d 967, 970, 974 (1st Cir. 1995).
IV.
DeQuattro's and Cromwell's convictions for federal-
program bribery in violation of 18 U.S.C. § 666 are reversed. The
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District Court's grant of Cromwell's motion for judgment of
acquittal on his Hobbs Act convictions is reversed, and the case
is remanded for further proceedings consistent with this opinion.
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