United States v. Dawkins, Code ( 2021 )


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  • 19-3623 (L)
    United States v. Dawkins, Code
    In the
    United States Court of Appeals
    For the Second Circuit
    August Term, 2020
    Nos. 19-3623 (L) and 19-3643 (Con)
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    CHRISTIAN DAWKINS, MERL CODE,
    Defendants-Appellants,
    LAMONT EVANS, EMANUEL RICHARDSON, ANTHONY BLAND,
    Defendants. 1
    Appeal from the United States District Court
    for the Southern District of New York
    Nos. 17-cr-684-4 and 17-cr-684-5 — Edgardo Ramos, Judge
    ARGUED: OCTOBER 22, 2020
    DECIDED: JUNE 4, 2021
    Before: RAGGI, SULLIVAN, and NARDINI, Circuit Judges.
    1   The Clerk of Court is directed to amend the caption as set forth above.
    On appeal from conspiratorial and substantive bribery convictions in the
    United States District Court for the Southern District of New York (Edgardo
    Ramos, J.), see 18 U.S.C. §§ 371, 666(a)(2), the defendants argue that § 666(a)(2) does
    not cover their scheme to bribe college basketball coaches and is unconstitutional
    as applied to them. They maintain that § 666 requires a nexus between the “agent”
    to be influenced or rewarded and the federal funds received by their organization,
    and that the “business” of a federally funded organization, to which the bribery
    scheme is connected, must be commercial in nature. Additionally, they argue that
    various evidentiary and instructional rulings were erroneous and warrant vacatur
    of their convictions. AFFIRMED.
    DAVID ALLEN CHANEY, JR., Chaney Legal Services,
    LLC, Greenville, SC, (Steven A. Haney, Haney
    Law Group PLLC, Southfield, MI, on the brief), for
    Defendants-Appellants
    ROBERT L. BOONE, Assistant United States
    Attorney (Eli J. Mark, Noah D. Solowiejczyk,
    Thomas McKay, Assistant United States
    Attorneys, on the brief), for Audrey Strauss, United
    States Attorney for the Southern District of New
    York, New York, NY, for Appellee
    2
    WILLIAM J. NARDINI, Circuit Judge:
    Defendants-Appellants Christian Dawkins and Merl Code stand convicted
    by a jury of conspiracy to commit bribery in violation of 18 U.S.C. §§ 371 and
    666(a)(2). Dawkins also stands convicted of substantive bribery in violation of §
    666(a)(2). The defendants here appeal their convictions, entered on October 22,
    2019, in the United States District Court for the Southern District of New York
    (Edgardo Ramos, J.). They argue that § 666(a)(2) does not cover their charged
    scheme to bribe college basketball coaches and is unconstitutional as applied to
    them. Specifically, they maintain that § 666 requires a nexus between the ”agent”
    to be influenced or rewarded and the federal funds received by their organization,
    and that the “business” of a federally funded organization, to which the bribery
    scheme is connected, must be commercial in nature. Additionally, they argue that
    various evidentiary and instructional rulings were erroneous and warrant vacatur
    of their convictions. We are unpersuaded by these arguments.
    In 18 U.S.C. § 666, Congress used broad terms to prohibit bribery in relation
    to federally funded programs. As relevant here, the statute prohibits certain
    3
    actions taken “with intent to influence or reward an agent” of a designated
    recipient of federal funds, “in connection with any business” of that recipient. The
    defendants ask us to shorten the reach of 18 U.S.C. § 666(a)(2), limiting the
    universe of “agents” to be influenced and “businesses” involved. But it is not the
    role of courts to engraft restrictive language onto statutes. Nor should we cabin a
    law that Congress wrote expansively to preserve the integrity of organizations that
    receive federal dollars. Today, we follow the logical course charted by
    longstanding precedent to reach two conclusions with respect to 18 U.S.C.
    § 666(a)(2): first, the “agent” of a federally funded organization need not have
    control over the federal funds, and the agent need not work in a specific program
    within the organization that uses those federal dollars; and second, the “business”
    of a federally funded organization need not be commercial in nature. With respect
    to the defendants’ other challenges on appeal, we identify no reversible error.
    Accordingly, we affirm the judgments of conviction.
    4
    I.      Overview
    On March 7, 2019, a grand jury returned a Superseding Indictment, charging
    Dawkins and Code with conspiracy to commit bribery, 2 see 18 U.S.C. §§ 371,
    666(a)(2) (Count One); substantive bribery, see 
    id.
     §§ 666(a)(2), 2 (Count Two);
    conspiracy to commit honest services wire fraud, see 
    id.
     §§ 1343, 1346, 1349 (Count
    Three); and conspiracy to commit Travel Act bribery, see 
    id.
     §§ 371, 1952(a)(1) &
    (a)(3) (Count Six). Dawkins was also individually charged with two substantive
    counts of honest services wire fraud. See 
    id.
     §§ 1343, 1346, 1349, 2 (Counts Four and
    Five).
    The indictment alleged a straightforward scheme: Dawkins and Code
    planned to pay bribes to basketball coaches at National Collegiate Athletic
    2Counts One and Two charged both bribery and gratuity theories under § 666(a)(2), alleging
    intent to influence and to reward agents of a federally funded organization. See United States v.
    Sun-Diamond Growers of Cal., 
    526 U.S. 398
    , 404–05 (1999) (“Bribery requires intent ‘to
    influence’ . . . , while illegal gratuity requires only that the gratuity be given or accepted ‘for or
    because of’ an . . . act. In other words, for bribery there must be a quid pro quo—a specific intent to
    give or receive something of value in exchange for an . . . act. An illegal gratuity, on the other hand,
    may constitute merely a reward for some future [or past] act . . . .” (discussing 18 U.S.C. § 201(b)
    and (c))). The district court instructed the jury on both theories, and the jury returned general
    verdicts of guilt against both defendants on Count One and a general verdict of guilt against
    Dawkins on Count Two. But because the parties phrase their arguments on appeal solely in terms
    of bribery, for the sake of convenience, our opinion does so as well.
    5
    Association (“NCAA”) Division I universities in exchange for the coaches’
    agreement to steer their student-athletes toward Dawkins’s sports management
    company after leaving college and becoming professional basketball players.
    The defendants moved to dismiss the indictment before trial, challenging
    Counts One and Two on the ground that the Government’s allegations failed to
    establish two elements of a § 666(a)(2) violation: (1) that the persons intended to
    be influenced or rewarded (here basketball coaches) were “agents” of federally
    funded organizations, and (2) that the scheme to influence or reward was “in
    connection with any business” of these organizations. 18 U.S.C. § 666(a)(2). Upon
    consideration of the same arguments pursued by the defendants on their appeal,
    the district court orally denied the motion, and the case proceeded to a two-week
    trial.
    On May 8, 2019, the jury found Dawkins guilty on Counts One and Two,
    and Code guilty on Count One. The jury acquitted the defendants of the remaining
    charges. After the verdict, the district court issued a written opinion explaining its
    earlier denial of the motion to dismiss. See Doc. No. 244, Dkt. No. 17-cr-684. It then
    6
    sentenced Dawkins principally to a year and a day in prison, and Code to three
    months in prison. Both defendants now appeal their convictions.
    II.      The bribery scheme
    Viewed in the light most favorable to the jury’s verdict, 3 the trial evidence
    showed the following.
    Christian Dawkins formerly worked as a “runner,” a liaison who helps
    sports agents develop professional relationships with athletes. In September 2015,
    Dawkins became acquainted with Louis Martin Blazer, a financial and business
    manager who had once worked primarily for NFL players. To develop
    relationships with potential future clients, Blazer had at times paid college football
    players in hopes that they would retain his services once they turned pro.
    Unbeknownst            to   Dawkins,       Blazer       was   cooperating   with   Government
    investigators, who recorded the men’s conversations.
    In December 2015, Dawkins proposed that Blazer give Dawkins money to
    pay basketball players whom Dawkins was attempting to recruit. In exchange,
    3   See United States v. Thompson, 
    896 F.3d 155
    , 159 (2d Cir. 2018).
    7
    Dawkins would refer the players to Blazer for financial management services.
    Dawkins also proposed that Blazer take over payments Dawkins had been making
    to University of South Carolina assistant basketball coach Lamont Evans, 4 who, in
    return, was to steer his players to retain Dawkins’s then-employer, a sports
    management agency, when they went pro. Dawkins proposed that Blazer develop
    a relationship with Evans, who could refer his players to Blazer for financial advice
    and management. Blazer, at the Government’s direction, agreed to take over the
    payments.
    Around this time, Blazer introduced Dawkins to Munish Sood, an
    investment manager, who, with Blazer, took over the payments to Evans. In March
    2016, Dawkins, Blazer, Sood, and Evans met and discussed recruiting and paying
    players as well as the value of building relationships with assistant coaches.
    Dawkins later explained to Blazer and Sood that paying coaches was
    advantageous, since coaches could refer still other players if an initial referral did
    not work out, and they could limit other potential agents’ and advisors’ access to
    4   Evans later became an assistant basketball coach at Oklahoma State University.
    8
    their players. In exchange for the bribes Blazer and Sood began to pay, Evans
    introduced them to one player and to another player’s mother. During trial, Blazer
    and Sood testified extensively about their understandings of these recorded
    conversations.
    In June 2017, Dawkins, Sood, and “Jeff D’Angelo,” an undercover FBI agent
    posing as a wealthy businessman, formed a sports management company, LOYD,
    Inc. (“LOYD”). The plan was for LOYD to develop relationships with college
    basketball coaches, who would in turn refer players to LOYD for sports
    management services upon turning pro.
    Later in June 2017, two recorded meetings relevant to this appeal occurred
    in New York. First, Sood and D’Angelo met with University of Arizona assistant
    basketball coach Emanuel “Book” Richardson to discuss buying access to
    Richardson’s players. At the close of the meeting, D’Angelo handed Richardson
    five thousand dollars. Second, immediately after the Richardson meeting,
    Dawkins, Blazer, Sood, and D’Angelo met with Merl Code—a consultant for
    Adidas, a major sports apparel company—who had extensive relationships with
    9
    basketball coaches and players. The purpose of this meeting was to see whether
    Code could help LOYD generate business by introducing the LOYD group to his
    basketball contacts. At the end of this meeting, D’Angelo gave Code two thousand
    dollars.
    In July 2017, Dawkins, Blazer, and D’Angelo met ten college coaches in Las
    Vegas and paid some of them bribes of up to $13,000. Although Code was not
    present for these meetings, he helped arrange them and advised the LOYD group
    on how to talk with the coaches; in particular, he warned that the coaches would
    likely be wary of accepting money from people they did not yet trust. After these
    meetings, some coaches began to fulfill their end of the bribery bargain by
    introducing the LOYD group to players’ families. Shortly thereafter, Dawkins and
    Code were arrested. 5
    5In a separate trial arising from this series of events and others related to it, Dawkins and Code
    were convicted of wire fraud and conspiracy to commit wire fraud, in violation of 18 U.S.C. §§
    1343 and 1349, for “engaging in a scheme to defraud three universities by paying tens of
    thousands of dollars to the families of high school basketball players to induce them to attend the
    universities . . . and covering up the payments so that the recruits could certify to the universities
    that they had complied with [NCAA rules] barring student-athletes and recruits from being
    paid.” United States v. Gatto, 
    986 F.3d 104
    , 109–10 (2d Cir. 2021).
    10
    III.    The defendants’ challenges under 18 U.S.C. § 666(a)(2)
    The defendants’ primary argument on appeal is that the district court
    misconstrued § 666(a)(2) in recognizing the basketball coaches in this case as
    “agents” of their federally funded university employers and in concluding that the
    defendants’ bribery efforts were connected to the “business” of those universities.
    They frame the argument primarily as a challenge to the district court’s denial of
    their pretrial motion to dismiss the indictment. They also rely on it to maintain
    that the district court should have applied a narrower construction of § 666(a)(2)
    (presumably when instructing the jury), and that the Government failed to prove
    its case under the defense’s proffered interpretation of the statute. As we have
    explained, “the pleading standard for an indictment is entirely separate from the
    evidentiary standard at trial,” 6 and is different yet again from the question of
    whether the jury was properly instructed. We therefore address the pleading
    question first, and then turn to the trial questions.
    6   United States v. Wedd, 
    993 F.3d 104
    , 120 (2d Cir. 2021).
    11
    A. The Superseding Indictment properly alleged a violation of 18
    U.S.C. § 666(a)(2).
    We find no error in the district court’s denial of the defendants’ motion to
    dismiss the Superseding Indictment, which we review de novo. 7 “An indictment is
    sufficient as long as it (1) ‘contains the elements of the offense charged and fairly
    informs a defendant of the charge against which he must defend,’ and (2) ‘enables
    the defendant to plead an acquittal or conviction in bar of future prosecutions for
    the same offense.’” 8 To satisfy these requirements, “an indictment need do little
    more than . . . track the language of the statute charged and state the time and
    place (in approximate terms) of the alleged crime.” 9 Here, Counts One and Two
    used the same words as § 666(a)(2) to charge the defendants with trying to
    influence an agent of a federally funded organization. Moreover, the Superseding
    Indictment was a “speaking indictment” that provided significant detail about the
    7   See United States v. Canori, 
    737 F.3d 181
    , 182 (2d Cir. 2013).
    8Wedd, 
    993 F.3d at 120
     (alteration omitted) (quoting United States v. Alfonso, 
    143 F.3d 772
    , 776 (2d
    Cir. 1998)).
    9   
    Id.
     (quoting Alfonso, 
    143 F.3d at 776
    ).
    12
    factual nature of the charges. This was more than enough background to inform
    the defendants of when and where the offense conduct took place. Therefore, the
    Superseding Indictment was sufficient.
    The defendants argue that the district court should have gone further and
    weighed whether certain factual allegations in the Superseding Indictment—
    specifically that the coaches were “agents” of the universities and that the bribery
    scheme was “in connection” with the universities’ “business” of running an
    athletic program—were consistent with the charged violations. The defendants
    interpret § 666(a)(2) to require additional showings for someone to be an “agent,”
    and for activities to be part of a university’s “business.” But “[a]t the indictment
    stage, we do not evaluate the adequacy of the facts to satisfy the elements of the
    charged offense. That is something we do after trial.” 10 Otherwise, we would
    effectively be asking district courts to engage in summary judgment
    10Id. at 121. The only exception that might apply to this general rule is when the Government has
    made “a full proffer of the evidence it intends to present at trial.” 
    Id.
     (quoting Alfonso, 
    143 F.3d at 776
    ). The defendants do not claim that such a full proffer took place in this case.
    13
    proceedings—something that “does not exist in federal criminal procedure.” 11
    Thus, the district court correctly denied the defendants’ motion to dismiss the
    Superseding Indictment.
    B. The Government proved a violation of § 666(a)(2).
    The defendants also argue, in the alternative, that the district court should
    have applied their proposed narrower definitions of “agent” and “business”—a
    claim that we read as a challenge both to the jury instructions and to the sufficiency
    of the evidence. These arguments turn largely on the same grounds: (1) that the
    coaches were not in fact “agents” of the universities under § 666(a)(2) because they
    did not control spending of federal funds at the universities or work in a program
    within the university that used those funds, and (2) that the bribery scheme was
    not “in connection” with the universities’ “business,” the meaning of which
    should be limited to the universities’ commercial activities.
    11   
    Id.
     (quoting United States v. Sampson, 
    898 F.3d 270
    , 282 (2d Cir. 2018)).
    14
    The defendants did not preserve these arguments before the district court, 12
    and so their challenges would appear to be reviewable only for plain error. 13 Our
    standard of review is immaterial, however, because we discern no error at all.
    1. 18 U.S.C. § 666(a)(2) does not require a nexus between the
    “agent” of a federally funded organization and the federal
    funds the organization receives.
    Section 666(a)(2) broadly prohibits conduct designed to improperly
    influence or reward the agents of certain federally funded organizations. In
    relevant part, the statute provides:
    12Although the defendants moved for judgments of acquittal under Rule 29 of the Federal Rules
    of Criminal Procedure, they did not challenge the sufficiency of the evidence with respect to either
    of these points. Likewise, the defendants did not propose jury instructions that embodied their
    reading of § 666(a)(2), nor did they object to the court’s jury instructions on these elements.
    13See Fed. R. Crim. P. 30(d) (“A party who objects to any portion of the [jury] instructions . . . must
    inform the court of the specific objection and the grounds for the objection before the jury retires
    to deliberate. . . . Failure to object in accordance with this rule precludes appellate review, except
    [where there was plain error].”); see also Fed. R. Crim. P. 52(b) (“A plain error that affects
    substantial rights may be considered even though it was not brought to the court's attention.”);
    United States v. Dussard, 
    967 F.3d 149
    , 155 (2d Cir. 2020) (“The requirements for obtaining relief
    on plain-error review are well established. Under Rule 52(b), before an appellate court can correct
    an error not raised in the district court, there must be (1) error, (2) that is plain, and (3) that affects
    substantial rights. If all three conditions are met, an appellate court may then exercise its
    discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,
    or public reputation of judicial proceedings.” (internal quotation marks and alterations omitted)),
    cert. denied, No. 20-6743 (May 17, 2021) (mem.).
    15
    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, 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[,] . . . [provided
    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.
    To determine whether a target of corrupt “influence or reward” is an “agent” for
    purposes of § 666(a)(2), we “necessarily begin[] with the plain meaning of [the]
    law’s text and, absent ambiguity, will . . . end there.” 14 Section 666(d)(1) defines an
    “agent” as “a person authorized to act on behalf of another person . . . and, in the
    case of an organization . . . , includes a servant or employee, and a partner,
    director, officer, manager, and representative.” The district court adhered to this
    statutory definition in charging the jury on the agency element of a § 666 violation,
    instructing:
    14United States v. Ng Lap Seng, 
    934 F.3d 110
    , 122 (2d Cir. 2019) (internal quotation marks omitted),
    cert. denied, 
    141 S. Ct. 161
     (2020).
    16
    The fourth element the government must prove beyond a reasonable
    doubt is that at the time alleged in the indictment, in or about 2016
    to in or about 2017, any men’s college basketball coach who received
    a payment from, or as facilitated by, the defendant you are
    considering was, in fact, an agent of the university that employed
    him. An agent is a person who is authorized to act on behalf of his
    organization. Employees are considered agents of the organizations that
    employ[] them. 15
    The italicized language of the jury charge closely tracked the language of the
    statute, both identifying that an agent must be “authorized to act on behalf” of the
    organization, and explaining that an “employee” falls within the list of statutorily
    enumerated types of agents. Because the charge accurately tracked the statute, it
    was not erroneous.
    Dawkins and Code do not contest that a straightforward reading of the
    statute leads to this conclusion. Rather, they argue that we should disregard the
    plain language of § 666 and instead impose a narrowing construction to avoid
    “stretch[ing the statute] well beyond its stated purpose.” 16 Otherwise, the
    15   Tr. at 1615 (emphasis added).
    16   Appellants’ Br. at 39.
    17
    defendants assert, the term “agent” would sweep so broadly as to include
    employees such as “part-time janitor[s]” whose roles are not connected to
    “protecting the integrity of federal funds.” 17 The defendants argue that § 666
    “agents” are only those who can access or direct the spending of federal funds, or
    at least are associated with a division of the university that receives federal funds.
    But it is not our place to limit language enacted by Congress in order to pursue the
    policy goals posited by the defendants. 18
    We do not write on a blank slate in reaching this conclusion. The Supreme
    Court has twice rejected similar attempts to engraft an extratextual “nexus”
    requirement onto § 666. Most recently, in Sabri v. United States, the Court rejected
    17   
    Id. 18
    See Bostock v. Clayton County, 
    140 S. Ct. 1731
    , 1738 (2020) (“[O]nly the words on the page
    constitute the law adopted by Congress and approved by the President. If judges could add to,
    remodel, update, or detract from old statutory terms inspired only by extratextual sources and
    our own imaginations, we would risk amending statutes outside the legislative process reserved
    for the people’s representatives.”); Rotkiske v. Klemm, 
    140 S. Ct. 355
    , 360–61 (2019) (“It is a
    fundamental principle of statutory interpretation that ‘absent provisions cannot be supplied by
    the courts.’” (internal alteration omitted) (quoting A. SCALIA & B. GARNER, READING LAW: THE
    INTERPRETATION OF LEGAL TEXTS 94 (2012))); Conn. Nat’l Bank v. Germain, 
    503 U.S. 249
    , 253–54
    (1992) (“We have stated time and again that courts must presume that a legislature says in a
    statute what it means and means in a statute what it says there.”).
    18
    the related argument that the statute requires “a nexus between the bribery
    proscribed . . . and federal funding” to be a valid exercise of Congress’s authority
    under Article I. 19 The Court reasoned that the federal funds did not have to be
    directly affected by the bribery scheme because “corruption does not have to be
    that limited to affect the federal interest. Money is fungible . . . and corrupt
    contractors do not deliver dollar-for-dollar value.” 20 Even if university employees
    like the basketball coaches in this case might not directly spend, misuse, or
    “fritter[] away” federal dollars, 21 they nevertheless “pose[] a threat to the integrity
    of the [federally funded] entity, which in turn poses a threat to the federal funds
    entrusted to that entity.” 22 In reaching this conclusion, Sabri built on the Court’s
    earlier decision in Salinas v. United States, which held that the adjacent and nearly
    19   Ng Lap Seng, 
    934 F.3d at 138
     (citing Sabri v. United States, 
    541 U.S. 600
    , 605–06 (2004)).
    20   Sabri, 
    541 U.S. at 606
    .
    21   
    Id. at 605
    .
    22United States v. Fernandez, 
    722 F.3d 1
    , 11 (1st Cir. 2013) (internal quotation marks omitted); see
    also United States v. Keen, 
    676 F.3d 981
    , 990 (11th Cir. 2012) (“[E]ven if these thieves and cheats are
    not specifically using their positions to defraud the entity employing them, it cannot be denied
    that their fraudulent conduct poses a threat to the integrity of the entity, which in turn poses a
    threat to the federal funds entrusted to that entity.”).
    19
    identical provision in § 666(a)(1)(B) prohibiting solicitation of bribes “does not
    require the Government to prove the bribe in question had any particular
    influence on federal funds.” 23 We are mindful that Sabri abrogated our holding in
    United States v. Santopietro, which maintained—even after Salinas—that “at least
    some connection [was required] between the bribe and a risk to the integrity of the
    federal funded program.” 24 It is now clear that Santopietro was a wrong turn,
    corrected by Sabri, and we will not venture down that road again.
    Dawkins and Code encourage us to look not to Sabri, Salinas, and sister-
    circuit cases that align with them, 25 but instead to the Fifth Circuit’s ruling in
    United States v. Phillips for the proposition that an agent must have control over the
    expenditure of federal funds to fall within the scope of § 666(a)(2). 26 In Phillips, the
    Fifth Circuit addressed the question of whether the defendant—a corrupt tax
    23   
    522 U.S. 52
    , 61 (1997).
    24   
    166 F.3d 88
    , 93 (2d Cir. 1999); see Sabri, 
    541 U.S. at 604
    .
    25   See Fernandez, 
    722 F.3d at 11
    ; Keen, 
    676 F.3d at 990
    .
    
    26219 F.3d 404
    , 415 (5th Cir. 2000) (“[T]he statutory term ‘agent’ . . . should be construed . . . to tie
    the agency relationship to the authority that a defendant has with respect to control and
    expenditure of the funds of an entity that receives federal monies.”).
    20
    assessor for a Louisiana parish that received federal funds in the form of food
    stamps for parish residents—qualified as an “agent” of the parish for the purposes
    of § 666. The court held that he did not, because he was neither an employee nor
    an officer of the parish, and because “he was not authorized to act on behalf of the
    parish with respect to its funds.” 27 Here, unlike Phillips, the coaches are employees
    of the universities. Additionally, to the extent Phillips required the defendant to
    have authority over federal funds, it is inconsistent with the Supreme Court’s later
    holding in Sabri that § 666(a)(2) does not require a nexus between the bribery and
    the federal funding. Indeed, the Fifth Circuit itself has since “suggested that a
    broader definition of ‘agent’ is more faithful to the statutory text and purpose and
    to [the Fifth Circuit’s] earlier decisions addressing § 666.” 28
    27   
    Id. at 413
    .
    28United States v. Shoemaker, 
    746 F.3d 614
    , 622 n.7 (5th Cir. 2014); see also 
    id.
     (“Phillips added ‘extra-
    textual teeth’ to the ‘agent’ definition by requiring the agent to have power over the
    organization’s funds . . . .” (quoting United States v. Lipscomb, 
    299 F.3d 303
    , 313 (5th Cir. 2002))).
    21
    Similarly unpersuasive is the defendants’ reliance on United States v. Sunia 29
    to support their argument that the coaches are not agents of federally funded
    organizations because the universities’ athletic programs—as opposed to the
    universities as a whole—do not receive federal funding. In Sunia, the U.S. District
    Court for the District of Columbia considered whether the defendants, who were
    employees of the legislative branch of the American Samoa government, were
    “agents” for the purposes of § 666(a)(1)(A), where it was the executive branch of
    the American Samoa government that received the federal funds giving rise to the
    indictment. The Government argued that § 666(a) applied to the defendants
    because they were agents of the American Samoa government more generally.
    Relying on Phillips, the district court rejected this argument, holding that the
    statute required the defendants to be agents of the particular government agency
    receiving the federal funds. 30
    29   
    643 F. Supp. 2d 51
     (D.D.C. 2009).
    30   
    Id. at 63
    –64.
    22
    Sunia is not helpful to the defendants. First, Dawkins and Code fail to
    explain why, for the purposes of § 666, we can slice up a university’s various
    programs—say, distinguishing its athletic programs from its academic
    programs—when what the statute requires is that the “organization” receive
    federal funding, not that a particular department or program of that organization
    do so. 31 In other statutes, such as Section 504 of the Rehabilitation Act, Congress
    has demonstrated its ability to differentiate more finely between whole
    organizations or governments on the one hand, and a specific “program or
    activity” on the other. 32 We must therefore give effect to Congress’s choice not to
    delineate matters so finely in § 666 when speaking of an “organization” rather than
    a subset of that organization or its activities.
    Second, Sunia did not concern § 666(d)(1)’s definition of an “agent.” Rather,
    the district court’s focus was on § 666(d)(2), which defines the statute’s coverage
    31   See 18 U.S.C. § 666(b).
    32See T.W. v. N.Y. State Bd. of L. Examiners, 
    996 F.3d 87
    , 92–95 (2d Cir. 2021) (considering the scope
    of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), which provides immunity from suit to
    an arm of the State unless it is a “program or activity receiving Federal financial assistance”).
    23
    as extending to government “subdivisions” in holding that “agents” of a
    “government agency” must work for the particular governmental subdivision that
    receives federal funds to trigger application of § 666. 33 Even assuming that Sunia
    was correct that § 666(d)(2) requires tying federal funding to a specific
    “government agency,” that holding does not pertain to § 666(d)(1) or call into
    question that the relevant “organization” under that subsection is the university—
    including all of its component parts.
    In § 666(a)(2), Congress has defined the scope of its efforts to preserve the
    integrity of federal programs broadly and, as courts, it is not our role to second-
    guess that legislative judgment and to invent additional requirements that we
    think might better address the problem. 34 We therefore hold that, in order to prove
    a violation of § 666(a)(2), the Government need not prove a nexus between the
    agent to be influenced or rewarded and the federal funding that the relevant
    33   
    643 F. Supp. 2d at 62
    –63.
    34Indeed, the Supreme Court has explained that the purpose of § 666 is to “protect the integrity
    of the vast sums of money distributed through Federal programs from theft, fraud, and undue
    influence by bribery,” Sabri, 
    541 U.S. at 606
     (quoting S. Rep. No. 98-225, at 370 (1983), as reprinted
    in 1984 U.S.C.C.A.N. 3182, 3511), and § 666(a)(2) “addresses the problem at the source of bribes,”
    
    id. at 605
    .
    24
    organization receives. Specifically, the Government need not prove that the agent
    had any control over the federal funding received by the organization, or that the
    agent worked in a specific program within the organization that used those federal
    dollars. Accordingly, the district court’s jury instruction, which did not so limit the
    definition of “agent,” was not erroneous.
    Having confirmed the legal meaning of “agent,” we can quickly dispatch
    the defendants’ challenge to the sufficiency of the evidence on this point. The
    undisputed trial evidence showed that the bribed coaches were employees of their
    universities throughout the course of the charged § 666 scheme. Employees are
    agents under § 666(d)(1). Accordingly, we hold that there was sufficient evidence
    for a rational jury to conclude, beyond a reasonable doubt, that these coaches were
    agents of their universities. 35
    35See United States v. McCoy, 
    995 F.3d 32
    , 61 (2d Cir. 2021) (“In considering a challenge to the
    sufficiency of the evidence to support a conviction, we view the evidence, whether direct or
    circumstantial, in the light most favorable to the government, crediting every inference that could
    have been drawn in the government’s favor, and deferring to the jury’s assessments of witness
    credibility and the weight of the evidence.”); 
    id.
     (“[A] conviction will be upheld so long as, ‘any
    rational trier of fact could have found the essential elements of the crime beyond a reasonable
    doubt.’” (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979))).
    25
    2. The bribes paid by the defendants to the university
    basketball coaches in exchange for influence exerted over
    student-athletes were “in connection” with a university’s
    “business.”
    The district court instructed the jury that “the phrase ‘business or
    transaction’ is not limited to transactions or to commercial business of the
    universities, but includes intangible aspects of the business of the organization,”
    and that the “business or transaction” involved in this case was “the operation and
    administration of the university’s men’s basketball program.” 36 The defendants
    make two related arguments on this point, one essentially legal and the other
    essentially factual.
    36   Tr. at 1610–11. The full instruction on this element read:
    The business or transaction that the defendant you are considering sought to
    influence does not have to relate to federal funding. In other words, while you
    must find that the university that employed the relevant men’s basketball coach
    received more than $10,000 in federal benefits, the defendants need not have paid,
    offered, or agreed to offer bribes as to any business or transaction having to do
    with the federal funding. Further, the phrase “business or transaction” is not
    limited to transactions or to commercial business of the universities, but includes
    intangible aspects of the business of the organization. . . . Here, the government
    argues that the defendants offered or agreed to give something of value corruptly
    with the intent that the men’s college basketball coach be influenced or rewarded
    in connection with some business or transaction of that coach’s university, namely,
    the operation and administration of the university’s men’s basketball program.
    26
    First, they argue that the term “business” in § 666(a)(2) must be construed
    narrowly to include only commercial activity. They contend that defining
    “business” more broadly to include the running of a university athletic program,
    as the district court did, would render this element of the law a nullity, because
    anything could then be a business of a federally funded organization. According
    to Dawkins and Code, the term “business” must be interpreted to mean
    commercial activity to ensure that § 666(a)(2) is “consistent[ly] and predictabl[y]”
    applied. 37 But that construction is at odds with the statute itself.
    The Seventh Circuit considered and rejected the same argument in United
    States v. Robinson, holding that the term “business” did not need to be understood
    in the commercial sense, 38 and we agree with the Robinson court’s analysis. At issue
    in that case was whether bribing a police officer to shield the defendant’s drug
    trafficking operations from police scrutiny was in connection with the “business”
    of law enforcement for the purposes of § 666(a)(2). The defendant argued it was
    37   Appellants’ Br. at 48.
    38   
    663 F.3d 265
    , 275 (7th Cir. 2011).
    27
    not, because such business is not commercial in nature. The Seventh Circuit
    disagreed for several reasons.
    To begin, it concluded that the surrounding language of § 666(a)(2) supports
    an “expansi[ve]” interpretation of the word “business.” 39 The court noted that
    while the many dictionary definitions of “business” range from narrow to broad,
    this surrounding language reveals that “the term ‘business’ has a broader
    [statutory] meaning.” 40 Further, the court recognized that it would contradict the
    express statutory text for “business” to be limited to commercial activities, because
    such a limiting interpretation “would have the effect of excluding bribes paid to
    influence agents of state and local governments,” which are explicitly included
    39Id. at 273 (“The statute targets bribes solicited or offered . . . ‘in connection with any business . . .
    [of a federally funded organization] involving anything of value of $5,000 or more.’ . . . ‘Any’ and
    ‘anything’ are terms of expansion.” (quoting 18 U.S.C. § 666(a)(2))).
    40Id. at 274 & n.4. Indeed, this range of meanings is on display in President Coolidge’s oft-quoted
    (or misquoted) remark: “[T]he chief business of the American people is business.” See Robert
    Sobel, Coolidge and American Business, Calvin Coolidge Presidential Foundation,
    https://www.coolidgefoundation.org/resources/essays-papers-addresses-35/ (last visited March
    30, 2021). Coolidge’s pithy statement captures two common meanings of “business”—the first
    being a particular field of endeavor, and the second being commercial activity.
    28
    within the scope of § 666(a)(2). 41 Finally, the court looked to the purpose of the
    statute and determined that it supported a broad reading of the term “business,”
    as “[b]ribes paid to influence the intangible, noncommercial business of a federally
    funded organization threaten to undermine the integrity of those organizations no
    less than bribes paid to influence . . . commercial-like transaction[s].” 42
    Section 666 is indeed written in expansive terms, and in Ng Lap Seng we
    recognized that the statute “[n]owhere . . . place[s] any definitional limits on the
    business or transactions to be influenced—beyond requiring them to be ‘of’ the
    organization receiving more than $10,000 in federal funding and to have a ‘value
    of $5,000 or more.’” 43 This capacious understanding of the “business” element
    does not render it a nullity; it allows the statute to do its intended work. It is the
    defendants’ exclusion of noncommercial business from the scope of the statute that
    would render the statute inoperative in a vast swath of cases. Accordingly, we
    
    41 Robinson, 663
     F.3d at 274.
    42   
    Id. at 275
    .
    43Ng Lap Seng, 
    934 F.3d at 133
     (quoting 18 U.S.C. § 666(a)(2) and contrasting its language with
    “official act” bribery proscribed by 18 U.S.C. § 201(b)(1)(A)).
    29
    hold that the district court correctly instructed the jury that, for purposes of
    § 666(a)(2), “the phrase ‘business or transaction’ is not limited to transactions or to
    commercial business of the universities, but includes intangible aspects of the
    business of the organization.” 44
    Second, in what amounts to a challenge to the sufficiency of the evidence,
    the defendants challenge the characterization of the “business” affected by the
    scheme to bribe coaches. They argue that, at most, the payments related to
    recommending financial advisors to basketball players, or to running an NCAA-
    compliant athletic program—and that neither of those constitutes the “business”
    of a university under any definition of the term. But that is not how the jury was
    charged, or how the government presented its case. The court instructed that the
    business at issue here was “the operation and administration of the university’s
    44Tr. at 1610. Because we conclude that § 666 prohibits bribes in connection with the business of
    a federally funded organization regardless of its commercial or noncommercial character, we
    need not consider whether a university athletic program constitutes commercial activity. Cf.
    Gatto, 
    986 F.3d at 110
     (“We have no doubt that a successful men’s basketball program is a major
    source of revenue at certain major universities, but we need not be drawn into the debate over
    the extent to which college sports is a business.”).
    30
    men’s basketball program.” 45 At trial, there was evidence of what that business
    entailed, including that: the coaches were employed to run those programs; they
    were expected to advise student-athletes about off-court decisions like selecting
    agents; they were expected to ensure compliance with NCAA rules; and their
    employment contracts prohibited them from accepting money from outside
    advisors to influence student-athletes. The evidence showed that the bribes were
    in connection with those aspects of the universities’ business. That is, Dawkins and
    Code conspired to bribe (and Dawkins did bribe) coaches to exercise influence
    over student-athletes—influence they had by virtue of their employment at the
    universities and positions in the universities’ athletic departments—to steer those
    student-athletes toward particular financial advisors.
    The defendants argue that this conclusion means that § 666(a)(2)
    criminalizes the breaking of private rules, such as those governing NCAA
    programs. But the district court was careful to instruct the jury that the defendants
    were not charged with violating NCAA rules. Evidence that NCAA rules were
    45   Tr. at 1611.
    31
    broken illustrated how the bribery scheme related to university business, and it
    was also probative of the defendants’ corrupt intent. Perhaps the starkest
    demonstration of the connection between the bribes and the university athletic
    programs was that the coaches’ misconduct put the universities at risk of suffering
    financial and other penalties imposed by the NCAA, of which the universities
    were members. But the offense itself remained the bribery—that is, corruptly
    giving or agreeing to give money to the coaches to influence their actions in
    connection with university business. Viewed in the light most favorable to the
    jury’s verdict, this evidence established a clear connection between the bribery
    scheme and the business of the universities, and thus was sufficient to support the
    bribery convictions.
    IV.     The statute is constitutional as applied to Dawkins and Code.
    We review de novo, 46 and find no error in, the district court’s legal conclusion
    that § 666(a)(2) is not unconstitutionally vague as interpreted and applied to
    Dawkins and Code. The void-for-vagueness doctrine requires that “a penal statute
    46   See New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 
    804 F.3d 242
    , 252 (2d Cir. 2015).
    32
    define the criminal offense with sufficient definiteness that ordinary people can
    understand what conduct is prohibited and in a manner that does not encourage
    arbitrary and discriminatory enforcement.” 47 “Statutes carrying criminal penalties
    or implicating the exercise of constitutional rights . . . are subject to a more
    stringent vagueness standard than are civil or economic regulations.” 48 However,
    the statute “need not achieve meticulous specificity, which would come at the cost
    of flexibility and reasonable breadth.” 49
    The defendants argue that § 666 is unconstitutional as applied to them
    because (1) ordinary people reading its terms would not understand the statute to
    prohibit paying college coaches to steer their student-athletes to retain certain
    business advisors; and (2) such a broad prohibition would enable the Government
    to engage in discriminatory enforcement. We disagree.
    47   
    Id. at 265
     (internal quotation marks omitted).
    48   
    Id.
     (internal quotation marks omitted).
    49United States v. Rosen, 
    716 F.3d 691
    , 699 (2d Cir. 2013) (quoting Mannix v. Phillips, 
    619 F.3d 187
    ,
    197 (2d Cir. 2010)).
    33
    As we have already discussed, the district court’s interpretation of “agent”
    and “business” was not impermissibly broad or divorced from the anti-bribery
    statute’s intended purpose, which is to safeguard federal funds and the integrity
    of the institutions that receive them. Section 666(d)(1) expressly defines agents to
    include employees (like the coaches here), and § 666(a)(2) nowhere suggests that
    bribes must relate only to particular programs or divisions, within an
    organization, that benefit from federal funds. Likewise, we have just explained
    that the term “business” naturally includes both commercial and noncommercial
    activity. Accordingly, we conclude that ordinary people would understand
    § 666(a)(2) to proscribe corrupt payments to an employee of a university, which
    receives federal funds, in order to influence the employee to take action favorable
    to the bribe-payor in a matter that is connected to the university’s business—here,
    the administration and operation of its athletic program. Dawkins and Code’s
    efforts to construct a wall between the universities and their athletic programs fail
    to convince us otherwise. And because § 666 specifically prohibits bribery aimed
    at agents of federally funded organizations, its language “is adequate . . . to avoid
    34
    arbitrary enforcement” against Dawkins and Code. 50 We therefore hold that the
    statute as applied is constitutionally sound.
    V.      The district court did not abuse its discretion when making the
    challenged evidentiary rulings.
    We now turn to the defendants’ numerous evidentiary challenges, which
    we find uniformly without merit. Judges are entrusted with considerable
    discretion when deciding which evidence to admit or exclude at trial. 51 We will
    reverse for an abuse of discretion only when an evidentiary ruling is “manifestly
    erroneous” 52 or “arbitrary and irrational.” 53 “Either an error of law or a clear error
    of fact may constitute an abuse of discretion.” 54
    As an initial matter, we reject the defendants’ request for a heightened
    standard of de novo review as to their evidentiary challenges. While the Fifth and
    50   Ng Lap Seng, 
    934 F.3d at 135
    .
    51   See United States v. Skelos, 
    988 F.3d 645
    , 662 (2d Cir. 2021).
    52   
    Id. 53
       Gatto, 
    986 F.3d at 117
     (quoting United States v. White, 
    692 F.3d 235
    , 244 (2d Cir. 2012)).
    54Boyce v. Soundview Tech. Grp., Inc., 
    464 F.3d 376
    , 385 (2d Cir. 2006) (quoting Schering Corp. v.
    Pfizer, Inc., 
    189 F.3d 218
    , 224 (2d Cir. 1999)).
    35
    Sixth Amendments guarantee the right to present a defense, 55 the defendants
    nevertheless must, “[i]n the exercise of this right, . . . comply with established rules
    of procedure and evidence designed to assure both fairness and reliability in the
    ascertainment of guilt and innocence.” 56 “Restrictions on presenting evidence do
    not offend the Constitution if they serve ‘legitimate interests in the criminal trial
    process’ and are not ‘arbitrary or disproportionate to the purposes they are
    designed to serve.’” 57 Thus, when a district court restricts evidence based on a
    legitimate application of the Federal Rules of Evidence, abuse of discretion
    remains the proper standard for our review, and we will afford the district court
    the customary “wide latitude to exclude irrelevant, repetitive, or cumulative
    evidence.” 58
    55   See United States v. Stewart, 
    433 F.3d 273
    , 310 (2d Cir. 2006).
    56Chambers v. Mississippi, 
    410 U.S. 284
    , 302 (1973); see also Stewart, 
    433 F.3d at 311
     (“It is . . . well-
    settled that the right is subject to the application of procedural and evidentiary rules.”).
    
    57 Stewart, 433
     F.3d at 311 (quoting Rock v. Arkansas, 
    483 U.S. 44
    , 55–56 (1987)).
    58United States v. Holmes, 
    44 F.3d 1150
    , 1157 (2d Cir. 1995) (citing Delaware v. Van Arsdall, 
    475 U.S. 673
    , 679 (1986)).
    36
    A. The district court did not abuse its discretion in excluding
    testimony about Code’s order, “Do not accept money from these
    people.”
    Code sought to call Blondell Tutwiler and Warren Broughton as defense
    witnesses to testify to overhearing Code, on separate occasions, speaking on the
    telephone and telling his interlocutor: “Do not accept money from these people.”59
    He now faults the district court for excluding this testimony on hearsay and
    relevancy grounds.
    The hearsay ruling was error. Hearsay is an “out-of-court ‘assertion’ that is
    ‘offered to prove the truth of the matter asserted in the statement.’” 60 The
    statement “[d]o not accept money from these people” was an order, i.e., an
    imperative rather than a declarative statement, and it was offered not for its truth,
    but for the fact that it was said. It was therefore not hearsay. 61
    59   Doc. 226 at 1, Dkt. No. 17-684.
    60United States v. Coplan, 
    703 F.3d 46
    , 84 (2d Cir. 2012) (internal alterations omitted) (quoting Fed.
    R. Evid. 801(a), (c)).
    61   See United States v. Bellomo, 
    176 F.3d 580
    , 586 (1999) (“Statements offered as evidence of
    commands . . . rather than for the truth of the matter asserted therein, are not hearsay.”).
    37
    However, the district court did not abuse its discretion in excluding the
    statement on relevancy grounds. Rule 402 of the Federal Rules of Evidence
    provides, as a foundational matter, that evidence is admissible only if it is relevant.
    Rule 104(b) further provides: “When the relevance of evidence depends on
    whether a fact exists, proof must be introduced sufficient to support a finding that
    the fact does exist. The court may admit the proposed evidence on the condition
    that the proof be introduced later.” “In determining whether [a party] has
    introduced sufficient evidence to meet Rule 104(b), . . . [t]he court simply examines
    all the evidence in the case and decides whether the jury could reasonably find the
    conditional fact . . . by a preponderance of the evidence.” 62
    The relevance of Code’s statement, “[d]o not accept money from these
    people,” is conditioned on other facts, namely to whom Code was speaking and
    whom he meant by “these people.” According to Code, he was talking to the
    coaches he sent to Las Vegas to meet with members of LOYD, and he was ordering
    them not to take money at the meetings. To prove this, Code sought to introduce
    62   Huddleston v. United States, 
    485 U.S. 681
    , 690 (1988).
    38
    evidence that the dates of the phone calls coincided with the dates of the Las Vegas
    meetings where Dawkins bribed certain coaches. Code also proffered that the
    witnesses overheard him discussing meeting times and room numbers during one
    call. However, the proffered testimony was hazy about timing, indicating only that
    the phone calls occurred “in the weeks immediately preceding” the Las Vegas
    meeting. Further, Code did not proffer that these witnesses could have testified
    about who was on the other end of these phone calls, or to whom Code was
    referring when he said “these people.” Faced with such a meager proffer, the
    district court did not abuse its discretion in excluding testimony about these calls
    as irrelevant.
    B. The district court did not abuse its discretion in refusing to admit
    testimony regarding Code’s explanation of his agreement with
    LOYD.
    Code also sought to offer Broughton’s testimony that, sometime after
    overhearing Code on the phone, Code told Broughton that LOYD was paying him
    a consulting fee to arrange meetings with various coaches. Code argued that this
    testimony was admissible pursuant to the “state of mind” exception to the rule
    39
    against hearsay 63 because he was offering it to demonstrate his understanding of
    his relationship with LOYD; he was not offering the statement as evidence of the
    actual nature of his relationship with LOYD. The district court was not persuaded,
    nor are we.
    Rule 803(3) provides a hearsay exception for “[a] statement of the
    declarant’s then-existing state of mind (such as motive, intent, or plan).” This
    exception specifically excludes “a statement of memory or belief to prove the fact
    remembered or believed.” 64 That exclusion “is necessary to prevent the exception
    from swallowing the hearsay rule. This would be the result of allowing one’s state
    of mind, proved by a hearsay statement, to provide an inference of the happening
    of an event that produced the state of mind.” 65
    Broughton’s proffered testimony did not reflect Code’s state of mind within
    the meaning of Rule 803(3). Rather, Code’s statement regarding his relationship
    63   See Fed. R. Evid. 803(3).
    64   Fed. R. Evid. 803(3).
    65   United States v. Cardascia, 
    951 F.2d 474
    , 487 (2d Cir. 1991).
    40
    with LOYD was an assertion of fact—that is, an archetypal hearsay statement—
    not a statement of motive or intent. In sum, the district court acted well within its
    discretion in excluding this testimony.
    C. The district court did not abuse its discretion in refusing to admit
    portions of Code’s recorded phone call with Munish Sood.
    Code also sought to introduce a portion of a recorded August 8, 2017, phone
    call between Code and Munish Sood. On the recording, Code recounted a previous
    conversation with Dawkins; he told Sood: “[I] said, Christian, look . . . You’re not
    paying my guys.” 66 The district court granted the Government’s motion to
    preclude the recording as hearsay, finding that these statements also did not fall
    into the state of mind exception because “Mr. Code is recalling a past statement
    that he made and offering the fact that he made the statement for its truth.” 67 The
    district court was correct.
    66   Tr. at 1087.
    67   Tr. at 809–10.
    41
    1. The district court properly excluded this phone call as
    hearsay.
    “[A]n expression of state of mind on one occasion may be relevant to state
    of mind at a later time where the statement reflects ‘a continuous mental
    process,’” 68 but “[w]hether a statement is part of a continuous mental process and
    therefore admissible under the present state of mind exception is necessarily a
    question for the trial court.” 69 We agree with the district court that Code’s August
    8, 2017, statement was not admissible to show his state of mind as of the time of
    the Las Vegas meetings. To the contrary, it was simply hearsay layered on
    hearsay—that is, an assertion of fact regarding an earlier assertion of fact. The most
    recent layer was the recorded call, when Code asserted that he had previously
    made a particular statement to Dawkins; the older layer was Code’s earlier
    assertion of a purportedly true fact (that Dawkins was not paying Code’s
    68United States v. Farhane, 
    634 F.3d 127
    , 172 (2d Cir. 2011) (Raggi, J., concurring) (quoting Cardascia,
    
    951 F.2d at 488
    ).
    69   Cardascia, 
    951 F.2d at 488
    .
    42
    “guys”). 70 The district court correctly concluded that these layered statements did
    not demonstrate a state of mind and, therefore, did not abuse its discretion in
    refusing to admit the phone call.
    2. The district court did not abuse its discretion in refusing to
    admit the phone call under Rule 807.
    Insofar as the district court also rejected Code’s subsequent request to admit
    the phone call under the residual hearsay exception found in Rule 807, we identify
    no abuse of discretion.
    Rule 807 permits a hearsay statement to be admitted into evidence if it is (1)
    “supported by sufficient guarantees of trustworthiness—after considering the
    totality of circumstances under which it was made and evidence, if any,
    corroborating the statement,” and (2) “more probative on the point for which it is
    70Even if we were to construe Code’s remembered statement to Dawkins as an order to Dawkins
    not to pay Code’s “guys,” that does not change the analysis of Code’s statement on the recorded
    call; that assertion of fact cannot be read as a statement of Code’s then-existing state of mind
    regardless of whether it was layered on top of another assertion of fact or an order. Code offered
    the statement in the recorded call “to prove the fact remembered or believed,” which is hearsay.
    Fed. R. Evid. 803(3). Whether the fact remembered or believed was that Dawkins was not paying
    Code’s guys or that Code ordered Dawkins not to pay his guys, Code’s statement on the call was
    inadmissible.
    43
    offered than any other evidence that the proponent can obtain through reasonable
    efforts.” 71 In United States v. Bryce, we explained:
    [Rule 807] permits admission of hearsay if (i) it is particularly
    trustworthy; (ii) it bears on a material fact; (iii) it is the most probative
    evidence addressing that fact; (iv) its admission is consistent with the
    rules of evidence and advances the interests of justice; and (v) its
    proffer follows adequate notice to the adverse party. 72
    As to the first prong, we found in Bryce that the defendant’s statements were
    sufficiently trustworthy when obtained via covert wiretap and against the
    declarant’s penal interest. 73 Code’s statement was obtained by wiretap, but it was
    not against his penal interest—in fact, it was self-serving. A few weeks before the
    call, Code and Sood entered a consulting agreement with Sood agreeing to pay
    Code a fee for referring professional basketball players to Sood’s financial
    advisory business. Code, therefore, had an incentive to convince Sood of his ability
    to refer business to Sood without relying on bribing coaches. Code’s statements on
    71   Fed. R. Evid. 807(a).
    72   
    208 F.3d 346
    , 350–51 (2d Cir. 1999).
    73   See 
    id. at 351
    .
    44
    the call are thus not accompanied by sufficient guarantees of trustworthiness as
    required by Rule 807.
    As to the third prong, the phone call was not “the most probative evidence
    addressing” 74 the fact at issue because Dawkins testified at trial that Code had
    instructed him not to introduce one of their partners to any coaches who would
    accept bribes. Code, therefore, had a factual basis to argue that he instructed
    Dawkins not to bribe coaches, even without admitting the phone call. Because the
    recorded phone call did not meet the first or third prong of the Bryce test, the
    district court acted within its discretion in excluding it.
    D. The district court properly excluded evidence of Dawkins’s prior
    good acts.
    Dawkins sought to call then-University of Arizona head basketball coach
    Sean Miller and Louisiana State University head basketball coach Will Wade as
    witnesses to prove that Dawkins had “relationships with much more powerful
    coaches than the assistant coaches he was charged with bribing, and that he made
    74   Bryce, 
    208 F.3d at 350
    .
    45
    no attempt whatsoever to bribe the more influential coaches.” 75 Dawkins argues
    that this evidence tends show that he lacked specific intent to commit the charged
    offenses.
    The district court did not abuse its discretion in refusing to allow testimony
    regarding Dawkins’s relationships with coaches whom he did not bribe. Federal
    Rule of Evidence 404(b)(1) provides that, with certain exceptions not relevant here,
    “[e]vidence of any . . . crime, wrong, or act is not admissible to prove a person’s
    character in order to show that on a particular occasion the person acted in
    accordance with the character.” More to the point here, “[a] defendant may not
    seek to establish his innocence . . . through proof of the absence of criminal acts on
    specific occasions.” 76 No less than evidence of a defendant’s prior “bad acts” used
    to show that he committed the crime charged, such “good acts” evidence is only
    relevant if we assume that a defendant acted in conformity with those prior good
    75   Appellants’ Br. at 72.
    76   United States v. Scarpa, 
    897 F.2d 63
    , 70 (2d Cir. 1990).
    46
    acts—i.e., if we make the exact propensity inference Rule 404(b)(1) is designed to
    prohibit. 77
    In urging otherwise, Dawkins offers three unconvincing theories. First, he
    argues that it would not have made sense for him to bribe assistant coaches,
    because “the head coach would have been the logically more influential person to
    bribe.” 78 But that is just a variant of “good acts” evidence—like arguing that
    someone must not have robbed a small bank because he once passed up an
    opportunity to rob a bigger bank. And in any event, Dawkins himself explained
    (in a recorded call) why it made perfect sense to bribe only assistant coaches: head
    coaches are already “making too much money, and it’s too risky.” 79
    77See United States v. Bendetto, 
    571 F.2d 1246
    , 1249–50 (2d Cir. 1978) (“[C]haracter evidence has
    long been admissible only in the form of reputation and not in the form of a recitation of good or
    bad acts.” (citing Michelson v. United States, 
    335 U.S. 469
    , 477 (1948)); see also United States v.
    O’Connor, 
    580 F.2d 38
    , 43 (2d Cir. 1978) (affirming district court’s exclusion of testimony that the
    defendant had not accepted bribes on previous occasions “because such testimony would in effect
    be an attempt to demonstrate [the defendant’s] good character by proof of specific good acts”).
    78   Appellants’ Br. at 74.
    79   Tr. at 1473.
    47
    Second, Dawkins argues that because he had pre-existing relationships with
    head coaches, he already had access to players and, therefore, lacked a motive to
    bribe lower-level coaches for access he already possessed. Dawkins forfeited this
    argument by failing to raise it before the district court, but in any event it is
    unpersuasive. There was no evidence that Dawkins had ever obtained any clients
    of his own, much less through head coaches.
    Third, Dawkins contends that he needed to call Miller to rebut evidence
    suggesting that Dawkins wanted to bribe Miller. This final argument is both
    forfeited (because it was not presented to the district court) and meritless (because
    Miller could not have refuted the proposition that Dawkins had an unexecuted
    intention to bribe him).
    Accordingly, the district court did not abuse its discretion in refusing to
    allow Dawkins to call those witnesses. 80
    80Dawkins and Code also challenge the district court’s denial of their request to call the
    undercover FBI agent to testify about potential misconduct by another agent during the
    investigation. We agree with the district court that this proffered testimony would not have
    related in any way to their guilt or innocence, nor would it have been probative of the
    trustworthiness of any witnesses called at trial.
    48
    E. The district court did not abuse its discretion in admitting
    testimony of witnesses’ understandings of conversations with
    Dawkins and Code.
    Throughout trial, the Government played audio and video recordings of
    conversations among Dawkins, Code, Blazer, and Sood. The defendants now fault
    the district court for permitting Blazer and Sood to testify, over objection,
    regarding their understanding of the conversations with Dawkins and Code in
    which they took part.
    A lay witness’s testimony must be “rationally based on the witness’s
    perception,” “helpful to clearly understanding the witness’s testimony or to
    determining a fact in issue,” and “not based on scientific, technical, or other
    specialized knowledge.”       81   The rational-basis requirement “is the familiar
    requirement of first-hand knowledge or observation.”                  82   The helpfulness
    81   Fed. R. Evid. 701.
    United States v. Rea, 
    958 F.2d 1206
    , 1215 (2d Cir. 1992) (quoting Fed. R. Evid. 701 Advisory
    82
    Committee Note on 1972 Proposed Rules).
    49
    requirement “is designed to provide ‘assurance[] against the admission of
    opinions which would merely tell the jury what result to reach.’” 83
    The district court did not abuse its discretion in permitting Blazer and Sood
    to testify regarding their understanding of conversations with Dawkins and Code.
    Blazer’s and Sood’s testimony was “rationally based on [their] perception[s].” 84
    They were participants in these conversations and therefore possessed the
    required first-hand knowledge of their context—knowledge that would not have
    been readily available to jurors on their own. 85 As the district court noted, the
    conversations included jargon that was “not so well known to folks outside of that
    industry,” 86 an industry in which Blazer had worked for over a decade, and
    83Id. (quoting Fed. R. Evid. 704 Advisory Committee Note on 1972 Proposed Rules (alteration in
    original)).
    84   Fed. R. Evid. 701.
    85See United States v. Garcia, 
    413 F.3d 201
    , 212 (2d Cir. 2005) (“Rule 701 affords the jury an insight
    into an event that was uniquely available to an eyewitness. In this respect, the rule recognizes the
    common sense behind the saying that, sometimes, ‘you had to be there.’”).
    86   Tr. at 384.
    50
    therefore the testimony was “helpful to clearly understanding” 87 the often-
    confusing recorded conversations.
    VI.     The district court made no reversible errors in providing the
    challenged jury instructions.
    Dawkins and Code raise a number of challenges to the district court’s jury
    instructions, claiming there was error in providing “false exculpatory” and
    “conscious avoidance” instructions and in failing to provide “adverse inference”
    and “multiple conspiracy” instructions. We review each of these challenges de
    novo, applying a harmless error standard. 88
    A. Providing a false exculpatory instruction was harmless error.
    Providing the false exculpatory instruction was error, but harmless. At trial,
    the Government questioned Dawkins about two recorded phone conversations. In
    the first call, Code was heard telling Dawkins: “We’re just gonna take these fools’
    87   Fed. R. Evid. 701.
    88See United States v. Botti, 
    711 F.3d 299
    , 308 (2d Cir. 2013) (“If the defendant objected to an
    erroneous jury instruction at trial and raises the same claim of error on appeal, a harmless error
    standard of review applies.”); Fed R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance
    that does not affect substantial rights must be disregarded.”).
    51
    money.” 89 Dawkins testified that he understood that statement to mean that
    Dawkins and Code would not introduce D’Angelo to coaches who were willing to
    accept money. In the second call, Dawkins was heard telling D’Angelo, “I don’t
    want you to go down that path.” 90 Dawkins testified that this statement was made
    to convince D’Angelo not to pursue paying coaches.
    Prior to Dawkins’s testimony, the Government advised the district court
    that it was not planning to request a false exculpatory charge. After Dawkins
    testified, however, the Government sought such an instruction, and, over defense
    objection, the court charged the jury:
    Now, you’ve heard testimony that a defendant made a statement in
    which he claimed that his conduct was consistent with innocence and
    not with guilt. The government claims that these statements in which
    the defendant attempted to exculpate himself are false. If you find that
    the defendant gave a false statement in order to divert suspicion from
    himself, you may infer that the defendant believed that he was guilty.
    You may not, however, infer on the basis of this alone that the
    defendant is, in fact, guilty of the crimes for which he is charged.
    Whether or not the evidence as to a defendant’s statements shows that
    the defendant believed he was guilty and significance, if any, to be
    89   Tr. at 1294.
    90   Tr. at 1278.
    52
    attached to any such evidence, are matters for you, the jury, to
    decide. 91
    Instructing the jury that false exculpatory statements can evidence
    consciousness of guilt is appropriate when the Government presents a substantial
    factual predicate at trial showing that the defendant made false statements in an
    effort to appear innocent. 92 The instruction is most often (though not only) given
    when a defendant made false pretrial statements to law enforcement officers, 93 and
    in any event it is typically limited to a defendant’s pretrial statements. 94
    But here, Dawkins’s recorded calls were not exculpatory at all. To the
    contrary, they were entirely consistent with the Government’s theory of the case,
    which was that the defendants wanted to be strategic about which coaches to pay.
    91   Tr. at 1672.
    92   See, e.g., United States. v. Strother, 
    49 F.3d 869
    , 876–77 (2d Cir. 1995).
    93See, e.g., 
    id.
     (approving instruction where defendant made false exculpatory statements to “bank
    officials and federal authorities”); United States. v. Durrani, 
    835 F.2d 410
    , 424 (2d Cir. 1987) (“False
    exculpatory statements made to law enforcement officials are circumstantial evidence and have
    independent probative force.”); United States v. Parness, 
    503 F.2d 430
    , 438 (2d Cir. 1974)
    (considering false exculpatory statements before grand jury as “circumstantial evidence of guilty
    consciousness [that] have independent probative force”).
    94   See 1 L. SAND, ET AL., MODERN FEDERAL JURY INSTRUCTIONS-CRIMINAL § 6.05 (2007).
    53
    Moreover, Dawkins was talking with his co-conspirators (and an undercover
    agent he thought was on board). The Government offers no reason to think that,
    during these particular calls while the conspiracy was allegedly in full swing,
    Dawkins was trying to lead his co-conspirators astray. Moreover, because
    Dawkins was unaware the calls were being recorded, there is no reason to think
    Dawkins was trying to deceive any third parties who might have been listening
    in.
    The Government’s quarrel is not with Dawkins’s recorded statements so
    much as his interpretation of them during his trial testimony. But we have never
    held that a defendant’s trial testimony can prompt a false exculpatory instruction.
    When defendants testify, it is for the jury to decide whether to accept or reject their
    testimony, in whole or in part. In these circumstances, there was no reason to give
    the jury a special false exculpatory instruction merely because, at trial, the
    54
    defendant offered an innocent explanation of his own prior statements that the
    Government disputed.
    This error, however, did not affect Dawkins’s and Code’s substantial rights.
    The Government presented ample evidence of their guilt beyond Dawkins’s
    testimony explaining the two phone calls, such as the recorded phone calls
    between Dawkins, Code, Blazer, and Sood, and the testimony of Blazer and Sood.
    Further, the district court instructed the jury that Dawkins’s testimony should be
    “examine[d] and evaluate[d] . . . just as you would the testimony of any witness” 95
    and that guilt could not be inferred solely from a false exculpatory statement.
    These instructions rendered harmless any error in the false exculpatory
    instruction. 96
    95   Tr. at 1661.
    96See United States v. Clark, 
    45 F.3d 1247
    , 1251 (8th Cir. 1995) (“[T]he court instructed the jury that
    [the defendant’s] trial testimony should be judged in the same fashion as that of other witnesses,
    so there was at most harmless error.”).
    55
    B. The district court did not err in providing a conscious avoidance
    instruction.
    Over Code’s objection, the district court provided a standard conscious
    avoidance charge to the jury, based in part on Code’s statements during a recorded
    conversation. As the defendants’ joint brief challenges this instruction only as to
    Code, we consider any error solely with respect to him.
    “The doctrine of conscious avoidance (i.e., ‘willful blindness’) prevents
    defendants from avoiding criminal liability by ‘deliberately shielding themselves
    from clear evidence of critical facts that are strongly suggested by the
    circumstances’ and that, if known, would render them guilty of a crime.” 97 A
    conscious avoidance instruction is appropriate when a defendant claims to lack
    the knowledge necessary for a conviction, and the evidence presented at trial
    would permit a reasonable jury to conclude that the defendant was “aware of a
    97   Gatto, 
    986 F.3d at 122
     (quoting Glob. Tech Appliances, Inc. v. SEB S.A., 
    563 U.S. 754
    , 766 (2011)).
    56
    high probability [of the fact in dispute] and consciously avoided confirming that
    fact.” 98
    A conscious avoidance instruction was warranted in this case. Code placed
    his knowledge squarely in dispute by asserting that he was unaware that Dawkins
    was paying bribes to coaches. Moreover, the Government provided an ample
    factual predicate for the conscious avoidance charge. Specifically, it introduced
    evidence of a phone call between Dawkins and Code where the two discussed a
    meeting wherein Dawkins believed a coach received a $5,000 bribe. Code told
    Dawkins that he had spoken to the coach shortly after that meeting, but “we didn’t
    discuss numbers, because I’m not even sure if he wanted me to know. . . . But he
    would have told me if I’d have asked, but I didn’t ask.” 99 This suggested that Code
    deliberately avoided learning the truth from the coach. Further, the Government
    introduced evidence that Code told Dawkins they should protect themselves by
    being paid only in cash. These “red flags” serve as evidence that Code wanted to
    98United States v. Ferrarini, 
    219 F.3d 145
    , 154 (2d Cir. 2000) (alteration in original) (quoting United
    States v. Rodriguez, 
    983 F.2d 455
    , 458 (2d Cir. 1993)).
    99   Government’s Suppl. App’x at 42–43.
    57
    conduct their activities so as to avoid detection, and that he was aware his dealings
    with Dawkins and other co-conspirators were illegitimate. 100
    C. The district court did not err in refusing to provide an adverse
    inference instruction.
    Dawkins and Code requested an adverse inference instruction on the basis
    that one of the Government’s “key witnesses,” undercover agent D’Angelo, was
    unavailable to them. Initially, Dawkins and Code sought to call D’Angelo to testify
    regarding alleged FBI misconduct, but after the district court precluded this
    testimony as irrelevant, they sought an instruction permitting the jury to infer
    from the Government’s failure to call D’Angelo that the agent’s testimony would
    have been adverse to the Government’s case. The district court declined to provide
    an adverse inference instruction and instead instructed the jury:
    There are several persons whose names you may have heard during
    the course of the trial but did not appear to testify. I instruct you that
    each party has an equal opportunity, or lack of opportunity, to call
    any of these witnesses. Therefore, you should not draw any inferences
    or reach any conclusions as to what they would have testified to had
    they been called. Their absence should not affect your judgment in
    100See United States v. Ferguson, 
    676 F.3d 260
    , 278 (2d Cir. 2011) (“Red flags about the legitimacy
    of a transaction can be used to show both actual knowledge and conscious avoidance.”).
    58
    any way. You should, however, remember my instruction that the law
    does not impose on a defendant in a criminal case, the burden or duty
    of calling any witness or producing any testimony. 101
    The district court did not err in giving the quoted instruction or in refusing
    to provide an adverse inference instruction. An adverse inference instruction is
    appropriate “[w]hen ‘a party has it peculiarly within his power to produce
    witnesses whose testimony would elucidate the transaction’ and fails to produce
    such witnesses.” 102 In such a case, “the jury may infer that ‘the testimony, if
    produced, would be unfavorable’ to that party.” 103 Here, the district court
    correctly denied the defendants’ request to call D’Angelo to testify about potential
    misconduct by another agent during the investigation. 104 But if the defendants had
    wanted to call D’Angelo to testify about his meetings with the defendants, or for
    some other permissible purpose, they clearly could have done so. This case,
    101   Tr. at 1661.
    United States v. Torres, 
    845 F.2d 1165
    , 1169 (2d Cir. 1988) (quoting Graves v. United States, 150
    
    102 U.S. 118
    , 121 (1893)).
    103   
    Id.
     (quoting Graves, 
    150 U.S. at 121
    ).
    104   See 
    supra note 80
     (holding that testimony about misconduct was properly excluded).
    59
    therefore, falls within the situation we described in United States v. Caccia: “where
    a witness is equally available to both sides, but is not called by either side . . . the
    court has discretion to (1) give no instruction and leave the entire subject to
    summations, (2) instruct the jury that no unfavorable inference may be drawn
    against either side, or (3) instruct the jury that an adverse inference may be drawn
    against either or both sides.” 105 The district court’s choice of the second option fell
    within its broad discretion.
    D. The district court did not err in refusing to provide a multiple
    conspiracy instruction.
    Code requested a multiple conspiracy instruction, arguing that the evidence
    “seem[ed] to demonstrate different agreements with different sort[s] of goals of
    working together.” 106 The district court refused to provide this instruction and,
    instead, charged the jury that the object of the single conspiracy at issue was
    “paying bribes or illegal gratuities to men’s college basketball coaches intending
    105   United States v. Caccia, 
    122 F.3d 136
    , 139 (2d Cir. 1997) (internal citations omitted).
    106   Tr. at 1407.
    60
    to influence and reward those coaches in connection with the business of their
    respective universities.” 107
    The district court did not err in refusing to give a multiple conspiracy
    instruction. Such a charge is appropriate when “the evidence shows separate
    networks operating independently of each other,” 108 but it is not warranted when
    the evidence shows “that each alleged member agreed to participate in what he
    knew to be a collective venture directed toward a common goal.” 109 Though the
    jury heard evidence of several conversations among differing groups of people,
    those        conversations        did    not     constitute      “separate   networks   operating
    independently of each other” 110 and could not be considered distinct conspiracies.
    Therefore, the district court did not err in refusing to instruct the jury on multiple
    conspiracies.
    107   Tr. at 1618.
    108   United States v. Barlin, 
    686 F.2d 81
    , 89 (2d Cir. 1982).
    United States v. Maldonado-Rivera, 
    922 F.2d 934
    , 963 (2d Cir. 1990) (quoting United States v.
    109
    Martino, 
    664 F.2d 860
    , 876 (2d Cir. 1981)).
    110   Barlin, 
    686 F.2d at 89
    .
    61
    VII. Conclusion
    In sum, we hold as follows:
    1. The district court properly denied the motion to dismiss. The indictment
    was sufficient on its face, and the district court properly declined to
    consider, before trial, whether the Government would be able to prove
    the defendants’ guilt based on the factual allegations in the indictment.
    2. To prove a violation of § 666(a)(2), the Government need not prove a
    nexus between the agent to be influenced or rewarded and the federal
    funding that the organization receives. Specifically, the Government
    need not prove that the agent had any control over the federal funding
    received by the organization, or that the agent worked in a program,
    within the organization, that used those federal dollars. Accordingly:
    a. The district court’s jury instruction, which did not so limit the
    definition of “agent,” was not erroneous.
    b. The Government presented sufficient evidence that the coaches, as
    university employees, were “agents” of their universities.
    62
    3. For purposes of § 666(a)(2), the phrase “business or transaction” is not
    limited to commercial activities of the federally funded organization but
    includes noncommercial activities as well. Accordingly:
    a. The district court’s jury instruction that the “business” involved in
    this case was “the operation and administration of the university’s
    men’s basketball program” was not erroneous.
    b. The Government presented sufficient evidence that the bribery
    scheme was in connection with the business of the universities.
    4. Section 666(a)(2) was constitutional as interpreted and applied to the
    defendants.
    5. The district court did not abuse its discretion in making any of the
    challenged evidentiary rulings.
    6. Although the district court erred in providing a false exculpatory
    instruction to the jury, the error was harmless. The defendants’
    remaining challenges to the jury instructions lack merit.
    63
    We therefore AFFIRM the district court’s October 22, 2019, judgments of
    conviction.
    64