United States v. Hamilton ( 2023 )

United States Court of Appeals
for the Fifth Circuit
No. 21-11157
United States of America,
Plaintiff—Appellee,
versus
Ruel M. Hamilton,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-83
Before King, Elrod, and Southwick, Circuit Judges.
Per Curiam:
The petition for panel rehearing is DENIED. At the request of one
of its members, the court was polled on whether to rehear this case en banc,
and a majority did not vote in favor of rehearing (Fed. R. App. P. 35 and
5th Cir. R. 35).
In the en banc poll, seven judges voted in favor of rehearing (Richman,
Jones, Smith, Graves, Higginson, Ho, and Oldham), and nine judges voted
against rehearing (Stewart, Elrod, Southwick, Haynes, Willett, Duncan,
Engelhardt, Wilson, and Douglas).
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No. 21-11157
Jennifer Walker Elrod, Circuit Judge, joined by Willett,
Duncan, and Wilson, Circuit Judges, concurring in the denial of
rehearing en banc:
This case was about statutory interpretation and jury instructions—
not the First Amendment. In considering Defendant Ruel Hamilton’s appeal
from his conviction under 18 U.S.C. § 666(a)(2), the unanimous panel ex-
plained that the jury was not instructed that a quid pro quo was required for
conviction. United States v. Hamilton, 46 F.4th 389, 398–99 (5th Cir. 2022).
The statute requires such an instruction. It is for that reason alone that Ham-
ilton must be tried again. True, we also recognized that First Amendment
problems “lurk[ed] . . . beneath the surface” of the statutory-interpretation
question. Id. at 398 n.3. But we explicitly declined to address those problems.
Id. Even so, the dissenting opinion construes our unremarkable decision as
having “turned the First Amendment on its head.” Post at 6. Respectfully,
that conjures up a constitutional problem where none exists.
As is clear from the record, the district court did not address whether
§ 666 might violate the First Amendment. At oral argument, Hamilton’s
counsel eschewed any reliance on the First Amendment. And the panel opin-
ion mentions the First Amendment only twice: to note the district court said
nothing on the subject, and to explain that the panel was saying nothing on
the subject. Hamilton, 46 F.4th at 393, 398 n.3. In short, the dissenting opin-
ion’s focus on the First Amendment is misplaced. And so although that opin-
ion laments several of our court’s recent decisions, there is no need to ad-
dress the First Amendment cases invoked by the dissenting opinion—or the
dissenting judge’s separate opinions in those cases. Post at 4, 5 n.1, 6 (citing
Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022) (Opinion of Ho, J.),
vacated on rehearing en banc, 52 F.4th 265 (5th Cir. 2022); Zimmerman v. City
of Austin, 888 F.3d 163, 164 (5th Cir. 2018) (Ho, J., dissenting from denial of
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No. 21-11157
rehearing en banc); Stringer v. Whitley, 942 F.3d 715, 725 (5th Cir. 2019) (Ho,
J., concurring)); see also Villareal, 44 F.4th at 478 (Ho, J., concurring).
In addition, I write to correct two errors made by the dissenting opin-
ion. First, it contends that the jury actually was instructed on the quid pro quo
requirement. That is wrong. Over Hamilton’s objection, the district court
declined to instruct the jury that a quid pro quo was required for conviction
under the § 666 charge, later explaining its belief that § 666 “does not require
quid pro quo bribery” and that the relevant law does “not distinguish between
bribes and gratuities as the basis for conviction.” If the experienced district
court crafted the instructions not to convey a quid-pro-quo requirement, we
struggle to see how those instructions could have clearly conveyed that re-
quirement to lay jurors. See Hamilton, 46 F.4th at 398–99.
Second, the panel opinion makes no finding of fact on whether there
actually was a quid pro quo here. In suggesting otherwise, the dissenting opin-
ion mistakes the panel opinion’s summation of Hamilton’s position for a res-
olution of disputed facts. Compare post at 11, with Hamilton, 46 F.4th at 393.
Regardless, it is irrelevant that the Government may have offered evidence
from which the jury could have found a quid pro quo. What matters is whether
the jury did in fact make such a finding. It did not. Thus, the conviction must
be vacated.
The dissenting opinion’s concerns about the possibility of corruption
in local government do not transform this case from one about statutory in-
terpretation to one about the First Amendment. Neither do those concerns
override the simple fact that the district court did not instruct the jury that a
quid pro quo was required to convict Hamilton under 18 U.S.C. § 666(a)(2).
Accordingly, I concur in the court’s decision to not rehear this case en banc.
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No. 21-11157
James C. Ho, Circuit Judge, dissenting from denial of rehearing en banc:
Imagine the following two fact patterns.
Person A is a real estate developer who gives tens of thousands of
dollars to a city council member for the purpose of subsidizing the member’s
personal consumption, not political advocacy. He uses unrecorded cash
transactions to evade detection. And in return, the council member uses her
office to pursue certain government actions worth millions to the developer.
Person B is a citizen who donates a few hundred dollars to a candidate
for city council, for the purpose of supporting political advocacy, not personal
consumption. There’s no evidence of any quid pro quo agreement. There’s
no evidence the donor will benefit in any way from making the donation. In
fact, there’s no evidence the donor has ever even met or communicated with
the candidate—let alone entered into any corrupt arrangement of any kind.
Now imagine that I ask you to pick which person has engaged in
constitutionally protected activity—and which person has committed a
crime.
I imagine you’d say that Person B engaged in constitutionally
protected activity—and Person A committed a crime.
But you’d be wrong. At least in our circuit.
Five years ago, we upheld a city ordinance forbidding political
contributions of more than $350 to a candidate’s campaign for city council.
We rejected a First Amendment challenge to that ordinance. We did so
despite the fact that the Supreme Court held a $300 contribution limit for
Vermont state senate candidates an unconstitutional restriction on political
advocacy under the First Amendment in Randall v. Sorrell, 548 U.S. 230(2006). See Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018). We
then denied rehearing en banc. See Zimmerman v. City of Austin, 888 F.3d
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163 (5th Cir. 2018); see also id. at 164 (Ho, J., dissenting from denial of
rehearing en banc).
Now fast forward to this case. The United States prosecuted Ruel
Hamilton under, inter alia, 18 U.S.C. § 666, which targets corruption in
federally-funded programs. The prosecution presented substantial evidence
that Hamilton had engaged in quid pro quo arrangements with two members
of a city council. He gave one over $30,000 for her own personal
consumption, not political advocacy, and in exchange, she supported his
pursuit of tax credits worth millions of dollars. He wrote another member a
$7,000 check after that member said he needed $6,200 to pay his mother’s
personal expenses, and in return, the member promised to place a voter
initiative that Hamilton supported on the agenda of the next city council
meeting.
A jury convicted Hamilton. But the panel overturned the convictions,
citing among other things “a hoard of constitutional problems” and “First
Amendment . . . concerns.” United States v. Hamilton, 46 F.4th 389, 398 n.3
(5th Cir. 2022). And today, our court denies rehearing en banc. 1
So, to sum up the law of our circuit:
There’s zero evidence of corruption by Person B. But we’ll deem him
a criminal anyway. And we’ll justify it by applying a presumption of
corruption, not innocence—notwithstanding the First Amendment. But see
1 This is not due to any reticence on our court about en banc rehearing. To the
contrary, we recently reheard another case en banc involving the First Amendment. See
Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022), vacated on rehearing en banc, 52
F.4th 265 (5th Cir. 2022). See also Oliver v. Arnold, 19 F.4th 843 (5th Cir. 2021) (seven
votes in favor of rehearing en banc); Doe v. Mckesson, 947 F.3d 874 (5th Cir. 2020) (eight
votes in favor of rehearing en banc).
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No. 21-11157
Stringer v. Whitley, 942 F.3d 715, 725 (5th Cir. 2019) (Ho, J., concurring) (“in
our legal system, we presume innocence—not corruption”).
Meanwhile, there’s ample affirmative evidence of corruption by
Person A. But we’ll ignore his criminal actions. In fact, we’ll invoke the First
Amendment to justify overturning his criminal convictions.
This is backwards. Our circuit has turned the First Amendment on its
head. I dissent from the denial of rehearing en banc.
I.
Federal law criminalizes corruption in federally-funded programs. It
makes it a crime to “corruptly give[], offer[], or agree[] to give anything of
value to any person, with intent to influence or reward an agent [of a local
government] in connection with any business, transaction, or series of
transactions of such [local government] involving anything of value of $5,000
or more.” 18 U.S.C. § 666(a)(2).
A jury convicted Hamilton of two counts under § 666(a)(2). But the
panel overturned his convictions. In doing so, the panel decided an issue of
first impression for our circuit: Does § 666(a)(2) criminalize only quid pro
quo bribery? Or does it additionally criminalize gratuities to local officials
even in the absence of reciprocity—a quid without a quo?
The panel endorsed the former view—§ 666 applies only to quid pro
quo bribery. In doing so, the panel noted that it was putting our circuit on the
short end of a “lopsided split” on this issue—joining the First Circuit against
the Second, Sixth, Seventh, Eighth, and Eleventh Circuits. 46 F.4th at 396.
What’s more, the panel placed us on the short end of an admitted
circuit split in an area of obvious public concern—public corruption. And it
did so based on, among other things, “a hoard of constitutional problems”
and “First Amendment . . . concerns.” Id. at 398 n.3.
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No. 21-11157
All of this should’ve been more than sufficient to warrant en banc
review.
But what’s worse, it was entirely unnecessary for the panel to wade
into the circuit split, because this case could have easily been affirmed on the
basis of quid pro quo corruption. After all: The district court instructed the
jury on quid pro quo corruption. The parties litigated this case as a quid pro
quo corruption case throughout the proceedings below. The prosecution
presented ample evidence to support a quid pro quo conviction. And the jury
convicted accordingly.
So there was no need to take sides in this split. We could have, and
should have, affirmed the convictions regardless.
A.
The panel claimed that the district court instructed the jury that it did
not need to find evidence of quid pro quo corruption. It also theorized that the
prosecution presented insufficient evidence of quid pro quo corruption. I
respectfully disagree with the panel on both fronts.
1. The panel’s primary theory for reversing the § 666(a)(2)
convictions was error in the jury instructions.
Specifically, the panel complained that the district court “told the jury
that neither a quid-pro-quo 3#)"  )*- )4 B*!!$$' /C 4 /# 
councilmembers was required.” 46 F.4th at 393. “The district court
believed that § 666 criminalized mere gratuities and did not require a quid pro
quo.” Id. at 394. So “the jury instruction . . . did not convey” that “§ 666
does, in fact, require a quo; a quid alone will not suffice.” Id. “Thus,
Hamilton’s convictions must be vacated.” Id.
But just read what the jury was instructed: Under § 666, the
prosecution must show that Hamilton
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No. 21-11157
entered into a corrupt agreement to provide things of value
with the intent to influence or reward the person for whom the
influence or reward was intended on any question or matter
which may be then or would thereafter be pending before that
person, whether or not that person actually acted in accordance
with the agreement. . . . It is sufficient if the thing of value is
given with the intent that the agent of the local government will
exercise particular kinds of influence as specific opportunities
arise.
So the district court instructed the jury to determine whether
Hamilton had entered into a “corrupt agreement” to provide a “thing of
value”—the quid. The jury also had to determine whether Hamilton acted
“with the intent” to receive in return the official’s “influence” on matters
“pending before” them “as specific opportunities arise”—the quo.
2. Moreover, the United States presented compelling evidence
that Hamilton engaged in quid pro quo corruption with two members of the
Dallas City Council—Carolyn Davis and Dwaine Caraway.
Hamilton gave over $30,000 to Davis—not as campaign contributions
given to support First Amendment-protected activity, but as bribes meant to
line her pockets for personal consumption. In exchange, Davis leveraged her
position as Chair of the Dallas Housing Committee to support Hamilton’s
tax credit application, which would have netted him millions of dollars.
Specifically, Hamilton wrote $14,500 worth of checks, purportedly to
support a non-profit organization, but that was in fact secretly funneled to
Davis for her personal use. The United States also presented evidence that
Hamilton gave Davis an additional $21,000 in cash to avoid a paper trail. In
one exchange, Davis waited in Hamilton’s car as he withdrew $5,000 from
an ATM, as evidenced by video camera footage from the ATM. Hamilton
also made other cash withdrawals that were followed by recorded telephone
conversations referring to cash payments that he made to Davis.
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No. 21-11157
In return, Davis took multiple official actions to favor Hamilton. She
(1) leveraged her influence as the Chair of the Dallas Housing Committee to
advocate for Hamilton’s Royal Crest project to receive state tax credits worth
at least $3.8 million, even though the project wasn’t in her district, (2) voted
in favor of the project, (3) moved to adopt the Housing Committee’s
recommendation before the City Council, and (4) agreed to lobby the
relevant state agency in her official capacity.
Hamilton also gave Caraway a $7,000 check after Caraway made clear
that he needed $6,200 to pay his mother’s personal expenses. In return,
Caraway agreed to place a voter initiative that Hamilton favored on the
agenda of the next city council meeting.
3. The panel contends that the prosecution failed to press a quid
pro quo theory in district court, and did so only for the first time on appeal.
See id. at 399 (“[T]he government proceeded on a gratuity theory and only
now says that it could have won either way.”).
But Hamilton repeatedly argued during pre-trial briefing (and in all
capital letters to boot) that “THIS CASE IS ABOUT BRIBERY, NOT
GRATUITIES.” He also noted the prosecution “seems to agree that this
case is about bribery, not gratuities.”
And the United States not only presented ample record evidence of
the quo—it repeatedly referenced the quo during closing argument. As the
prosecution explained: “It’s illegal for the public official to ask [for money],
if the public official is doing that with intent to be rewarded for their action,
and it’s darn sure illegal to pay it if the intent is to . . . influence that public
official when you have business before them. . . . Hamilton is giving things of
value to Ms. Davis for official support on his developments; . . . they’re
working together. . . . This Defendant provided a number of things of value
to Ms. Davis in return for her official support. . . . You saw . . . a $7,000 check
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No. 21-11157
to get [Caraway] to talk to the Mayor and help in the future. . . . Davis was
soliciting checks . . . from [Hamilton] in her official capacity for something in
return.”
And in response to his motion for judgment of acquittal, the
prosecution stated that Hamilton was charged and convicted “of bribing
Davis in return for her official action on Hamilton’s Royal Crest project” and
“of bribing Caraway in return for Caraway’s official action in getting a
referendum . . . on the council agenda and in return for future action with
regard to Hamilton’s real estate developments in Caraway’s district.”
The district court likewise thought that the case was about quid pro quo
bribery, and found the evidence sufficient to establish quid pro quo bribery.
See United States v. Hamilton, 2021 WL 5178463, at *6 (N.D. Tex. Nov. 8,
2021) (“Sufficient evidence was presented at trial to establish that Hamilton
and Davis had an agreement in which Hamilton provided things of value in
exchange for Davis exercising her influence over his LIHTC projects pending
before the City Council and Dallas City Housing Committee.”).
B.
The panel’s remaining theories for reversal likewise hold no water.
1. The panel intimated that there was no quid pro quo here because
Hamilton “received nothing tangible in return.” 46 F.4th at 391. The panel
reasoned that the tax credits he sought “were offered not by the City of
Dallas, but by the Texas Department of Housing and Community affairs (a
state agency).” Id7# $/4*0)$'( - '41*/ D/*B- *(( )C a slate
of projects to the state agency for these tax credits.” Id. “Alas, the state
agency did not grant any low-income-housing tax credits to any of the real-
estate projects the City Council recommended.” Id. As the panel put it, “§
666 does, in fact, require a quo; a quid alone will not suffice.” Id. at 394.
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No. 21-11157
But I have difficulty with the panel’s suggestion that there’s no quid
pro quo here simply because Davis ultimately failed to deliver on her end of
the bargain when a state agency refused to go along. A simple hypothetical
should suffice: If I bribe every member of the House of Representatives to
send a bill I favor to the Senate, and the Senate then fails to pass my bill, am
I innocent of quid pro quo bribery, just because the Senate didn’t approve the
legislation? Of course not.
2. The panel also credited Hamilton’s argument that he was just
“helping a friend out.” Id. at 393.
But there’s no need for a jury—or our court—to be so credulous.
Hamilton didn’t present, and certainly doesn’t identify, any record evidence
of an actual preexisting friendship with these officials. Nor does he present
any evidence of a pattern of such generous gift giving to any of his real friends.
So the jury was entitled to doubt Hamilton’s “friendship” narrative.
Indeed, imagine if it were otherwise. If the panel is right that a jury is not
entitled to convict under these facts, then we would presumably be required
to reverse every bribery conviction, so long as the defendant utters (without
proof) that he’s just “helping a friend.” (Meanwhile, a $350 donation to a
candidate who actually is a friend—somehow that’s corrupt under
Zimmerman?)
C.
The panel decision is difficult to defend. But a concurring opinion
today tries to do so. So I offer a few brief thoughts in response.
1. The concurring opinion curiously claims that the panel opinion
didn’t actually raise any First Amendment concerns. To quote the
concurring opinion, “[t]his case was about statutory interpretation and jury
instructions—not the First Amendment.” Ante, at 2.
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No. 21-11157
But just read what the panel opinion said:
Lurking just beneath the surface is a hoard of constitutional
problems raised by a broad reading of § 666. See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 247 (2012) (“A statute should be interpreted in a way
that avoids placing its constitutionality in doubt.”). Treating §
666 as though it covers all sorts of interactions with local public
officials raises First Amendment, federalism, and due-process
concerns. . . . We need not reach those issues in this case
because we can construe the text in a way that comports with
the Constitution.
46 F.4th at 398 n.3.
In other words, the panel opinion expressly invoked “a hoard of
constitutional problems” “[l]urking just beneath the surface” to justify its
interpretation of § 666 and reversal of Hamilton’s convictions. Id. It did so
explicitly to “avoid[] placing its constitutionality in doubt.” Id. (quotations
omitted). It specifically leads off with “First Amendment . . . concerns.” Id.
And it concludes that its interpretation “comports with the Constitution.”
Id.
Perhaps the concurring opinion regrets the language of the panel
opinion. But it cannot erase it.
I would take the panel at its word. It included this language because
the panel believes what it says—it believes the convictions present “First
Amendment concerns.” I simply disagree. The First Amendment protects
political advocacy, not corruption. So we should have affirmed. But the
panel reached the opposite conclusion. And our court now denies rehearing
en banc.
Accordingly, I see no way to escape the conclusion that, by leaving
intact our court’s First Amendment analysis in both Zimmerman and
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No. 21-11157
Hamilton (while displaying no such reticence in other First Amendment
cases), we are turning the First Amendment upside down.
2. The concurrence contends that I have misread the jury
instructions. Ante, at 3. To support this charge, however, the concurrence
does not invoke the jury instructions themselves—which I quote verbatim,
supra, at 7–8, but goes unmentioned in the concurrence and panel opinion.
Instead, the concurrence quotes other statements made by the district
court, in another proceeding, away from the jury. But the issue is not what
the district court may have thought at one time or another. The issue is what
the district court instructed the jury.
I would read the jury instructions by reading the jury instructions. 2
3. Finally, the concurrence tries to reassure the public that
Hamilton may be “tried again.” Ante, at 2. It even acknowledges that “the
Government may have offered evidence from which the jury could have
found a quid pro quo.” Id. at 3.
But that’s exactly why we should’ve just affirmed the convictions. As
the government’s rehearing petition states: “No error exists here because,
based on precedent and consistent with this Circuit’s pattern charge, the
charge as a whole required a quid pro quo.” But “even assuming charge error,
2
Alternatively, the concurrence focuses on what the jury instructions don’t say. It
contends that, “[o]ver Hamilton’s objection, the district court declined to instruct the jury
that a quid pro quo was required.” Ante, at 3. But that’s only because the jury instructions
already required a quid pro quo, as I’ve already explained. See supra, at 7–8. So the
instructions were already “clear” enough on this point, as reflected in the transcript of the
charge conference on June 23, 2021. Indeed, the government repeatedly reaffirmed
throughout that § 666 prohibits bribes, not gratuities: “The statute in § 666 allows
anything of value to be a bribe. . . . For example, giving someone a job could be a bribe.”
The concurrence also suggests that we defer to “the experienced district court.”
Ante, at 3. But I would’ve affirmed. It’s the concurrence that demands reversal.
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No. 21-11157
the government’s prosecution theory and the trial evidence overwhelmingly
confirm the requisite quid-pro-quo exchange—rendering any error
harmless.”
Retrial is neither legally necessary, nor a good use of public resources.
***
There was no need for the panel to put us on the short end of a
lopsided circuit split. We should have affirmed the convictions regardless.
But even worse, our circuit is getting the First Amendment backwards
in case after case. The freedom of speech guaranteed to every citizen
protects political advocacy—not corruption.
I dissent from the denial of rehearing en banc.
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