United States v. Lipscomb ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-10461
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Cross-Appellant,
versus
ALBERT LOUIS LIPSCOMB,
Defendant-Appellant, Cross-Appellee.
___________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
___________________________________________________
July 12, 2002
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Albert Lipscomb, a former member of the Dallas City Council,
appeals his convictions for conspiracy and program bribery, in
violation of 18 U.S.C. § 666 (“§ 666”). Whether he raises a
constitutional challenge to his convictions, and, if so, how we
should rule on that challenge, are questions that have divided our
panel three ways, as will become clear from our separate writings.
Despite this tripartite fractionation, however, different
majorities of the panel conclude that (1) the question of § 666’s
as-applied constitutionality is properly before the panel and
should be addressed; (2) the district court had subject-matter
jurisdiction of this criminal bribery case against Lipscomb; and
(3) the court abused its discretion in transferring the trial sua
sponte over Lipscomb’s objections. We therefore reverse his
conviction, vacate his sentence, and remand for a new trial.
I. FACTS
Both Lipscomb’s conduct and particular jurisdictional facts
are important to the varying views of the members of this panel.
We therefore recount them in considerable detail.
A. Lipscomb’s Offense Conduct
Lipscomb served on the Dallas City Council (the “Council”)
from 1984 to 1993 and again from 1995 until 2000. During his first
period of service, Lipscomb vigorously opposed any measure
favorable to taxicab companies, including Yellow Cab and Checker
Cab (together, “Yellow Cab”), both owned by his co-conspirator,
Floyd Richards. Lipscomb’s animus against cab companies apparently
was grounded in a belief that cab companies perennially failed to
serve the minority community adequately.
During his second period of service on the Council, however,
Lipscomb demonstrated a considerably kinder disposition toward cab
companies, especially Yellow Cab. In 1994, during Lipscomb’s
hiatus from the Council, Richards asked Lipscomb to help improve
Yellow Cab’s reputation in the minority community and offered to
pay Lipscomb $1,000 a month in cash for that help. Lipscomb
assented to this proposal. Richards and Lipscomb agreed to
continue this arrangement as long as it was mutually agreeable.
2
All this transpired orally.
Richards continued to make the monthly payments to Lipscomb
after he was re-elected to the Council. At times, Richards would
receive phone calls from Lipscomb indicating that he needed a
payment, after which Lipscomb would visit Yellow Cab’s office and
receive cash that Richards took from the company safe. Sometimes
during these meetings, Richards and Lipscomb would discuss taxicab
issues then pending before the Council. The government alleged
that in addition to making these monthly payments to Lipscomb,
Richards gave Lipscomb free use of cars, free cellular telephone
service, and free cab rides worth more than $3,300.
When Lipscomb ran again, his advisers heard Richards declare
that he was willing to spend up to $30,000 to get Lipscomb elected.
When Richards learned that corporations could not contribute to
campaigns and that individuals could contribute no more than
$1,000, however, he decided to “lend” $20,500 to a business owned
by Lipscomb’s daughter and son-in-law. That money was intended by
all concerned to help fund Lipscomb’s campaign, and it did so; but
Lipscomb did not report the campaign “loan” or any of the payments
in his campaign finance reports or his personal financial
statements.
Richards testified that although he never made the quid pro
quo explicit, he expected that, in return for the monthly payments
and the campaign funding, Lipscomb would cast votes favorable to
Yellow Cab. Richards testified further that he and Lipscomb had an
3
understanding, and that Richards was satisfied that Lipscomb knew
that the payments would stop if he voted the wrong way.
Lipscomb’s support of Yellow Cab went far beyond the casting
of favorable votes at meetings of the Council. Over time, he and
Richards discussed each of the taxicab issues on which Lipscomb
allegedly was influenced by this bribery: (1) operating authority
and fleet increases, (2) location of dispatch offices, (3) age
limits and inspections, and (4) insurance ratings. Lipscomb had
opposed Yellow Cab on these issues before 1994, but when he
returned to the Council, he supported that company vigorously and
often.
For example, in 1994 Lipscomb, as a private citizen, had
spoken out against authority for Yellow Cab and two other cab
companies to operate in Dallas. Once he returned to the council,
though, he supported Yellow Cab’s requests for increases in the
size of its cab fleets. Yet when cab companies unaffiliated with
Richards sought authority to operate in Dallas, Lipscomb urged that
their applications be removed from the council’s agenda. When
another cab company’s request for operating authority was taken up
by the council, Lipscomb tried to require a voice vote on the
matter.
Yellow Cab also needed relief from a city ordinance requiring
cab companies to maintain their dispatch offices inside the Dallas
city limits. After a city staffer learned that Yellow Cab was
violating this policy, she sought to enforce it, but the Council
4
referred the matter to its Transportation Committee. Even though
Lipscomb did not serve on that committee, he attended its meeting
and browbeat the staffer, going so far as to ask her when she would
retire. Eventually, with Lipscomb’s encouragement, the Council
permitted cab companies to operate dispatch offices in the Dallas
suburbs, thus legitimating Yellow Cab’s office, the only one in
violation, in which Yellow Cab had invested $15,000.
Because Yellow Cab had the newest fleet among the cab
companies serving Dallas, the City was encouraged by Yellow Cab
energetically to enforce against its competitors the City’s age
limit on vehicles for hire and its requirement that they be
inspected. In 1992, Lipscomb had favored relaxing both rules, but
in 1996, after he was told by Richards that he wanted stricter
enforcement, Lipscomb began to support age limits on sedan-style
limousines similar to the limits that applied to taxicabs. He also
sought to remove older shuttles and limousines from service more
quickly, and he opposed the Council’s effort to revisit its earlier
vote —— favorable to Yellow Cab —— to approve stricter age limits.
Lipscomb also acted on Yellow Cab’s behalf with respect to
insurance issues. Yellow Cab lobbied the Council to require that
the insurance coverage mandated for taxis be written by insurers
with favorable financial ratings. This proposal proved to be
controversial: The City’s Director of Human Services, whose
department handled insurance matters, was concerned that a rating
requirement might favor large firms and exclude small businesses
5
owned by minorities or women. Lipscomb nevertheless sought to put
the rating requirement on the Council’s agenda, and both seconded
and voted for a motion to increase the minimum rating.
In sum, Lipscomb energetically used many of the tools at the
disposal of a Council member —— his vote, his oversight authority,
his agenda-setting power, and his other parliamentary privileges ——
to support policies favorable to Yellow Cab, even though these
policies conflicted with his previous positions.
B. Jurisdictional Facts
During Lipscomb’s second period of council service, the City,
through many of its agencies and departments, received substantial
federal funds. In the year ending in September 1996, Dallas
received $44.3 million and spent $48.1 million in federal financial
assistance which funded a wide range of joint priorities: community
development, farmer’s market infrastructure, emergency shelter,
housing, community policing, airport and freeway improvements, arts
development, pollution control, emergency management, interlibrary
cooperation, child immunization, homeless health care, and
substance abuse control, among others. Federal support in 1996
dwarfed state support, which totaled only $3.7 million received and
$3.1 million spent. Other years were similar: in 1997, the city
received $54.3 million and spent $53.3 million in federal funds,
but received only $3.0 million and spent $3.8 million in state
funds.
Testimony of the city’s chief financial officer showed that in
6
Dallas’s efforts to obtain and then allocate federal funds, the
Council played an integral role:
Q. And once the City gets the Department of Housing money
or grant funds, does the City then disburse those funds?
A. Yes, we do.
Q. And is the disbursement by approval of a City
Councilmember or the City Council at large?
A. If the individual expenditure is greater than $50,000,
or $15,000 in the case of professional services, it would come
back to the Council for approval of that specific contract.
Q. And does that frequently happen?
A. Yes, uh-huh.
Q. All right. And, in fact, does the Council have to
approve, vote for and approve the application to HUD and the
other agencies of the federal government to get federal money?
A. Yes. They vote for the application and the acceptance
of the money.
The Council as a whole thus controlled —— and individual council
members influenced —— the City’s applications for, and receipt and
expenditure of, at least forty million federal dollars each year.
II. PROCEEDINGS
The government secured a lengthy indictment against Lipscomb.
Counts 2 through 33 charged him with specific substantive bribery
violations of § 666(a)(1)(B) and charged Richards with aiding and
abetting those offenses. Conversely, counts 34 through 65 charged
Richards with bribery violations of § 666(a)(2) and charged
Lipscomb with aiding and abetting. Count 1 charged Lipscomb with
conspiring to violate § 666. Notably, the government did not
charge Lipscomb with the misuse of state or federal funds.
Three weeks before the long-scheduled trial date, the district
court, acting sua sponte, without giving notice to the parties or
holding a hearing, and over Lipscomb’s strenuous objections,
7
transferred the trial from the Dallas Division of the Northern Dis-
trict of Texas to the Amarillo Division. Thereafter, Richards
entered into a plea agreement which, among other things, required
him to testify at trial. The jury convicted Lipscomb on all
counts. The district court sentenced him to 41 months’
imprisonment, imposed a $7,500 fine, and ordered him to pay a
$6,500 special assessment. The court also directed that the
sentence be served under home confinement because of Lipscomb’s
failing health and advanced age.
Lipscomb appeals his conviction on several grounds. The
government cross-appeals the home-confinement aspect of his
sentence.
III. STATUTORY INTERPRETATION
A. Lipscomb’s Challenge to the Jurisdictional Reach of § 666
As it stood at the time and now stands, § 666 contains two
monetary thresholds. Section 666 reads, in principal part:
§ 666. Theft or bribery concerning programs receiving
Federal funds
(a) Whoever, if the circumstance described in
subsection (b) of this section exists——
(1) being an agent of an organization, or of a
State, local, or Indian tribal government, or any
agency thereof——
...
(B) corruptly solicits or demands for the
benefit of any person, or accepts or agrees to
accept, anything of value from any person,
intending to be influenced or rewarded in
connection with any business, transaction, or
series of transactions of such organization,
government, or agency involving anything of
value of $5,000 or more;
8
...
shall be fined under this title, imprisoned not more than
10 years, or both.
(b) The circumstance referred to in subsection (a)
of this section is that the organization, government, or
agency receives, in any one year period, benefits in
excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance, or
other form of Federal assistance.1
Lipscomb insists that we should narrowly construe § 666 to avoid
the constitutional question that arises if we interpret the statute
to prohibit activity not directly related to federal spending or
federally funded programs. He proposes that we construe the
statute to require a nexus between his offense conduct and federal
funds —— or, put differently, that his conduct implicate a tangible
federal interest. He also contends that, when so construed, the
statute does not reach his conduct. Neither contention succeeds.
The phylogeny of § 666 jurisprudence does reflect a growing
tension between two possible focuses of the statute. One, which
another court has dubbed the “funds focus,” would concentrate on
deterring direct depletion of federal funds; the other, the so-
called “corruption focus,” would combat “the corrupting, public-
trust eroding effects of bribery” and would not require that
federal funds be depleted or misallocated as a direct result of the
bribe.2 Lipscomb’s proposal that we adopt the narrower, funds
focus, however, would require us to ignore our consistently broad
1
18 U.S.C. § 666 (2000) (emphasis added).
2
United States v. Apple, 927 F. Supp. 1119, 1124 (N.D. Ind.
1996).
9
interpretation of § 666 as targeting corruption qua corruption.
Furthermore, even if we were to read § 666 and our cases to
construe it narrowly, to superimpose a nexus element, we would
still conclude that there is a sufficient linkage between
Lipscomb’s conduct and federal funds to support jurisdiction of
Lipscomb’s case.
B. Westmoreland and Its Progeny: The Corruption Focus —— No
Further Nexus Required
We first interpreted § 666 in United States v. Westmoreland.3
The defendant, Westmoreland, was a county supervisor who was
convicted of accepting bribes and kickbacks in connection with the
purchasing of supplies for the county’s highway construction
projects.4 The county received slightly more than $200,000 in
total federal revenue-sharing funds, of which roughly 15% was
allocated to Westmoreland’s district.5
Westmoreland contended that “the federal revenue sharing funds
received [by her district]...were segregated and not expended for
the types of purchases she made.”6 She therefore argued that the
bribery “concerned only state monies and did not fall within the
purview of the statute.”7 We rejected such a construction as
3
841 F.2d 572 (5th Cir. 1988).
4
Id. at 573–75.
5
Id. at 575.
6
Id.7
Westmoreland, 841 F.2d at 575.
10
contrary to the statute’s text:
Despite Westmoreland’s protestations, we find the
relevant statutory language plain and unambiguous. By
the terms of section 666, when a local government agency
receives an annual benefit of more than $10,000 under a
federal assistance program, its agents are governed by
the statute, and an agent violates subsection (b) when he
engages in the prohibited conduct “in any transaction or
matter or series of transactions or matters involving
$5,000 or more concerning the affairs of” the local
government agency. 18 U.S.C. § 666(b) (Supp. 1984)
(emphasis added). Subsection (b) contains nothing to
indicate that “any transaction involving $5,000” means
“any federally funded transaction involving $5,000” or
“any transaction involving $5,000 of federal funds[.]”8
Westmoreland also made the argument that Lipscomb makes here:
“[A]n expansive interpretation [of § 666]...extends federal power
in a manner that, in many instances, the federal interest at stake
does not warrant.”9 The Westmoreland panel responded:
Once Congress has spoken, however, we do not sit to judge
the wisdom of its action. It is sufficient that Congress
seeks to preserve the integrity of federal funds by
assuring the integrity of the organizations or agencies
that receive them.... [T]he direct involvement of federal
funds in a transaction is not an essential element of
bribery under section 666(b); the government need not
prove that federal monies funded a corrupt transaction.10
Westmoreland thus held that no connection was required between the
federal funds allocated to the county and the supervisor’s illegal
8
Id. at 576.
9
Id. at 577–78.
10
Id. at 578. We noted that “any reference to federal funds
is conspicuously absent from the operative provisions [of § 666],
and it is clear that Congress has cast a broad net to encompass
local officials who may administer federal funds, regardless of
whether they actually do.” Id. at 577.
11
conduct. Instead, the only requisite involvement of federal funds
was the county’s receipt of more than $10,000 per year.11
Since Westmoreland, we have sometimes applied its broad
reading of § 666 unconditionally. For example, in United States v.
Moeller,12 the government appealed the dismissal of § 666 counts
against employees of the Texas Federal Inspection Service (“TFIS”),
a cooperative venture of the agriculture departments of Texas and
the United States, in which state workers were empowered to conduct
federal inspections.13 Although we said that “there must be some
nexus between the criminal conduct and the agency receiving federal
assistance,” that nexus was purely textual: It was present when
the Texas Department of Agriculture, a government agency for
purposes of § 666, received more than $10,000 a year in federal
funds, and the defendants, TFIS employees, were agents of that
federally-funded agency.14 Thus Moeller cannot be read to have
imposed the extratextual nexus that Lipscomb urges us to engraft on
§ 666.
Some uncertainty seeped into our § 666 jurisprudence as a
11
Westmoreland, 841 F.2d at 575–76. The Supreme Court has
agreed, referring to the $5,000 figure as “the $5,000 threshold for
the business or transaction in question.” Salinas v. United
States, 522 U.S. 52, 57 (1997).
12
987 F.2d 1134 (5th Cir. 1993).
13
Id. at 1135.
14
Id. at 1137–38 (emphasis added).
12
result of United States v. Marmolejo.15 There, we upheld the
conviction of a county sheriff in Texas who had accepted bribes in
return for permitting conjugal visits to a federal prisoner whom
the State of Texas, in return for a federal per diem fee, housed in
a state prison renovated with federal funds.16 In addressing wheth-
er § 666 gave jurisdiction to prosecute, we noted that “[w]e have
previously held that § 666(a)(1)(B) does not require the government
to prove that federal funds were directly involved in a bribery
transaction, or that the federal monies funded the corrupt
transaction.”17 Nevertheless, when discussing whether conjugal
visits were “anything of value” under § 666, we stated that
[b]ecause the conduct in this case involves serious acts
of bribery by agents of a local government who were
carrying out their duties under a Federal program, we
conclude that this case is within the scope of conduct
Congress intended to encompass with 18 U.S.C. § 666.18We did not identify whence we derived any limits on the “scope of
conduct Congress intended to encompass.” The dissent argued that
Westmoreland interpreted § 666 to reach “only those acts of bribery
that could somehow be traced, directly or indirectly, to the
15
89 F.3d 1185 (5th Cir. 1996), aff’d sub nom. Salinas v.
United States, 522 U.S. 52 (1997).
16
Marmolejo, 89 F.3d at 1188–89.
17
Id. at 1191 (citing Westmoreland, 841 F.2d at 578).
18
Marmolejo, 89 F.3d at 1192–93 (emphasis added). See also id.at 1193 n.9 (examining legislative history and precedent to
determine whether defendants’ conduct was behavior that “Congress
. . . intend[ed] to reach”).
13
integrity of federal program funds.”19 The Supreme Court granted
certiorari to address this argument and affirmed the panel
majority’s holding, but beclouded our § 666 jurisprudence in the
process.
C. The Salinas Speculation and Its Sequellae: The Funds Focus,
Requiring a Further Nexus
In reviewing Marmolejo, under the caption Salinas v. United
States,20 the Supreme Court asked whether § 666 is “limited to cases
in which the bribe has a demonstrated effect upon federal funds.”21
The Court stated that “[t]he statute’s plain language fails to
provide any basis” for such a limitation and that the legislative
history forecloses it.22 The Court thus agreed with our Marmolejo
holding that federal funds need not be directly involved in a
violation of § 666.23 The Court nonetheless obliquely suggested
19
Id. at 1203 (Jolly, J., dissenting) (emphasis in original).
“Turning to the precise legislative history, I find that it clearly
reveals that Congress did not intend for § 666(a)(1)(B) to be
applied to conduct such as the acceptance of bribes to allow
conjugal visits. Instead, Congress was only concerned with
protecting the federal monies disbursed to non-federal entities.”
Id.
20
522 U.S. 52 (1997).
21
Id. at 54.
22
Id. at 57, 59.
23
Id. at 56–57 (citation omitted and brackets original):
The enactment’s expansive, unqualified language, both as
to the bribes forbidden and the entities covered, does
not support the interpretation that federal funds must be
affected to violate § 666(a)(1)(B).... [T]he statute
forbids acceptance of a bribe by a covered official who
intends “to be influenced or rewarded in connection with
14
that there might be obstacles to applying § 666 to different facts:
We need not consider whether the statute requires
some other kind of connection between a bribe and the
expenditure of federal funds, for in this case the bribe
was related to the housing of a prisoner in facilities
paid for in significant part by federal funds themselves.
And that relationship is close enough to satisfy whatever
connection the statute might require.24
Even so, the Court disposed of any constitutional question:
[T]here is no serious doubt about the
constitutionality of § 666(a)(1)(B) as applied to the
facts of this case. [The briber] was without question a
prisoner held in a jail managed pursuant to a series of
agreements with the Federal Government. The preferential
treatment accorded to him was a threat to the integrity
and proper operation of the federal program. Whatever
might be said about § 666(a)(1)(B)’s application in other
cases, the application of § 666(a)(1)(B) to Salinas did
not extend federal power beyond its proper bounds.25
Since Salinas, the Supreme Court has decided only one more
§ 666 case: United States v. Fischer,26 which also sent mixed
messages. Echoing Salinas, the Fischer Court described § 666 as
“expansive, both as to the conduct forbidden and the entities
covered”27 and read the statute to reveal Congress’s “expansive,
any business, transaction, or series of transactions of
[the defined] organization, government or agency.” The
prohibition is not confined to a business or transaction
which affects federal funds. The word “any,” which
prefaces the business or transaction clause, undercuts
the attempt to impose this narrowing construction.
24
Salinas, 522 U.S. at 59.
25
Id. at 60–61 (emphases added).
26
Fischer v. United States, 529 U.S. 667 (2000).
27
Id. at 678 (internal quotations and brackets omitted) (citing
Salinas, 522 U.S. at 56).
15
unambiguous intent to ensure the integrity of organizations
participating in federal assistance programs”28 —— clearly embracing
the “corruption focus.” The Court therefore affirmed the
conviction of a defendant who had defrauded a municipal hospital
authority that participated in the federal Medicare program.29 In
so doing, however, the Court once again mentioned in passing a
conceivable constitutional problem: To read the statutory term
“benefits” too broadly, the Court cautioned, so as to mean “[a]ny
receipt of federal funds,” could “turn almost every act of fraud or
bribery into a federal offense, upsetting the proper federal
balance.”30 Justice Thomas, joined in dissent by Justice Scalia,
likewise warned that “[w]ithout a jurisdictional provision that
would ensure that in each case the exercise of federal power is
related to the federal interest in a federal program, § 666 would
criminalize routine acts of fraud or bribery” and threaten
principles of federalism.31
Although Salinas and Fischer did not unconditionally validate
our view that once a local government accepts more than $10,000 per
year from the federal government, no further federal interest is
needed to justify prosecution under § 666, neither did either of
28
Fischer, 529 U.S. at 678 (emphasis added).
29
Id. at 669–70, 681–82.
30
Id. at 681.
31
Fischer, 529 U.S. at 690 n.3 (Thomas, J., dissenting)
(emphasis in original).
16
those cases condemn our broad approach. The Salinas Court merely
observed in passing that, even if a federal interest were required,
such an interest clearly existed in preventing federal prisoners
from bribing local jail officials participating in a federal
incarceration program. Similarly, the Fischer Court construed a
term in § 666 broadly, simply musing that federalism principles
might somehow limit the statute’s sweep. As either a statutory or
constitutional matter, then, the Court might be seen as harboring
inchoate qualms about whether, for § 666 to apply, there might be
some need for a direct interest in the funds involved in the
prohibited conduct (or, alternatively, a need for either a nexus
between the federal dollars and the offense conduct or an extra-
textual jurisdictional element to § 666). Lipscomb argues this
inference forcefully, noting that Salinas left open the question
whether § 666 “requires some other kind of connection between a
bribe and the expenditure of federal funds.”32 He urges us to
overlook Westmoreland and answer this question in the affirmative.
This, of course, we could not do even if we were so inclined.
Mere ruminations in Supreme Court opinions do not empower a
subsequent panel of our court to disregard, much less overrule, the
holding of a prior panel. And, as we noted just last year, “[w]e
are not convinced that Salinas wrought a change upon our earlier
32
Salinas, 522 U.S. at 59.
17
precedents.”33 Because Salinas and Fischer went no further than to
advert in dicta to the mere possibility that the argument now
advanced by Lipscomb might someday be favored, we are bound to
adhere to Westmoreland’s statutory holding.34
Likewise, our post-Salinas decisions interpreting § 666 must
be read as adhering to this rule. Nevertheless, the cautionary
words in Salinas and Fischer, combined with our prior opinions’
silence on the constitutional question, divided the next panel of
this court to interpret § 666. The panel majority in United States
v. Phillips35 reiterated Moeller’s requirement of a nexus between
the misconduct and the agency (as distinct from a nexus between the
misconduct and the federal funds themselves),36 but added some
extra-textual teeth in holding that defendant Phillips, a tax
assessor, was not an “agent” of Louisiana’s St. Helena Parish,
which received over $10,000 in federal funds, so as to be liable
himself under § 666 for putting on his payroll a political ally who
33
United States v. Reyes, 239 F.3d 722, 735 (5th Cir. 2001),
cert. denied, 121 S. Ct. 156 (2001) and 122 S.Ct. 2618 (2001).
34
Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.
1999) (“It is a firm rule of this circuit that in the absence of an
intervening contrary or superseding decision by this court sitting
en banc or by the United States Supreme Court, a panel cannot
overrule a prior panel’s decision.”).
35
219 F.3d 404 (5th Cir. 2000).
36
Id. at 413–14 (“[T]here must be some nexus between the
criminal conduct and the agency receiving federal assistance.”)
(quoting Moeller, 987 F.2d at 1137) (emphasis original to
Phillips).
18
then did no work.37 The panel instead viewed Phillips as an agent
of the Louisiana Tax Commission, which received no federal funds,
and concluded that the statute did not reach his activity.
Underlying this definitional question about “agent,” however,
lurked the majority’s concern that the defendant was too
functionally distant from the flow of federal funds to the parish:
We know from the Supreme Court’s decision in Salinas that
the funds in question need not be purely federal, nor
must the conduct in question have a direct effect on
federal funds. The statute possibly can reach misuse of
virtually all funds of an agency that administers the
federal program in question. It is a different matter
altogether, however, to suggest that the statute can
reach any government employee who misappropriates purely
local funds, without regard to how organizationally
removed the employee is from the particular agency that
administers the federal program.38
We acknowledge that it is at least arguable, albeit tenuously, that
this “organizationally removed” language conflicts with
Westmoreland and Moeller, even though the Phillips majority
purported to distinguish those two cases factually, and the
Phillips panel may be perceived as having favored the “funds focus”
37
Phillips, 219 F.3d at 407–08, 411–15.
38
Id. at 411 (citations omitted and emphasis added). To the
panel majority, the legislative history of § 666 revealed
“Congress’ concern with a defendant’s ability to administer or
control the federal funds provided to a particular agency,” id. at
411 n.7, and Fischer counseled that “the fraud must have the
potential to affect the identified federal funds or program,” id.
at 412 n.13. But in the “absence of evidence that connects the
assessor’s office to control or expenditure of any funds of the
parish,” id. at 411 n.9, prosecuting under § 666 “advances no
federal interest in safeguarding a particular federal program,” id.
at 414.
19
for § 666. To the extent that there is a conflict, however, the
older case controls, as the Phillips dissenter correctly noted.39
Only by interpreting “agent” narrowly was the Phillips
majority able to avoid the constitutional question.40 The Phillips
dissent read our own precedents as rejecting any nexus requirement
whatsoever and took issue with the panel majority’s narrow
definition of “agent.”41 The dissent asserted that a “specific
nexus —— between Phillips and the federal funds inside Parish
coffers —— is not required” and furthermore that “it is sufficient
that the criminal conduct affect the agency receiving federal
assistance: in essence, we have determined that there is an
inherent federal interest in insuring that agencies receiving
significant amounts of federal funding are not corrupt.”42 In a
nutshell, this is precisely the “corruption focus” that we had
firmly adopted in Westmoreland, a focus that has never been
overruled either by this court en banc or by the Supreme Court.
D. Reyes and Williams: Either Way, § 666 Covers Lipscomb
Two cases decided last year demonstrate our continued
commitment to applying § 666 to members of municipal and parochial
governing bodies. These cases provide additional support for the
39
Id. at 423 n.4 (E. Garza, J., dissenting).
40
Phillips, 219 F.3d at 414 (majority).
41
Id. at 422–23 (E. Garza, J., dissenting).
42
Id. at 422–23.
20
proposition that § 666 easily reaches Lipscomb’s conduct. In
United States v. Reyes,43 we affirmed the § 666 conviction of city
council members who had been bribed to vote in favor of awarding a
municipal construction project to a particular contractor.44 The
government noted that a federal loan would have supported the
project had it gone forward, but we explicitly declined to rely on
that fact, stating instead that federal support of the three city
departments involved in the project —— the finance, housing, and
legal departments —— justified prosecuting under § 66645:
Applying Westmoreland and Moeller..., we conclude that
the connection between federal benefits and the charged
conduct is sufficient to uphold Reyes’s convictions under
§ 666.... Like the county supervisor in Westmoreland and
the senior agency officials in Moeller, here the charged
criminal conduct related to city council members, who, by
voting up or down on bids, ultimately decide how federal
money will be spent.46
Such an analysis firmly supports Lipscomb’s susceptibility to
conviction under § 666: In Dallas, federal money supports the
City’s transportation and human services departments —— the very
agencies of city government that Lipscomb sought corruptly to
influence. Reyes reaffirms, as a statutory matter, that whatever
nexus § 666 requires —— if any —— is present in this case.
43
United States v. Reyes, 239 F.2d 722 (5th Cir. 2001).
44
Id. at 726–32.
45
Id. at 734 & n.5.
46
Id. at 734 (emphasis added).
21
More recently, we decided United States v. Williams47 without
discussing any jurisdictional element or nexus requirement at all
—— despite the fact that if there had been a jurisdictional flaw,
it would have been incumbent on the Williams panel to address that
problem, even sua sponte. Williams involved facts virtually
identical to those present in Reyes, in Westmoreland, and here.
Williams, a former member of the Jackson, Mississippi City Council,
was convicted under § 666 of aiding and abetting the solicitation
and acceptance of bribes —— specifically, $150,000 in exchange for
a re-vote on a cable television license contract.48 The Williams
court did not describe any direct federal fiscal interest at stake
in that re-vote. Such questions, however, may not have been
briefed or argued in Williams, as the opinion in that case
expressly rejected only other challenges —— those grounded in equal
protection, due process, and sufficiency and admissibility of the
evidence —— to Williams’s conviction.49 Taken in isolation,
Williams has little if any precedential value on the nexus issue,
one way or the other.
But of course Williams does not stand alone. It is merely the
most recent in a series of our opinions —— Westmoreland, Moeller,
Marmolejo, Reyes, and Williams —— that have consistently applied
47
United States v. Williams, 264 F.3d 561 (5th Cir. 2001).
48
Id. at 566–67.
49
Id. at 567–78.
22
the broad “corruption focus” of § 666. The Phillips panel did
construe the term “agent” to avoid the constitutional question, but
we cannot do that here: As a textual matter, the term “agent”
plainly includes city council members. Westmoreland applied § 666
to a county supervisor; Reyes and Williams both applied it to city
council members. Hence Westmoreland’s view of § 666 continues to
be the law in this circuit and to preclude a more narrow
construction of the statute. Even though we get to the question
from different jurisdictional perspectives, Judge Duhé and I are in
complete accord on the result for Lipscomb of the foregoing
analysis of § 666: He was subject to being tried in federal
district court for violating that statute, and he was subject to
being convicted by a jury.
IV. DID LIPSCOMB RAISE THE CONSTITUTIONAL ISSUE?
Before addressing the constitutional problem that Lipscomb’s
statutory-construction argument presages (and writing for myself
alone, although supplementing Judge Smith’s analysis), I must make
three observations on our intrapanel disagreement over whether the
constitutional issue is properly before us. To me, this debate:
(1) is more semantical than substantive, (2) is in tension with
controlling Supreme Court precedent, and (3) overlooks the real
nature of the constitutional question at issue.
Semantics first: As the Supreme Court recently said,
23
“jurisdiction...is a word of many, too many, meanings.”50 This
imprecision is one source of our panel’s split here. Judge Duhé
reads “jurisdiction” in the pleadings, briefs, and record to mean
adjudicative jurisdiction only —— the authority of federal courts
to hear only those categories of cases (subject-matter
jurisdiction) authorized by Congress, between those categories of
persons (personal jurisdiction) permitted by the Constitution. But
in the context of the expressly constitutional arguments that
Lipscomb sometimes makes, Judge Smith and I read his use of
“jurisdiction” —— at least on those occasions —— to mean
legislative jurisdiction, the “authority” of Congress “to make its
law applicable to particular persons or activities.”51
Lipscomb also uses the ambiguous phrase “federal
jurisdiction,” which could be either adjudicative or legislative.
That ambiguity is not only terminological, but also conceptual. To
state the obvious, legislative jurisdiction flows from the
Constitution to the Congress and limits, in today’s context, the
subject matter and the classes of persons that Congress may
regulate by statute. In contrast, adjudicative jurisdiction
generally flows from Congress to the courts as grants of subject-
matter jurisdiction, grants made by Congress in enacting laws
50
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
90 (1998).
51
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813
(1993) (Scalia, J., dissenting). Legislative jurisdiction “is
quite a separate matter from jurisdiction to adjudicate.” Id.24
pursuant to its power to constitute inferior federal courts.52 In
the instant context, the judicial power extends constitutionally to
cases arising under federal criminal laws. Consequently, a court’s
adjudicative jurisdiction to convict a defendant of a federal crime
cannot exist in the absence of Congress’s legislative jurisdiction
to criminalize the particular conduct of which the particular
defendant is accused.
The reach of Congress’s legislative jurisdiction, of course,
is sometimes bounded by structural constitutional provisions. For
example, grants of jurisdiction are limited by the Necessary and
Proper Clause, which covers laws that “carry into Execution...all
other powers vested by this Constitution in the Government of the
United States or in any Department or Officer thereof.”53 I cannot
even imagine how it could be “necessary and proper” to the exercise
of either the judicial power or the power to constitute inferior
courts for us to have adjudicative jurisdiction over a case
implicating a statute that Congress lacked the legislative
jurisdiction to enact. It should go without saying, therefore,
that our subject-matter jurisdiction has constitutional as well as
statutory limits54: It involves “the courts’ statutory or
52
U.S. CONST. art. I, § 8, cl. 9.
53
U.S. CONST. art. I, § 8, cl. 18.
54
Edelman v. Jordan, 415 U.S. 651, 678 (1974) (“The Eleventh
Amendment defense sufficiently partakes of the nature of a
jurisdictional bar so that it need not be raised in the trial
court.”).
25
constitutional power to adjudicate the case.”55
To repeat, then: A federal forum simply must lack adjudicative
jurisdiction to hear a case based on a federal statute that
Congress lacked the legislative jurisdiction (translation:
constitutional power or authority) to apply to the situation in
question. If I am correct in my position that this case implicates
our constitutional duty, at every level and at every stage of the
proceedings, to ensure the existence of our adjudicative
jurisdiction, then that duty trumps the canon of constitutional
avoidance that Justice Brandeis discussed in Ashwander v. TVA,56 a
canon that on other occasions I have dutifully obeyed.57 At the
risk of exposing my own intellectual shortcomings, then, I confess
that neither semantically nor substantively can I understand the
distinction, which Judge Duhé detects in Lipscomb’s pleadings and
briefs, between adjudicative, subject-matter jurisdiction and
legislative jurisdiction (structural constitutionality) —— a
distinction that is clear to Judge Duhé but in this case remains
blurred to me. If a successful as-applied challenge to the
constitutionality of § 666 would limit Congress’s legislative
jurisdiction, i.e., would identify someone or some act beyond
55
Steel Co., 523 U.S. at 89 (original emphasis removed,
emphasis added).
56
Ashwander v. TVA, 297 U.S. 288, 346–48 (1936) (Brandeis, J.,
concurring).
57
See, e.g., U.S. v. Fox, 248 F.3d 394, 405 (2001), vacated on
other grounds, Fox v. United States, 122 S.Ct. 1602 (2002).
26
Congress’s authority, it cannot help but limit our adjudicative
jurisdiction to the same degree. In this sense, because Lipscomb
appears to raise a structural jurisdictional challenge, I question
whether his is the kind of constitutional argument that may be
waived through delay or disuse; if it “involves a court’s power to
hear a case, [it] can never be forfeited or waived.”58
As I read them, Lipscomb’s pleadings and briefs do raise ——
and thus do not waive —— the constitutional issue. Rather, they
question both Congress’s legislative jurisdiction (constitutional
authority) to enact § 666 and our adjudicative power to apply § 666
here. Lipscomb has raised a classic challenge to subject-matter
jurisdiction: He “argues that the extension of federal jurisdiction
over acts such as [his] would exceed the power of Congress.”59
My belief that we should consider this argument finds support
in Salinas itself. There the Supreme Court easily undertook to
determine whether § 666 was constitutional, and squarely held that
it was, as applied,60 despite the fact that neither we nor the
district court had addressed the statute’s constitutionality.61 In
58
United States v. Cotton, __ U.S. __, __; 122 S.Ct. 1781, 1785
(2002).
59
United States v. Suarez, 263 F.3d 468, 484 (6th Cir. 2001)
(Boggs, J., dissenting in part).
60
Salinas, 522 U.S. at 61.
61
Compare Salinas, 522 U.S. at 60–61, with Marmolejo, 89 F.3d
at 1188–94 (omitting constitutional analysis). Even the dissent in
Marmolejo did not make constitutional arguments. See Marmolejo, 89
F.3d at 1201–05. See also Salinas v. United States, 1997 U.S.
27support of its “holding,”62 the Court explained:
[s]tatutes should be construed to avoid constitutional
questions, but this interpretative canon is not a license
for the judiciary to rewrite language enacted by the
legislature. Any other conclusion, while purporting to
be an exercise in judicial restraint, would trench upon
the legislative powers vested in Congress....
These principles apply to the rules of statutory
construction we have followed to give proper respect to
the federal-state balance.... [W]e cannot press statutory
construction to the point of disingenuous evasion even to
avoid a constitutional question.63
This is why, with all due respect, I find it odd, as we labor to
interpret 18 U.S.C. § 666, for Judge Duhé to urge obeisance to the
Ashwander canon, which the Supreme Court itself in Salinas first
acknowledged and then declined to observe or apply.
To the extent that the real question is whether Lipscomb
adequately raised constitutionality, I trust Judge Duhé would
concede two premises: first, that Lipscomb urged the district court
(and this one) so to construe § 666 as to avoid a serious and
identified constitutional flaw; and second, that this panel has
unanimously concluded that we cannot so construe the statute.
Starting with these two premises, I cannot avoid the conclusion
Trans. Lexis 48, at *49–50:
QUESTION: But the Tenth Amendment argument that you're
presenting to us now--
MR. ENRIQUEZ: Yes, ma'am.
QUESTION: --did you make that in the lower courts?
MR. ENRIQUEZ: We didn't specifically come out and say
Tenth Amendment, Your Honor.
62
Salinas, 522 U.S. at 61.
63
Id. at 59–60 (citations and quotation marks omitted).
28
that Lipscomb did raise the constitutional flaw. By construing the
statute as all three of us do, we are sailing into the very waters
that Lipscomb warned us were constitutionally uncharted. I
knowingly and willfully proceed to endeavor to chart them.
V.
AS-APPLIED CONSTITUTIONALITY UNDER DOLE
We review the constitutionality of a federal statute de novo.64
My solo review here will focus on whether § 666 is necessary and
proper to the spending power, but the proper foundation for that
analysis is a review of the Supreme Court’s spending-clause
jurisprudence. That jurisprudence has focused on whether Congress
may condition grants of federal funds. Even if § 666 is not a
conditional-grant statute —— a conclusion of which I am less
certain than is Judge Smith —— the conditional-grant cases
establish both that “internal limits on congressional spending
power are difficult to discern”65 and that, to whatever extent the
Tenth Amendment is an external limit on the spending power, that
Amendment does not function as “a prohibition on the indirect
achievement of objectives which Congress is not empowered to
achieve directly.”66 The Tenth Amendment thus is not as great an
64
See United States v. Rasco, 123 F.3d 222, 226 (5th Cir.
1997).
65
1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-6, at 839 (3d
ed. 2000).
66
South Dakota v. Dole, 483 U.S. 203, 210 (1987).
29
obstacle to the necessity and propriety of § 666 as Judge Smith
believes it to be.
A. Conditional-Grant Precedents
Congress likely enacted § 666 pursuant to the Spending Clause
of the Constitution.67 Under that clause, it is settled, Congress
may regulate the states by conditioning grants.68 Cases on such
conditions have established that the structural limits on federal
power that often arise in the commerce-clause context do not
operate with the same force against conditional-grant provisions.
United States v. Butler,69 for example, is still good law for
its announcement that Congress’s spending power, like its power to
tax, is “to provide for the general welfare,”70 and is therefore
untrammeled by the specific grants of legislative power found
elsewhere in Article I, Section 8:
While, therefore, the power to tax is not unlimited, its
confines are set in the clause which confers it, and not
in those of section 8 which bestow and define the
legislative powers of the Congress. It results that the
power of Congress to authorize expenditure of public
67
Fischer, 529 U.S. at 689 n.3 (Thomas, J., dissenting)
(“Section 666 was adopted pursuant to Congress’ spending power.”);
Phillips, 219 F.3d at 414 (“Congress’ authority to enact § 666
rests on the Spending Clause of the Constitution.”). The spending
power is not granted in such terms but is an outgrowth of the
“Power To lay and collect Taxes, Duties, Imposts, and Excises, to
pay the Debts and provide for the Common Defence and general
Welfare of the United States.” U.S. CONST. art. I, § 8, cl. 1.
68
TRIBE, supra note 65, § 5-6, at 833.
69
297 U.S. 1 (1936).
70
U.S. CONST. Art. I, § 8, cl. 1.
30
moneys for public purposes is not limited by the direct
grants of legislative power found in the Constitution.71
Although the Butler Court did hold that the Tenth Amendment
cabined Congress’s spending power,72 the Court quickly abandoned
this view, in Oklahoma v. United States Civil Service Commission,73
which rejected a constitutional challenge to the Hatch Act. That
Act then forbade political activities by any “officer or employee
of any State or local agency whose principal employment is in
connection with any activity which is financed in whole or in part
by loans or grants made by the United States.”74 Oklahoma and its
State Highway Commissioner challenged the Civil Service
Commission’s attempt to force on the State the choice between
dismissing the Commissioner, who had engaged in political
activities, or forgoing highway funds in the amount of twice the
commissioner’s salary.75 The Court responded:
While the United States is not concerned with and has no
power to regulate local political activities as such of
state officials, it does have power to fix the terms upon
71
Butler, 297 U.S. at 66.
72
Id. at 66–78.
73
330 U.S. 127 (1947).
74
Id. at 129 n.1, citing 18 U.S.C.A. § 61l. The Hatch Act,
although recently reformed, remains on the statute books; today it
criminalizes the extortion of political contributions under threat
of withholding employment, payments, or benefits that are “provided
for or made possible in whole or in part by an Act of Congress.”
This language shows that Congress knows how to link criminal
sanctions tightly to federal spending, should it so desire.
75
Oklahoma, 330 U.S. at 129–34.
31
which its money allotments to states shall be disbursed.
The Tenth Amendment does not forbid the exercise of
this power in the way that Congress has proceeded in this
case.... [T]he Tenth Amendment has been consistently
construed “as not depriving the national government of
authority to resort to all means for the exercise of a
granted power which are appropriate and plainly adapted
to the permitted end.”.... The offer of benefits to a
state...dependent upon cooperation by the state with
federal plans, assumedly for the general welfare, is not
unusual.76
Oklahoma, the Court said, could evade the condition by the “simple
expedient” of not yielding to the enticement of federal funds.77
The apex of the Court’s conditional-grant jurisprudence is
South Dakota v. Dole,78 which involved a statute conditioning a
small portion of each state’s federal highway aid on the state’s
establishing a minimum drinking age.79 The Court upheld the
drinking-age requirement as an exercise of Congress’s Spending-
Clause authority to condition federal grants.80 The Court also
announced that when Congress chooses to go beyond its enumerated
powers, and to use its spending power “to further broad policy
objectives by conditioning receipt of federal monies upon
compliance with federal statutory...directives,” the statutory
condition must itself meet four conditions, the failure to meet any
76
Id. at 143–44.
77
Id. at 143.
78
483 U.S. 203 (1987).
79
Id. at 205.
80
Id. at 206.
32
one of which might render a statute unconstitutionally broad.81
B. The Dole Test Is Instructive Here
Given Dole’s context, applying its test to § 666 could be
trebly problematic. First, like Judge Smith, two district courts
have concluded that § 666 is not a conditional-grant statute at
all, because it does not require the state (here, Texas) or its
political subdivision (here, Dallas) to do anything.82 As the court
in United States v. Cantor noted, § 666 “does not impose a
condition on the receipt of federal funds. The statute neither
requires a state’s compliance with federal...directives nor
prevents state action.”83 Like the Cantor court, however, I believe
that this lack of direct effect on states and localities actually
supports the statute’s constitutionality.84 Furthermore, the
81
Id. at 207-08. At least one court has concluded that use of
§ 666 to prosecute crimes with no federal nexus violates the Dole
test’s third condition. See United States v. McCormack, 31 F.
Supp. 2d 176 (D. Mass. 1998) (finding the statute unconstitutional
as applied to a defendant who had bribed a local police officer to
prevent that officer’s further investigation into a state crime,
and the entity that received federal funds was the police
department that employed the bribed officer).
82
United States v. Sabri, 183 F. Supp. 2d 1145, 1156 (D. Minn.
2002) (“[T]he statute does not apply to the recipient
government.”).
83
United States v. Cantor, 897 F. Supp. 110, 113 (S.D.N.Y.
1995). A condition statute generally requires a state’s compliance
with federal regulatory or administrative directives in exchange
for receipt of federal funds. Va. Dep’t of Educ. v. Riley, 106
F.3d 559, 570-72 (4th Cir. 1997) (en banc) (plurality opinion).
84
Id. (“All Congress has done in Section 666 is to pass a law
making the conduct of individuals, not the state, criminal. Hence,
I do not believe that a Tenth Amendment argument is appropriate in
33
Supreme Court has not held that, for a statute to be a conditional-
grant provision and stand or fall under a Dole analysis, the
statute must require states or localities either to take or to
refrain from taking any action.85 Dole may describe Congress’s
spending power generally, not just its power to condition grants.
Second, § 666 is a freestanding ban: It neither grants any
funds nor takes part in a broader funding statute. This fact has
prompted the objection that its criminal sanction cannot be a
condition.86 Although superficially appealing, this argument
elevates form too highly over substance. The anticorruption
principle in § 666 applies equally to every federal dollar granted,
and § 666 logically cuts across all federal grants to states and
localities.87 To require Congress to insert a mini-§ 666 into every
chapter of the United States Code that authorizes intergovernmental
financial assistance would constitute excessive scrupulosity.
this case.”) (citation omitted).
85
See New York v. United States, 505 U.S. 144, 167 (1992)
(stating that conditional-grant statutes “may influence a State’s
legislative choices” without clarifying that this is the only thing
such statutes may do).
86
See Sabri, 183 F. Supp. 2d at 1156 (distinguishing § 666 from
the conditions attached specifically to highway funding).
87
George D. Brown, Stealth Statute —— Corruption, the Spending
Power, and the Rise of 18 U.S.C. § 666, 73 NOTRE DAME L. REV. 247,
292–93 (stating that “§ 666 is not a grant condition,” but that it
“operates in a similar way to grant conditions” and is analogous to
a “crosscutting requirement” —— a “generally applicable requirement
imposed on grants across the board to further various national,
social and economic policies”) (internal quotation marks omitted).
34
Third, several judges have objected that Congress’s spending
power cannot include the power to criminalize conduct by third
parties, and that Dole therefore cannot apply.88 (This argument
begs the broader question, which I address below, whether § 666 is
necessary and proper to the spending power.) Many courts,
including this one in Phillips, have nevertheless interpreted § 666
using Dole’s factors.89 Therefore, although we may debate whether
88
See United States v. Morgan, 230 F.3d 1067, 1074 (8th Cir.
2000) (Bye, J., dissenting):
In enacting § 666, [ ] Congress did not contract with
states or local governments. Neither did Congress bestow
gifts of funds upon those governments. Rather, Congress
passed a federal criminal statute designed to punish
conduct that falls within the domain of traditional state
concerns (bribery, embezzlement, fraud, etc.). Section
666 reaches beyond punishment of the state and local
governments who receive those funds to proscribe the
conduct of third persons who aren’t parties to the
funding contract. Spending Clause power is not that
broad.
See also Sabri, 183 F. Supp. 2d at 1157 (finding Judge Bye’s
observations in Morgan to be “germane and persuasive”). For a
scholarly argument to the same effect, see David E. Engdahl, The
Spending Power, 44 DUKE L.J. 1, 92 (1994).
89
See, e.g., Fischer, 529 U.S. at 689 n.3 (Thomas, J.,
dissenting) (“Section 666 was adopted pursuant to Congress’
spending power, Art. I, § 8, cl. 1. We have held that the spending
power requires, at least, that the exercise of federal power be
related ‘to the federal interest in particular national projects or
programs.’”) (citing Dole); Phillips, 219 F.3d 404, 414 (“[T]he
power of Congress to impose duties on non-federal entities under
the Spending Clause is not without limits.”) (citing Dole); Zwick,
199 F.3d at 687 (“To pass muster under the Spending Clause,
legislation regulating behavior of entities receiving federal funds
must, among other things, be based upon a federal interest in the
particular conduct.”) (citing Dole); McCormack, 31 F. Supp. 2d 176,
188 (“Of the four limits established in Dole, limit (3) ——
requiring that the conditions be related to the federal interest in
particular national projects or programs —— provides the most
plausible attack on § 666(a).”).
35
the § 666 peg fits the conditional-grant hole, I shall test it
under the four prongs of Dole.
C. The Dole Analysis
Dole first requires that “exercise of the spending power must
be in pursuit of the general welfare.”90 In assessing whether this
is so, Dole cautions, “courts should defer substantially to the
judgment of Congress.”91 Congress has stated 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.”92 Mindful of the deference due this
judgment, I accept that Congress easily could have thought that
§ 666 advanced the general welfare by protecting the federal fisc
and by ensuring that state and local decisions regarding federal
programs are not made by corrupt officials. I do not doubt, then,
that Congress enacted § 666 “in pursuit of the general welfare.”
Second, Dole warns that “if Congress desires to condition the
States’ receipt of federal funds, it must do so unambiguously...,
enabl[ing] the States to exercise their choice knowingly, cognizant
90
Dole, 483 U.S. at 207 (citing Helvering v. Davis, 301 U.S.
619, 640–41 (1937)).
91
Dole, 483 U.S. at 207 (citing Helvering, 301 U.S. at 640,
645). “[T]he concept of welfare or the opposite is shaped by
Congress.” Helvering, 301 U.S. at 645.
92
S. REP. NO. 98-225, at 370 (1983).
36
of the consequences of their participation.”93 Even though § 666
does not require the states to act, it does make state and local
government officers criminally liable for specific misdeeds. Thus
the states arguably have a dignity interest at stake, and if so,
they have a right to know the threat to that interest that § 666
would pose —— and the language of § 666, which is anything but
ambiguous, surely lets them know. To the extent that § 666 is a
conditional-grant statute, both the grant (of $10,000 or more in
federal funds) and the condition (criminalizing official bribery
and theft) are pellucid.94 I see little danger that a state or
locality that receives federal funds could mistake the potential of
§ 666 to criminalize conduct by its officials.
Third, Dole mandates that conditions on federal spending be
related “to the federal interest in particular national projects or
programs,”95 or that conditions “bear some relationship to the
federal spending.”96 “The required degree of this relationship is
one of reasonableness or minimum rationality.”97 It suffices here
93
Dole, 483 U.S. at 207 (citing Pennhurst State School and
Hospital v. Halderman, 451 U.S. 1, 17 (1981)).
94
Even a critic of the broad reading of § 666 concedes that its
text is “unambiguously broad.” Brown, supra note 74, at 277.
95
Dole, 483 U.S. at 207 (quoting Massachusetts v. United
States, 435 U.S. 444, 461 (1978) (plurality opinion)).
96
New York v. United States, 505 U.S. 144, 167 (1992).
97
Kansas v. United States, 214 F.3d 1196, 1199 (10th Cir.
2000); see also New York v. United States, 505 U.S. at 172 (stating
that conditions were valid under Dole because they were “reasonably
37
to observe that many courts have held that § 666 is reasonably
related to the federal interest in safeguarding federal dollars
from control of dishonest administrators, and that § 666 therefore
passes spending-power muster. At least one court has so concluded
when the offense conduct did not involve federal funds.98 Some of
the other decisions arriving at this conclusion, however, may have
dismissed facial, rather than as-applied, challenges to the
statute99; and other cases have affirmed convictions for conduct
that implicated federal funds more directly than did Lipscomb’s
related to the purpose of the expenditure”).
98
United States v. Ferrara, 990 F. Supp. 146, 152 (E.D.N.Y.
1998) (“Federalism has not been compromised here. The federal
government has a right to attach reasonable conditions to the
disbursement of its funds. State and local governments are free to
accept or reject federal monies so encumbered.”). There was
nothing federal about the Ferrara defendants’ conduct: they bribed
members of a town board to secure a change in zoning that would
have permitted the construction of a radio tower. Id. at 148.
99
United States v. Russo, 111 F.3d 124 (2d Cir. 1997) (table)
(unpublished), 1997 WL 168276 at *2 (“Because the conduct
prohibited by § 666 furthers the legitimate federal interest in
protecting federal funds from local bribery schemes, the statute
falls well within the scope of Congress’ spending power.”)
(omitting any discussion of a connection to federal funds); United
States v. Cantor, 897 F. Supp. 110, 113 (1995) (“Nor is the conduct
prohibited by § 666 so remote from the federal interest in
protecting federal funds from the effects of local bribery schemes
as to exceed the scope of [the] Congressional spending power or to
run afoul of the Tenth Amendment.”) (applying § 666 to a defendant
who had helped bribe an attorney for the New York City Board of
Education, without detailing any connection to federal funds);
United States v. Bigler, 907 F. Supp. 401, 402 (S.D. Fla. 1995)
(rejecting a facial challenge to § 666).
38
actions here.100 Because Dole’s relatedness inquiry merges with my
analysis of whether applying § 666 is necessary and proper to the
spending power, I discuss both questions together in detail below.
Fourth, in Dole’s final prong, the Court cautioned that “other
constitutional provisions may provide an independent bar to the
conditional grant of federal funds.”101 Yet the Court then
reiterated its Oklahoma holding that “a perceived Tenth Amendment
limitation on congressional regulation of state affairs did not
concomitantly limit the range of conditions legitimately placed on
federal grants.”102 Rather, the “independent bar” simply means that
Congress may not use its spending power “to induce the States to
engage in activities that would themselves be unconstitutional.”103
In this case, no action by Texas or Dallas is alleged to be
unconstitutional, so the fourth Dole prong is plainly not at issue.
In sum, to the extent that Dole controls whether § 666 can
apply here, the only problem lies in the third part of the Dole
test: reasonable relationship to a federal interest. Because this
reasonably-related prong of Dole is a specific application of the
100
See, e.g., United States v. Rooney, 37 F.3d 847, 851 (2d
Cir. 1994) (“[Section] 666's manifest purpose is to safeguard
finite federal resources from corruption and to police those with
control of federal funds.”); id. at 849 (stating that the defendant
was developing a federally-funded housing project).
101
Dole, 483 U.S. at 208 (collecting cases).
102
Id. at 210 (emphasis added).
103
Id.39
more general test for whether an act of Congress is necessary and
proper to an enumerated power,104 I treat these questions together.
VI.
AS-APPLIED CONSTITUTIONALITY UNDER McCULLOCH
In addition to assigning Congress the spending power, which
brings with it the power to condition grants, the Constitution also
gives Congress the power “[t]o make all Laws which shall be
necessary and proper for carrying into Execution” the powers
expressly delegated to the federal government.105 Prosecuting
Lipscomb under § 666 is therefore constitutional if § 666 is “nec-
essary and proper” to Congress’s spending power.
A. McCulloch and the Necessary and Proper Clause
In testing for necessity and propriety, courts should remain
mindful of Justice John Marshall’s prescient explanation, in McCul-
loch v. Maryland,106 of what “necessary and proper” means:
Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not pro-
hibited, but consist with the letter and spirit of the
104
See United States v. Ardoin, 19 F.3d 177, 188 & n.37 (5th
Cir. 1994) (Wiener, J., concurring in part, dissenting in part and
in the result) (“[T]he enumerated-power test of a federal statute’s
validity is whether ‘the Congress might reasonably find that the
act relates to one of the federal powers.’”) (quoting John E. Nowak
& Ronald D. Rotunda, Constitutional Law § 3.3 (West Publishing
1991)).
105
U.S. CONST. art. I, § 8. cl. 18 (emphasis added).
106
17 U.S. 316 (1819).
40
constitution, are constitutional.107
Importantly for the instant case, Marshall derived an expansive
meaning of “necessary” from the principle that Congress can derive
from its enumerated powers the power to impose criminal
sanctions.108 From the enumerated power to “establish Post Offices
and post Roads,”109 Congress had “inferred the right to punish those
who steal letters from the post-office, or rob the mail.”110 In
other words, Congress’s postal power carried with it the ability to
impose criminal penalties to protect federal interests advanced by
that power. To the McCulloch Court, this example demonstrated that
“necessary” has a range of meanings, including “needful, requisite,
essential, or conducive to.”111 It was through the lens of this
broad construction of the Necessary and Proper Clause that Marshall
saw justification for Congress’s creation of the national bank, the
power to create which is nowhere enumerated in Article I. Whether
that broad construction justifies applying § 666 here depends on
Congress’s intent in enacting the statute, as well as on the nature
107
Id. at 421.
108
Id. at 416–17 (“So, with respect to the whole penal code of
the United States: whence arises the power to punish, in cases not
prescribed by the constitution? All admit, that the government
may, legitimately, punish any violation of its laws; and yet, this
is not among the enumerated powers of congress.”).
109
U.S. CONST. art. I, § 8, cl. 7.
110
McCulloch, 17 U.S. at 417.
111
Id. at 418.
41
of the federal interest embodied in this case and the relationship
between that interest and Lipscomb’s conduct.
B. Legislative History
History often tells us why Congress deemed a statute necessary
and proper. Not so for § 666, however, because it was enacted as
part of an omnibus spending bill of the type that makes the search
for legislative history Sisyphean. What history exists is
multilayered, sparse, equivocal, and even mysterious. By no means,
I respectfully submit, is it capable of supporting Judge Smith’s
contention that “Congress did not find it necessary that § 666 be
applied in cases not involving federal funds or programs.”112
1. The 1986 Technical Amendment
We owe the current language of § 666 to the Criminal Law and
Procedure Technical Amendments Act of 1986.113 As that Act’s title
suggests, and as we recognized in Westmoreland,114 Congress did not
intend the Act to change § 666 substantively in ways that would
affect our reading of it here.115 This is important, because the
112
Infra at __.
113
P.L. 99-646, § 59, 100 Stat. 3592, 3612–13 (1986).
114
Westmoreland, 841 F.2d at 577 (“[T]he amended version of
section 666 reinforces our interpretation. . . . [I]ts legislative
history indicates that the relevant changes were ‘technical’
ones.”).
115
H.R. REP. NO. 99-797 at 30 (1986), reprinted in 1986
U.S.C.C.A.N. 6138, 6153:
[S]ection 42 of the [House’s version of the technical
corrections] bill amends 18 U.S.C. § 666, which deals
with theft or bribery concerning programs receiving
42
1986 amendment rewrote language that reveals how Congress would
have answered our constitutional question in 1984.
2. The 1984 Enactment
As first enacted, § 666(b) read:
Whoever, being an agent of an organization, or of a State
or local government agency...[that receives more than
$10,000 a year in federal funds], solicits, demands,
accepts, or agrees to accept anything of value from a
person or organization other than his employer or
principal for or because of the recipient’s conduct in
any transaction or matter or a series of transactions or
matters involving $5,000 or more concerning the affairs
of such organization or State or local government agency,
shall be imprisoned....116
The emphasized phrase strongly suggests that in 1984 Congress
believed it necessary and proper for § 666 to reach bribery that
had no relation to federal funds.
3. The 1983 Report
To counter the broad original and current language of § 666,
federal funds.... [S]ection 42 amends 18 U.S.C. 666 to
avoid its possible application to acceptable commercial
and business practices. Section 42 also makes technical
amendments in 18 U.S.C. 666 to conform that section to
the drafting style and format used generally in title 18
of the United States Code.
A footnote in the report, id. at 30 n.9, reprinted in 1986
U.S.C.C.A.N. at 6153 n.9, also stated:
18 U.S.C. 666 prohibits bribery of certain public
officials, but does not seek to constrain lawful
commercial business transactions. Thus, 18 U.S.C. 666
prohibits corruptly giving or receiving anything of value
for the purpose of influencing or being influenced in
connection with any business, transaction, or series of
transactions.
116
Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473,
§ 1104(a), 98 Stat. 1837, 2143—44 (1984).
43
Judge Smith relies heavily on a Senate Judiciary Committee report,
but this report described a different bill that never became law.
As eventually enacted, § 666 was a small part of a large crime bill
which was engrafted on a huge omnibus spending bill that funded
many departments and agencies.117 None of this bill’s reports,
written as they were by the Appropriations Committees, gives
context for § 666, a criminal statute which, of course,
appropriated no funds.118
Section 666 as enacted was identical to a provision in the
Comprehensive Crime Control Act of 1984, which passed the Senate
but never made it out of the House Judiciary Committee on its own
and evidently had to piggyback on the omnibus spending bill to gain
legislative momentum.119 The Senate report on the crime bill,
117
See Pub L. No. 98-473, 98 Stat. at 1837–2199. Entering “98
P.L. 473” on Lexis retrieves a list of the omnibus bill’s twenty-
eight short titles and a sense of its massive scope; it included
five of the thirteen appropriations bills for fiscal year 1985.
A summary of the bill, H.J. Res. 648 (98th Cong.), is available at
http://thomas.loc.gov (visited Oct. 13, 2001).
118
See H.R. REP. NO. 98-1159 (1984) (conference report),
reprinted in 130 Cong. Rec. 31445 (Oct. 10, 1984); S. REP. NO. 98-
634 (1984) (Senate Appropriations, accompanying S.J. Res. 356); and
H.R. REP. NO. 98-1030 (1984) (House Appropriations). Parts of the
conference report are reprinted at 1984 U.S.C.C.A.N. 3710–17; for
the conference report’s entire discussion of the crime bill, see
130 Cong. Rec. at 31565–67.
The absence of language interpreting § 666 from the reports on
this bill is understandable also as a result of the omnibus bill’s
timing. Congress enacted it and the President signed it during
October 10–12, 1984, less than a month before an election. See 98
Stat. at 2199.
119
See 1984 U.S.C.C.A.N. at 3182.
44
printed in 1983, can be taken as an authoritative statement of the
Senate Judiciary Committee’s intent for what became § 666. It is
tenuous at best, however, to rely, as does Judge Smith, solely on
one committee report —— on a wholly separate bill —— as stating the
views of the entire Congress.
The questionable probative weight of the Senate report aside,
that report is still not determinative here, for the evidence goes
both ways. The relevant passage is titled “Part C—Program Fraud
and Bribery,” and states that § 666
is designed to create new offenses to augment the ability
of the United States to vindicate significant acts of
theft, fraud, and bribery involving Federal monies that
are disbursed to private organizations or State and local
governments pursuant to a Federal program.120
The report notes, however, that under the prior law banning theft
of federal property, prosecuting was often impossible
because title has passed to the recipient [government]
before the property is stolen, or the funds are so
commingled that the Federal character of the funds cannot
be shown. This gives rise to a serious gap in the law,
since even though title to the monies may have passed,
the Federal Government clearly retains a strong interest
in assuring the integrity of such program funds.121
Even though the report’s emphasis on program funds would support a
narrow reading of the necessity and propriety of § 666, its
emphasis on commingling supports a broad one. In fact, the Senate
Judiciary Committee’s most explicit direction actually suggests
120
S. REP NO. 98-225, at 369 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3510 (emphases added).
121
Id.
45
that the Committee intended to limit the scope of § 666, but in a
way that still would cover Lipscomb-like conduct:
The Committee intends that the term “Federal program
involving a grant, a contract, a subsidy, a loan, a
guarantee, insurance, or another form of Federal
assistance” be construed broadly, consistent with the
purpose of this section to protect the integrity of the
vast sums of money distributed through Federal programs
from theft, fraud, and undue influence by bribery.
However, the concept is not unlimited. The term “Federal
program” means that there must exist a specific statutory
scheme authorizing the Federal assistance in order to
promote and achieve certain policy objectives. Thus, not
every Federal contract or disbursement of funds would be
covered. For example, if a government agency lawfully
purchases more than $10,000 in equipment from a supplier,
it is not the intent of this section to make a theft of
$5,000 or more from the supplier a Federal crime.122
Thus one of the two lines that the Senate Judiciary Committee
expressly drew —— to exclude theft from a supplier from the
coverage of § 666 —— would not exclude Lipscomb’s conduct,
quintessentially “undue influence by bribery.”
4. The Specified Cases
The immediate next sentence in the report, subject to much
exegesis by Judge Smith, states: “It is, however, the intent [‘of
this section’] to reach thefts and bribery in situations of the
types involved in the Del Toro, Hinton, and Mosley cases.”123 With
continued due respect to Judge Smith, I do not discern in this
sentence any clear direction to us. Both Hinton and Mosley
122
S. REP NO. 98-225, at 370, reprinted in 1984 U.S.C.C.A.N. at
3511 (emphasis added).
123
Id.
46
sustained convictions of bribed local officials whom courts
considered to be federal officials under the prior bribery statute
because they exerted federal authority and controlled the
disbursement of federal funds.124 Simple logic dictates that just
because the Committee intended § 666 in part to codify these cases
does not meant that it sought to limit § 666 to these cases
exclusively.
In Del Toro, the federal interest was more attenuated. The
defendants were convicted of bribing a New York City official to
ensure that they would supply office space to a city program that
was eligible for federal funds.125 The Del Toro court reversed
these bribery convictions, noting that even if the official had
succeeded in provisionally securing the lease as desired, three
local agencies would have had to approve the lease before the city
could apply to the federal government for funds, so that “[t]here
were no existing committed federal funds for the purpose.”126 The
Senate Committee’s intent to overrule Del Toro thus reflects that
the Committee thought it necessary and proper for § 666 to reach
124
United States v. Hinton, 683 F.2d 195, 198–200 (7th Cir.
1982); United States v. Mosley, 659 F.2d 812, 815–16 (7th Cir.
1981).
125
United States v. Del Toro, 513 F.2d 656, 658–61 (2d Cir.
1975).
126
Id. at 662.
47
bribery even before the federal government had committed funds.127
The most that can be concluded from the report, then, is that
the Senate Judiciary Committee delimited the scope of § 666 in part
by seeking to exclude theft from suppliers but to include bribery
of officials running programs that might receive federal funds. I
do not see the report as shedding much light on our question.
Lipscomb’s conduct falls into a middle ground that the report
simply does not address.
5. The 1981 Bill
The plot thickens still further when an effort is made to
verify the assertion in the 1983 report that the language of § 666
was derived from a 1981 bill that never became law.128 The 1981
bill and its report emerged from Senate Judiciary —— the same
committee that later wrote the 1983 bill and report. The Committee
omitted from both the 1983 bill and the 1984 act, however, the very
language in the 1981 bill that would have answered our question:
(c) Jurisdiction.——There is federal jurisdiction
over an offense described in this section if——
...
(6) the public servant is an agent of a
State or local government charged by a federal
127
“Arguably [ ] Congress did not intend the involvement of
federal funds in a corrupt transaction to be a factual certainty.”
Westmoreland, 841 F.2d at 577 (interpreting Del Toro).
128
S. REP. NO. 98-225, at 369 (“The proposal is derived from
S. 1630, the Criminal Code Reform Act of 1981[,] approved by the
Committee in the 97th Congress.”) & n.1 (“See, e.g., sections 1731
(Theft) and 1751 (Commercial Bribery) of S. 1630 and the discussion
at pages 726 and 803 of S. Rept. No. 97-307 (97th Cong., 1st
Sess.”)), reprinted in 1984 U.S.C.C.A.N. at 3510.
48
statute, or by a regulation issued pursuant
thereto, with administering monies or property
derived from a federal program, and the
official action or legal duty [with respect to
which the bribe is taken] is related to the
administration of such program.129
Thus, in 1983, the Senate Judiciary Committee had in hand —— and
even mentioned —— a two-year-old bill that would have required a
federal interest or nexus as a jurisdictional predicate. Yet the
1983 bill and 1984 enactment contained none of that language or
anything similar.130 The reason for that absence is unclear. In
1981, when the Committee clearly sought to require a federal nexus,
it had sufficient command of the English language to do so. To
suppose that the Committee lost that faculty over either two or
four years is ludicrous. Section 666 as enacted and amended,
therefore, might have reflected a change in the Senate Judiciary
Committee’s view on whether to require a federal nexus, but we
129
S. 1630, 97th Cong. § 101 (1981) (recodifying all of Title
18). This jurisdictional language in the proposed bribery section
would have been the new 18 U.S.C. § 1351(c)(6). See S. 1630, 97th
Cong. § 101, at 76–77 (codifying program bribery offense).
The commercial bribery section in the 1981 bill contained a
similar nexus requirement for the existence of federal
jurisdiction. See S. 1630, 97th Cong. § 101, at 134 (1981)
(proposing a new 18 U.S.C. § 1751(c)(1)(I)).
130
Any attempt to rely on the legislative history of the 1981
bill is therefore misguided. Unfortunately, a panel of this court
has done so, quoting the 1981 report as if it were the 1983 report
that shed light on the enacted text. See Phillips, 219 F.3d at 413
n.14 (citing United States v. Coyne, 4 F.3d 100, 110 n.1 (2d Cir.
1993) for its description of the “Committee Report,” but failing to
note that the quote was from the 1981 report, not the 1983 report).
Both Phillips and Coyne erred in relying on a report interpreting
a jurisdictional requisite that never became law.
49
cannot say this with certainty: For all we know, the Committee
might well have sought to exercise federal criminal jurisdiction up
to its constitutional limits, leaving the issue to the courts to
decide.
C. The Views of Other Courts
Whatever the reason for § 666’s silence on this question, the
courts have struggled to produce the answer. Some district courts
have tested § 666 against the Tenth Amendment, treating the statute
as an emanation of the spending power, and have come to varying
conclusions.131 Additionally, four of our fellow appellate courts
have examined the sweep of § 666, either as a statutory matter or
a constitutional one, and are also divided.
131
Compare United States v. Sabri, 183 F. Supp. 2d 1145,
1154–58 (D. Minn. 2002) (seemingly holding, contra Salinas, § 666
to be a facially unconstitutional exercise of the spending power)
and United States v. McCormack, 31 F. Supp. 2d 176, 178, 183–89 (D.
Mass. 1998) (finding § 666 unconstitutional, because exceeding
Congress’s spending power, as applied to indict defendant who
bribed a local police officer to prevent investigation and
prosecution of state crimes, despite the fact that the police
department received federal funds) with United States v. Ferrara,
990 F. Supp. 146, 152 (E.D.N.Y. 1998) (rejecting federalism
challenge to indictment of defendant who attempted to bribe members
of a town board so that they would vote to approve zoning changes
necessary to the construction of a radio tower completely
unconnected to federal funds) and United States v. Bigler, 907 F.
Supp. 401, 402 (S.D. Fla. 1995) (sustaining indictment against
federalism and Tenth-Amendment attack, and finding § 666 a
constitutional exercise of, because necessary and proper to, the
spending and general-welfare powers, without detailing any
connection to federal funds). See also United States v. Cantor,
897 F. Supp. 110, 112–13 (S.D.N.Y. 1995) (affirming the
constitutionality of § 666 under the spending power and against
Tenth-Amendment attack, and thus sustaining indictment of defendant
who had facilitated bribery of official of Board of Education,
without detailing any connection to federal funds).
50
Lipscomb relies on United States v. Zwick,132 in which the
Third Circuit declined to apply § 666 to conduct such as his:
Interpreting § 666 to have no federal interest
requirement produces serious concerns as to whether
Congress exceeded its power under the Spending Clause in
enacting this statute. See McCormack, 31 F. Supp. 2d at
187–89. To pass muster under the Spending Clause,
legislation regulating behavior of entities receiving
federal funds must, among other things, be based upon a
federal interest in the particular conduct. See South
Dakota v. Dole, 483 U.S. 203, 207 (1987). Applying § 666
to offense conduct, absent evidence of any federal
interest, would appear to be an unconstitutional exercise
of power under the Spending Clause.133
To avoid this supposed constitutional problem, the Zwick court
believed that to read § 666 literally is to err, and held that
Ҥ 666 requires that the government prove a federal interest is
implicated by the defendant’s offense conduct.”134 Not to require
a nexus, reasoned the Third Circuit, would erase significant
federal-state boundaries by turning § 666 into a general anti-
corruption law, which, in the Third Circuit’s view, Congress had
not intended.135
What then, under Zwick, would constitute a federal interest?
“The amount of federal funds” alone, reasoned the Zwick court,
could constitute the interest if the federal funds provided “the
greater part of a township’s budget”; if not, the offense conduct
132
199 F.3d 672 (3d Cir. 1999).
133
Id. at 687 (parallel citations omitted).
134
Id.135
Id. at 686.
51
would have to implicate a substantive or programmatic interest,
even though “a highly attenuated implication of a federal interest
will suffice.”136 Since deciding Zwick, the Third Circuit has
clarified that the federal interest can reach very deep into the
ranks of local government.137
In diametric opposition to the Third Circuit, two other
circuits have declined to read an extra-textual nexus into § 666.
The Sixth Circuit has rejected a constitutional attack on its pre-
Salinas position that except for the textual $10,000 threshold,
§ 666 does not require a nexus between federal funds and the
offense conduct.138 The Supreme Court recently declined to review
136
Id. Evidence in Zwick showed that federal funds supported
erosion control and emergency snow removal. Id. at 688. The
defendant, a township commissioner, had taken bribes in exchange
for action on “sewer access, use permits and landscaping
performance bonds.” Id. Finding “no obvious connection” between
the two, the court remanded for a new trial. Id.
137
United States v. DeLaurentis, 230 F.3d 659, 662 (3d Cir.
2000) (vacating dismissal of § 666 counts against former supervisor
of police detectives for Hammonton, New Jersey, when a jury might
conclude that (1) Hammonton received $25,000 a year under the
federal Community Oriented Policing Services Program, (2) the
defendant was bribed to intercede to protect a local bar, and (3)
a federally-funded police officer was dispatched to the bar).
138
See United States v. Suarez, 263 F.3d 468, 472–73, 489–91
(6th Cir. 2001) (affirming conviction of police officer for
converting victim restitution funds and police evidence). The
Suarez majority does not clearly state that Suarez is a
constitutional holding, but Suarez “clarifie[d] that this claim is
a constitutional one.” Id. at 484 (Boggs, J., dissenting as to
Part VI). See also United States v. Dakota, 188 F.3d 663, 666–68
(6th Cir. 1999) (affirming conviction of an agent of a tribal
organization that received federal funds, although the agent’s
offense conduct bore no relation to federal funds).
52
this result.139 The Seventh Circuit likewise has held that the
broad text of § 666 controls: “It is not our part to trim § 666 by
giving its text a crabbed reading.”140 Noting that the fungibility
of money militates against a narrow reading of § 666, the Seventh
Circuit concluded as a statutory matter that the district court
properly convicted a township supervisor, even though his bribe-
taking related only to his control of the town’s general-assistance
program, which did not receive any federal funds.141
In addition to his reliance on Zwick, Lipscomb would rely on
a precedent from the Second Circuit, but close inspection of that
case reveals that it actually supports his conviction here. In
United States v. Santopietro,142 that court stood by its earlier
139
Suarez v. United States, 122 S. Ct. 1547 (2002) (mem.).
140
United States v. Grossi, 143 F.3d 348, 350 (7th Cir. 1998);
id.:
Grossi wants us to say that, unless the program or
activity that was touched by bribery itself received
$10,000 in federal funds, the “circumstance described in
subsection (b)” does not obtain. Yet money is fungible
and its effect transcends program boundaries. The
general assistance program has more to spend on welfare
(or dangle as a lure for bribes) if the federal
government meets some of the Township’s other expenses.
Congress has on occasion limited regulation to the
specific activity that receives the federal
money. [Giving examples of statutory language] . . .
Section 666(b), by contrast, refers not to a “program or
activity” but to the “organization, government, or
agency.” The difference is palpable.
141
Id. at 350. The court also stated that “the district
court’s subject-matter jurisdiction is supplied by 18 U.S.C. § 3231and is secure.” Id. at 351.
142
United States v. Santopietro, 166 F.3d 88 (2d Cir. 1999).
53
requirement of “at least some connection between the bribe and a
risk to the integrity of the federal [sic] funded program.”143 ——
obviously a “corruption focus.” Nevertheless, the example that the
Second Circuit gave of bribery that § 666 would not reach —— a
bribe paid to the hypothetical meat inspector of a city that
received a federal grant only for its parks department —— involves
a federal interest that is much more attenuated from the
perpetrator than does this case.144 Furthermore, the Santopietro
court affirmed the convictions of former officials of Waterbury,
Connecticut, who had accepted bribes from real estate developers.145
Linkage between the officials’ offense conduct and federal funds
was actually more remote than the connection in the instant case:
[C]orrupt payments were made by real estate developers to
secure the use of the appellants’ influence with city
agencies including the City Plan Commission, the Zoning
Commission, the Water Department, and the Fire Marshal,
and the use of their influence to further the interests
of the developers in the appointments of members and
chairpersons of land use boards and relevant committees
and agencies in the City of Waterbury. During the
relevant periods, substantial federal funds were received
by Waterbury for housing, urban development, and other
programs within the purview of these agencies and
officials. Since federal funds were received by
Waterbury for housing and urban development programs and
the corrupt payments concerned real estate transactions
within the purview of the agencies administering federal
funds, the requisite connection between the bribes and
the integrity of federally funded programs is satisfied.
Thus, this is not a case where the transactions sought to
143
Id. at 93.
144
Id.
145
Id. at 91.
54
be influenced concerned one department of a city and the
requisite $10,000 of federal funds were received by a
totally unrelated department.146
Santopietro thus stands indisputably for a purview test: To be
prosecuted under § 666, a bribed official must at least influence
other officials who have within their purview federally funded
programs, but the corruption need not touch those programs. In
other words, Santopietro asks whether a defendant could have
influenced the use of federal funds by controlling the same
agencies or staffers whom he actually corruptly influenced with
respect to purely local matters.
Such a purview test, applied to the case at bar, supports
convicting Lipscomb, who took bribes in return for influencing
matters within the purviews of two Dallas departments, human
services and transportation, which both received federal funds.
The connection between federal funds and corrupt conduct is closer
here than in Santopietro, where the court did not explain how the
“City Plan Commission, the Zoning Commission, the Water Department,
and the Fire Marshal” administered federal funds, but rather
suggested that these agencies and officials made decisions ——
presumably determining whether proposed developments complied with
zoning, fire, and other codes147 —— with respect to housing and
146
Id. at 93–94 (emphasis added; citations and internal
quotation marks omitted).
147
See United States v. Santopietro, 996 F.2d 17, 18 (2d Cir.
1993) (prior merits appeal) (“Benefits to certain bankers and land
developers included zoning changes, subdivision approvals,
55
urban development programs, likely administered by other agencies,
that did receive federal funds.148 In other words, the federal
interest in Santopietro was more remote than it is here, as
Lipscomb himself cast votes to approve requests for federal funds,
and himself both lobbied and pressured officials who ran federally-
funded programs.
A less cumbersome and more direct purview rule would apply
§ 666 to defendants who themselves influence or control federal
funds.149 Such a rule also would support convicting Lipscomb here.
The Santopietro court, however, did not affirmatively adopt this
rule, explicitly leaving open the question whether the former mayor
could be prosecuted under § 666 for any transaction involving the
city if the federal funds were entirely unrelated to that
transaction.150 Santopietro, therefore, although confirming a nexus
confidential appraisal information for use in bidding on city-owned
property, expedited treatment from city agencies, and input into
appointments.”).
148
Santopietro, 166 F.3d at 93.
149
This may be the rule in the Fourth Circuit, which has
summarized § 666 as banning “payoffs to state and local officials
who influence the distribution of federal funds.” United States v.
Jennings, 160 F.3d 1006, 1012 (4th Cir. 1998). However, the
offense conduct in Jennings clearly involved federally funded
programs: the bribed official gave federally funded housing-
construction contracts to the briber. Id. at 1010–12.
150
Santopietro, 166 F.3d at 94 n.3:
We need not consider whether Santopietro’s role as
mayor——the chief executive officer of the city and hence
the officer ultimately responsible for all city
departments——would render the statute applicable to
corrupt payments received by him for any transaction
56
rule, also could be read as supporting Lipscomb’s conviction under
such a rule or (just possibly) as skirting the relevant question
entirely. Thus, of the two cases from other circuits —— Zwick and
Santopietro —— that Lipscomb relies on heavily, only Zwick could
support finding § 666 unconstitutional as applied here.
D. Federal Interests at Stake
My own review is guided by the traditional, rational-
relationship test for whether a statute is necessary and proper to
an enumerated federal power.151 In this case, two federal interests
support the view that Congress reasonably could have thought it
necessary and proper to apply § 666 to agents and officials like
Lipscomb.
1. Absolute Amount of Federal Dollars
The government argues that the total federal funding received
by Dallas —— $56 million in 1998 —— justified federal jurisdiction
over Lipscomb’s conduct. Lipscomb focuses on the fact that $56
million was only 3.5% of Dallas’s city budget in that year. In
part, this is a dispute over the meaning of one passage in Zwick:
We can conceive of several ways in which the government
could prove a federal interest in a § 666 [case].... The
amount of federal funds could provide the requisite
federal implication, even if the purpose of those funds
has no explicit relationship to the subject of the bribe.
If, for example, in a given year, the greater part of a
involving the city, even though the federal funds were
received for a program entirely unrelated to the program
in connection with which the corrupt payments were made.
151
See TRIBE, supra note 65, § 5–3, at 798–802, 805.
57
township’s budget came from federal funds, bribery of a
township agent for any purpose might be said to implicate
federal interests.152
In the abstract, this “greater part” yardstick may have an
appealing ring, but it is utterly divorced from reality. In
actuality, no state government and, I suspect, only a rare county
or city government (not even the District of Columbia), is so
wholly a creature of the United States as to rely on Washington for
“the greater part” of its revenue.153 In the rare case that federal
funding is a majority of total revenue, federal power to
criminalize local corruption would undoubtedly exist; but surely
the absolute level of federal grants, as well as their relative
importance to the city’s budget, would provide a federal interest,
to the protection of which § 666 is necessary and proper.
To determine whether this is so —— to judge if § 666 is indeed
reasonably related to the federal interest in safeguarding $56
million —— I would analogize the federal government and Dallas to
partners in spending federal dollars to advance shared goals. In
the private sector, what would a reasonable funding partner who has
advanced $56 million do after learning that its service partner
takes kickbacks, albeit regarding matters not within the
152
Zwick, 199 F.3d at 687.
153
See U.S. BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, STATISTICAL
ABSTRACT OF THE UNITED STATES: 2001, tables 435, 437, 439, 445, 447
(121st ed. 2001) (showing total revenue and federal revenue of the
states and the largest cities and counties by population). None of
the states, and none of the cities and counties listed, relies on
the federal government for a majority of its revenue.
58
partnership’s scope? The funding partner might well dissolve the
partnership rather than wait for the service partner’s corruption
to widen and infect partnership dealings.
The partnership analogy does not bear close inspection, but
its failure, instead of undermining the constitutionality of § 666,
actually supports it. The analogy founders on the fact that in the
public sector, states, counties, and municipalities hold monopolies
on delivering many governmental services to their citizens. Thus,
when Congress seeks to benefit the citizenry of a particular state
and locality, it can turn to very few potential public partners.
This scarcity suggests that if the federal-Dallas partnership were
dissolved when corruption among Dallas officials is discovered ——
or if the federal government were to withhold funds in such a case
—— the purpose of the federally funded programs would be defeated,
and Congress would be prevented from using the spending power to
promote the welfare of citizens of Dallas. The populace of Dallas,
however, is by definition innocent of official corruption, and
should not suffer a cut in federally funded services on account of
it. The prospective specter of criminal sanctions against corrupt
officials themselves, rather than post-hoc, fiscally punitive
measures against Dallas, is therefore a logical and appropriate
solution for local corruption that threatens —— even indirectly, as
here —— $56 million in federal funds.
The Council votes to apply for federal funds, to accept
federal funds, and to approve all large contracts, including those
59
involving federal funds. Congress could rationally believe that
the integrity of $56 million of federal funds applied for by the
Council —— particularly when the federal treasury is funding not
just one or two projects but many —— suffices as a federal interest
weighty enough to justify federal criminal jurisdiction over
Council members who are bribed with respect to local issues.
2. The Integrity of State and Local Officials
with Authority over Federal Funds
A second federal interest at stake here is the integrity vel
non of federal programs and funds, regardless of the quantum or
budget percentage of funds at issue. A corrupt state or city
official who has real responsibility for, or often participates in,
the allocation of federal funds is a “threat to the integrity”154 of
those funds, even if they are not actually or directly infected by
his corruption. Congress may legitimately view as necessary and
proper the imposition of federal criminal liability for bribery, so
as to ensure the honesty of state and local officials who have
federal funds in their purview or federal programs under their
authority.
Judge Smith advances two explicit arguments against such
liability (neither of which, with respect, I find persuasive) and
one implicit argument that is defeated by the text of the statute
and the facts of this case. The implicit contention is that
bribery of Lipscomb alone, apart from any of his fourteen council
154
Salinas, 522 U.S. at 61.
60
colleagues, cannot create a sufficient federal interest or nexus,
because Lipscomb cannot act for the Council. This argument might
also be grounded in the fact that, alone, one legislator does not
administer program funds. The text of § 666 disposes of this
argument, as a statutory matter, because Congress clearly sought to
apply § 666 to legislative-branch officials.155 As a constitutional
matter, there is little or no basis for holding that federal
jurisdiction over bribery of Council members depends on whether the
briber can command a majority. One Council member’s vote, after
all, can tip the balance on a close question; and, as Lipscomb’s
conduct here demonstrates, a member has a number of arrows in his
parliamentary quiver besides the final vote.
Judge Smith also speculates that the State of Texas would have
prosecuted Lipscomb had it known of the evidence against him. This
is not a constitutional argument; it merely begs the constitutional
question regarding the limits of the spending power.156 And, as
155
Lipscomb is an “agent” under the statute because he is an
“officer” of Dallas. 18 U.S.C. § 666(d)(1) (2000). Even if he
were merely an agent of a “subdivision of the [ ] legislative...
branch of government,” the statute’s text would still cover him.
18 U.S.C. § 666(d)(2) (2000).
156
See United States v. Bailey, 990 F.2d 119, 126 (4th Cir.
1993) (citations omitted):
We find no merit to this claim.... [T]he Tenth
Amendment does not prohibit the federal government from
enforcing its laws, even when there are state laws
addressing the same criminal act.
. . .
Although South Carolina could have brought state
criminal charges against Bailey based upon the same
facts, this does not prevent the United States from
61
either a positive or a normative statement —— that the federal
government either does or should leave such prosecutions to the
states —— it fails. There are at least three reasons why federal
rather than state bribery prosecutions might be necessary and
proper in cases like Lipscomb’s. First, the federal government
might have a greater incentive to prosecute than does the state
government, either because the offense conduct directly or
potentially affects federal funds or because the federal government
provides more money to the locality than does the state
government.157 The latter proposition is true in this case: In
terms of dollars provided to Dallas, the federal government has a
stake in the city’s fiscal integrity that is between fifteen and
twenty times greater than the state’s stake.158
Second, federal officials might be less corruptible than state
enforcing its criminal statutes.
157
Both reasons were part of the Senate Judiciary Committee’s
thinking in recommending that the Senate enact § 666. See S. REP.
NO. 98-225 at 369, reprinted in 1984 U.S.C.C.A.N. at 3510:
In many cases, such prosecution is impossible because
title has passed to the recipient before the property is
stolen, or the funds are so commingled that the Federal
character of the funds cannot be shown. This situation
gives rise to a serious gap in the law, since even though
title to the monies may have passed, the Federal
Government clearly retains a strong interest in assuring
the integrity of such program funds. Indeed, a recurring
problem in this area (as well as in the related area of
bribery of the administrators of such funds) has been
that State and local prosecutors are often unwilling to
commit their limited resources to pursue such thefts,
deeming the United States the principal party aggrieved.
158
See Part I.B., supra (discussing jurisdictional facts).
62
and local officials,159 and an informant with evidence of misconduct
by a state or local official might feel safer in taking his
information to federal authorities; indeed, he could even prefer
that it not be shared with state or local authorities. Third,
federal prosecutors are less likely to be linked to state and local
politicians and are generally more independent of local political
forces that might try to protect high officials from aggressive
state enforcement.
Judge Smith’s second contention against high-official
liability is a law-and-economics argument that, in my opinion, does
not hold water and affords courts little basis, if any, on which to
pronounce a statute unconstitutional, whether facially or as
applied. As I understand his argument, it is that if courts permit
the United States as well as states to prosecute high local
officials for bribery involving local funds and programs, corrupt
officials will change their behavior and, on the margin, take more
bribes directly related to federal funds and programs than they
otherwise would.160 With respect, I perceive at least three flaws
159
See RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW 698 (5th ed.
1998) (emphasis added):
Some federal criminal jurisdiction can be explained by
reference to the point...that monopolies of political
power are more easily achieved at the state than at the
federal level. Federal criminal prosecutions of corrupt
local government officials exploit the relative
incorruptibility of federal officials —— stemming from
the greater costs of corrupting a federal agency... —— in
order to reduce corruption at the local level.
160
See infra at ___.
63
of logic in this argument.
First, social science has not yet proven that the rational-
actor model adequately explains the real-world behavior of white-
collar criminals: As behavioral law and economics warns us,
inadequate information, biases, and heuristics often prevent
individuals from acting rationally. For example, unless a local
official is well integrated into a culture of white-collar
criminality (which would itself suggest that federal prosecution
may be necessary), he will lack even anecdotal data on the
probability that either the state or the federal government will
detect and prosecute bribery. (Anecdotal data would, of course, be
the only data available.) Therefore, an official considering
whether to take a bribe would not be likely to calculate the odds
of detection or prosecution in the dispassionately mathematical way
that the rational-actor model might suggest.
Furthermore, standard law-and-economics analysis actually
justifies federal criminal jurisdiction on the basis of interstate
externalities, an argument eminently applicable here.161 If bribery
in Dallas threatens federally-provided funds, that corruption
threatens the federal Treasury, which is funded by taxes collected
not just from Texas but from all across the Nation.
Lastly and most importantly, even if Judge Smith’s law-and-
economics objection to federal jurisdiction here were an accurate
161
See POSNER, supra note 120, at 697.
64
predictor, it has little force. The most that his prediction might
prove is that Congress has deluded itself into passing a law that
may be self-defeating, because it increases the vulnerability of
federal funds to corruption and thus disregards economic facts.
“But a law can be both economic folly and constitutional.”162 A
means-ends tradeoff, weighing costs against benefits, is precisely
the sort of political judgment that members of Congress are
entitled —— and better equipped than judges —— to make, and that
courts should generally defer to. As judges, we do not experience
the perils attendant on taxing one’s own constituents, do not enjoy
the political significance of bringing home the fiscal bacon, and
do not share the frustration of seeing hard-won federal dollars
bleed off through the hands of corrupt local officials. Lacking
the power to tax and spend, federal judges should defer to a
plausible risk-reward construct that Congress has enacted to
protect the federal fisc.
E. Constitutional Limits to § 666?
Lipscomb strongly argues that if § 666 constitutionally
criminalizes conduct like his by state and local agents, then there
are no limits to its sweep, and federal criminal law extends to
briberies totally removed from federal funds. As I have analyzed
Lipscomb’s constitutional challenge to the statute as it applies to
him, I need not determine here whether there is a constitutional
162
CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 96–97
(1987) (Scalia, J., concurring).
65
limit on § 666’s reach. A brief comment is nonetheless in order.
As a statutory matter, even Westmoreland —— our broadest (and
controlling) reading of § 666 —— did not address whether § 666 can
reach the lowest levels of state and local bureaucracies.
Westmoreland did, however, advert to the limits in the statute’s
text:
[T]he statute does not encompass every local bribery as
Westmoreland suggests. Although the extent of the
federal government’s assistance programs will bring many
organizations and agencies within the statute’s scope,
the statute limits its reach to entities that receive a
substantial amount of federal funds and to agents who
have the authority to effect significant transactions.163
As a constitutional matter, under the Necessary and Proper
Clause, the test is whether prosecution would be rationally related
to a federal interest —— that is, to effecting Congress’s spending
power. In this case, two already-noted federal interests justify
applying § 666 to Lipscomb’s conduct: (1) the total amount of
federal funds extended to Dallas and (2) Lipscomb’s purview —— his
high rank and his broad influence over many programs that receive
federal funds. Of these two interests, his purview would easily
accommodate, in another case, the Second Circuit’s hypothetical
implication in Santopietro that it could not be necessary and
proper to the spending power for federal criminal liability to
extend to a corrupt city meat inspector when the city receives
163
Westmoreland, 841 F.2d at 578.
66
federal funds only for its parks.164 That case is not before us
today, however, so I need not predict, in double dicta, whether
there might be categories of prosecutions under § 666 that are not
necessary and proper to the spending power. For today’s purposes
it is sufficient to note that if there are such categories,
Lipscomb is far removed from them.
F. Conclusion
The constitutional argument in this case boils down to how
direct must local corruption’s threat to federal funds be for § 666
to apply. Lipscomb insists that, although federal funds need not
be directly involved in the offense conduct, the state or local
official’s conduct still must threaten the integrity of federal
funds more directly than did his. Not so. The foregoing analysis
has shown that (1) the text of § 666 reads otherwise; (2) the
legislative history does not clearly contradict it (as it must to
override a clear criminal statute165); and (3) our controlling
precedents on point reject such a limit. Reduced to the bare
164
Santopietro, 166 F.3d at 93. Meat inspection is very much
a federal responsibility, however, and the Second Circuit may have
overlooked the Federal Meat Inspection Act, 21 U.S.C. § 601 et
seq., especially 21 U.S.C. § 622 (banning bribery of meat
inspectors employed by the United States).
165
Salinas, 522 U.S. at 57 (“Courts in applying criminal laws
generally must follow the plain and unambiguous meaning of the
statutory language. Only the most extraordinary showing of
contrary intentions in the legislative history will justify a
departure from that language.”) (quoting United States v.
Albertini, 472 U.S. 675, 680 (1985)) (further citations, internal
quotation marks, and brackets omitted).
67
essentials, application of § 666 to Lipscomb’s conduct is indeed
reasonably related to a federal interest, and thus is necessary and
proper to Congress’s exercise of its spending power. Congress
could have believed, quite legitimately, that preventing federal
funds from passing through state and local legislative bodies whose
members are corrupt, and to do so with the deterrent of
criminalizing the legislators’ corruption, even with respect to
purely state or local issues, was necessary and proper to the
federal spending power. As courts can require of Congress nothing
more than such a rational relationship to the spending power, § 666
is constitutional as applied here.
VII. VENUE
Having established that the federal courts have jurisdiction
of this case, we turn to Lipscomb’s assignments of reversible error
by the district court. Chief among these is his contention that
the court abused its discretion in transferring the trial from
Dallas to Amarillo sua sponte, shortly before trial, and over
Lipscomb’s objection.
A. The Transfer Order
The district court read its unexpected transfer order into the
record at the end of a hearing on December 20, 1999. The order
reads, nearly in its entirety:
As everyone knows this case will involve the trial of one
of the best[-]known sitting elected officials in the
Dallas/Fort Worth metroplex for allegations of public
corruption. This Court cannot recall such a trial of a
sitting elected official in Dallas for allegations of
68
public corruption. This case has already received
significant media attention and undoubtedly will receive
more.
The Court notes that both sides have requested or
not opposed requests for individual voir dire examination
of the prospective jury panel and both sides have
requested use of a jury questionnaire. Both motions,
unusual and rare motions in federal criminal cases in
Dallas, are made precisely because of the high profile of
Defendant Lipscomb, a Dallas City Councilman of twelve
years[’] experience and one of the most influential and
well[-]known political leaders in the Dallas African[-
]American community for the last three decades.
Councilman Lipscomb has been an effective representative
of his constituency and locally has strong supporters and
detractors. These facts will obviously make selection of
a jury of twelve with no preconceived opinions about Al
Lipscomb no easy task.
As stated this case has thus far generated
substantial publicity in the local media and will
generate more throughout the trial. Such coverage has
resulted in the Court reading in the newspapers certain
information that has been filed under seal. The Court is
also concerned about the ability to select a fair and
impartial jury.
In considering the various motions regarding jury
selection that both sides have filed[,] the Court is not
convinced that such measures would be sufficient to
assure Councilman Lipscomb, the other defendants, and the
Government a fair trial. It is this Court’s fervent
desire and absolute obligation to see to it that a fair
trial is conducted —— fair to both the defendants and the
Government. This Court will do all in its power under
the law to make sure the verdict in this case is based on
the evidence presented in the courtroom, and absolutely
nothing else.
There is no “divisional” venue in criminal cases
under Federal Criminal Rule [sic] of Procedure 18. Since
the 1966 amendment of this rule[,] providing for
prosecution to be had in the district in which the
offense was committed, a division of a federal judicial
district is no longer a unit of venue in criminal cases.
United States vs. Burns, 662 F.2d 1378 (11th Cir., 1981);
Zicarelli vs. Gray, 543 F.2d 466 (3rd Cir., 1976).
Within[-]district transfers of criminal cases are allowed
under the law in this circuit. See United States
vs.[ ]Bridges, 551 F.2d 651 (5th Cir. 1977) and United
States vs. James, 528 F.2d 999 (5th Cir. 1976), cert.
denied, 97 S.Ct. 382, 770. Indeed, this Court disposed
69
of all criminal cases filed in the Wichita Falls Division
of the Northern District of Texas (about 100 cases) over
a 4 ½ year period (1994 to 1999) in the Dallas Division
of the Northern District of Texas. The law is clear that
in the Court’s sound discretion, after considering the
statutory elements, which this Court has done, this case
may be tried anywhere within the Northern District of
Texas.
Amarillo is a good[-]size[d] city[,] serviced by
several airlines and is only a five[-]hour drive from
Dallas. No defendant is indigent and all have retained,
as opposed to appointed, council [sic]. The Court has
made a careful analysis and given due consideration of
the convenience of the witnesses and the parties, and
considered the prompt administration of justice. These
considerations, coupled with the concerns for selection
of an impartial jury as expressed by the parties in their
pretrial motions, as well as all the concerns the Court
has expressed above, causes [sic] the Court to find that
the prompt administration of justice would best be
effectuated by having the trial of this case in the
Amarillo Division of the Northern District of Texas.
...
The Court is absolutely convinced that the prompt
administration of justice will best be served by
conducting this trial in Amarillo, where it is unlikely
[sic] that few, if any on the jury panel will have ever
heard of Al Lipscomb or Floyd Richards, and fewer still,
if any[,] will have any preconceived ideas or opinions
about them. This will help assure that the jury verdict
is based on the merits of the evidence presented in the
courtroom, and nothing else.
Before the issuance of this order, no party had presented evidence
regarding prejudice from pretrial publicity or regarding any other
issue relative to venue. On hearing the order read, lawyers for
Lipscomb and his co-defendant, Richards, objected. Lipscomb filed
written objections nine days later —— objections on which the court
did not rule before the trial began, as long scheduled, on January
11, 2000, in Amarillo, some three hundred miles from Dallas.
In a motion for a new trial following his conviction, Lipscomb
70
renewed his objections to the venue transfer, which motion the
district court later denied. Also after trial, the government
filed thirty-seven newspaper articles about Lipscomb’s case that
had appeared from March through December 19, 1999, as well as other
articles that appeared after the transfer order —— none of which
had been in the record when the transfer order issued and none of
which were so much as mentioned by the district court.
B. Standard of Review: Abuse of Discretion
We review all questions concerning venue under the abuse of
discretion standard.166 In general, “[a] district court by
definition abuses its discretion when it makes an error of law.”167
A district court also abuses its discretion if it “bases its
decision ... on a clearly erroneous assessment of the evidence.”168
As a leading treatise on standards of review suggests, a trial
court abuses its discretion “when the judge has considered the
wrong factors in applying his discretion (the judgment call was
made as to issues or factors not within the scope of his
discretionary powers).”169
166
United States v. Asibor, 109 F.3d 1023, 1037 (5th Cir.
1997); United States v. Alvarado, 647 F.2d 537, 539 (5th Cir. Unit
A June 1981).
167
Koon v. United States, 518 U.S. 81, 100 (1996).
168
Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir.
1994).
169
1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW
§ 4.01(A) (3d ed. 1999).
71
Reversal of an intradistrict transfer is proper only if a
party demonstrates a “substantial ground for overturning the
district court’s decision.”170 In the typical case, the defendant
appeals the trial court’s denial of a Rule 18 motion to transfer
venue. And, in the typical case, the defendant’s appeal is
unsuccessful because the district court is “not [ ] required to
move the trial absent a strong showing of prejudice”171 to the
defendant. Some of our cases suggest that this same strong-
showing-of-prejudice standard applies when, as here, the defendant
seeks to block a transfer.172 When the government is the party
seeking a transfer, however, at least one case appears to require
that the government have a “legitimate reason” for doing so.173
170
United States v. Dickie, 775 F.2d 607, 609 (5th Cir. 1985),
abrogated in part on other grounds, 37 F.3d 160 (5th Cir.1994),
(brackets omitted) (citing United States v. Malmay, 671 F.2d 869,
876 (5th Cir. 1982)).
171
United States v. Duncan, 919 F.2d 981, 985 (5th Cir. 1990)
(“An intradistrict transfer is not required absent a strong showing
of prejudice.”); Malmay, 671 F.2d at 876. See also Dickie, 775
F.2d at 609.
172
See United States v. Osum, 943 F.2d 1394, 1399 (5th Cir.
1991) (“[T]he transfer [requested by the government] may be granted
within the trial court’s discretion unless the defendant shows that
a transfer would be prejudicial.”). Osum cited only Duncan for
this proposition, but Duncan actually involved a transfer motion
made by the defendant. Duncan, 919 F.2d at 985. Osum also stated
that “[W]e cannot in this case, given the existence of a valid
reason supporting transfer and no showing of prejudice by the
defendant, say that the district court abused its discretion.”
Osum, 943 F.2d at 1400.
173
Osum, 943 F.2d at 1400 (finding that the transferee judge’s
familiarity with the conspiracy alleged in the case was a
“legitimate reason”).
72
Here, however, neither the government nor the defense sought
transfer.
C. Analysis
We must begin our analysis by recognizing an important
distinction between intradistrict and interdistrict transfers: Only
an interdistrict transfer implicates the Constitution.174 There is
no basis for inferring the existence of a constitutional right to
trial within the division where a criminal defendant lives or where
a crime was committed.175 In one intradistrict transfer case,
however, we interpreted the Sixth Amendment to mean that “it is the
public policy of this Country that one must not arbitrarily be
sent, without his consent, into a strange locality to defend
himself against the powerful prosecutorial resources of the
Government.”176
The Federal Rules of Criminal Procedure also distinguish
between interdistrict and intradistrict transfers. Rule 21 governs
transfers to another district and provides that this may be done
174
See U.S. CONST. art. 3, § 2, cl. 3; U.S. CONST. amend. VI.
175
United States v. James, 528 F.2d 999, 1021 (5th Cir. 1976)
(noting that the Sixth Amendment makes “no reference to a division
within a judicial district”); Lafoon v. United States, 250 F.2d
958, 959 (5th Cir. 1958).
176
Dupoint v. United States, 388 F.2d 39, 44 (5th Cir. 1967)
(interpreting a prior version of Rule 18 that did not allow for an
intradistrict transfer for the prompt administration of justice).
73
only on motion of the defendant.177 Rule 18, in contrast, governs
intradistrict transfers:
Except as otherwise permitted by statute or by these
rules, the prosecution shall be had in a district in
which the offense was committed. The court shall fix the
place of trial within the district with due regard to the
convenience of the defendant and the witnesses and the
prompt administration of justice.178
Although the text of Rule 18 refers only to convenience and prompt
administration, the district court may consider other factors.179
177
FED. R. CRIM. P. 21(a):
For Prejudice in the District. The court upon motion of
the defendant shall transfer the proceeding ... to
another district ... if the court is satisfied that there
exists in the district where the prosecution is pending
so great a prejudice against the defendant that the
defendant cannot obtain a fair and impartial trial ... in
that district.
See also FED. R. CRIM. P. 21(b) (“For the convenience of parties and
witnesses, and in the interest of justice, the court upon motion of
the defendant may transfer the proceeding ... to another
district.”).
178
FED. R. CRIM. P. 18.
179
See 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE Crim § 305,
at 339–40 & n.11 (3d ed. 2000 & supp. 2002) (collecting cases)
(“There is now substantial authority for the proposition that the
court . . . may take into account numerous factors appearing in the
particular case.”). Compare FED. R. CRIM. P. 18 advisory committee’s
notes to 1979 amendments:
The amendment to rule 18 does not eliminate either of the
existing considerations which bear upon fixing the place
of trial within a district, but simply adds yet another
consideration in the interest of ensuring compliance with
the Speedy Trial Act of 1974. The amendment does not
authorize the fixing of the place of trial for yet other
reasons. Cf. United States v. Fernandez, 480 F.2d 726(2d Cir. 1973) (court in the exercise of its supervisory
power held improper the fixing of the place of trial “for
no apparent reason other than the convenience of the
judge”).
74
In this case, the court mentioned several, which we shall evaluate
in turn, and we shall rule out others that are not relevant here.
1. Convenience
Rule 18’s “due regard to the convenience of the defendant and
the witnesses” militates strongly against transfer in this case.
The record shows that the defendant and all witnesses resided in
Dallas. In addition, every defense attorney practiced there, and
the judge was based in Dallas. Not a single relevant event
occurred outside Dallas.180 As “convenience of the prosecution...is
not a factor to consider in changing venue,”181 the convenience
facts rarely cut as totally against transfer as they did here.
The district court did not mention these contra-transfer facts
in its order. It merely noted that Amarillo was served by several
airlines, that it was a five hours’ drive from Dallas, and ——
perhaps inaccurately and irrelevantly —— that the defendants were
represented by “retained” counsel.182 These facts, of course, did
180
This case is thus readily distinguishable from United States
v. Gourley, 168 F.3d 165 (5th Cir. 1999), where we found no abuse
of discretion when the Southern District of Texas transferred a
trial from the Houston division to the Laredo division. Some of
the defendant’s witnesses were in Houston, id. at 171, suggesting
that convenience in that case may have cut in favor of Houston; but
an element of the offense conduct —— conspiracy to import cocaine
—— took place “at the border near Laredo,” and the crime in
progress was detected in both Laredo and Houston. Id. at 167.
181
Dickie, 775 F.2d at 610.
182
Although Lipscomb was not represented by court-appointed
lawyers, the trial court’s use of “retained” connotes that Lipscomb
was paying his lawyers’ fees. The record clearly shows, however,
that Lipscomb faced large legal bills, lacked the means of his own
75
not diminish the basic truth that trial in Amarillo was
inconvenient for Lipscomb, his counsel, and all witnesses. This
case is, therefore, easily distinguishable from the two cases on
which the district court relied, because convenience did not
militate against transfer in either of them.183 Those cases do not
support the court’s sua sponte transfer here, and the trial court
erred as a matter of law in relying on them.
2. Court Policy
The trial court also referred to its prior transfers of “about
100 [criminal] cases” from Wichita Falls to Dallas (less than half
the distance, we note, as Dallas to Amarillo). This historical
fact, however, does not support the transfer at issue. Nothing in
the record shows why those transfers took place. Such reference to
the court’s prior venue practice verges on circularity and runs the
risk of creating a per se rule that violates Rule 18’s focus on the
to pay them (partly because Dallas city council members are not
paid a salary), and resorted to fundraising. One article also
stated that Lipscomb’s lead defense lawyer had placed himself last
in line for whatever money Lipscomb might manage to raise.
183
See James, 528 F.2d at 1003, 1021–22 (showing that
convenience did not militate against transfer because six of the
seven defendants did not even live in state, much less in the
transferring division, and four of the witnesses were in jail). In
the other case relied on by the district court, the defendants
never objected to the place of trial, which was only forty miles
further from the place of the crime than the alternative
courthouse; inconvenience, if any, was slight. United States v.
Bridges, 551 F.2d 651, 652 & n.5 (5th Cir. 1977).
76
facts of each case.184 To whatever extent the district court
perceived from past transfers a generalized but informal policy
regarding transfers as a matter of course, without reference to the
permissible considerations under Rule 18 that may have supported
those transfers, it committed legal error by including an
impermissible consideration in its Rule 18 balancing.
As local court policy is irrelevant, and permissible
convenience considerations militated strongly against transfer to
Amarillo, the issue becomes whether any other legitimate factors,
discernible from the record as it stood when the order was made,
sufficiently supported transfer to bring this one within the range
of discretionary choices to which we must defer on appeal.
3. Speedy Trial
The rule’s second textual factor —— “due regard to...the
prompt administration of justice” —— is in part a literal command
that trials comply with the Speedy Trial Act.185 This factor,
however, did not support trial transfer in this case, as a review
of the record shows. Lipscomb was indicted on March 4, 1999, and
he appeared in court the next day. Trial was initially set for May
17, but Lipscomb moved for continuance. The court refused to
continue the trial date indefinitely, instead setting a hearing for
May at which counsel had to submit their schedules for the coming
184
See United States v. Burns, 662 F.2d 1378, 1382–83 (11th
Cir. Dec. 1981).
185
18 U.S.C. § 3161 (2000).
77
months. Counsel for Lipscomb had court engagements scheduled in
each month from August through November of 1999, so at the hearing,
all parties agreed on January 10, 2000, as the trial date.186
Later, in November, the trial court extended the trial date one
day, to January 11. Early in December, 1999, Lipscomb filed
another motion to continue the trial, which motion the district
court promptly denied. When, on December 20, the district court
unexpectedly ordered the transfer, the parties already knew that
(1) trial was firmly set for January 11 and (2) there was no reason
to expect that voir dire would not begin on that day. Nothing in
the record suggests that facilities appropriate for the trial were
unavailable in Dallas at that time. There were thus no speedy-
trial issues in this case.
The district court did characterize the possibility of a
difficult voir dire as an obstacle to “prompt administration.” We
do not understand the term “prompt administration” to have been
promulgated in the Rules with the intention of permitting courts to
avoid even attempting arduous voir dire proceedings. Rather, the
triggering purpose of the “prompt administration” amendment to Rule
18 was to clarify that district courts are authorized to fix the
place of trial so as to comply with the Speedy Trial Act.187 That
186
The scheduling order determined, pursuant to 18 U.S.C.
§ 3161(h)(8)(A) and (B)(iv), that the ends of justice would be best
served by the new trial date.
187
See note 137.
78
Act concerns itself solely with the timeliness of when trial
begins, not with when either voir dire or the entire trial will
conclude,188 and in this circuit, trial is deemed to begin with voir
dire.189 Because the transfer to Amarillo did not change, much less
hasten, the already-scheduled start of the trial, the transfer did
not accomplish the “prompt administration” of this case in the
textual, speedy-trial sense.
Nevertheless, we have held that a trial court, in its
discretion, may fix the place of trial with regard to factors other
than convenience and prompt administration: such factors commonly
include, but are not necessarily limited to, docket management,
courthouse space and security, and —— most importantly for this
case —— pretrial publicity.
4. Docket Management
In the context of docket management, we have construed the
term “prompt administration of justice” to refer not just to the
particular case that may be transferred, but also to other trials
on the court’s docket.190 A district court may consider docket
management in its Rule 18 balancing, and docket issues may even
188
See 18 U.S.C. § 3161.
189
United States v. Howell, 719 F.2d 1258, 1262 (5th Cir.
1983).
190
In re Chesson, 897 F.2d 156, 159 (5th Cir. 1990).
79
outweigh convenience factors that point entirely the other way.191
But nothing in the court’s remarks or in the record of this case
suggests that docket management was implicated here.
5. Logistics
Another factor that a court may consider in fixing the place
of trial within its district is whether a particular courthouse
meets a particular trial’s security requirements or other
facilities needs. Courtroom availability, unsurprisingly, is a
permissible consideration.192 So too are the amount of jail space
available there for defendants or witnesses193 and the adequacy of
security arrangements in a particular criminal trial.194 Even so,
191
Thus, when the Western District of Louisiana was at two-
thirds its authorized strength, and the trial judge not only
resided in Monroe, Louisiana, but also had other civil and criminal
matters on his docket there, he did not abuse his discretion by
transferring an anticipated three-week trial there from Lake
Charles, Louisiana, 150 miles away, over the defendants’ objections
that they, their witnesses, and their counsel lived and worked in
the Lake Charles area. Chesson, 897 F.2d at 157–59. In another
case, even though the offense was committed in Greenville,
Mississippi, and all the witnesses, counsel, and defendants were
located there, the district court did not abuse its discretion by
fixing the place of trial at Oxford, Mississippi, where the
district court had other cases scheduled. United States v. Harris,
25 F.3d 1275, 1277–78 (5th Cir. 1994).
192
United States v. Faulkner, 17 F.3d 745, 757 & n.13 (5th Cir.
1994) (listing courtroom availability as one of the considerations
that prevented an intradistrict transfer from rising to the level
of plain error, which was the applicable standard of review because
defendants had failed to preserve error).
193
United States v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995).
194
Harris, 25 F.3d at 1278 (“Rule 18 allows a court to consider
‘the prompt administration of justice’ in fixing the place of
trial, and ‘matters of security clearly fall within that
80
the record and transfer order here are devoid of any indication
that such logistical considerations played any role in the transfer
from Dallas to Amarillo, and no party argues to us that they did.
6. Pretrial Publicity
Pretrial publicity, then, is the only factor that might
counterbalance convenience and render the transfer to Amarillo a
proper exercise of discretion. We have not delineated the quality
or quantity of prejudicial publicity that will support a trial
court’s sua sponte transfer in the face of countervailing
convenience factors. We have, however, defined the opposite end of
the zone of deference for interdistrict transfers: When pretrial
publicity is the basis for a defendant’s motion to transfer to
another district under Rule 21, a trial court errs as a matter of
law in denying such a motion only if the defendant can show that
pretrial publicity inflamed the jury pool, pervasively prejudiced
the community against the defendant, probatively incriminated the
defendant, or exceeded “the sensationalism inherent in the
crime.”195
Here, the district court neither identified nor analyzed the
publicity that it conclusionally relied on as sufficiently
prejudicial to require a highly inconvenient transfer over the
consideration.’”) (quoting FED. R. CRIM. P. 18 and United States v.
Afflerbach, 754 F.2d 866, 869 (10th Cir. 1985)).
195
United States v. Parker, 877 F.2d 327, 331 (5th Cir. 1989).
81
defendant’s objections.196 Indeed, until after the trial, the
record did not even contain copies of the publicity at issue.
(Notably, we have not found one criminal case in which the trial
court inferred prejudice justifying a transfer from publicity of
which it merely took judicial notice.197) The court did nothing
more than globally label the unspecified publicity as “significant”
and “substantial” and state that voir dire in Dallas would be “no
easy task.”198 But surely, this is not the standard for determining
whether pretrial publicity renders a trial unfair. The court’s
lack of record documentation or analysis on this point is
particularly troubling in light of our acknowledgment that “[e]very
claim of potential jury prejudice due to publicity must turn upon
its own facts.”199
Despite the trial court’s statement to the contrary, it was
not that court’s duty, in ensuring a fair trial, to select “a jury
196
Although the court did state that the media had reported
material filed under seal, the only sealed material in the record
on appeal is Lipscomb’s pre-sentencing report. We therefore have
no way of evaluating the prejudice of the reports to which the
court referred and reviewing the court’s reasoning on this point.
197
The government points us to In re Agent Orange Product
Liability Litigation, 818 F.2d 145, 169 (2d Cir. 1987), but that
was not a criminal case, and the court there took notice of the
publicity to evaluate not prejudice among the venire pool but the
sufficiency of notice to potential class members.
198
We are somewhat troubled by the implication in this remark
that, foreseeing a lengthy jury-selection process in Dallas, the
court may have become concerned for its own convenience.
199
United States v. Aragon, 962 F.2d 439, 444 (5th Cir. 1992).
82
of twelve with no preconceived opinions about Al Lipscomb.” This
simply is not the applicable standard. The law is actually much
more realistic:
Qualified jurors need not [ ] be totally ignorant of the
facts and issues involved.
“To hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of
a prospective juror’s impartiality would be to establish
an impossible standard. It is sufficient if the juror
can lay aside his impression or opinion and render a
verdict based on the evidence presented in court.”200
A defendant’s right to a fair trial is violated only if he shows
that “the trial atmosphere was ‘utterly corrupted by press
coverage.’”201 Therefore, even if inflammatory pretrial publicity
did saturate the community, raising a presumption of prejudice to
the defendant, the government can usually rebut this presumption
through voir dire that ferrets out such prejudice.202 In this case,
to the extent that the district court focused on prejudice to the
government, it failed to give Lipscomb any opportunity to rebut
that presumption through voir dire.
The exception to this rebuttable-presumption rule regarding
prejudicial publicity was announced by the Supreme Court in Rideau
200
Murphy v. Florida, 421 U.S. 794, 799–800 (1975) (quoting
Irvin v. Dowd, 366 U.S. 717, 723 (1961)). See also Dobbert v.
Florida, 432 U.S. 282, 302 (1977) (same).
201
Black v. Collins, 962 F.2d 394, 409 (5th Cir. 1992) (quoting
Dobbert, 432 U.S. at 303).
202
Parker, 877 F.2d at 331 (quoting United States v. Harrelson,
754 F.2d 1153, 1159 (5th Cir. 1985)).
83
v. Louisiana,203 in which a defendant’s uncounselled, taped
confession had been broadcast three times to two-thirds of a small
community, rendering the venire pool presumptively prejudiced
against him, so that confirmation of this prejudice through voir
dire was not necessary.204 From Rideau we derived the following
rules for habeas cases:
where petitioner adduces evidence of inflammatory,
prejudicial pretrial publicity that so pervades or
saturates the community as to render virtually impossible
a fair trial by an impartial jury drawn from that
community, jury prejudice is presumed and there is no
further duty to establish bias.
...
Given that virtually every case of any consequence
will be the subject of some press attention, however, the
Rideau principle of presumptive prejudice is only rarely
applicable, and is confined to those instances where the
petitioner can demonstrate an extreme situation of
inflammatory pretrial publicity that literally saturated
the community in which his trial was held.205
Despite this standing caution against presuming prejudice, the
trial court in this case essentially created out of whole cloth a
Rideau exception for cases in which publicity is unfavorable to the
government and (we infer) jury nullification is possible. Even if
such a rule were proper, however, the record of this case would not
support its application.
Lipscomb contends that such a rule would not be proper, urging
203
373 U.S. 723 (1963).
204
Id. at 724.
205
Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980)
(citations, brackets, and internal quotation marks omitted).
84
that in fixing the quantum of prejudicial publicity that renders a
highly inconvenient transfer discretionary, we should distinguish
between publicity prejudicing the defendant and publicity
prejudicing the government. Essentially, he proposes that
publicity prejudicial to him may justify transfer, but publicity
prejudicial to the government cannot. To support this contention,
he points to the Advisory Committee Notes to Rule 18, which state:
If the court is satisfied that there exists in the place
fixed for trial prejudice against the defendant so great
as to render the trial unfair, the court may, of course,
fix another place of trial within the district (if there
be such) where such prejudice does not exist. Cf. Rule
21 dealing with transfers between districts.206
Rule 21 —— which some courts find illuminative of Rule 18207 ——
requires an interdistrict transfer for prejudice if the defendant
requests it and the court determines that “there exists in the
district where the prosecution is pending so great a prejudice
against the defendant that the defendant cannot obtain a fair and
impartial trial at any place fixed by law for holding court in that
district.”208
We cannot entirely accept Lipscomb’s suggested distinction,
because we have in fact upheld a sua sponte intradistrict transfer
—— to a division unrelated to the offense conduct, as here, and
206
FED. R. CRIM. P. 18 advisory committee’s notes to 1966
amendments (emphasis added).
207
See United States v. Walker, 890 F. Supp. 954, 958 n.5 (D.
Kan. 1995) (collecting authorities).
208
FED. R. CRIM. P. 21(a) (emphasis added).
85
over the objection of the defendant —— to cleanse the trial of the
effects of publicity prejudicing the government. Yet, as Lipscomb
correctly notes, whenever we have upheld a sua sponte transfer over
the defendant’s objection (whether the prejudice from publicity was
to the government or to the defendant), a mistrial had already
demonstrated that the venire pool had been badly tainted by
publicity and that retrial within the transferring division would
pose virtually insuperable difficulties.
Our most recent ruling to this effect, in United States v.
Gonzalez,209 exemplifies this pattern: The defendant’s first trial
was interrupted by two bomb threats and ended in a hung jury, and
his second trial ended in a mistrial after three jurors reported
that they received anonymous phone calls urging them to convict.210
“[C]onsiderable publicity...from the first two trials” resulted.211
Under such easily distinguishable circumstances, the trial court
did not abuse its discretion in ordering an intradistrict transfer
sua sponte.212 To the same effect are our decisions in United
States v. Weddell213 and United States v. Dickie.214
209
163 F.3d 255 (5th Cir. 1998).
210
Id. at 259.
211
Id.212
Id. at 260.
213
800 F.2d 1404, 1406 (5th Cir. 1986).
214
775 F.2d 607 (5th Cir. 1985).
86
United States v. Faulkner215 involved prosecution of
businessmen who developed condominium projects and in the process
exhausted the funds of several savings and loan associations in the
Dallas area.216 The “I-30 scandal” generated 1,100 newspaper
articles, an ad in a gubernatorial campaign mentioning a defendant
in a negative light, and such a public awareness of the case that
60% of Dallas residents had formed an opinion that one defendant
was guilty.217 After the first trial —— held in the Lubbock
division of the Northern District —— ended in a mistrial, the trial
court attempted voir dire in Dallas itself, but dismissed the panel
after several days because of the effect of pretrial publicity.218
The court then granted the defendants’ motions to transfer venue,
moving the case to the El Paso division of the Western District,
where the trial court sua sponte transferred the case yet again, to
the Midland division of the same district.219 On appeal, given the
unproblematical interdistrict transfer, we held that the second,
sua sponte transfer did not amount to plain error.220
No case of ours, therefore, stands squarely for the
215
17 F.3d 745 (5th Cir. 1994).
216
Id. at 751–54, 756.
217
Id. at 756 & n.9.
218
Id. at 754.
219
United States v. Faulkner, 17 F.3d at 754–55.
220
Id. at 757–58.
87
proposition that the government urges us to accept, i.e., that for
purposes of the venue of a defendant’s initial trial, pretrial
publicity alone would permit the trial court, sua sponte and
without a supporting record, to order an intradistrict transfer to
a division entirely unrelated to the offense conduct, and in the
process overrule the defendant’s objection, giving no regard to
convenience, making no attempt at voir dire, and expressing only a
generalized desire to ensure that the government, as well as the
defendant, receive a fair trial.
In his dissent, Judge Smith urges that the government’s
proposed rule is embodied in United States v. Alvarado.221 Even a
cursory reading of Alvarado, however, shows that our terse
discussion of the transfer issue there is entirely silent on
several key questions: (1) Did the district court in that case
transfer the case sua sponte; (2) if the transfer was sua sponte,
did the district court create a record that showed prejudice by
analyzing publicity or by attempting voir dire; (3) by what
standard did the district court determine the publicity to be
prejudicial; and (4) what was the nature of the publicity itself?222
From the opinion, none of these issues appears to have been
contested. As far as the Alvarado opinion goes, the defendants’
argument was founded entirely on a mis-citation and
221
647 F.2d 537 (5th Cir. Unit A June 1981).
222
Id. at 539–40.
88
misunderstanding of the criminal venue statutes.223 Research into
the district court case confirms not only that the Alvarado
defendants actually moved to transfer, but also that they asked
(unsuccessfully) that a newspaper reporter be instructed not to
print anything concerning the rejection of a plea agreement, lest
such publicity prejudice the case.224 The Alvarado district court
held an evidentiary hearing on the defendants’ motion to transfer
“due to publicity in the area” and took the motion under advisement
until after voir dire on publicity was concluded.225 At that point,
the district court denied the motion226; but the court later
reconsidered that denial and granted the motion after a witness
caused a mistrial by testifying that defendants had pled guilty.227
All these facts provide context for, and render entirely
understandable, the silence of our Alvarado opinion. These facts
also completely distinguish Alvarado from this case: The Alvarado
223
Id. at n.4.
224
See proceedings in United States v. Martinez, No. Cr. B-78-
29 (S.D. Tex., Brownsville Div.), particularly the docket sheet
entries for 8/17/79 (motion regarding newspaper reporter made and
rejected); 8/24/79 and 8/27/79 (motions to transfer made).
Martinez was the caption of Alvarado in the district court until
the transfer of proceedings against fourteen defendants, at which
point the case became United States v. Alvarado, No. Cr. V-79-4
(S.D. Tex., Victoria Div.) —— the case appealed to us.
225
Martinez, docket sheet at entry for 8/28/79.
226
Id. at entry for 8/30/79. The court also denied a motion
for mistrial based on some jurors having been seen with a
newspaper. Id. at entry for 9/17/79.
227
Id. at entry for 9/21/79.
89
trial court did not transfer the case sua sponte as did the
Lipscomb court; and the Alvarado defendants advocated transfer,
unlike Lipscomb, who vigorously opposed it. Rather than undermine
our conclusion here, the Alvarado facts confirm our impression that
the transfer in the instant case was quite unusual. Any court that
views Alvarado as trumping today’s holding under our rule of
orderliness will have been led into serious error.228
We have found only one case (from another circuit) that comes
close to supporting the proposition for which the government
contends, but that case ultimately is unpersuasive. In United
States v. Mabry,229 a defendant moved for individual voir dire
regarding pretrial publicity.230 The trial court interpreted this
motion as raising a concern about whether trial in the Albuquerque
division of the district of New Mexico would be fair —— seemingly
228
The dissent’s reliance on two other cases is similarly
misplaced. United States v. Kaufman, 858 F.2d 994, 1006 (5th Cir.
1988) is entirely irrelevant here, because docket management is, as
we have noted, a permissible factor in the Rule 18 balancing, but
one that is entirely absent from this record. The reasoning of the
other Fifth Circuit case that the dissent relies on is also easily
understood:
[T]the Southern District of Texas was the only district
in which (at least absent further evidence) venue was
initially proper as to all counts. While this does not
prevent a Rule 21(b) transfer of all counts to another
district, it is at least an indication that the
government's selection of the forum was not arbitrary.
We conclude that the district court did not abuse its
discretion in denying Fagan's Rule 21(b) motion.
United States v. Fagan, 821 F.2d 1002, 1008 (5th Cir. 1987).
229
809 F.2d 671 (10th Cir. 1987).
230
Id. at 683.
90
to the defendants, not to the government —— and transferred the
case, over the defendants’ objections, to Roswell,231 which we
estimate to be some two hundred miles from Albuquerque. On appeal,
the Tenth Circuit found no abuse of discretion: “There was no
substantial inconvenience to the defendants or the witnesses as a
result of the transfer and no real prejudice has been
demonstrated.”232
We discern several reasons not to follow the Mabry result
here. First, the Mabry district court did not appear to transfer
the case out of concern that the government receive a fair trial.
To this extent, Mabry actually supports Lipscomb’s contention on
that point. Second, the cases on which the Tenth Circuit relied
buttress Mabry’s result only weakly, if at all.233 Third, Mabry’s
transfer holding has been largely ignored by other courts, perhaps
because the Supreme Court later abrogated Mabry’s entrapment-
instruction holding.234 Mabry is thus hardly persuasive authority
231
Id.232
Id.233
See United States v. Raineri, 670 F.2d 702, 706 (7th Cir.
1982) (finding no abuse of discretion where trial court refused to
transfer case to towns that lacked federal courthouses); Burns, 662
F.2d at 1383 (reversing the trial court’s transfer order that was
based conclusionally on the district’s court’s policy of
consolidating criminal trials in one courthouse); United States v.
Young, 618 F.2d 1281, 1288 (8th Cir. 1980) (restating the general
rule that a defendant has no constitutional right to be tried in a
particular district).
234
See United States v. Whalen, 976 F.2d 1346, 1348 n.1 (10th
Cir. 1992) (“Mabry has since been indirectly overruled by Mathews
91
here.
The district court here did not learn through hard experience
that voir dire would be challenging. It developed no facts to
suggest that the pretrial publicity presumptively or actually
tainted the jury pool; it failed to analyze the publicity itself
for prejudice; it applied a wrong and unrealistically high standard
to determine whether the putative jury would be prejudiced; and it
relied on cases of ours that are not on point. There is a plethora
of support for holding that the district court abused its
discretion in transferring Lipscomb’s case to Amarillo.
7. Summary
Both our precedents and persuasive authorities from other
courts suggest, even if only by negative implication, that this
case’s facts and proceedings make it a true outlier in the Rule 18
jurisprudence. In concluding that there was no abuse of discretion
in the aforementioned cases, neither we nor the other courts have
purported to fix any bright-line boundary of that discretion. We
are constrained to set one such limit by example, however,
believing that the district court’s doctrinal mistakes and clear
factual errors make this case an appropriate vehicle with which to
circumscribe at least one boundary of the use of Rule 18
discretion. When as here, facts of convenience militate
exclusively against transfer, and no factor other than pretrial
v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54(1988).”).
92
publicity —— some favorable and some unfavorable to both the
prosecution and the defense —— might, if properly developed and
analyzed, militate in favor of transfer, the trial court abuses its
discretion under Rule 18 by ordering a far-distant intradistrict
transfer, sua sponte and over the defendant’s objections, without
(1) attempting voir dire or otherwise creating a record,
(2) providing an analysis of the publicity for the record to show
how it prejudiced the jury pool, or (3) conducting a Rideau-style
presumptive analysis. In this instance, we as an appellate court
can detect virtually nothing on the Rule 18 scale to counterbalance
the defendant’s established inconvenience; and something outweighs
nothing every time.
Given the district court’s abuse of discretion, we must
reverse Lipscomb’s conviction, vacate his sentence, and remand for
a new trial in a venue determined consistently with this opinion.
VIII. CONCLUSION
The trial court had jurisdiction to try Lipscomb for violating
18 U.S.C. § 666, which is facially constitutional and —— in my own
sole opinion —— is constitutional as applied to him. As we
conclude that the trial court abused its discretion in transferring
Lipscomb’s trial, however, we must reverse and remand for a new
trial. The other issues Lipscomb raises on appeal are either moot,
meritless, or irrelevant to a new trial.
CONVICTION REVERSED, SENTENCE VACATED, AND CASE REMANDED for a new
trial.
93
94
DUHÉ, Circuit Judge, CONCURRING IN PART, DISSENTING IN PART:
I write separately because, although I concur in the
conclusion reached by Judge Wiener that we must reverse Lipscomb’s
conviction, vacate his sentence, and remand for a new trial, I
cannot join his method of getting there. I adopt Judge Wiener’s
factual and procedural background sections; concur in the result
but not the reasoning of Part III; dissent from Parts IV, V, and
VI; and concur in Part VII. I begin with an overview of the
appropriate analytical framework.
I. ANALYTICAL FRAMEWORK
Judge Wiener’s opinion merges analysis of jurisdiction with
analysis of the constitutionality of § 666. In Part IV of his
opinion, Judge Wiener writes that the term “federal jurisdiction”
is ambiguous, and defines it for purposes of this case as
encompassing (a) the question whether we have subject matter
jurisdiction under § 666 over Lipscomb’s conduct (which Judge
Wiener calls “adjudicative jurisdiction”), and (b) the question
whether Congress had the authority to enact § 666 (which Judge
Wiener terms “legislative jurisdiction”, and we term
constitutionality). In this manner, Judge Wiener reaches the
constitutionality of § 666, by calling it a jurisdictional
question. With all due respect, this is a categorization with no
support.
Jurisdiction is discussed in terms of “legislative” and
“adjudicative” in only one context in American law – native
American law.235 This case does not arise in that context, so we
must follow the generally applied definition of “federal
jurisdiction”.
Black’s Law Dictionary defines “federal jurisdiction” as
“powers of federal courts founded on United States Constitution
(Article III) and Acts of Congress (e.g. Title 28 of United States
Code)”.236 Federal jurisdiction is not defined as the power of
Congress to enact a statute. Professor Erwin Chemerinsky’s treatise
on the subject, widely regarded as comprehensive, not once mentions
legislative jurisdiction or the power of Congress to enact
statutes.237 The only discussion of congressional authority is
Congress’ authority to control federal jurisdiction, and
235
See Strate v. A-1 Contractors, 520 U.S. 438, 440, 117 S.Ct.
1404, 1406, 137 L.Ed. 2d 661 (1997); Iowa Mut. Ins. Co. v.
LaPlante, 480 U.S. 9, 12, 107 S.Ct. 971, 974, 94 L.Ed. 2d 10(1987); Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 n.6 (10th
Cir. 1997); Louis v. United States, 967 F. Supp. 456, 459 (D. N.M.
1997). Judge Wiener cites Justice Scalia’s dissenting opinion in
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 113 S.Ct. 2891,
125 L.Ed. 2d 612 (1993) as support for his contention that the term
“jurisdiction” can mean both legislative and adjudicative
jurisdiction. However, Justice Scalia’s words do not support Judge
Wiener’s application. In Hartford Fire, Justice Scalia was faced
with determining the extraterritorial reach of a statute – a
constitutional issue placed by the parties before the Court – and
to do so he had to consider whether Congress had the power to enact
the statute with application outside our borders. This, he termed
“legislative jurisdiction”. Hartford Fire, 509 U.S. at 813-14, 113
S.Ct. at 2918-19. He did not term it “jurisdiction” as a means of
raising extraterritoriality sua sponte, in an end-run around our
requirement that parties argue those issues they wish before us.
236
Black’s Law Dictionary 612 (1990).
237
See Erwin Chemerinsky, Federal Jurisdiction (1994).
96
congressional power to create courts.238 Neither of these questions
is before us.
Moreover, Lipscomb explicitly asked that we find no subject
matter jurisdiction. “The alleged bribery here had no connection to
a federally funded program and, thus, the court below was without
subject matter jurisdiction to proceed.”239 Even if Judge Wiener’s
categorization can find support in the law, Lipscomb explicitly
seeks a determination of adjudicative, not legislative
jurisdiction.
Judge Wiener’s categorization fails when extended to its
logical conclusion, which he affirmatively does in his opinion. He
writes: “[A] federal forum must lack adjudicative jurisdiction to
hear a case based on a federal statute that Congress lacked the
legislative jurisdiction (translation: constitutional power or
authority) to apply to the situation in question.” This implies
that federal courts must always consider constitutionality, even
raising it sua sponte, when interpreting a statute. This elevates
constitutionality to a category of claims over which we always have
jurisdiction, and this is unsupported by our jurisprudence.
For the foregoing reasons, I respectfully submit that Judge
Wiener’s is an erroneous analytical framework, and leads to
inappropriate consideration of the constitutionality of § 666. For
238
See id. at 167-246.
239
See App. Brief at 28.
97
this reason, I believe it necessary to outline the appropriate
analytical framework.
As a threshold matter in all cases, we are faced with the
question whether we have personal and subject matter
jurisdiction.240 If we find that we do, we then address whatever
substantive issues are before us. This is an abstract description
of our task – what it means here is that we must first determine
whether Lipscomb’s actions fall within the jurisdiction of § 666,
and if our answer is “yes,” then address the merits of his appeal.
It is at this second step that, were constitutionality at issue, it
would arise. Constitutionality is an issue on the merits, not a
jurisdictional one.
Our governing precedent interpreting § 666 does exactly this.
We have first answered the jurisdictional question, and have not
taken it upon ourselves to consider the constitutionality of § 666
if it was not appropriately before us on the merits.241
240
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94, 118 S.Ct. 1003, 1012, 140 L.Ed. 2d 210 (1998) (“On every writ
of error or appeal, the first and fundamental question is that of
jurisdiction...”) (qtg. Great S. Fire Proof Hotel Co. v. Jones, 177
U.S. 449, 453, 20 S.Ct. 690, 691-92, 44 L.Ed. 842 (1900)). See also
United States v. Texas Tech Univ., 171 F.3d 279, 287 (5th Cir.
1999).
241
See, for example, United States v. Reyes, 239 F.3d 722 (5th
Cir. 2001) (affirming a conviction under § 666 and making no
constitutional ruling), cert. denied, Maldonado v. United States,
533 U.S. 961, 121 S.Ct. 2618, 150 L.Ed. 2d 772 (2001); and cert.
denied, Reyes v. United States, 122 S.Ct. 156, 151 L.Ed. 2d 106(2001); United States v. Phillips, 219 F.3d 404 (5th Cir. 2000)
(reversing a conviction under § 666 but making no constitutional
ruling); United States v. Westmoreland, 841 F.2d 572 (5th Cir.
98
In United States v. Westmoreland,242 a county supervisor
appealed her conviction under § 666 for accepting kickbacks in
purchases of county materials. A panel of this court affirmed her
conviction. Judge King’s carefully crafted opinion first considers
the jurisdictional scope of § 666. After finding that § 666 did
apply to Westmoreland’s conduct, and thereby answering the
jurisdictional question in the affirmative, the opinion addresses
the substantive issues of the case.
Nine years later, the Supreme Court decided Salinas v. United
States,243 an appeal of the conviction of a Texas county sheriff for
accepting bribes in exchange for allowing a federal prisoner housed
in the county jail to receive conjugal visits. There, the Court
affirmed the sheriff’s conviction, holding that federal
jurisdiction under § 666 is not limited to cases in which the bribe
has a demonstrated effect upon federal funds. The Court later
asserted the constitutionality of § 666 as applied to that case.
The Salinas decision followed the two-step approach – first
determine jurisdiction, and then address whatever substantive
issues are before the court. The Court decided Salinas on
jurisdictional grounds, and then went on to mention that § 666 was
constitutional as applied.
1988) (affirming a conviction under § 666 and making no
constitutional ruling).
242
841 F.2d 572 (5th Cir. 1988).
243
522 U.S. 52, 118 S.Ct. 469, 139 L.Ed. 2d 352 (1997).
99
Since Salinas, this circuit has been faced with questions of
the jurisdictional reach of § 666 twice before the case at bar.
Both times we followed the “jurisdiction-merits” two-step.
In United States v. Phillips,244 we reversed the conviction
under § 666 of a parish tax assessor, holding that he was not an
agent of the parish for purposes of the statute. Thus, the
statute’s jurisdiction did not extend to his actions. No discussion
of the merits was required; and the ensuing discussion on potential
constitutional issues is entirely dicta, because this court was
without jurisdiction to hear the case.
Our most recent holding on the applicability of § 666 was in
United States v. Reyes,245 where we affirmed the § 666 conviction of
a city councilman for accepting kickbacks on city contracts. We
held that whatever nexus is statutorily required for jurisdiction
under § 666, existed in that situation. We then went on to address
the evidentiary and sentencing issues before us.
Our analytical approach here should be exactly like that in
the above-cited line of cases. We must satisfy ourselves of our
jurisdiction, and then go on to address whatever issues are before
us on the merits. For the foregoing reasons, the constitutionality
of § 666 is a question on the merits that we will only address if
244
219 F.3d 404 (5th Cir. 2000).
245
239 F.3d 722 (5th Cir. 2001), cert. denied, Maldonado v.
United States, 533 U.S. 961, 121 S.Ct. 2618, 150 L.Ed. 2d 772(2001); and cert. denied, Reyes v. United States, 122 S.Ct. 156,
151 L.Ed. 2d 106 (2001).
100
(a) we find we have jurisdiction over this case, and (b) we find it
appropriately before us.
II. STEP ONE – JURISDICTION
Our first step in the analytical two-step is to satisfy
ourselves of our jurisdiction over this case. Lipscomb argues that
we do not have subject matter jurisdiction, because his actions do
not fall within those governed by § 666. He argues that
jurisdiction under § 666 does not extend to cases of local bribery
such as his, where the underlying conduct does not directly involve
federal funds. A detailed review of Fifth Circuit and Supreme Court
precedent demonstrates that his argument fails as a matter of
statutory construction.246
(A) Early Fifth Circuit Precedent
We first interpreted § 666 in United States v. Westmoreland.247
There, the defendant was a county supervisor convicted of accepting
bribes in purchases of materials for the county’s highway
construction projects.248 The district court found that the federal
funds received by the county were not spent by Westmoreland,249 and
246
Because Article III of the United States Constitution
authorizes federal courts to hear matters arising under all federal
laws, and § 666 is a federal law, we may turn directly to whether
there is statutory jurisdiction. U.S. CONST., Art. III. The question
whether § 666 is a valid exercise of congressional authority is not
before us when we determine our jurisdiction.
247
841 F.2d 572 (5th Cir. 1988).
248
See id. at 574-75.
249
See id.101
nonetheless convicted her under § 666.
Westmoreland argued on appeal that her bribery did not fall
under the jurisdiction of § 666, because it did not concern federal
funds.250 We rejected this argument, concluding through statutory
interpretation that federal funds need not be traceable to the
“tainted transactions” in order for those transactions to be
punishable under the statute:
[W]e find the relevant statutory language plain and
unambiguous. By the terms of section 666, when a local
government agency receives an annual benefit of more than
$10,000 under a federal assistance program, its agents
are governed by the statute, and an agent violates
subsection (b) when he engages in the prohibited conduct
“in any transaction or matter or series of transactions
or matters involving $5,000 or more concerning the
affairs of” the local government agency. 18 U.S.C. §
666(b) (Supp. 1984) [emphasis added]. Subsection (b)
contains nothing to indicate that “any transaction
involving $5,000" means “any federally funded transaction
involving $5,000" or “any transaction involving $5,000 of
federal funds,” and other subsections of the statute
contain no inconsistent provisions that might suggest
such a qualification.251
We next reviewed the jurisdictional reach of § 666 in United
States v. Moeller.252 There, the government appealed the dismissal
of § 666 claims against employees of the Texas Federal Inspection
Service, state workers empowered to conduct federal inspections.253
We held that jurisdiction under § 666 extended to the employees’
250
See Westmoreland, 841 F.2d at 575.
251
Id. at 576.
252
987 F.2d 1134 (5th Cir. 1993).
253
See id.102
actions, because the Texas Department of Agriculture, a “government
agency” within § 666, received more than $10,000 a year in federal
funds; and the defendants were “agents” of that federally-funded
agency for purposes of § 666.254
In United States v. Marmolejo,255 we upheld the conviction of
a sheriff who accepted bribes in return for permitting conjugal
visits to a federal prisoner whom Texas, in return for a fee from
the federal government, housed in a facility constructed with
federal funds.256 In holding that these actions came under the
jurisdiction of § 666, we referenced our earlier statutory
decisions: “[w]e have previously held that § 666(a)(1)(B) does not
require the government to prove that federal funds were directly
involved in a bribery transaction, or that the federal monies
funded the corrupt transaction.”257 We went on to conclude that
conjugal visits are “anything of value” under the statute.
The dissent in Marmolejo argued that Westmoreland interpreted
§ 666 to reach “only those acts of bribery that could somehow be
traced, directly or indirectly, to the integrity of federal program
254
See id. at 1137-38.
255
89 F.3d 1185 (5th Cir. 1996), aff’d sub nom. Salinas v.
United States, 522 U.S. 52 (1997).
256
See Marmolejo, 89 F.3d at 1188-89, 1201.
257
Id. at 1191 (citing Westmoreland, 841 F.2d at 578).
103
funds.”258
(B) The Supreme Court Weighs In
The Supreme Court granted certiorari in Marmolejo on whether
§ 666 is “limited to cases in which the bribe has a demonstrated
effect upon federal funds.”259 Under the caption Salinas v. United
States, the Court stated that “[t]he statute’s plain language fails
to provide any basis for limiting § 666(a)(1)(B) to bribes
affecting federal funds” and that the legislative history
“forecloses this type of limitation.”260 The Court therefore decided
that as a statutory matter, federal funds need not be directly
involved in a violation of § 666.261 The Court then in passing
asserted the constitutionality of § 666 as applied to the case at
bar.262
258
Id. at 1203. “Turning to the precise legislative history,
I find that it clearly reveals that Congress did not intend for §
666(a)(1)(B) to be applied to conduct such as the acceptance of
bribes to allow conjugal visits. Instead, Congress was only
concerned with protecting the federal monies disbursed to non-
federal entities.” Id.
259
Salinas v. United States, 522 U.S. 52, 54, 118 S.Ct. 469,
471-72 (1997).
260
Id. at 57, 59.
261
See id. at 56-57.
262
See Salinas, 522 U.S. at 61. Judge Wiener cites this as
evidence that we too should consider the constitutionality of § 666
here. However, the Supreme Court’s assertion in passing that § 666
was constitutional as applied does not bind us to rule on the
constitutionality of § 666 as applied to Lipscomb here. First, we
are not the Supreme Court and have different limitations on our
jurisdiction. The Supreme Court, unlike us, is the definitive voice
in interpreting federal statutes. See Erwin Chemerinsky, Federal
104
Since Salinas, the Supreme Court has decided only one other
case involving § 666 – United States v. Fischer.263 There the Court
affirmed the conviction of a defendant who defrauded a city
hospital authority that participated in the federal Medicare
program.264 The Fischer analysis, however, is not relevant to this
case.
(C) Recent Fifth Circuit Cases
The first Fifth Circuit panel to interpret § 666 post-Salinas
decided United States v. Phillips.265 There, we reversed the
conviction of a parish tax assessor, holding that he was not an
“agent” of St. Helena Parish for purposes of the statute. Thus, the
statute’s jurisdiction did not reach his activity. This has little
bearing on our case, as city councilmen are clearly “agents” under
the statute.266
Jurisdiction 571 (1994). Second, the Supreme Court in Salinas
declined to avoid the constitutional question because it considered
it a greater disservice to “rewrite language enacted by the
legislature” than to fail to avoid the issue. Salinas, 522 U.S. at
59. This reasoning does not compel us to reach the
constitutionality of § 666 here; if anything, it counsels against
that. We are not rewriting § 666 – we are faithfully reading the
language of the statute, and recognizing that in order to question
the congressionally-enacted language, the issue of
constitutionality must be explicitly before us.
263
529 U.S. 667, 120 S.Ct. 1780, 146 L.Ed. 2d 707 (2000).
264
See id., 529 U.S. at 669-70, 681, 120 S.Ct. at 1782-83,
1788-89.
265
219 F.3d 404 (5th Cir. 2000).
266
See United States v. Reyes, 239 F.3d 722 (5th Cir. 2001),
cert. denied, Maldonado v. United States, 533 U.S. 961, 121 S.Ct.
105The two most recent Fifth Circuit § 666 cases demonstrate our
continued commitment to applying § 666 to members of city councils,
like Lipscomb, and support our finding of jurisdiction here.
In United States v. Reyes267 we affirmed the § 666 conviction
of a city councilman for accepting kickbacks on city contracts. We
held that whatever nexus is statutorily required for jurisdiction
under § 666, existed in that case.268
More recently, we decided United States v. Williams269 without
discussing jurisdiction at all. Williams, a former city councilman,
was convicted under § 666 of “aiding and abetting others in the
corrupt solicitation and acceptance of bribery payments”.270 We
affirmed his conviction.
(D) The Bottom Line
Fifth Circuit and Supreme Court precedent alike construe the
jurisdictional reach of § 666 broadly. Federal funds need not be
directly involved in a violation of § 666. The Phillips panel
construed the term “agent” narrowly, and reversed the conviction,
2618, 150 L.Ed. 2d 772 (2001); and cert. denied, Reyes v. United
States, 122 S.Ct. 156, 151 L.Ed. 2d 106 (2001); United States v.
Williams, 264 F.3d 561 (5th Cir. 2001).
267
239 F.3d 722 (5th Cir. 2001), cert. denied, Maldonado v.
United States, 533 U.S. 961, 121 S.Ct. 2618, 150 L.Ed. 2d 772(2001); and cert. denied, Reyes v. United States, 122 S.Ct. 156,
151 L.Ed. 2d 106 (2001).
268
See id. at 734.
269
264 F.3d 561 (5th Cir. 2001).
270
Id. at 567.
106
but that is irrelevant to our case, because the term “agent”
plainly includes city council members. The Westmoreland view of §
666 therefore continues to be the law in this circuit, and
precludes us from more narrowly construing the statute here.
Because Lipscomb’s actions satisfy the jurisdictional requirements
found in the language of § 666, we conclude that the district court
had jurisdiction to try Lipscomb under § 666, and turn to the
issues which the parties put before us on the merits.
III. STEP TWO – MERITS
Before reaching the issues raised by Lipscomb, I must address
the issue of the constitutionality of § 666 – an issue raised not
by the Appellant, but by the opinions of my colleagues on this
panel. This issue is not properly before us, but because my
colleagues have raised it, I respond.
(A) Constitutionality of § 666
There do exist troubling constitutional issues under the
surface of this case. Whether Congress had the authority it claimed
to enact § 666 under the Spending Clause of the Constitution, U.S.
CONST., art. I, § 8, is a close question. However, although my
colleagues hold otherwise, it is not our question today. We may
only decide those issues properly before us, and the constitutional
question is not such an issue. It was argued neither at trial nor
on appeal, and there is no legal justification for us to raise it
sua sponte.
(1) Not Argued at Trial
107
The record shows that despite mention of potential
constitutional issues, Lipscomb never argued at trial that § 666
was unconstitutional as applied to him. Following is discussion of
the four motions by which he made the jurisdictional argument, and
where any constitutional discussion at all (not sufficient to raise
the issue of constitutionality) exists.
(a) Motion to Dismiss the Indictment or, Alternatively,
for an Evidentiary Hearing Requiring the Government to
Establish Federal Jurisdiction
On September 3, 1999, Lipscomb filed a Motion to Dismiss the
Indictment or, Alternatively, for an Evidentiary Hearing Requiring
the Government to Establish Federal Jurisdiction.271 It is worth
noting that the title of the Motion shows that it seeks proof of
federal jurisdiction, and does not challenge the constitutionality
of § 666. Moreover, Lipscomb crafts his arguments in support of the
Motion in terms of challenging federal jurisdiction. “In this
case... no sufficient jurisdictional basis is evident.”272 “On its
face, this indictment fails even to allege an appropriate basis for
the exercise of federal jurisdiction....”273
Lipscomb does mention the potential constitutional problems
that could arise if § 666 is applied to his conduct. He goes so far
as to say “[s]ection 666 is being unconstitutionally applied in
271
See R. at 60.
272
R. at 62.
273
R. at 63.
108
this case,” and mentions possible Tenth Amendment consequences of
applying § 666 to Lipscomb’s conduct.274 Moreover, one of Lipscomb’s
attorneys signed the Motion as “Special Counsel for Tenth Amendment
purposes only”.275 However, this discussion arises in the context of
a challenge to jurisdiction, not as a challenge to the
constitutionality of the statute as applied (which would arise
under the Spending Clause, not the Tenth Amendment). Even the
statement “[s]ection 666 is being unconstitutionally applied in
this case”276 stands alone, and is not supported by any argument.
The District Court denied Lipscomb’s motion:
Came to be considered the motion of the defendants to
dismiss the indictment for lack of federal jurisdiction,
and after due consideration thereof, as well as a plain
reading of the statute, and the briefs and arguments of
counsel, this court is of the opinion that the motion
should be DENIED.277
Judge Kendall declined to dismiss the indictment because he found
that federal jurisdiction did exist. He neither mentioned nor
considered the constitutionality of § 666. His Order includes the
hand-written addition of the phrase “as well as a plain reading of
the statute,” further supporting the conclusion that his analysis
was a statutory and not a constitutional one.
(b) Motion for Judgment of Acquittal Pursuant to Rule
274
Id.
275
R. at 66.
276
R. at 63.
277
Id.
109
29(A), Following the Government’s Case in Chief
Following the government’s case, Lipscomb moved the District
Court for Judgment of Acquittal.278 Lipscomb argued that some nexus
between the bribe and the federally-funded program must exist in
order for there to be jurisdiction, and that here, no such
connection exists.279 He couched his argument in terms of “get[ting]
this case in federal court properly,” which is clearly a
jurisdictional concern.280 Later in the colloquy Lipscomb’s attorney
told Judge Kendall that “666 doesn’t cover this”,281 another
argument about the scope of jurisdiction under § 666.
The Government’s response follows the same approach, citing
cases that analyze the jurisdictional reach of § 666, not its
constitutionality.282 The District Court denied the Motion.
(c) Motion for Judgment of Acquittal Pursuant to Rule
29(A), Following the Jury Verdict
On February 8, 2000, following the jury verdict, Lipscomb
again moved the District Court for Judgment of Acquittal.283
He argued that the Government failed to present evidence of a
connection between the alleged bribes and a federally-funded
278
See R. Vol. 13 at 32.
279
See id. at 36-9.
280
Id. at 37.
281
Id. at 40.
282
See id. at 41-2.
283
See R. at 556.
110
program.284 Lipscomb asks the court again to find a failure of
jurisdiction due to the lack of nexus.
The Government’s response cites case law analyzing the
jurisdictional reach of § 666.285 The Government makes no argument
that § 666 is constitutional as applied, suggesting that it did not
consider a constitutional argument raised. Further, the District
Court’s denial of Lipscomb’s Motion makes no mention of a
constitutional issue.286
(d) Conditional Motion for Voluntary Surrender Date and
Bond Pending Appeal
Lipscomb filed a Conditional Motion for Voluntary Surrender
Date and Bond Pending Appeal on April 26, 2000.287 He sought bond
pending appeal because:
it is legitimately predictable that the Fifth Circuit in
light of the Salinas [sic] opinion and its subsequent
interpretation by the other federal circuits will revisit
its past positions regarding the necessary connection
between the federal funds and the alleged bribes.288
Lipscomb seeks bond because he thinks the Fifth Circuit on appeal
will find a nexus requirement for jurisdiction under § 666. This is
a pure question of statutory interpretation. Nowhere does Lipscomb
seek bond pending appeal because he thinks the Fifth Circuit might
284
See R. at 560.
285
See R. at 600, 617-19.
286
See R. at 644.
287
See R. at 898.
288
R. at 901.
111
find § 666 as applied to his conduct unconstitutional. That is
because he never made such an argument.
(2) Not Argued on Appeal
Even assuming arguendo that constitutionality was argued at
trial, it was certainly not preserved on appeal, which is required
if we are to consider it. The record shows that despite mention of
potential constitutional issues, Lipscomb did not argue on appeal
that § 666 was unconstitutional as applied to him.
Lipscomb’s Appellate Brief repeatedly uses the vocabulary of
jurisdiction, not constitutionality, to define his claim. In his
request for oral argument, Lipscomb writes that “[t]his appeal
involves a substantial jurisdictional question,” and never mentions
a constitutional question.289 Moreover, Lipscomb defined the issue
as follows:
The fact that the City of Dallas received federal funds
in excess of $10,000 in a given year does not, without
more, establish federal jurisdiction to prosecute a City
Councilman for bribery under 18 U.S.C. 666 [sic].290
Constitutionality is not mentioned.
Lipscomb writes that “it is incumbent upon federal courts –
trial and appellate – to constantly examine the basis for
jurisdiction....”291 “A nexus between the expenditure of federal
289
App. Brief at ii.
290
Id. at iii, 2, 19 (emphasis added).
291
Id. at 19, qtg. Save the Bay, Inc. v. United States Army,
639 F.2d 1100, 1102 (5th Cir. 1981).
112
funds and the illicit conduct, bribery, is inherent in the
statutory scheme and consistent with the legislative history.”292 He
goes on to say:
Federal jurisdiction was entirely contrived here. The
alleged bribery was unrelated to any expenditure of
federal monies. Accordingly, Federal [sic] jurisdiction
did not and does not exist.293
Lipscomb’s argument is it is a jurisdictional requirement of § 666
that there be some connection between the bribe and the federal
funds.294
Lipscomb concludes his argument on this issue with the words
“[t]he alleged bribery here had no connection to a federally funded
program and, thus, the court below was without subject matter
jurisdiction to proceed.”295 I can imagine no clearer statement that
his claim is jurisdictional, unless you consider Lipscomb’s
conclusion and plea for relief:
For the foregoing reasons, the defendant-appellant,
ALBERT LOUIS LIPSCOMB, respectfully requests that this
Court reverse these convictions and remand the case to
the district court with instructions to dismiss the
indictment for lack of federal jurisdiction.296
Lipscomb’s Appellate Brief also sheds light on his District
Court arguments, and exposes them as purely jurisdictional, not
292
App. Brief at 14.
293
Id.
294
See id. at 20.
295
App. Brief at 28.
296
Id. at 59 (emphasis added).
113
constitutional. He writes that he “objected to the absence of
federal jurisdiction before, during and after trial.”297 Not once
does he claim to have objected at trial on the basis that the
statute was unconstitutional. Moreover, had he thought that he had
argued constitutionality at trial, we would expect him on appeal to
challenge the District Court’s failure to decide that issue.
Lipscomb makes no such challenge, further showing that he never
made an argument regarding the constitutionality of § 666.
Lipscomb does mention that contrary statutory interpretation
could raise constitutional concerns.298 However, as before the
District Court, this is mere mention of potential constitutional
concerns in the context of a jurisdictional challenge; it is not a
challenge to the constitutionality of § 666. Moreover, Lipscomb
mentions the potential constitutional issue in order to exhort us
to avoid it.299
The Government’s Brief continues the dialogue in
jurisdictional terms.300 It does not defend the constitutionality of
§ 666, strongly suggesting the Government did not consider that
issue raised. Appellant’s Reply Brief follows suit.301
297
Id.; see also id. at 19.
298
See App. Brief at 14, 20, 22-5, 27.
299
See id. at 27-8.
300
See U.S. Brief at ii, 2, 31, 33-40.
301
See App. Reply Brief at i, 1-5, 16-21.
114
(3) No Legal Basis to Reach Constitutional Issue
Despite the urgings of my colleagues to the contrary, no facts
exist to support the contention that Lipscomb ever argued the
constitutionality of § 666, or preserved that issue on appeal.
However, assuming for sake of argument only the allusions to a
potential constitutional issue found in the record are sufficient
to raise the issue and preserve it for appeal, we still may not
decide the issue. There exists no legal support for the
constitutional determinations made by my colleagues today.
(a) Court of Error
Our jurisdiction is exclusively appellate,302 and we are not
endowed with any original jurisdiction except in aid of our
appellate jurisdiction.303 These rules embody the policy that legal
issues should be developed initially before the district courts. As
a panel of this circuit put it, “[g]enerally speaking, we are a
court of errors and appeals.”304 The trial court cannot have erred
as to matters which were not presented to it, nor decided by it.305
This is black letter law.
302
See Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct.
938, 87 L.Ed. 1185 (1943); United States v. Mayer, 235 U.S. 55, 35
S.Ct. 16, 59 L.Ed. 129 (1914). See also Charles Alan Wright, Law of
Federal Courts 10 (1983).
303
See Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 938, 50 L.Ed.
963 (1906); Travis County v. Kind Iron Bridge & Mfg. Co., 92 F. 690(5th Cir. 1899).
304
Gavel v. Lynaugh, 835 F.2d 124, 125 (5th Cir. 1988).
305
See id.115
Here, the district court did not consider the
constitutionality of § 666. Thus, we have no decision on
constitutionality to review.306 Moreover, it was not error for the
district court not to consider the constitutional issue, because
that issue was never presented to it.
Of course, there are some situations in which appellate courts
have jurisdiction to raise issues on their own.307 For example, if
parties do not raise the issue of jurisdiction, or even if they
contend that the Court of Appeals has jurisdiction, we still must
determine, sua sponte, whether we have jurisdiction in a particular
case.308 However, constitutional questions are not among those which
we can raise sua sponte.
(b) Issue Not Briefed
Appellant’s brief must contain the “appellant’s contentions
and the reasons for them”.309 Issues that are not clearly designated
in the appellant’s brief are normally deemed abandoned.310 This is
306
Therefore, even assuming, arguendo, that the parties
adequately raised the issue of the constitutionality of § 666
before us on appeal, we are without authority to decide that
question. Were this question appropriately before us, we would not
have the power to rule on constitutionality, as both Judge Wiener
and Judge Smith are so eager to do; we would rather be bound to
remand the issue to the district court for determination.
307
See Charles Alan Wright, Law of Federal Courts 10 (1983).
308
See United States v. Garner, 749 F.2d 281 (5th Cir. 1985).
309
Fed. R. App. P. 28(a)(9)(A).
310
See United States v. Miranda, 248 F.3d 434, 444 (5th Cir.
2001), cert. denied, Miranda v. United States, 122 S.Ct. 410, 151
116
especially true in the context of constitutional issues. We
generally do not anticipate constitutional questions, but wait
until a case is presented that requires a decision of a
constitutional issue.311 There is also established Supreme Court
precedent declining to address constitutional questions not put in
issue by the parties.312
This Circuit held last year that “[c]iting cases that may
contain a useful argument is simply inadequate to preserve that
argument for appeal,”313 in Clyde Bergemann, Inc. v. The Babcock &
Wilcox Co., 250 F.3d 955 (5th Cir. 2001). Bergemann was a creditor
who objected to a financing arrangement between the debtors and a
bank which would let the debtors continue operating. On appeal he
argued, inter alia, that the financing arrangement was a fraudulent
conveyance of assets. However, his brief to the bankruptcy court
referred to that issue only in passing. Although he quoted two
L.Ed. 2d 312 (2001); and cert. denied, Espinoza v. United States,
122 S.Ct. 823, 151 L.Ed. 2d 705 (2002); Fehlhaber v. Fehlhaber, 681
F.2d 1015, 1030 (5th Cir. 1982).
311
See Texas v. Grundstrom, 404 F.2d 644, 648 (5th Cir. 1968).
312
See, for example, Andrews v. Louisville & Nashville
Railroad Co., 406 U.S. 320, 324-5, 92 S.Ct. 1562, 1565, 32 L.Ed. 2d
95 (1972) (“The constitutional issue discussed in the dissent was
not set forth as a ‘question presented for review’ in the petition
for certiorari, and therefore our [rule] precludes our
consideration of it.”); Mazer v. Stein, 347 U.S. 201, 206 n.5, 74
S.Ct. 460, 464 n.5, 98 L.Ed. 630 (1954) (“We do not reach for
constitutional questions not raised by the parties.”).
313
In re Babcock & Wilcox Co., 250 F.3d 955, 961 (5th Cir.
2001).
117
cases in that brief, neither quotation identified the issue of
fraudulent conveyance sufficiently for the bankruptcy court to rule
on it, nor was there any discussion of how the theory applied. We
held the issue waived.
Here neither party raised the constitutionality of § 666 in
its briefs or arguments before us. Thus, it is beyond the scope of
our review.
(c) Avoidance of Constitutional Questions
Even assuming everything else away, and considering the
constitutional issue adequately raised, we still have the duty to
decline to decide that issue unnecessarily. It is a well-
established canon of construction that federal courts avoid
addressing constitutional questions when possible, even those that
are raised by the parties.314 As stated by Justice Brandeis in his
well-known and oft-cited concurring opinion (dissenting in part) in
Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S. Ct. 466, 483, 80 L.
Ed. 688 (1936):
The Court will not anticipate a question of
constitutional law in advance of the necessity of
deciding it. It is not the habit of the court to decide
questions of a constitutional nature unless absolutely
necessary to a decision of the case. ... The Court will
not pass upon a constitutional question although properly
presented by the record, if there is also present some
other ground upon which the case may be disposed of. ...
Thus, if a case can be decided on either of two grounds,
one involving a constitutional question, the other a
question of statutory construction or general law, the
314
See Ashwander v. Tennessee Valley Authority, 297 U.S. 288,
56 S.Ct. 466, 88 L.Ed. 688 (1936) (Brandeis, J., concurring).
118
Court will decide only the latter.315
The Fifth Circuit has agreed that we will not take a constitutional
question for decision if there is some other legitimate ground on
which the case can be decided.316
Because this case can legitimately be decided on
jurisdictional grounds (in fact, that is the issue briefed and
argued), we must avoid any constitutional decision.
(4) Conclusion
It is quite likely that a case will someday arise that
squarely challenges the constitutionality of § 666, but this is not
that case. Until that day, we must answer only those questions
before us. Because the constitutionality of § 666 was not argued at
trial or on appeal, and there is no legal justification for our
reaching it, I must respectfully dissent from the entire discussion
of constitutionality found in the opinions of both Judge Wiener and
Judge Smith.317
315
Id. (internal citations omitted, emphasis added).
316
See Grundstrom, 404 F.2d at 648.
317
Judge Smith challenges my analysis of whether the
constitutional issue was raised as “hyper-technical,” and
“elevat[ing] semantics over substance. While I appreciate the value
he places on avoiding hyper-technicality, I cannot agree with
elevating that goal over our requirement that parties raise the
issues they wish us to decide. I seek no magic words; I wish only
that the parties would clearly raise those issues they wish us and
the district court to decide (as our precedent requires). The
parties here did not meet even this most-light burden on the issue
of the constitutionality of § 666.
In the same vein, Judge Smith accuses me of invoking the
119
(B) Transfer
I concur in Judge Wiener’s discussion and conclusions on the
transfer issue.
CONCLUSION
For the foregoing reasons, I concur in part and dissent in
part, but share Judge Wiener’s conclusion that we must reverse
Lipscomb’s conviction, vacate his sentence, and remand for a new
trial.
“rigid form pleading” that was eliminated by the Federal Rules of
Civil Procedure. This misunderstands my analysis. To the contrary,
I am not concerned with what the parties raise in the complaints
and answers that set out in broad brushstrokes the case they intend
to bring. However, we must (and our precedent shows we do) require
parties to specifically argue before us and the district court, at
some point during the adjudication of their dispute, what issues
they wish decided. The courts are not required to divine what
issues are before them, nor do they have the power to choose what
issues they would like to be before them – that is the
responsibility of the parties.
The conclusions of Judge Wiener and Judge Smith place a burden
on the trial court to read between the lines of the parties’
arguments and ascertain what the parties “should have” or “could
have” argued. That is just not the way our judicial system works.
The burden lies with the parties to place a case or controversy
before the court. On the issue of constitutionality, that burden
was not met here. Requiring judges to act as mindreaders, as Judge
Wiener and Judge Smith do here, cannot be an acceptable part of our
judicial system.
120
JERRY E. SMITH, Circuit Judge, dissenting:
I would reverse the conviction and render a judgment of dis-
missal with prejudice, thereby precluding a retrial of defendant
Albert Lipscomb. Accordingly, I respectfully dissent from the con-
trary result reached by Judge Wiener’s opinion and Judge Duhé’s
partial concurrence, which is to subject this seventy-seven-year-
old defendantSSwho has already served more than half of his ap-
proximately three and one-half-year sentence of incarceration wait-
ing for his appeal to be decidedSSto a new trial under a statute
that has no application to him.
Two of the three judges on this panel are of the view that
Lipscomb properly raised the issue of whether 18 U.S.C. § 666 is
unconstitutional as applied to him. Nonetheless, we fail to decide
that issue because one of the judges declines to address it, leav-
ing the other two judges evenly split on the question. If we were
to address it, we should easily conclude that Congress has no au-
thority to criminalize Lipscomb’s conduct, and the government had
no authority to subject him to a first trial, let alone a second
one.
I.
Judge Duhé is correct that “[c]onstitutionality is an issue on
the merits, not a jurisdictional one.” He also accurately states
that a criminal defendant may waive constitutional challenges to a
statute by failing to argue them. Although Judge Duhé follows the
proper methodology by looking to Lipscomb’s four trial motions and
his appellate brief for the answer, Judge Duhé errs in applying a
hyper-technical test in reviewing Lipscomb’s arguments, a test
that elevates semantics over substance.
Our inquiry is a relatively easy one: Has Lipscomb argued
that Congress cannot reach his conduct under the United States
Constitution? When we focus on the text of Lipscomb’s motions and
briefs, we can have no doubt that the answer is yes.
A.
Judge Duhé argues that Lipscomb’s September 3, 1999, “Motion
To Dismiss the Indictment or, Alternatively, for an Evidentiary
Hearing Requiring the Government To Establish Federal Jurisdiction”
is a motion that “seeks proof of federal jurisdiction, and does not
challenge the constitutionality of § 666.” But the full text shows
that Lipscomb is making a constitutional argument; he just uses the
words “jurisdiction” and “power” interchangeably:
However, in Salinas, the Court squarely left open
the question whether Section 666 “requires some other
kind of connection between a bribe and the expenditure of
federal funds” lest it be applied in some manner which
would alter or fail to “give proper respect to the
federal-state balance” of powers [quoting Salinas]. The
Court found “no serious doubt about the constitutionality
of Section 666(a)(1)(B) as applied to the facts of this
case” [quoting Salinas].
In this case, however, no sufficient jurisdictional
basis is evident . . . . Any exercise of federal
122
jurisdiction must demonstrate a proper respect for con-
cepts of dual sovereignty and federalism. On its face,
this indictment fails even to allege an appropriate basis
for the exercise of federal jurisdiction and accordingly
Section 666 is being unconstitutionally applied in this
case . . . .
The Tenth Amendment . . . provides: [quoting] . . .
[T]he 'double security' embodied in the concept of fed-
eralism requires 'a proper balance between the States and
the Federal Government” [citing Gregory v. Ashcroft, 501
U.S. 452, 459 (1991)]. The States' constitutional pre-
rogatives plainly include their “constitutional re-
sponsibility for the establishment and operation of its
own government . . . .” Under our federal system, states
possess the primary authority to define and enforce crim-
minal law [citing United States v. Lopez, 514 U.S. 549,
561 n.3 (1995)].
Thus, the application of Section 666 in circumstanc-
es with no evident assertion of a federal interest of-
fends two state prerogatives: (1) the States' constitu-
tional responsibility for regulation of electoral govern-
ment and for the establishment and operation of its own
government and the qualifications of its officials; and
(2) the definition and enforcement of criminal law. As
a constitutional principle, it simply cannot be that
$10,000.00 in federal funds provided to a major city
trumps the Tenth Amendment and the prerogatives and re-
sponsibilities reserved to the States therein. The Tenth
Amendment, after all, 'was enacted to allay lingering
concerns about the extent of national power” [citing
Alden v. Maine, 527 U.S. 706, 713-14 (1999)]. “When the
Federal Government asserts authority over a States' [sic]
most fundamental political processes, its [sic] strikes
at the heart of the political accountability so essential
to our liberty and republican form of government” [citing
Alden; Printz v. United States, 521 U.S. 898 (1997); New
York v. United States, 505 U.S. 144 (1992)].
The proper state-federal balance is disturbed when
there is an intrusion upon State prerogatives in
important areas reserved to the States. This indictment
fails to identify the federal interest served by this
exercise of federal jurisdiction and therefore
constitutes an unconstitutional application of Section
666 . . . . [F]ederal jurisdiction is being exercised in
123
a manner that plainly intrudes upon the prerogative of
the States to define, apply and enforce criminal law, and
to monitor and oversee the operation of its government.
(Emphasis added.)
If Lipscomb were merely arguing jurisdiction, why would he
five times cite SalinasSSwhich does not even mention
jurisdictionSSfor the proposition that § 666 has been
unconstitutionally applied to him? Why would he employ a “Special
Counsel for Tenth Amendment purposes only,” and have that counsel
sign the motion? Why would he twice invoke the Tenth Amendment and
cite the Tenth Amendment cases of Gregory, Printz, and New York v.
United States, as well as Alden’s Tenth Amendment discussion? Why
would he six times argue that § 666 abridges the states’
constitutional responsibilities and prerogatives? Why would he
three times argue that § 666 upsets the constitution’s federal-
state balance of powers? Why would he three times state that § 666
is being unconstitutionally applied to him?
Judge Duhé sidesteps all of this and, instead, notes that the
motion’s title mentions federal jurisdiction, not
constitutionality, and Lipscomb uses the word “jurisdiction”
throughout his argument. Since when do we accord one word such
talismanic power that its mere presence or absence in a motion or
brief can negate all remaining arguments? Since when do we forbid
a defendant from raising two pointsSSboth constitutionality and
jurisdictionSSin one motion? The Federal Rules of Procedure
124
eliminated just the type of rigid form pleading that Judge Duhé
invokes today.
Lipscomb’s motion is less than polished, and his interchange
of “jurisdiction” and “power” is clumsy. As Judge Wiener explains,
sometimes Lipscomb uses “jurisdiction” to refer to a federal
court’s subject matter jurisdiction, and sometimes he uses “juris-
diction” to refer to the persons and acts over which Congress may
legislate. But any confusion is easily eliminated: Substitute
“federal power” or “congressional power” every time Lipscomb says
“jurisdiction” in his motion, and the motion’s meaning remains the
same. But substitute “subject matter jurisdiction” or “federal
court jurisdiction,” and parts of the motion become nonsensical.
For example, the final paragraph makes no sense when “federal
court jurisdiction” is used:
The proper state-federal balance is disturbed when
there is an intrusion upon State prerogatives in
important areas reserved to the States. This indictment
fails to identify the federal interest served by this
exercise of [federal court jurisdiction] and therefore
constitutes an unconstitutional application of Section
666 . . . . [Federal court jurisdiction] is being
exercised in a manner that plainly intrudes upon the
prerogative of the States to define, apply and enforce
criminal law, and to monitor and oversee the operation of
its government.
But this paragraph reads perfectly well when “congressional power”
is filled in.
Lipscomb’s lack of artfulness should not doom his appeal, es-
pecially given that the Supreme Court and our circuit often have
125
been guilty of the same offense of conflating “jurisdiction” and
“power.” In United States v. Cotton, 122 S. Ct. 1781 (2002), the
Court acknowledged that it has sometimes employed a “somewhat ex-
pansive notion of jurisdiction” that covered both general
constitutional questions and the concept of subject matter
jurisdiction. Id. at 1784-85 (internal quotations omitted).
Recently, the en banc court of this circuit reheard United States
v. Longoria, 259 F.3d 363 (5th Cir.), vacated for rehearing en
banc, 262 F.3d 455 (5th Cir. 2001), to undo the confusion generated
by our loose use of the term “jurisdiction.” Lipscomb should not
be held to a higher standard of legal diction than are the judges
and Justices of this court and the Supreme Court.
Judge Duhé and I also read Lipscomb’s February 8, 2000, motion
for judgment of acquittal quite differently. Lipscomb made, inter
alia, the following arguments:
As applied to Lipscomb, 18 U.S.C. § 666 is
unconstitutional. No evidence was introduced that any of
the funds given to Lipscomb can be connected to “a threat
to the integrity and proper function of a federal pro-
gram.” None of the federal funds was shown to relate to
the taxicab industry. At no time did any of the votes
alleged in the indictment impinge upon the use, distribu-
tion, diversion or application of any federal funds.
Congress intended to protect federal and the integrity of
those funds.
(Emphasis added.)
Lipscomb flatly states that § 666 is unconstitutional as ap-
plied to him, and he follows with a constitutional argument from
Salinas. The Salinas Court explained that because the crime “was
126
a threat to the integrity and proper operation of the federal
program[, w]hatever might be said about § 666(a)(1)(B)’s
application in other cases, the application of § 666(a)(1)(B) to
Salinas did not extend federal power beyond its proper bounds.”
Salinas v. United States, 522 U.S. 52, 61 (1997). Lipscomb argues
the inverseSSbecause his crime did not threaten the integrity and
proper operation of a federal program, the application of § 666 to
him is not constitutional.
Judge Duhé recharacterizes this argument as a challenge to the
jurisdictional reach of § 666; Lipscomb, he concludes, actually is
asserting that § 666 requires a nexus between federal funds and the
bribery. Judge Duhé does not explain why, if this is so, Lipscomb
failed to place this argument under heading B of his motionSS“The
Government has failed to establish the jurisdictional prerequisite
for each substantive count.”
Nor does Judge Duhé explain why Lipscomb would support this
argument by quoting from the same passage in Salinas that held,
“The text of § 666(a)(1)(B) is unambiguous . . . [and] does not
require the Government to prove federal funds were involved in the
bribery transaction.” Salinas, 522 U.S. at 60. Instead, Judge
Duhé notes that neither the government nor the district court
mentioned the constitutional issue. Just because the district
court and the government may have misunderstood Lipscomb’s claim,
however, does not mean he failed to present it.
127
B.
Lipscomb devotes ten pages of his appellate brief to the
constitutional issue. Even though Lipscomb admits that “[i]t is
not a jurisdictional requirement of [§] 666 that the alleged bribe
actually affect federal funds,” Judge Duhé insists that Lipscomb is
making only a jurisdictional argument. More incredibly, Judge Duhé
claims Lipscomb “never mentions a constitutional question,” even
though Lipscomb states, “there must be some connection between the
bribe and the expenditure of federal funds. Otherwise, the reach
of § 666 intrudes well beyond the scope of federal authority into
areas of state responsibility, and serious constitutional questions
are presented.” (Emphasis added.)
Lipscomb further notes that the Salinas Court
left open the question whether Section 666 “requires some
other kind of connection between a bribe and the
expenditure of federal funds” lest it be applied in some
manner which would alter or fail to “give respect to the
federal-state balance” of powers [citation]. “Whatever
might be said about [§] 666(a)(1)(B)'s application in
other cases, the application of Section 666(a)(1)(B) to
Salinas did not extend federal power beyond its proper
bounds.” [citation].
Lipscomb follows with the observation that “[a]ny exercise of
federal jurisdiction must demonstrate a proper respect for concepts
of dual sovereignty and federalism (citing the Tenth Amendment).
The States' constitutional prerogatives plainly include
'constitutional responsibility for the establishment and operation
of its own government . . . . [citing Gregory, 501 U.S. at 462].”
128
He adds, “As a constitutional principle, it simply cannot be that
$10,000.00 in federal funds provided to a major city trumps the
Tenth Amendment and the prerogatives and responsibilities reserved
to the States” (referring also to our “republican form of
government”) (emphasis added).
Lipscomb further argues that § 666 is enacted under the
Spending Clause, which has limits. Beyond those limits, the
“delicate balance of federalism” is obliterated, he argues.
Finally, Lipscomb notes that a prosecution under § 666 must be
“undergirded by some adequate federal jurisdictional base” to avoid
serious constitutional problems.”
Again, Lipscomb uses the term “jurisdiction” loosely, and he
sometimes makes two arguments under one heading in his brief.
Nonetheless, he easily has raised adequately the requisite
constitutional arguments.
II.
Despite the caption of this opinion as a dissent, this part II
is not a dissent, because there is no majority decision, on this
issue, from which to dissent. Judge Wiener opines that § 666 is
constitutional as applied, and I conclude, to the contrary, that
the statute is unconstitutional as applied. But Judge Duhé de-
clines to address this issue, even in the alternative, despite that
it is law of the case, under the majority holding of two judges,
129
that the issue is properly raised and preserved.
So, although a majority of this court holds that Lipscomb pro-
perly raised and preserved this constitutional challenge, and al-
though this challenge, if decided, could lead to Lipscomb’s im-
mediate release with no possibility of retrial, we do not rule on
it. The government had no authority to try Lipscomb the first time
around; instead of announcing that fact and ending these
proceedings, we compound the error by forcing Lipscomb to undergo
a second illegitimate trial.
The full absurdity of today’s decision comes to light when we
imagine the future of this case. If Lipscomb is convicted a second
time, he presumably will appeal (if he lives that long; he is
elderly and too ill to be incarcerated in prison). In his second
appeal, Lipscomb could argue the same constitutional claim before
this same courtSSperhaps even before this same panelSSand this time,
because he was careful to omit the word “jurisdiction” from his
brief, he could be acquitted and told that the government never had
the power to try or detain him in the first case. As I explain
below, this should be our decision today.
A.
As Judge Wiener explains, Westmoreland’s broad construction of
§ 666 continues to be the law in this circuit, so we are precluded
from construing the statute to avoid a constitutional question. We
130
must, perforce, examine Lipscomb’s constitutional challenge to the
statute as applied.
Congress enacted § 666 under the Spending Clause.318 Phillips,
219 F.3d at 414. It is well recognized that Congress may use its
spending power to regulate the states indirectly through the use of
conditional grants. E.g., 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW
§ 5-6, at 833 (3d ed. 2000). The power to regulate indirectly is
nevertheless a limited one, as explained in South Dakota v. Dole,
483 U.S. 203, 207-08 (1987).
Dole involved a statute conditioning a small portion of each
state’s federal highway aid on the state’s establishing a minimum
drinking age. Id. at 205. The Court upheld the condition based on
Congress’s authority under the Spending Clause to “condition”
states’ access to federal funds. Id. at 206. The Court held that
when Congress chooses to go beyond specific enumerated powers and
to use its spending power “to further broad policy objectives by
conditioning receipt of federal monies upon compliance with federal
statutory and administrative directives,” it must meet four condi-
tions, the failure to meet any of which might render a statute un-
constitutionally broad: (1) The power must be used in pursuit of
the general welfare; (2) Congress must state any conditions unam-
biguously; (3) conditions must be related to the federal interest
318
U.S. CONST. Art. I, § 8 (“Congress shall have Power to lay and collect
Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common
Defense and general Welfare of the United States . . . .”).
131
in particular national projects or programs; and (4) conditions
must not violate other independent constitutional restrictions on
government activity. Id. at 207-08.319
The Dole test is inappropriate to analyze the
constitutionality of § 666, however, because the section does not
qualify as a conditional-grant statute. First, § 666 does not un-
ambiguously state that certain conditions attach to the receipt of
any particular federal grants. Second, a condition statute
generally requires a state’s compliance with federal regulatory or
administrative directives in exchange for receipt of federal funds.
Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 570-72 (4th Cir. 1997)
(en banc) (plurality opinion).
Section 666, however, neither requires an act of compliance
nor applies directly to the recipient governments, as did the stat-
ute in Oklahoma v. United States Civil Serv. Comm’n, 330 U.S. 127(1947).320 Instead, § 666 applies directly to individuals; as the
319
At least one court has concluded that use of § 666 to prosecute crimes
with no federal nexus violates the Dole test’s third condition. See United
States v. McCormack, 31 F. Supp. 2d 176 (D. Mass. 1998) (finding the statute
unconstitutional as applied where a defendant had bribed a local police officer
to prevent that officer’s further investigation into a state crime, where the
entity that received federal funds was the officer’s employing police
department).
320
In Oklahoma, the statute at issue placed “Hatch Act” limitations on any
officer or employee of any state or local agency whose principal employment was
in connection with any activity that was financed in whole or in part by loans
or grants made by the federal government. The condition on the state appears to
have been that either it would agree to fire any individual who, after an inves-
tigation by the federal civil service commission, was found to have violated the
statute, or the commission in the future would be authorized to withhold, from
the state, an amount equal to twice that employee’s salary. The Dole Court cited
(continued...)
132
court in United States v. Cantor, 897 F. Supp. 110, 113 (S.D.N.Y.
1995), stated persuasively, § 666 does not impose any conditions at
all, much less conditions related to federal interests, on particu-
lar national projects or programs: “18 U.S.C. § 666 does not im-
pose a condition on the receipt of federal funds. The statute
neither requires a state’s compliance with federal regulatory or
administrative directives, nor prevents state action.” Id. There-
fore, § 666 cannot be classified as a conditional grant to the
states,321 and, correspondingly, Dole cannot be applied to analyze
its constitutionality.322
320
(...continued)
Oklahoma as an example of the federal government’s conditioning receipt of fed-
eral funds on compliance by the recipient with federal statutory and adminis-
trative objectives. Dole, 483 U.S. at 206-07.
321
But see United States v. McCormack, 31 F. Supp. 2d 176 (D. Mass. 1998),
which suggests that § 666 is a “condition” statute because the recipient can
avoid the statute’s application to its officials by not accepting federal funds
of $10,000 or more. The McCormack court argued further that § 666 sets out fed-
eral requirements for recipient governments and prescribes negative consequences
if those requirements are not followed. I disagree. A mere grant of money can-
not be called a condition, and Dole requires not just a condition, but an
explicitly stated condition. Section 666 fails this requirement.
322
If the Dole test were applicable, it would require a holding that § 666
is unconstitutional as applied, because the third requirement of the Dole
testSSthat “conditions must (among other requirements) bear some relationship to
the federal spending,” New York v. United States, 505 U.S. 144, 167 (1992)SSis
not met. The only relationship the government can manage to muster between Lips-
comb’s violation of state criminal law and federal spending is that Yellow Cab’s
taxis sometimes go to a city airport that receives federal dollars for
improvements. This connection is so tenuous as to be no connection at all; were
it enough to satisfy the Dole test, then “the spending power could render
academic the Constitution’s other grants and limits of federal authority.” Id.133
B.
Recognizing that Dole does not answer the question, we turn
elsewhere for constitutional grounding. In Salinas, the Court held
§ 666 constitutional as applied, addressing constitutionality only
briefly:
[T]here is no serious doubt about the constitutionality
of § 666(a)(1)(B) as applied to the facts of this case.
Beltran was without question a prisoner held in a jail
managed pursuant to a series of agreements with the Fed-
eral Government. The preferential treatment accorded to
him was a threat to the integrity and proper operation of
the federal program. Whatever might be said about
§ 666(a)(1)(B)’s application in other cases, the
application of § 666(a)(1)(B) to Salinas did not extend
federal power beyond its proper bounds. See Westfall v.
United States, 274 U.S. 256, 259 (1927).
Salinas, 522 U.S. at 60-61. Unfortunately, the Court did not re-
veal the framework it used in concluding that § 666 was
constitutionally applied in Salinas, nor did it say what test
should be used in determining whether other applications of the
statute are constitutional. We conduct our own inquiry, because
this case, unlike Salinas, does not involve any readily apparent
connection to federal funds or programs.
As I have said, the fact that § 666 is not a direct exercise
of the spending power does not doom its constitutionality. The
Constitution gives Congress the power “To make all Laws which shall
be necessary and proper for carrying into Execution the foregoing
powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer
134
thereof.” U.S. CONST. art. I, § 8. Thus, to determine whether the
application of § 666 to Lipscomb’s acceptance of bribes by a local
taxi company is constitutional, we must decide whether prosecuting
such behavior is “necessary and proper” to carrying out Congress’s
spending power.323
1.
We examine the relevant legislative history to discover why
Congress thought that § 666 was necessary and for what purposes it
deemed the statute proper, for although Congress is not the final
judge of what is necessary and proper to carry out its powers, it
is likely to have an informed opinion on the matter. Such opinion
is particularly persuasive to the extent that it finds legislation
is necessary and proper only in limited circumstances, because, in
such cases, we need not worry that Congress’s interpretation is
motivated by a desire to expand its power beyond proper bounds.
Thus, when Congress states that legislation passed as necessary and
proper to carry out one of its enumerated powers is actually neces-
sary only in certain circumstances, we should be hesitant to con-
323
Since the early days of the Republic, the Necessary and Proper Clause
has provided justification for laws necessary for the execution of Congressional
powers. For example, in McCulloch v. Maryland, 17 U.S. 316 (1819), the Court
held that the enactment of a law establishing a national bank was necessary and
proper to carrying into execution the spending power, the commerce power, the
taxing power, the power to coin money, and the war power. Chief Justice Marshall
described the reach of the clause as follows: “Let the end be legitimate, let
it be within the scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited, but consist with
the letter and spirit of the constitution, are constitutional.” Id.135
clude that the Necessary and Proper Clause permits the legislation
to reach further than Congress felt necessary or proper to carry
out its delegated powers.
Courts have recognized the particular relevance of the legis-
lative history of § 666 in casesSSlike thisSSin which that history
shows Congress’s limited goals in drafting a broadly worded stat-
ute. The legislative history of the act shows that Congress passed
§ 666 because it was concerned with its inability to protect fed-
eral funds once they are transferred from the federal government to
states, local governments, and agencies. Section 666 “is designed
to create new offenses to augment the ability of the United States
to vindicate significant acts of theft, fraud, and bribery involv-
ing Federal monies that are disbursed to private organizations or
State and local governments pursuant to a Federal program.” 1984
U.S.C.C.A.N. at 3510 (emphasis added). Congress also stated that
“the purpose of this section [is] to protect the integrity of the
vast sums of money distributed through Federal programs from theft,
fraud, and undue influence by bribery.” Id. at 3511.
In Salinas, the Court noted that § 666 was enacted in response
to specific difficulties the federal government had encountered un-
der preceding statutes in prosecuting the theft of federal funds by
non-federal employees. The Court explained:
Before § 666 was enacted, the federal criminal code con-
tained a single, general bribery provision codified at 18
U.S.C. § 201. Section 201 by its terms applied only to
“public official[s],” which the statute defined as “offi-
136
cer[s] or employee[s] or person[s] acting for or on be-
half of the United States . . . .” § 201(a). The Courts
of Appeals divided over whether state and local employees
could be considered “public officials” under § 201(a)
. . . . § 666(a)(1)(B) was designed to extend federal
bribery prohibitions to bribes offered to state and local
officials employed by agencies receiving federal funds.
The facts and reasoning of [United States v.] Del Toro,
[513 F.2d 656, 661-62 (2d Cir. 1975)], give particular
instruction in this respect. In that case, the Second
Circuit held that a city employee was not a “public offi-
cial” under § 201(a) even though federal funds would
eventually cover 100% of the costs and 80% of the sala-
ries of the program he administered. 513 F.2d, at 662.
Because the program had not yet entered a formal request
for federal funding, the Second Circuit reasoned,
“[t]here were no existing committed federal funds for the
purpose.” Ibid. The enactment of § 666 forecloses this
type of limitation.
Salinas, 522 U.S. at 58-59. Moreover, in United States v. Zwick,
199 F.3d 672, 684 (3d Cir. 1999), the court explained that under a
separate statute criminalizing the theft of federal property, 18
U.S.C. § 641,
the federal government could prosecute only when it could
establish that the stolen property was property of the
United States, which often was impossible if title had
passed before the property was stolen or when federal
funds were so commingled with non-federal funds that the
federal character of those funds could not be shown.[324]
Furthermore, the Senate Report states that the intent of § 666 is
“to reach thefts and bribery in situations of the types involved in
the Del Toro, Hinton, and Mosley cases cited herein[.]” S. REP. NO.
98-225, 369-370, 1984 U.S.C.C.A.N. at 3511. The court in Zwick
324
Based on this legislative history, the Zwick court concluded that
“[t]he goal [of § 666] was to overcome impediments to reaching actions in which
there was a federal interest, not to federalize crimes in which a federal
interest was lacking.” Zwick, 199 F.3d at 684.
137
noted that the corrupt transactions in these three cases all plain-
ly implicated federal interests. Zwick, 199 F.3d at 684.
In Del Toro, the defendants conspired to bribe Pedro Morales,
the Assistant Administrator of the Harlem-East Harlem Model Cities
Program, for which the United States Department of Housing and Ur-
ban Development (“HUD”) paid 100% of the cost of the program and
80% of its salaries. Because Morales was a city employee, however,
the court concluded that, notwithstanding that he was administering
a HUD program, he was not a “public official” for purposes of § 201
and therefore could not be prosecuted. Id.
Similarly, in United States v. Hinton, 683 F.2d 195, 198-200
(7th Cir. 1982), aff’d sub nom. Dixson v. United States, 465 U.S.
482 (1984), the defendants were officials of a non-profit corpora-
tion that administered a HUD program and had discretion in the dis-
tribution of HUD funds. The court found that they were “public of-
ficials for purposes of § 201 because they exercised considerable
discretion in the distribution of federal funds. Id. at 198-200.
The Supreme Court affirmed but noted that, to be a “public offi-
cial” under § 201(a), “an individual must possess some degree of
responsibility for carrying out a federal program or policy . . . .
Individuals who work for block grant recipients and business people
who provide recipients with goods and services cannot be said to be
public officials under section 201(a) unless they assume some du-
ties of an official nature.” Dixson v. United States, 465 U.S.
138482, 499-500 (1984).
In United States v. Mosley, 659 F.2d 812, 816 (7th Cir. 1981),
the defendant, an Illinois state employee, was convicted of receiv-
ing bribes while evaluating applicants for jobs under a federally-
funded program. Here again, the defendant was covered by § 201,
because he exercised discretion in the administration of federal
funds. In Zwick, the court concluded that the inclusion of these
cases as examples of conduct that would be covered by § 666 showed
that Congress intended that the statute would be applied only in
corruption cases impacting federal interests.325
Although I do not agree that the plain language of § 666 al-
lows prosecution only where the charged corrupt activity has impact
on a federal interest, the fact that Congress did not find it ne-
cessary that § 666 be applied in cases not involving federal funds
or programs is highly relevant to the issue of whether the stat-
ute’s application to local corruption not involving federal funds
is “necessary and proper” to execute the spending power. Armed
with knowledge of Congress’s purpose in enacting § 666, I examine
whether the statute’s employment hereSSto prosecute a city coun-
325
See Zwick, 199 F.3d at 685 (holding that “nothing in the legislative
history suggests that Congress intended to go well beyond the examples in Del
Toro, Hinton, and Mosley to make § 666 applicable when no federal interest is im-
plicated by certain offense conduct.”). The Zwick court also noted that
“[a]nother comment in the Senate Report illustrates that an entity’s receipt of
federal funds does not automatically establish a federal interest in corrupt
activity of employees of that entity.” Id. The court quoted the Senate Report:
“For example, if a government agency lawfully purchases more than $10,000 in
equipment from a supplier, it is not the intent of this section to make a theft
of $5,000 or more from the supplier a Federal crime.” Id. (quoting S. REP. NO.
98-225, at 370, 1984 U.S.C.C.A.N. at 3511).
139
cilmember for accepting bribes in return for pursuing local taxi
regulations beneficial to a local taxi companySSis “necessary and
proper for carrying into execution” the spending power. In other
words, what are the minimum factors that must be present to make a
prosecution under § 666 “necessary and proper” under the spending
power?
I am aware of no court that has dealt with the issue of what
uses of § 666 are necessary and proper to effect the spending pow-
er. Of no help is United States v. Suarez, 263 F.3d 468 (6th Cir.
2001).326 The Second and Third Circuits have narrowly interpreted
§ 666, however, for the express purpose of avoiding a
constitutional question. Their views on what limitations are
necessary to keep § 666 within the realm of constitutionality are
therefore useful. In Zwick, the court interpreted § 666 to require
326
Suarez advances the position of neither side in the instant case.
There, the panel majority reluctantly upheld the conviction:
Were we writing on a clean slate, I like [the dissent],
might well agree that proper application of 18 U.S.C. §
666 requires a minimal nexus between the alleged
criminal activity and the federal funding received
pursuant to that statute. We are not, however[;] the
well established law of this Circuit [binds us].
Suarez, 263 F.3d at 489. In Suarez, only the dissent analyzed the constitutional
issue and Supreme Court precedent, and the dissent concluded that the statute was
unconstitutional as applied:
To sustain Suarez’s conviction would make § 666 a
generalized anti-corruption statute under the spending
power. The best reading of the Fischer and Salinas
cases seems to be that the Supreme Court does not want
this interpretation to take hold.
Id. The dissenting judge voted to remand for development of the record on
whether there was a nexus between the crime and the federal program.
140
a relationship between the prohibited conduct and a federal
interest, because doing otherwise would raise constitutional
problems:
Interpreting § 666 to have no federal interest
requirement produces serious concerns as to
whether Congress exceeded its power under the
Spending Clause in enacting this statute. See
McCormack, 31 F. Supp. 2d at 187-89. To pass
muster under the Spending Clause, legislation
regulating behavior of entities receiving
federal funds must, among other things, be
based upon a federal interest in the
particular conduct. See South Dakota v. Dole,
483 U.S. 203, 207 (1987). Applying § 666 to
offense conduct, absent evidence of any
federal interest, would appear to be an
unconstitutional exercise of power under the
Spending Clause.
Zwick, 199 F.3d at 687 (footnote omitted). The court thus rejected
the government’s position that no connection between the bribery
and the federal funds was necessary beyond proof that the agency in
question had received federal funds in excess of $10,000. To do
otherwise, the court reasoned, would eviscerate significant fed-
eral-state boundaries by turning § 666 into a general anti-corrup-
tion statute, an intention not expressed by Congress. Id. at
686.327
In the pre-Salinas case of United States v. Foley, 73 F.3d
484, 493 (2d Cir. 1996), the court held that the conduct prosecuted
under § 666 must be “shown in some way to touch upon federal
327
Although the court in Zwick seems to have applied a Dole analysis to
the issue, the court’s reasoning that a federal interest must be present to avoid
a constitutional question is persuasive, as well, in analyzing § 666’s constitu-
tionality under the Necessary and Proper Clause.
141
funds.” The court also held that the local government or agency
whose transaction involves $5,000 or more and at which the cor-
ruption is aimed must itself receive at least $10,000 in federal
funds. Id.
The court re-evaluated Foley post-Salinas in United States v.
Santopietro, 166 F.3d 88 (2d Cir. 1999), recognizing that Salinas
had made plain that the corruption need not have a value of $5,000
to the local government on which the corruption is practiced. In-
stead, there only must be the receipt of at least $10,000 of feder-
al funds and a corrupt transaction valued at $5,000 or more by any
of the partiesSSthe local government, the party paying the bribe,
or the bribe recipient. Thus, the Santopietro court reversed and
held that the defendants could be convicted under § 666. Even
though the bribery at issue did not result in a loss of $5,000 or
more to the town, the statutory requirement that a transaction of
at least $5,000 be involved was plainly satisfied by the fact that
the total bribe was $25,000. Id. at 92-93.
Santopietro, however, did not retreat from Foley’s requirement
of “at least some connection between the bribe and a risk to the
integrity of the federal funded [sic] program,” because “nothing in
Salinas disturbs such a requirement.” Id. at 93. The court held
that a federal connection sufficient to satisfy § 666 existed where
real estate developers had made corrupt payments to the mayor, the
Republican town chairman, and the president of the board of alder-
142
men to secure their influence in landing city development contracts
that were substantially funded by HUD dollars. Id. The court held
that the evidence
satisfies the requirements of Foley, undisturbed by Sali-
nas, that the transaction sought to be influenced had
some connection with a federal program. Indeed, Salinas
may be read to indicate that the “threat to the integrity
and proper operation of [a] federal program” created by
the corrupt activity is necessary to assure that the
statute is not unconstitutionally applied.
Id. (quoting Salinas 522 U.S. at 60-61) (citation omitted) (alter-
ation in original).
The court made plain that there was a direct connection be-
tween the bribery and the federally-funded programs and that “this
is not a case where the transactions sought to be influenced con-
cerned one department of a city and the requisite $10,000 of fed-
eral funds were received by a totally unrelated department.” Id.
at 93-94. The court stated that “even after Salinas, [the undis-
turbed requirements of] Foley would not permit the Government to
use § 666(a)(1)(B) to prosecute a bribe paid to a city’s meat
inspector in connection with a substantial transaction just because
the city’s parks department had received a federal grant of
$10,000.” Id.328
The reasoning of the Second and Third Circuits is persuasive.
328
But see United States v. Jennings, 160 F.3d 1006, 1012 (4th Cir. 1998)
(interpreting § 666, without examining its constitutionality, to require no nexus
between bribes and federal funding); United States v. Dakota, 197 F.3d 821 (6th
Cir. 1999) (same).
143
It is a tautology to say that for legislation to be necessary and
proper for effecting the spending power, it must be related to that
power in some way. In other words, prohibiting activity that is
unrelated to federal spending or programs cannot be necessary to
execute the spending power.
This is not to say that only activity that directly affects
federal funds may be prohibited. Salinas made evident that the
spending power can be rendered ineffectual not only where the in-
tegrity of federal funds is compromised, but also where the in-
tegrity of programs funded by those federal dollars is assaulted.
Thus, in Salinas the Court found that § 666 did not “extend federal
power beyond its proper bounds,” id. at 61, where the statute was
used to prosecute a state officer who had allowed himself to be
bribed to influence his management of a federally funded program,
even though no federal funds actually were diverted. In Zwick, the
court held that “a highly attenuated implication of a federal in-
terest will suffice for purposes of § 666.”329
329
The court provided examples of attenuated connections that would be
sufficient to allow prosecution under § 666:
We can conceive of several ways in which the government
could prove a federal interest in a § 666 [sic] in light
of this threshold. The amount of federal funds could
provide the requisite federal implication, even if the
purpose of those funds has no explicit relationship to
the subject of the bribe. If, for example, in a given
year, the greater part of a township's budget came from
federal funds, bribery of a township agent for any
purpose might be said to implicate federal interests.
Absent that situation, the offense conduct would have to
somehow implicate a particular substantive federal
(continued...)
144
2.
The government goes far beyond the holding of Salinas and ar-
gues that for a prosecution to be proper under § 666, no rela-
tionship at all is required between federal funds or programs and
local corruption. The government argues that because funds are
fungible, and the receipt of federal funds for any project frees a
state to spend more funds on other projects, no more is required
for a prosecution under § 666 than that a local government receive
at least $10,000 in federal funds annually.
Although this is, strictly speaking, a correct textual inter-
pretation of § 666, the statute obviously does not satisfy consti-
tutional requirements when used in this manner; it cannot be neces-
sary and proper to executing the spending power for the government
to prosecute local crimes that have no relationship whatsoever to
federal funds and programs.
Any argument that it is “necessary” to protect the spending
power by passing legislation that regulates conduct totally unre-
lated to federal spending is meritless on its face. Accepting this
proposition would allow § 666 to become a general federal police
power statute that criminalizes corruption in all local governments
and private agencies receiving federal funds.
329
(...continued)
interest, as the Supreme Court found it did in Salinas,
where federal funds were being provided to house federal
prisoners in local prisons.
Zwick, 199 F.3d at 687.
145
Such a general police power is denied the federal government
by constitutional design, for it is among those powers, reserved to
the states, that constitute the heart of state sovereignty.330 Fur-
thermore, states have the primary authority to define and enforce
criminal law,331 United States v. Lopez, 514 U.S. 549, 561 n.3
(1995), and the “double security” embodied in the concept of feder-
alism requires “a proper balance between the States and the Federal
Government,” Gregory, 501 U.S. at 459. Central to that balance,
and to state sovereignty, is each state’s prerogative over the
“constitutional responsibility for the establishment and operation
of its own government . . . .” Id. at 462.
Congress may pass laws criminalizing conduct that is already
proscribed by the states, but this “change in the sensitive rela-
tion between federal and state criminal jurisdiction”332 must be
330
See, e.g., United States v. Morrison, 529 U.S. 598, 618 n.8 (2000); New
York v. United States, 505 U.S. 144, 155 (1992); Gregory v. Ashcroft, 501 U.S.
452, 457 (1991).
331
As the Court said in United States v. Lopez, 514 U.S. 549, 561 n.3
(1995):
Under our federal system, the “‘states possess primary
authority for defining and enforcing the criminal law.’”
Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (quoting
Engle v. Isaac, 456 U.S. 107, 128 (1982)); see also
Screws v. United States, 325 U.S. 91, 109 (1945)
(plurality opinion) (“Our national government is one of
delegated powers alone. Under our federal system, the
administration of criminal justice rests with the states
except as Congress, acting within the scope of those
delegated powers, has created offenses against the
United States.”).
332
United States v. Enmons, 410 U.S. 396, 411-12 (1973) (quoting United
States v. Bass, 404 U.S. 336, 349 (1971)).
146
made under the powers delegated to the federal government by the
Constitution. If adopted, the government’s argument that it is
necessary and proper, under the Spending Clause, for the federal
government to root out all local corruption whenever more than
$10,000 of federal funds is received by a local government would
cause a massive shift in the “balance between the States and the
Federal Government” that is contrary to basic concepts of
federalism and the Tenth Amendment.333
This power cannot be said to be necessary and proper to
carrying into execution the spending power, because the means are
not appropriate, are well beyond “the scope of the constitution,”
are inconsistent “with the letter and spirit of the constitution,”
and thus are unconstitutional. McCulloch v. Maryland, 17 U.S. 316,
421 (1819).334 Moreover, the government’s argument that no connec-
tion need be shown between federal funds or programs and the local
corruption prosecuted under § 666 confuses a connection to a fed-
333
See U.S. CONST. amend. 10 (“The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.”).
334
See also Zwick, 199 F.3d at 686:
If we adopted the government’s interpretation that § 666
requires no connection between the offense conduct and
federal funds or programming, § 666 would criminalize a
host of corrupt acts committed by state agents, among
others, by virtue of the fact that all states receive at
least $10,000 in federal funds per year. See McCormack,
31 F. Supp. 2d at 186. This result raises significant
federalism concerns, turning traditionally local conduct
into a matter for federal enforcement involving a
substantial extension of federal law enforcement
resources.
147
eral interest in federally-funded programs with the federal gov-
ernment’s generalized interest in everything that occurs within its
borders.
The government argues that the United States has an interest
in the honesty of all officials, local and federal, and this is as-
suredly so. The government has a similar interest in a great many
things that are, however, beyond its power to regulate directly.
For example, members of Congress profess sincere interest in a
variety of problemsSSfrom reducing crime to encouraging the sta-
bility of marriageSSyet Congress has no more power directly to
criminalize local burglaries than it does to regulate marriage di-
rectly. In both cases, if the government wishes to pursue its in-
terest, it must do so through targeted spending and conditional
grants of federal funds.335
It is this conflation of generalized federal interests with a
federal interest in a program (i.e., a connection to federal fund-
ing) that prompts the government to argue that any generalized in-
terest of the United States suffices to allow federal criminaliza-
tion of local matters, so long as some insignificant amount of fed-
eral funds are given to the locality. Such an analysis turns the
accepted understanding of the Necessary and Proper Clause on its
head and, in effect, asserts that because Congress may pursue the
335
For instance, the government may provide funds to put more local police
officers on the streets or may reform federal welfare spending in an effort to
create incentives for families to stay together.
148
general welfare through the Spending Clause, all laws that are ne-
cessary and proper to the general welfare must be considered con-
stitutional under the Spending Clause.336 This argument, if fol-
lowed, would overturn the accepted meaning of the Spending and the
General Welfare Clauses that has existed for nearly two centuries.
See generally 1 TRIBE, supra, § 5-6, at 831-34 (3d ed. 2000).
3.
The government argues, alternatively, that if a connection is
required between federal funding or programs and the charged cor-
ruption, such connection is present in this case. The federal con-
nection that the government asserts, however, is exceedingly tenu-
ous. The government avers that a federal connection existed be-
tween Lipscomb’s acts of corruption and federal funds because
Lipscomb voted to seek and disburse federal money on im-
provements to Love Field airport. Thus, the federal gov-
ernment had an interest in the success of the airport, a
center of interstate travel. It is common sense that an
airport depends in part for its success on the taxicab
service provided for passengers. On the flip side, taxi-
cabs depend in part for their success on the viability of
airports, which provide fertile ground for fares.
If merely the airportSSrather than the city as a
wholeSSis seen as the analog of the jail in Salinas, that
case’s holding must extend to this one. Lipscomb, like
the jailer, was partly responsible for managing a feder-
ally-funded entity, the airport. The airport in turn
336
Using this reasoning, the government could as easily argue that under
the Commerce Clause, conduct may be criminalized wherever it is committed by one
who participates in interstate commerce, rather than only where there is some
link between the conduct and interstate commerce. In fact, this reasoning would
allow federal police power under numerous clauses of the Constitution.
149
provided business to, and needed the business of, taxi-
cabs (including Richards’ taxicabs) for its successSSjust
as the jail had a direct relationship with the welfare of
the prisoner who paid the bribes. And just as the pre-
ferential treatment given to the prisoner was “a threat
to the integrity and proper operation of the federal pro-
gram,” Salinas, 522 U.S. at 61, so the preferential
treatment of Richards was a threat to the integrity of
the airport-funding program.
The government’s “cabs go to the airport” theory is feeble at
best. The government may as well argue that because the United
States funds medical research at Dallas hospitals, and researchers
sometimes take taxis, especially to airports to fly to conferences,
there is a sufficient nexus between taxis and federal funds. Or,
the government could aver that federal funds go to pay welfare ben-
efits and, because welfare recipients often cannot afford cars,
they may take taxis to the grocery store to use their food stamps,
and thus federal prosecution of cases of local bribery affecting
taxi regulations is necessary to protect the spending power. In
sum, if the government’s posited connection between the federal
funds and the corruption is sufficient to provide nexus, any con-
nection at all will do.
The facts of this case reveal no substantial relationship to
federal funds or programs, whereas in Salinas there were three
direct connections between federal funds and the corrupt activity.
First, the prisoner paying the bribes was a federal prisoner. Sec-
ond, the county jail in which the prisoner was housed had been con-
structed substantially with federal funds. Third, the prisoner was
150
in the jail as part of a federal program in which the county was
paid per diem for each federal prisoner it housed.
Here, to the contrary, Richards, who was the person paying the
bribes, had no federal status or connection. Neither the taxis nor
the city regulation of the taxi industry was funded by federal
funds in any way. Finally, there was no federal program relating
to taxi regulation, nor was the integrity of any federally funded
program affected by the payment of Lipscomb to vote for certain
taxi regulations.
Thus, the connection between federal funds and the prosecuted
activity here is nothing like the direct connections between feder-
ally funded programs and corrupt activity in Salinas. It is far
less substantial than even the most attenuated connections that the
Third Circuit imagined might suffice to avoid constitutional ques-
tions in Zwick.337 Under the specific facts of this case, the con
337
The “highly attenuated implication of a federal interest” that Zwick
imagined would provide a “sufficient federal connection” to satisfy the
requirements of § 666 was a far less attenuated federal interest than is the one
the government asserts here. The Zwick court
conceive[d] of several ways in which the government
could prove a federal interest in § 666 . . . . If, for
example, in a given year, the greater part of a
township’s budget came from federal funds, bribery of a
township agent for any purpose might be said to impli-
cate federal interests. Absent that situation, the
offense conduct would have to somehow implicate a par-
ticular substantive federal interest, as the Supreme
Court found it did in Salinas, where federal funds were
being provided to house federal prisoners in local
prisons.
Zwick, 199 F.3d at 687. The court cited further examples, including Santopietro,
holding that bribes paid by real estate developers in search of development con-
(continued...)
151
nection to federal funds is insufficient, as a matter of law, to
support a conclusion that the § 666 prosecution was necessary and
proper to protect federal funding of Love Field or the city
generally.338
4.
The government alternatively posits that, because the City of
Dallas received a sizeable amount of federal funds in real dollars,
it was proper for Lipscomb’s bribery to be federally prosecuted.
The government points out that in 1998, the city accepted over $56
million in federal funds. This, it argues, is a significant amount
that warrants the federal prosecution of a local official even for
337
(...continued)
tracts with city agencies that were overseeing HUD programs met the federal nexus
requirement of § 666. Zwick also cited Frega, in which a district court con-
cluded that bribery of state judges did not meet the requisite federal interest,
but hypothesized that a sufficient federal connection could exist in different
circumstances, such as if the state courts received federal funds for the purpose
of appointing habeas counsel and the bribes paid affected the appointment of par-
ticular habeas counsel. Id. at 687-88.
Although these indeed are examples of federal connections that are
somewhat attenuated, nevertheless the federal interest in each example is plain,
as is the necessity of protecting it against corruption so that Congress may
properly execute its spending power, free of the danger that federally funded
programs will be corrupted and perverted. The same cannot be said of Lipscomb’s
prosecution, for no federal program was, in any way, affected by his corruption.
338
Moreover, this post hoc argumentSSthat the integrity of federal funding
at the airport was endangered by Lipscomb’s taxicab corruptionSSwas never charged
in the indictment or argued to the jury. Instead, the jury instructions merely
stated:
It is also not necessary that the $10,000 in federal
assistance be directly involved in or traced to the
allegedly corrupt acts charged in the Indictment. All
that is necessary is that the City of Dallas received in
excess of $10,000 from the federal government during a
one-year period.
152
mere local corruption.
The government contends that the receipt of this large amount
of federal money would make the prosecution of Lipscomb pass muster
even under Zwick. This is plainly incorrect. Zwick stated that if
“the greater part of a township’s budget came from federal funds,
bribery of a township agent for any purpose might be said to
implicate federal interests.” Zwick, 199 F.3d at 687 (emphasis
added). The city received over $56 million in 1998SSadmittedly a
significant amount. Because its 1988 budget was $1.6 billion,
however, federal funds made up only 3.5% of the City’s budget.
This is nowhere near the example given in Zwick, where a fed-
eral interest could arise if the “greater part of a township’s bud-
get” came from federal funds. Indeed, if federal funding of as
little as 3.5% of a city’s budget allows prosecution of a city of-
ficial, then the fact that every state and most cities receive more
than $10,000 in federal funds each year is alone enough to allow
the federalization of local corruption cases. This cannot be
necessary and proper for executing the spending power.
5.
The government further contends that Lipscomb was not just any
city employee and that as a city councilman he “was one of fifteen
people responsible for running the City of Dallas.” The government
then argues that high officials, such as Lipscomb, always should be
153
liable for prosecution under § 666, because high officials make de-
cisions on the disposition of both local and federal funds, and
therefore dishonesty in the disposition of local funds is a proper
cause of worry to the United States.339
The government contends that such prosecution is
necessary, because otherwise corrupt officials would be left in
place to administer federal funds in the same corrupt fashion that
they administer local matters. While this argument has some
initial appeal, it ultimately has no merit.
First, it seems unlikely that, had the state prosecutor
been given the fruits of the Lipscomb investigation, he would have
declined to prosecute. The charges against Lipscomb were serious,
the evidence was compelling, and Lipscomb was a high-profile public
servantSSall factors that strongly argue for state prosecution.
Second, even if one thinks that states sometimes do not
prosecute local crimes where federal prosecutors might do so, it
does not follow that allowing double prosecution of local crimes
would deter corruption involving federal funds and programs. In-
stead, allowing the double prosecution of local, but not federal,
339
Santopietro, 166 F.3d at 94 n.3, also raised this question, but did not
answer it:
We need not consider whether Santopietro’s role as
mayorSSthe chief executive officer of the city and hence
the officer ultimately responsible for all city depart-
mentsSSwould render the statute applicable to corrupt
payments received by him for any transaction involving
the city, even though the federal funds were received
for a program entirely unrelated to the program in
connection with which the corrupt payments were made.
154
corruption might tend to cause dishonest local officials to abuse
federal dollars rather than local funds.
Before § 666 was enacted, local embezzlement was covered
by local penalties, and federal embezzlement was covered by federal
penalties, with only small overlap. Thus, before the advent of
§ 666, a rational local official would simply weigh the rewards of
embezzling local or federal funds against the risk of getting
caught and the probable penalty carried by each crime. He then
would commit those acts of embezzlement with the best ratio of
payoff-to-punishment. Because of the severity of federal
penalties, the most rational acts of embezzlement often would be
local.
If § 666 is used to prosecute purely local acts of
corruption, however, this calculus changes substantially. Federal
acts of corruption still carry the same ratios of reward-to-
punishment, but local crimes of corruption now qualify as both
federal and local crimes. Thus, federal embezzlement would be more
rewarding at the margins than would be local embezzlement. As a
result, rather than protecting federal funds and programs, § 666,
if applied to purely local crimes, should actually cause an
increase in the criminal misuse of federal funds; accordingly, it
cannot be said that prosecution of local crimes under § 666 is
necessary and proper to carry into execution the spending power,
and the application of § 666 to Lipscomb on the facts of this case
is, accordingly, unconstitutional.
155
III.
The panel majority errs in deciding the question of
venue. The majority teaches that it is better to force the
government and defendant to have a biased trial than to
inconvenience them with a five-hour drive or a one-hour flight.
Because this directly contradicts the plain text of our past
precedents, and all common sense, I respectfully dissent.
“The trial court has broad discretion in determining
whether a transfer is warranted.”340 “[A]bsent a showing of illicit
motivation, the transfer may be granted within the trial court’s
discretion unless the defendant shows that a transfer would be
prejudicial.” Osum, 943 F.2d at 1399. Lipscomb makes two attempts
to show prejudice; both are meritless. First, Lipscomb asserts
that if he had been tried in Dallas, he would have had more blacks
in his jury pool, and black jurors would have been more likely to
acquit him, a black defendant. Besides the fact that a criminal
defendant has no right to jury or venire of “any particular
composition,” Taylor v. Louisiana, 419 U.S. 522, 538 (1975); United
States v. Sanchez, 508 F.2d 388, 395 (5th Cir. 1995), there is a
not a hint of an indication that the district court transferred the
case to alter the jury pool’s racial composition, see United States
v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995).
340
United States v. Osum, 943 F.2d 1394 (5th Cir. 1991); accord United
States v. Kaufman, 858 F.2d 994, 1006 (5th Cir. 1988); United States v. Weddell,
800 F.2d 1404, 1406 (5th Cir. 1986).
156
Lipscomb next argues that Amarillo was inconvenient
because it “is 300 miles from Dallas,” and the “defendant and all
of the witnesses resided in Dallas and every defense attorney
practiced there.” This cannot rise to the necessary level of
prejudice. We repeatedly have held that so long as the district
court has some “valid reason for changing venue,” “travel and
lodging expenses for lawyers and witnesses do not constitute
prejudice sufficient to overcome a district court’s determination
regarding the place of trial.” United States v. Kaufman, 858 F.2d
994, 1006 (5th Cir. 1988). In Kaufmann, we held that a district
court’s concern “that if it held trial in Austin, then [its] docket
in Waco would have to be completely ignored” constituted such a
valid reason and outweighed the “only minor inconvenience” of a 102
mile transfer. Kaufmann, 858 F.2d at 1006. If docket management
constitutes a valid reason for transfer, then surely a court’s
conviction that it cannot provide a fair trial does.
Directly on point is United States v. Alvarado, 647 F.2d
537 (5th Cir. Unit A June 1981). We affirmed a sua sponte decision
to transfer a case to a venue 231 miles away based on pretrial pub-
licity. We held that the alleged prejudicial effects of
“additional travel and lodging expenses [for the defendants] and
their attorneys in addition to the expenses that became necessary
in order to subpoena crucial witnesses . . . do not rise to the
level necessary to prove the trial judge abused his discretion by
157
transferring venue so as to avoid an unfair trial from a great deal
of publicity.” Id. at 539.
The majority seems to argue that Lipscomb’s case is
different because 300 miles is really far. But Kaufmann makes no
allowance for distance within a district. What’s more, Kaufmann
relies on United States v. Fagan, 821 F.2d 1002, 1008 (5th Cir.
1987), for its holding. In Fagan, a FED. R. CRIM. P. 21 case, we
affirmed the refusal to transfer from the Southern District of
Texas to the Eastern District of Louisiana. We noted “that holding
trial in Houston, rather than Louisiana, made it more disruptive to
[the defendant], his witnesses, and his attorney” and may have cost
him the representation of a second attorney, but this was not
enough to mandate transfer. Id. at 1008. If the 348-mile distance
in Fagan was not prejudicial as a matter of law, then the 300 mile
distance in this case certainly is not.
Today’s holding has the potential to inject great
uncertainty into the trial process and actually to increase the
number of unfair trials. Luckily, future district courts will not
be bound by it. The majority’s venue ruling plainly contradicts
Alvarado, and it is well established that “[w]hen two panel
opinions appear in conflict, it is the earlier which controls.”
Harvey v. Blake, 913 F.2d 226, 228 (5th Cir. 1990). But, the fact
that today’s holding will not be binding does not make it any less
in error.
158
I respectfully dissent.
159