United States v. Dominick Owens , 697 F.3d 657 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1918
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
D OMINICK O WENS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00775-1—Blanche M. Manning, Judge.
A RGUED S EPTEMBER 11, 2012—D ECIDED O CTOBER 11, 2012
Before B AUER, P OSNER, and W OOD , Circuit Judges.
B AUER, Circuit Judge. A jury convicted Dominick Owens,
a City of Chicago zoning inspector, of two counts of
federal program bribery, 18 U.S.C. § 666(a)(1)(B), for
accepting two $600 bribes in exchange for issuing certifi-
cates of occupancy for four newly constructed homes. On
appeal, Owens challenges the sufficiency of the evidence
regarding whether the issuance of the certificates of
occupancy had a value of $5,000 or more as required by
2 No. 12-1918
§ 666(a)(1)(B). Because we find there was insufficient
evidence from which a jury could find guilt beyond
a reasonable doubt on this element, we reverse.
I. BACKGROUND
Dominick Owens was a zoning inspector for the City
of Chicago’s Zoning Department. The Zoning Depart-
ment was responsible for enforcing the City’s zoning
ordinance, reviewing and approving architectural plans
for the construction of new single-family homes, and
inspecting newly constructed homes. After an inspec-
tion, if a newly constructed home complied with the
zoning ordinance and a zoning inspector was satisfied
that it was “safe to occupy,” the Zoning Department
issued a certificate of occupancy certifying that the
home was “ready to be lived in and used.” Under the
zoning ordinance, a building may not be occupied unless
a certificate of occupancy has been issued.
Christoir McPhillip, the government cooperator in this
case, was an acquaintance of Owens and an “expe-
diter”—someone who performs the “legwork” of the
zoning process on behalf of developers, contractors,
and members of the public by making appointments,
completing paperwork, and attending meetings with
Zoning Department employees. Prior to the bribes at
issue in this case, McPhillip had paid Owens bribes for
the expedited issuance of certificates of occupancy on
at least eight occasions.
In the summer of 2006, McPhillip became a confidential
informant for the FBI and recorded phone calls and two
No. 12-1918 3
meetings with Owens that led to the charges in this
case. On July 10, 2006, McPhillip called Owens and said
that he needed certificates of occupancy for two single-
family homes. After learning the addresses of the
two homes, Owens created computer records indicating
that both homes had passed inspection; neither home,
however, was ever inspected. The next day, after several
recorded phone calls, McPhillip and Owens met on the
side of a road, and McPhillip paid Owens $600 in
cash. Owens acknowledged after his arrest that he
accepted the money on July 11 “in exchange for issuing
quick certificates of occupancy” and “expediting the
process for [McPhillip].”
Just over a week later, the same scenario played out
again. On July 19, 2006, McPhillip called Owens re-
garding two different single-family residences and once
again said he needed expedited certificates of occupancy.
Owens and McPhillip met in Owens’ driveway the fol-
lowing day, and Owens again accepted $600 in cash
from McPhillip; Owens admitted receiving this money
from McPhillip after his arrest. No Zoning Department
records indicate that Owens ever inspected either of
the homes.
After Owens issued the certificates of occupancy for
the four homes, McPhillip and the FBI each retained
copies of the originals. The Zoning Department also kept
copies of the certificates of occupancy and maintained
computer records documenting the issuance of the certifi-
cates because it often receives requests for copies from
homeowners, banks, and contractors. The applications
4 No. 12-1918
for the certificates of occupancy for the four homes
indicate that the estimated value of the construction
work performed on each of the homes ranged from
$180,000 to $250,000. In July 2006, mortgages were ob-
tained on each of the four homes, with notes ranging
from $200,000 to over $600,000 per home.
On September 21, 2009, Owens was arrested. He
waived indictment and was charged by information on
December 30, 2009, with two counts of federal program
bribery in violation of 18 U.S.C. § 666(a)(1)(B). The first
count charges Owens with accepting the July 11 bribe
for the issuance of two certificates of occupancy; the
second count charges him with accepting the July 20
bribe for the second pair of certificates. The jury
convicted Owens on both counts, and the district court
sentenced Owens to a term of imprisonment of twelve
months and one day.
II. DISCUSSION
On appeal, Owens argues that there was insufficient
evidence to support the jury’s verdict. In considering a
challenge to the sufficiency of the evidence to sustain a
conviction, we may reverse the conviction only if no
rational trier of fact, viewing the evidence in the light
most favorable to the Government, could have found
the defendant’s guilt beyond a reasonable doubt. United
States v. Gorman, 613 F.3d 711, 715 (7th Cir. 2010).
The federal program bribery statute, as relevant
here, prohibits agents of federally funded entities from
No. 12-1918 5
soliciting or accepting “anything of value . . . intending to
be influenced . . . in connection with any business, trans-
action, or series of transactions . . . involving any thing
of value of $5,000 or more[.]” 18 U.S.C. § 666(a)(1)(B).
Owens concedes that the Government proved all but
one element of § 666(a)(1)(B); his sole challenge is to
the sufficiency of the evidence regarding the require-
ment that the “business” or “transaction” sought to be
influenced involved a “thing of value of $5,000 or more[.]”
In United States v. Robinson, 663 F.3d 265 (7th Cir. 2011),
we said that this element of § 666(a) means that “the
subject matter of the bribe must be valued at $5,000 or
more; the bribe itself need only be ‘anything of value.’ ”
Id. at 271 (citing United States v. Duvall, 846 F.2d 966, 976
(5th Cir. 1988)). Owens contends that there was insuf-
ficient evidence that the value of the subject matter of
the bribes in this case—identified in the information as
the issuance of the four certificates of occupancy—met
the $5,000 threshold and that the evidence instead sug-
gested that the certificates were invalid and worthless.1
The Government admits that the issuance of the certif-
icates of occupancy in this case “does not have an easily-
quantified exact dollar value.” Section 666(a) is am-
biguous on the question of how to measure value,
and we and other circuits have adopted a variety of
1
Because we find that the Government’s evidence was insuf-
ficient to meet its burden, we need not reach Owens’ argu-
ments regarding the evidence he elicited at trial that he
contends established that the certificates of occupancy had
little or no value.
6 No. 12-1918
approaches to determine the value of the subject matter
of a bribe when it is an intangible benefit or its value
is difficult to quantify. The easiest and most obvious
way is by looking at how much someone in the market
was willing to pay for the benefit and an official was
willing to take to provide the benefit—the value of the
bribe. This means that the bribe amount “may suffice
as a proxy for value; at least it provides a floor for the
valuation question.” Robinson, 663 F.3d at 275; see also
United States v. Townsend, 630 F.3d 1003, 1012 (11th
Cir. 2011) (“[T]he value of an intangible in the black
market of corruption is set at the monetary value of
what a willing bribe-giver gives and what a willing bribe-
taker takes in exchange for the intangible.”); United
States v. Marmolejo, 89 F.3d 1185, 1194 (5th Cir. 1996)
(arriving at an estimate of the value of conjugal visits
obtained through the bribery of prison officials “in
the same way an appraiser would value an asset—by
looking at how much a person in the market would
be willing to pay for them”) (citation omitted). This
method of valuation does not help the Government
meet its burden in this case; Owens’ acceptance of two
$600 bribes in exchange for the issuance of the certif-
icates falls far short of the $5,000 threshold.
Another approach to valuing the subject matter of
the bribe is by looking to the value of the benefit the bribe-
giver will receive if the bribe is successful. In United
States v. Curescu, 674 F.3d 735 (7th Cir. 2012), for
example, a developer had used an unlicensed plumber
to add plumbing to four newly constructed residential
units. A plumbing inspector discovered the violation
No. 12-1918 7
and told the developer that he had to redo the plumbing
using a licensed plumber. Id. at 738. Rather than
removing the old plumbing and replacing it using a
licensed plumber, a different plumbing inspector was
bribed to certify falsely that a licensed plumber had
completed the plumbing in the four units, which allowed
the illegal plumbing to remain. Id. Thus, the value of the
false certification was the money the developer did not
have to spend redoing the plumbing, an amount that
exceeded $5,000. Id. at 743; see also Robinson, 663 F.3d
at 267, 276 (approving of the use of the “estimated value
of an illicit ‘license’ to sell cocaine” as a measure of
value in a case in which a cocaine-trafficker attempted
to bribe a police officer to “get the heat off” his drug-
selling operation). This method of valuation is not
limited to the bribe-giver; courts may also consider the
value of the benefit to related parties “with an im-
mediate interest in the transaction.” See United States v.
Hines, 541 F.3d 833, 837 (8th Cir. 2008).
Recognizing that the bribe amount in this case would
not take it over the statutory threshold, the Govern-
ment relied on the benefit-of-the-bribe approach at trial.
In doing so, the Government offered evidence it be-
lieved established the value of the certificates of oc-
cupancy from the perspectives of the developers and
homeowners of the four homes for which Owens issued
the certificates. The Government presented mortgage
documents showing that the homeowners received mort-
gages with notes ranging from $200,000 to over $600,000
to purchase the four homes, and zoning documents
indicating that the construction costs for each home
8 No. 12-1918
were estimated to be between $180,000 and $250,000.
According to the Government, the mortgage values and
construction costs for the homes, “coupled with the fact
that homes could not be occupied without certificates,”
permits “the reasonable inference that the certificates
involved something valued at $5,000 or more.” We dis-
agree.
To understand why the Government’s evidence failed,
we must look more closely at the “subject matter” of the
bribes at issue in this case. The information identifies “the
issuance of the certificates of occupancy” for the four
properties as the “thing of value of $5,000 or more,” and
that is what the Government argued at trial and main-
tains on appeal. It cannot be that simple, though, as
anyone who complies with the Board of Zoning proce-
dures and has a home that passes inspection can receive
a certificate of occupancy for free. Obtaining the issuance
of the certificates through greasing a palm rather than
through legitimate means must therefore create value
in some other way. Perhaps, as the Government suggests,
it is obtaining a certificate without an inspection.
This could be valuable in at least two ways. First and
most obviously, if the home’s construction was defec-
tive and the home would not pass inspection, paying
a bribe and avoiding an inspection would save the cost
of performing repairs. Alternatively, a home could be
free of zoning violations, but a developer or homeowner
places a premium on expediting the issuance of a
certificate due to a pressing need to sell or occupy the
home or obtain a mortgage with favorable and time-
sensitive terms. The problem for the Government, though,
No. 12-1918 9
is that it failed to present any evidence of either of these
situations in this case, or of any situation in which
the issuance of the certificates as a result of the bribes
benefitted the developers or homeowners in some way
that the issuance of the certificates through legitimate
means would not have. Cf. Curescu, 674 F.3d at 741;
Hines, 541 F.3d at 837 (finding evidence sufficient to
sustain conviction under § 666(a)(1)(B) where an execu-
tion deputy in the sheriff’s office was paid bribes “to
effectuate [his] timely performance of [his] official
duties involving court orders of eviction” where
property owners, landlords, and lawyers testified that
“a landlord or property owner loses a substantial amount
in market value, rent and mortgage payments, and/or
property damage every day a defaulting tenant or mort-
gagee is in possession of the property”); United States v.
Zwick, 199 F.3d 672, 690-91 (3d Cir. 1999) (noting that the
$5,000 threshold was met because, inter alia, the bribe-
givers “would have lost $10,000 had they not received
[the permits for which they paid the bribe] in a timely
manner”), abrogated on other grounds by Sabri v. United
States, 541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).
Perhaps recognizing the problem it has in relying on
the value of the issuance of the certificates alone to
meet its burden, the Government selectively cites
language from § 666(a)(1)(B) and contends that it did
not need to prove that the issuance of the certificates
was worth more than $5,000, “but only that the issuance
of the certificates involved anything valued at $5,000 or
more.” Thus, the Government argues, because the
issuance of the certificates “involved something” worth
10 No. 12-1918
more than $5,000—the mortgages on the homes and the
construction costs—it met the statutory threshold.
We reject this overly expansive interpretation of
§ 666(a)(1)(B). Such a broad reading of “involving” would
render the $5,000 threshold meaningless, and we have
clearly said that § 666(a) requires that “the subject matter
of the bribe”—not something to which the subject matter
of the bribe is tangentially related—“must be valued
at $5,000 or more.” See Robinson, 663 F.3d at 271. Because
the Government failed to put forth any evidence
linking the mortgages and the construction costs to
the value of the issuance of the certificates, it failed to
prove that the subject matter of the bribes in question
here met the statutory threshold.2
2
The Government also argued at trial that the issuance of
the certificates of occupancy “involved” the “corruption of
[Owens’] core functions” as a zoning inspector, and therefore
that the jury should consider his salary of over $70,000 a year
in valuing the issuance of the certificates. The Government
wisely chose not to focus on this argument on appeal. Although
we gave cursory approval to the use of evidence of police
officers’ salaries (in addition to other evidence of value) in
Robinson, 663 F.3d at 275-76, here the Government admits
Owens’ salary is “a step removed from the individual trans-
action” underlying the bribes. We accordingly reject this ar-
gument because permitting the salary evidence to push the
bribes in question over the $5,000 threshold without a clearer
relationship to the subject matter of the bribe would read
the requirement out of the statute whenever an official
charged under § 666(a)(1)(B) earned a salary greater than $5,000.
No. 12-1918 11
III. CONCLUSION
For the foregoing reasons, we R EVERSE the judgment
of the district court.
10-11-12