United States v. Garrido , 713 F.3d 985 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 06-50717
Plaintiff-Appellee,
D.C. No.
v. CR-04-01594-SVW-4
GEORGE GARRIDO , AKA Jorge
Arturo Garrido,
Defendant-Appellant.
UNITED STATES OF AMERICA , No. 06-50718
Plaintiff-Appellee,
D.C. No.
v. CR-04-01594-SVW-1
ALBERT T. ROBLES, AKA
Albert Tzareih Robles; Alberto OPINION
Del Tzareih,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
November 15, 2010—Pasadena, California
2 UNITED STATES V . GARRIDO
Filed April 15, 2013
Before: Harry Pregerson, John T. Noonan,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Pregerson
SUMMARY*
Criminal Law
The panel reversed Albert Robles’s and George Garrido’s
honest services fraud convictions, reversed Robles’s money
laundering convictions, and affirmed Robles’s bribery
convictions in a case that arose out of events that took place
while Robles was Treasurer of the City of South Gate,
California.
Robles and Garrido, a local businessman and friend of
Robles, were implicated in two schemes to award city
contracts to particular companies while reaping substantial
benefits for themselves.
The panel reversed Robles’s 18 U.S.C. § 1346 honest
services fraud convictions with respect to Counts 1 through
11, 13 through 15, 17, and 23 through 25, and Garrido’s
§ 1346 honest services fraud conviction with respect to
Counts 23 through 25 because, under Skilling v. United
States, 130 S. Ct. 2896 (2010), the jury instructions
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . GARRIDO 3
erroneously permitted convictions on the unconstitutional
theory of a failure to disclose a conflict of interest.
The panel reversed Robles’s § 1346 honest services fraud
convictions with respect to Counts 16, 22, and 27 and
Garrido’s honest services fraud convictions with respect to
Counts 22 and 27, and acquitted Robles on Counts 16, 22,
and 27, and acquitted Garrido on Counts 22 and 27 because
these counts are based on Skilling’s unconstitutional theory of
a failure to disclose a conflict of interest in a state disclosure
form, and because there is insufficient evidence to support
Counts 16 and 27.
The panel reversed Robles’s 18 U.S.C. § 1957 money
laundering convictions with respect to Counts 18 through 21
because they are predicated on the flawed honest services
fraud convictions.
The panel affirmed Robles’s 18 U.S.C. § 666 bribery
convictions with respect to Counts 33 through 37 because
§ 666 convictions do not require the defendant to be
influenced in an official act.
COUNSEL
Karen L. Landau, Oakland, California; Dennis P. Riordan,
Riordan & Horgan, San Francisco, California, for
Defendants-Appellants.
Elana Shavit Artson, Assistant United States Attorney, Los
Angeles, California, for Plaintiff-Appellee.
4 UNITED STATES V . GARRIDO
OPINION
PREGERSON, Circuit Judge:
Albert T. Robles (“Robles”) appeals his convictions for
honest services mail and wire fraud (18 U.S.C. §§ 1341,
1343, 1346), money laundering (18 U.S.C. § 1957), and
bribery (18 U.S.C. § 666). George Garrido (“Garrido”)
appeals his convictions for honest services mail fraud
(18 U.S.C. §§ 1341, 1346). We have jurisdiction under
28 U.S.C. § 1291.
After Robles and Garrido were convicted and sentenced,
and while their cases were on appeal, the Supreme Court in
Skilling v. United States, 130 S. Ct. 2896 (2010), narrowed
the scope of 18 U.S.C. § 1346 to include only honest services
fraud based on bribery and kickback schemes. Id. at 2933.
The Court prohibited prosecutions (such as those in this case)
based on a failure to disclose a conflict of interest as
unconstitutionally vague. Id. at 2932. In light of Skilling, we
reverse Robles’s and Garrido’s honest services fraud
convictions and reverse Robles’s money laundering
convictions. We affirm Robles’s bribery convictions under
18 U.S.C. § 666 because such convictions do not require the
defendant to be engaged in an official act. Accordingly, we
remand for further proceedings consistent with this opinion.
I.
Following a jury trial, Robles was convicted of twenty-
one counts of honest services mail and wire fraud (Counts
1–11, 13–17, 22–25, 27); four counts of money laundering
(Counts 18–21); and five counts of bribery (Counts 33–37).
UNITED STATES V . GARRIDO 5
Garrido was convicted of five counts of honest services mail
fraud (22–25, 27).
Robles’s and Garrido’s convictions arose out of a series
of events that took place while Robles was Treasurer of the
City of South Gate, California. Robles was elected Treasurer
in 1997 and reelected in 2001. He had previously served as
Mayor and as an elected member of the South Gate City
Council. Garrido was a local businessman and friend of
Robles’s. Robles and Garrido were implicated in two
schemes to award city contracts to particular companies while
reaping substantial benefits for themselves.
A. Sewer Repair and Housing Project Schemes
(Counts 1–21)
The first scheme, charged against Robles alone, involved
two corporate entities: the Southland Companies, comprised
of several housing development corporations, and PSOMAS,
an engineering consulting firm. The Southland Companies
were developing housing projects in South Gate, and
PSOMAS was interested in sewer repair contracts in South
Gate.
The indictment alleged that Robles used his influence as
Treasurer to induce the Southland Companies and PSOMAS
into hiring Robles’s friend Edward Espinoza (“Espinoza”) as
a consultant; directed the city council to award contracts to
the two companies; and concealed or failed to disclose that
6 UNITED STATES V . GARRIDO
portions of the city’s money paid to those companies was
funneled to Robles and to Robles’s friends and family.1
Counts 1 through 11 alleged that checks were mailed
from the City of South Gate to PSOMAS and from PSOMAS
to EM Ventures, a company that Espinoza owned and used to
receive money from individuals and entities who did business
with the City of South Gate. Counts 13 through 15 and 17
charged that wire transfers were made from three Southland
housing development projects to Espinoza, EM Ventures, and
ETE & Associates, a financial advisory firm that Espinoza
owned and used to receive money from individuals and
entities who did business with the City of South Gate.
Count 16 specifically alleged that Robles failed to
disclose in a 2002 California Form 700, Statement of
Economic Interests, that he received from Espinoza a $65,000
platinum membership in the Anthony Robbins Foundation, a
self-help motivational organization, and that Robles caused
that Form 700 “to be transmitted in interstate commerce by
wire communications” by faxing it to Sacramento.2
1
The indictment alleged that the Southland Companies and PSOMAS
paid over $2 million from city contracts to Espinoza or his companies.
Espinoza in turn was alleged to have paid over $1.4 million to Robles’s
family and friends.
2
In 2002, elected officials in California had a duty to disclose the source
of gifts in excess of $50 on Form 700. See Cal. Gov’t Code § 89503 (f)
(providing that the gift limit is adjusted every odd-numbered year). A
“gift” is “any payment that confers a personal benefit on the recipient, to
the extent that consideration of equal or greater value is not received . . . .”
Id. § 82028(a). A “gift” does not include campaign contributions. Id.
§ 82028(b)(4). “Contribution” is defined as “a payment . . . except to the
extent that full and adequate consideration is received, unless it is clear
from the surrounding circumstances that it is not made for political
UNITED STATES V . GARRIDO 7
Counts 18 through 21 charged Robles under 18 U.S.C.
§ 1957 with money laundering. Those counts alleged that
Robles used the money gained from the honest services fraud
to purchase property in Mexico and for a platinum
membership in the Anthony Robbins Foundation.
B. Waste-Hauling Contract Scheme (Counts 22–37)
The second scheme, charged against both Robles and
Garrido, alleged that Robles, while he was Treasurer, caused
the City of South Gate to award improperly a waste-hauling
contract to Michael Klistoff’s (“Klistoff”) waste company,
Klistoff & Sons.
Garrido and Klistoff had been friends for several years
before Garrido introduced Klistoff to Robles. In 1999, at
Robles’s request, Klistoff began making campaign
contributions and gifts3 to Robles and Robles’s general
purposes.” Id. § 82015(a). A payment “made at the behest of a candidate
is a contribution to the candidate unless . . . [i]t is clear from the
surrounding circumstances that the payment was made for purposes
unrelated to his or her candidacy for elective office.” Id.
§ 82015(b)(2)(B). One type of payment that is presumed to be for
purposes unrelated to a candidate’s candidacy for elective office is a
payment “made principally for personal purposes,” which “may be
considered a gift.” Id. § 82015(b)(2)(B)(I).
3
In January 2000, Klistoff bought a personal computer and computer
software for Robles. In October and November 2000, Klistoff wrote two
checks to Pyramid Press for Citizens for Good Government. Also in
November 2000, Klistoff made a partial payment for a telephone
switchboard system for Robles. In February 2001, Klistoff paid for
copying expenses for Robles. Klistoff made all of these payments at
Robles’s request.
8 UNITED STATES V . GARRIDO
purpose committee, Citizens for Good Government.4 Klistoff
agreed to make these contributions because he knew Robles
had influence in South Gate and Klistoff was hoping to gain
access to future waste-hauling contracts.
About ten days before the March 2001 election, Robles
asked the then-current waste-hauling company for South
Gate, Waste Management, whose contract with the city was
set to expire in eight months, to pay $15,000 worth of
printing bills that Robles was about to incur. Waste
Management declined to pay the bills because it was too late
to report them as a campaign contribution. After Robles was
reelected Treasurer, Robles told Waste Management that they
were not his friends and that, as far as Robles was concerned,
Waste Management was “out of town.” Robles told Waste
Management to go away quietly or he would hurt the
company in other cities.
In 2001, Klistoff told Garrido that he wanted Klistoff &
Sons to be awarded South Gate’s ten-year waste-hauling
contract, worth about $48 million. Garrido agreed to help
Klistoff get the contract on the conditions that: (1) Klistoff
hired Garrido as a consultant for $350,000 per year for the
duration of the ten-year waste-hauling contract, and
(2) Garrido’s recycling business would be cut in on the
contract if it was awarded to Klistoff & Sons.
4
A general purpose committee is a committee that: (1) receives
contributions totaling $1,000 or more in a calendar year, and is “formed
or exists primarily to support or oppose more than one candidate or ballot
measure”; (2) makes independent expenditures of more than $1,000 per
calendar year; or (3) makes contributions totaling $10,000 in a calendar
year at the behest of candidates or committees. Cal. Gov’t Code
§§ 82027.5, 82013(a)–(c).
UNITED STATES V . GARRIDO 9
Robles met with Klistoff before South Gate sent out its
request for proposals for the waste-hauling contract. Robles
showed Klistoff the draft request for proposals, which called
for one company to perform residential services and three
companies to perform commercial waste-hauling services.
Klistoff suggested to Robles that one company could perform
both waste-hauling services. The final request for proposals
incorporated Klistoff’s suggestion and called for a single
company to perform both the residential and commercial
services. Klistoff & Sons submitted its bid for the waste-
hauling contract in June 2001.
In July 2001, Robles assigned his friend, Louis Moret, to
work on the city’s waste-hauling contract as the facilitator for
the bidding process. Moret presented the staff
recommendation for the contract to the city council and
attended the meeting when the city council voted to award the
contract. Robles told Moret that “he had a horse in the race”
and that horse was Klistoff & Sons. Robles was concerned
about Klistoff’s ability to make a persuasive presentation to
the contract selection committee, so he asked Moret to
recommend a consultant to help Klistoff & Sons prepare its
oral presentation in support of its bid. Moret recommended
Ray Garubo (“Garubo”) as a consultant. Shortly thereafter,
Garrido contacted Klistoff and advised him to hire Garubo as
a consultant to help Klistoff & Sons make an effective and
convincing presentation to city officials. Klistoff retained
Garubo as a consultant, but Garrido paid Garubo’s consulting
fees.5
5
Advising Klistoff to retain Garubo and paying Garubo’s consultant fees
were the only services Garrido provided Klistoff even though Klistoff
agreed to pay Garrido $350,000 per year for the life of the ten-year waste-
hauling contract. Between 2002 and 2003, Klistoff made five payments
10 UNITED STATES V . GARRIDO
Klistoff received information that no competing company
was given. Robles showed Klistoff the other competing
companies’ bids, even though the bids were supposed to be
confidential. Moreover, at Robles’s request, Moret provided
Robles and Garubo with a copy of the confidential questions
that the selection committee would ask the bidders to answer
during oral presentations. None of the other bidders were
provided with these confidential questions in advance of their
oral presentations.
After the oral presentations, the selection committee
voted to recommend that South Gate engage in exclusive
negotiations with Klistoff & Sons. The vote was in part
based on Klistoff’s oral presentation. The city council
approved the selection committee’s recommendation and
ultimately awarded the $48 million waste-hauling contract to
Klistoff & Sons.
Counts 22 through 25 and 27 charged Robles and Garrido
with honest services mail fraud in connection with the waste-
hauling contract scheme. Count 22 is based on California
Form 700, Statement of Economic Interests, for calendar year
2000 in which Robles failed to disclose the payments
received from Klistoff for a computer, software, and a
telephone switchboard system. See supra note 3. The Form
700 was mailed. Counts 23 through 25 are based on three
checks from Garrido’s business, GWS Nursery and Supplies,
Inc., received by Garubo for assisting Klistoff & Sons in its
efforts to obtain the waste-hauling contract with South Gate.
to Garrido of $87,500 each, for a total of $437,500. Klistoff did not make
any further payments to Garrido.
UNITED STATES V . GARRIDO 11
Count 27 refers to a California Form 700, Statement of
Economic Interests, for calendar year 2001, in which Robles
failed to disclose copying services paid for by Klistoff on
Robles’s behalf.
Counts 33 through 37 were charged against Robles alone.
Robles was charged under 18 U.S.C. § 666 with accepting
bribes from Klistoff in connection with the waste-hauling
contract.
C. Indictment and Trial
The government filed the original indictment against
Robles, Klistoff, and Espinoza in November 2004. It filed a
First Superseding Indictment in December 2004, alleging
forty counts against those same defendants. On March 10,
2005, Espinoza pled guilty to four counts of the First
Superseding Indictment. On March 24, 2005, the government
filed the Second Superseding Indictment against Robles,
Klistoff, and Garrido. In June 2005, after Klistoff entered
into a plea agreement, the government filed a redacted
Second Superseding Indictment which deleted Klistoff as a
named defendant in the caption. The redacted Second
Superseding Indictment charged Robles with twenty-one
counts of honest services mail and wire fraud, four counts of
money laundering, and five counts of bribery. Garrido was
charged with five counts of honest services mail fraud.
A jury convicted Robles and Garrido on all counts alleged
in the redacted Second Superseding Indictment. The district
court sentenced Robles to ten years in prison, fines, and
restitution. Garrido was sentenced to fifty-one months in
prison, fines, and restitution. Robles and Garrido timely
appealed.
12 UNITED STATES V . GARRIDO
II.
A. Robles’s and Garrido’s 18 U.S.C. § 1346 Honest
Services Fraud Convictions
Robles was convicted of honest services mail and wire
fraud on Counts 1 through 11, 13 through 17, 22 through 25,
and 27. Garrido was convicted of honest services mail fraud
on Counts 22 through 25, and 27. Honest services mail and
wire fraud cases “rel[y] on the idea that ‘a public official acts
as trustee for the citizens and the State . . . and thus owes the
normal fiduciary duties of a trustee, e.g., honesty and loyalty
to them.’”6 United States v. Kincaid-Chauncey, 556 F.3d
923, 939 (9th Cir. 2009) (quoting United States v. Silvano,
812 F.2d 754, 759 (1st Cir. 1987)).
1. Honest Services Fraud Before and After
Skilling
Before 1987, the government prosecuted honest services
fraud cases under 18 U.S.C. §§ 1341 (mail fraud) and 1343
(wire fraud). United States v. Weyhrauch, 548 F.3d 1237,
1243 (9th Cir. 2008), vacated and remanded on other
grounds, 130 S. Ct. 2971 (2010); United States v. Bruno,
809 F.2d 1097, 1099, 1104–05 (5th Cir. 1987). Sections 1341
6
T he indictment alleged that South Gate’s public officials’ “duty of
honest services included the following obligations: (a) to act as trustees for
the citizens, and in the best interests of the public, without pursuing their
own personal interests; (b) to conduct election campaigning and fund-
raising activities openly and free from fraud and dishonesty; (c) to refrain
from taking official action on any matter in which they might have a direct
or indirect financial interest without first disclosing any such interest to
the public; and (d) to abide by the laws of the United States, the laws of
the State of California, and the laws of the City of South Gate.”
UNITED STATES V . GARRIDO 13
and 1343 “criminalize the use of the mails or wires in
furtherance of ‘any scheme or artifice to defraud, or for
obtaining money or property by means of false or fraudulent
pretenses, representations, or promises.’” Skilling v. United
States, 130 S. Ct. 2896, 2908 n.1 (2010) (quoting §§ 1341 and
1343).
Although those statutes prohibit the use of the mails or
wire services to perpetrate fraudulent schemes to deprive
others of “money or property,” our court and other courts
interpreted the statutes to apply to the deprivation of the
public’s “intangible rights” to public officials’ honest
services. United States v. Milovanovic, 678 F.3d 713, 720
(9th Cir. 2012) (en banc); Weyhrauch, 548 F.3d at 1243; see
also Bruno, 809 F.2d at 1105 (stating citizens “may be
defrauded of nonpecuniary interests” such as the “honest
services of [their] public officials”); United States v. Gray,
790 F.2d 1290, 1295 (6th Cir. 1986) (explaining “the
‘intangible rights’ theory is anchored upon the defendant’s
misuse of his public office for personal profit”); United States
v. Keane, 522 F.2d 534, 549 (7th Cir. 1975) (noting “the mail
fraud statute in this circuit has been used . . . to prosecute
public officials for . . . depriving their constituents of their
right to loyal, faithful and honest public service”); United
States v. States, 488 F.2d 761, 765 (8th Cir. 1973) (holding a
fraudulent scheme may “deceive and defraud the public . . .
of certain intangible political and civil rights”).
In 1987, however, the Supreme Court held that § 1341
was limited to protecting property rights, and suggested that
“[i]f Congress desires to go further, it must speak more
clearly than it has.” McNally v. United States, 483 U.S. 350,
360 (1987). Congress responded by inserting § 1346 into the
federal criminal code the following year. Skilling, 130 S. Ct.
14 UNITED STATES V . GARRIDO
at 2927; see also Act of Nov. 18, 1988, Pub. L. 100-690,
102 Stat. 4181, 4508 (1988) (codified at 18 U.S.C. § 1346).
By enacting § 1346, Congress “meant to reinstate the body of
pre-McNally honest services law.” Skilling, 130 S. Ct. at
2929 (citation and internal quotation marks omitted). Section
1346 “defines the term ‘scheme or artifice to defraud’” for
the purposes of honest services mail and wire fraud “to
include ‘a scheme or artifice to deprive another of the
intangible right of honest services.’” Id. at 2908 n.1 (quoting
§ 1346).
Following the enactment of § 1346, courts around the
country interpreted the statute to encompass various types of
schemes and to make criminal a wide variety of acts. See,
e.g., Weyhrauch, 548 F.3d 1243–44 (listing cases); United
States v. Walker, 490 F.3d 1282, 1297 (11th Cir. 2007)
(noting that “[t]he scope of conduct covered by the honest
services mail fraud statute is extremely broad”). But see
United States v. Brumley, 116 F.3d 728, 734 (5th Cir. 1997)
(holding violation of § 1346 requires that “a state official
breached a duty respecting the provision of services owed to
the official’s employer under state law”). The Ninth Circuit
recognized two theories of honest services fraud: (1) bribery
and (2) failure to disclose a material conflict of interest.
Kincaid-Chauncey, 556 F.3d at 942. The prosecution of
Robles and Garrido proceeded under that framework.
After Robles’s and Garrido’s trial, the Supreme Court
granted certiorari in the Fifth Circuit case United States v.
Skilling, 554 F.3d 529 (5th Cir 2009), to determine whether
a public official may be convicted of honest services fraud for
failing to disclose material information. See Skilling v.
United States, 130 S. Ct. 393 (2009).
UNITED STATES V . GARRIDO 15
In deciding Skilling, the Supreme Court limited the reach
of § 1346. The Court held that § 1346 criminalizes only
bribery and kickback schemes, not failures to disclose a
conflict of interest. Skilling, 130 S. Ct. at 2933. Thus, by
limiting § 1346 to bribery and kickback schemes, and
prohibiting § 1346 prosecutions based on a failure to disclose
a conflict of interest, Skilling changed the applicable analysis
that applies to the present appeal.7 The question after Skilling
is whether Robles and Garrido were indicted, tried, and
convicted of honest services fraud based on a proper bribery
or kickback theory, or whether they were indicted, tried, and
convicted on the unconstitutional undisclosed conflict of
interest theory.
2. The Impact of Skilling
On appeal, the parties have submitted changing arguments
as to whether Robles and Garrido were charged with schemes
involving bribery and kickbacks or involving undisclosed
conflicts of interest. Before Skilling, Robles and Garrido
argued that the government’s case was founded only on a
bribery theory, and that the government’s evidence was
insufficient to support their convictions. The government
disagreed, insisting that its case was rooted in Robles’s
failure to disclose a conflict of interest. In support of its
contention, the government highlighted the district court’s
finding that the indictment, viewed as a whole, alleged a
scheme based on an undisclosed conflict of interest.
7
Following the Supreme Court’s decision in Skilling, the parties filed
supplemental briefs addressing the impact of that case on the issues raised
in this appeal.
16 UNITED STATES V . GARRIDO
After Skilling, however, the parties traded positions.
Robles and Garrido now argue that the indictment, and the
convictions resulting from it, alleged only a failure to disclose
a conflict of interest. On the other hand, the government now
argues that the indictment is based on bribery and kickbacks.
The government also argues that the district court’s
instructions on the failure to disclose theory, while erroneous,
did not affect Robles’s and Garrido’s substantial rights
because the schemes alleged in the indictment “involved both
bribes and kickbacks.”
3. Standard of Review
“[C]onstitutional error occurs when a jury is instructed on
alternative theories of guilt and returns a general verdict that
may rest on a legally invalid theory.” Skilling, 130 S. Ct. at
2934 (citing Yates v. United States, 354 U.S. 298 (1957)).
“Any omission or misstatement of an element of an offense
in the jury instructions is constitutional error and, therefore,
requires reversal unless we find the error ‘harmless beyond a
reasonable doubt.’” United States v. Kilbride, 584 F.3d 1240,
1247 (9th Cir. 2009) (quoting Chapman v. California,
386 U.S. 18, 24 (1967)). Where there was no objection at
trial, however, we review jury instructions for plain error. Id.
“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.” Fed. R. Crim. P. 52(b). “To notice error under
Rule 52(b), we must find that (1) there is ‘error’; (2) it was
‘plain’; and (3) the error affected ‘substantial rights.’” United
States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004) (quoting
United States v. Olano, 507 U.S. 725, 732–35 (1993)). Even
if these three conditions are met, the court may reverse the
district court only if the error “‘seriously affects the fairness,
UNITED STATES V . GARRIDO 17
integrity or public reputation of judicial proceedings.’” Id.
(quoting Olano, 507 U.S. at 736).
4. The Jury Instructions on Undisclosed Conflicts
of Interest were Erroneous and the Error was
Plain
The parties agree that the first two prongs of the plain
error test are satisfied. An error is plain if it is clearly
inconsistent with established law at the time of appellate
consideration. Johnson v. United States, 520 U.S. 461, 468
(1997); see also Henderson v. United States, 133 S. Ct. 1121,
1130 (2013) (holding “whether a legal question was settled or
unsettled at the time of trial, ‘it is enough that an error be
‘plain’ at the time of appellate consideration.’” (quoting
Johnson, 520 U.S. at 468)).
The court instructed the jury on the mail and wire fraud
counts as follows:
In order for defendants Robles and Garrido to
be found guilty of [mail or wire fraud], the
government must prove each of the following
four elements beyond a reasonable doubt:
First, the defendant knowingly made up or
participated in a scheme or plan to deprive the
City of South Gate and its citizens of their
right to the honest services of their elected
officials . . . . Secondly, the defendant acted
with the intent to defraud, that is, the intent to
deprive the City of South Gate and its citizens
of their right to the honest services of their
elected officials . . . . Third, the defendant
18 UNITED STATES V . GARRIDO
used a material falsehood or omitted material
information . . . . Fourth, the defendant used,
or caused someone to use, the mails [or a wire
communication] in interstate commerce to
carry out or attempt to carry out the scheme or
plan.
Trial Tr. 1922–1925, July 26, 2005.
The court defined the intent to defraud the public of
honest services as follows:
Public officials and public employees
inherently owe a duty to the public to act in
the public’s best interest. If, instead, the
official acts or makes his decision based on
the official’s own personal interests, such as
accepting a bribe, taking a kickback, or
receiving a benefit from an undisclosed
conflict of interest, the official has defrauded
the public of the official’s honest services
even though the city may not suffer any
monetary loss in the transaction.
Trial Tr. 1925–26, July 26, 2005 (emphasis added).
Thus, the jury instructions improperly allowed a
conviction where “the official acts or makes his decision
based on the official’s own personal interests, such as
accepting a bribe, taking a kickback, or receiving a benefit
from an undisclosed conflict of interest . . . .” Trial Tr. 1925,
July 26, 2005 (emphasis added). Because the district court’s
instructions permitted the jury to convict Robles and Garrido
UNITED STATES V . GARRIDO 19
on Skilling’s now unconstitutional failure to disclose theory,
there was error and the error was plain.
5. The Error Affected the Appellants’ Substantial
Rights
An error affects substantial rights if there is “a reasonable
probability that the error affected the outcome of the trial.”
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010). To
determine if the error affected the outcome of the trial, “we
consider ‘all circumstances at trial including the strength of
the evidence against [the] defendant.’” United States v.
Chambers, 918 F.2d 1455, 1459 (9th Cir. 1990) (alteration in
original) (quoting United States v. Wagner, 834 F.2d 1474,
1485 (9th Cir. 1987)). We “review the jury instructions as a
whole,” not only the erroneous instructions. Kincaid-
Chauncey, 556 F.3d at 946. We may also examine the
arguments made by the parties. See Chapman, 386 U.S. at 25
(noting that the prosecutor’s argument repeatedly relied on an
error of law).
After reviewing the trial record as a whole, we conclude
that there is a reasonable probability that the jury convicted
Robles and Garrido of honest services fraud based on their
failure to disclose a conflict of interest. Because of the
emphasis on the conflict of interest theory in the jury
instructions and in the closing arguments, we find that the
error affected the Appellants’ substantial rights.
20 UNITED STATES V . GARRIDO
a. The Indictment
We find the indictment ambiguous at best. It arguably
encompasses both theories of honest services fraud: (1)
bribery and kickbacks, and (2) a failure to disclose a conflict
of interest. The vast majority of the allegations appear to
support only an undisclosed conflict of interest.8
Nevertheless, because the indictment could be read to at least
imply a bribery or kickback scheme, it is not possible to
conclude on the basis of the indictment alone which theory or
theories the jury may have embraced in rendering a guilty
verdict on the § 1346 honest services charges.
b. The Jury Instructions
The district court’s § 1346 jury instructions included only
a single reference to bribery and kickbacks in its example of
schemes that could amount to honest services fraud
(“accepting a bribe, taking a kickback, or receiving a benefit
from an undisclosed conflict of interest”). The overwhelming
weight of the instructions support only the undisclosed
conflict of interest theory, rather than a bribery or kickback
theory. The transcript of the jury instructions devoted nine
8
The indictment lists several state and local disclosure laws pertaining
to public officials. It also alleges schemes involving failures to disclose
various conflicts of interest, including Robles’s failure to disclose at least
$65,000 in financial benefits (i.e. a platinum membership in the Anthony
Robbins Foundation) that he received from Espinoza; Robles’s failure to
disclose to the city council the financial benefit he and his friends and
family would receive from the Southland Companies and PSOMAS city
contracts; Robles’s failure to disclose the financial benefit his friend
Garrido would receive from the contract granted by the city to Klistoff &
Sons; and Robles’s failure to report Klistoff’s access to the confidential
interview questions and confidential bids.
UNITED STATES V . GARRIDO 21
pages to state and local laws governing a public official’s
duty to disclose various contributions, gifts, and conflicts of
interest.
In contrast to the detailed discussion of the failure to
disclose theory, the district court did not define either
“bribery” or “kickback” in the § 1346 context. Although
bribery was defined in the 18 U.S.C. § 666 jury instructions,
§ 666 does not require a jury to find a specific quid pro quo.
See United States v. McNair, 605 F.3d 1152, 1187–89 (11th
Cir. 2010) (concluding that § 666 does not require a specific
quid pro quo); see also id. at 1189 (collecting cases from
other circuits which hold that § 666 does not require a quid
pro quo).9 A quid pro quo in bribery is the “specific intent to
9
McNair lists the following cases in support of its holding that § 666
does not require a quid pro quo:
United States v. Abbey, 560 F.3d 513, 520 (6th Cir.),
cert. denied, 130 S. Ct. 739, 175 L. Ed. 2d 520 (2009)
(stating “the text says nothing of a quid pro quo
requirement to sustain a conviction” and “while a quid
pro quo of money for a specific legislative act is
sufficient to violate [§ 666(a)(1)(B) or (a)(2)], it is not
necessary”) (quotation marks omitted); United States v.
Gee, 432 F.3d 713, 714-15 (7th Cir. 2005) (holding that
“[a] quid pro quo of money for a specific legislative
act” is not necessary under § 666(a)(1)(B) and that an
exchange of money for the official’s “influence” was
enough); United States v. Agostino, 132 F.3d 1183,
1190 (7th Cir. 1997) (“W e decline to import an
additional, specific quid pro quo requirement into the
elements of § 666(a)(2).”); but see United States v.
Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)
(concluding the “corrupt intent” element in § 666
requires the government to prove a quid pro quo, but
stating the “quid pro quo requirement is satisfied so
22 UNITED STATES V . GARRIDO
give or receive something of value in exchange for an official
act.” United States v. Sun-Diamond Growers of California,
526 U.S. 398, 404–05 (1999). Section 1346 honest services
convictions on a bribery theory, on the other hand, require at
least an implied quid pro quo.10 Kincaid-Chauncey, 556 F.3d
at 943; see Section III.A. below for further discussion.
There is evidence in the record that could support a
bribery or kickback conviction. Appellants do not dispute
that payments and in-kind contributions were made to
Robles’s family and friends, including Garrido. For example,
long as the evidence shows a ‘course of conduct of
favors and gifts flowing to a public official in exchange
for a pattern of official actions favorable to the donor’”
and “the intended exchange in bribery can be ‘this for
these’ or ‘these for these,’ not just ‘this for that’”
(citations omitted).
McNair, 605 F.3d at 1189 (alterations in original).
10
Robles was convicted on a separate substantive count of bribery in
violation of 18 U.S.C. § 666. However, proving bribery under § 666 does
not necessarily prove bribery under § 1346 honest services fraud because
the government must prove at least an implied quid pro quo to prove
bribery under § 1346, but the government does not need to prove a quid
pro quo under § 666 bribery. Thus, if the government did not prove a quid
pro quo, the jury could not have convicted Robles of bribery under § 1346
honest services fraud, but the jury could still have convicted Robles of
bribery under § 666. Therefore, we cannot extrapolate from Robles’s
§ 666 bribery conviction that the jury convicted Robles of § 1346 honest
services fraud on a bribery theory (as opposed to an undisclosed conflict
of interest theory). Cf. United States v. Wilkes, 662 F.3d 524, 544 (9th
Cir. 2011) (holding that the jury’s conviction of Wilkes on a separate
substantive count of bribery under another statute, 18 U.S.C. § 201,
“confirms beyond any reasonable doubt that the jury would have
convicted” W ilkes under § 1346 honest services fraud on a bribery theory
because § 201, like § 1346 bribery, requires proof of a quid pro quo).
UNITED STATES V . GARRIDO 23
Espinoza testified that Robles instructed him to funnel well
over half of the proceeds of his city contract to Robles’s
sister-in-law. Nevertheless, it is impossible to conclude that
the jury convicted Robles and Garrido based on their
participation in either a bribery or a kickback scheme instead
of based on Skilling’s unconstitutional failure to disclose a
conflict of interest.
c. The Closing Arguments
The prosecutor’s closing argument leaves little doubt that
its case focused almost entirely on a failure to disclose theory.
The prosecutor repeatedly invoked the public’s right to know
when its public officials stand to benefit from expenditures of
public funds. Although the prosecutor referred to financial
arrangements between Robles and certain contractors (e.g. the
Southland Companies, PSOMAS, and Klistoff & Sons), the
prosecutor did not argue that they were the building blocks of
a bribery or kickback scheme. Rather, such financial
arrangements were consistently offered to show that Robles
had conflicts of interest which were never disclosed to the
voters or to other officials of the City of South Gate. Thus,
the prosecutor’s closing argument strongly suggests that the
case was presented to the jury as a failure to disclose a
conflict of interest, which is precisely what the Supreme
Court found unconstitutional in Skilling.
Similarly, the transcript from Robles’s closing argument
suggests he believed he was fighting undisclosed conflict of
interest charges. His closing argument focused almost
entirely on whether he had a duty to disclose the payments,
whether the payments fell within the ambit of state or local
conflict of interest provisions, and whether the payments
were political “contributions” (which were not required to be
24 UNITED STATES V . GARRIDO
disclosed on Robles’s personal conflict of interest Form 700)
or whether they were “gifts” (which had to be disclosed).
The indictment, the jury instructions, and the closing
arguments at trial were permeated with the prohibited failure
to disclose theory. Upholding the convictions where neither
the government nor the Appellants argued their cases on a
constitutionally valid theory constitutes a miscarriage of
justice which would “seriously affect[] the fairness, integrity
or public reputation of judicial proceedings.” Marcus, 130 S.
Ct. at 2164. Thus, Appellants have met their burden under
the plain error standard of review to show that there was a
reasonable probability that the instructional error affected the
outcome of the trial and that the error seriously affected the
fairness, integrity or public reputation of judicial proceedings.
Therefore, we reverse Robles’s honest services mail and
wire fraud convictions and reverse Garrido’s honest services
mail fraud convictions. Furthermore, Counts 16, 22, and 27
fail for additional reasons, which we turn to now.
B. Robles’s § 1346 Honest Services Conviction on
Count 16 and Robles’s and Garrido’s § 1346
Honest Services Convictions on Counts 22 and 27
Robles’s § 1346 conviction on Count 16 and Robles’s and
Garrido’s § 1346 convictions on Counts 22 and 27 were each
based on a failure to disclose a conflict of interest in a
California Form 700, Statement of Economic Interests,
disclosure form. Pursuant to Skilling, failure to disclose a
conflict of interest in a state disclosure form cannot support
a § 1346 honest services conviction. See Section II.A. above.
UNITED STATES V . GARRIDO 25
Moreover, as the government concedes, there is
insufficient evidence to support the convictions on Counts 16
and 27 under any theory. Count 16 alleged that Robles failed
to disclose that he received from Espinoza a $65,000
platinum membership in the Anthony Robbins Foundation.
Purely intrastate telephone calls fall outside the reach of wire
fraud under § 1343. United States v. Izydore, 167 F.3d 213,
219–20 (5th Cir. 1999). Because the form was faxed from
South Gate, California to Sacramento, California, the
government concedes that we should reverse Robles’s
conviction on Count 16 because the government never proved
that the form traveled in interstate commerce.
Count 27 refers to a California Form 700 signed by
Robles on April 2, 2002 for calendar year 2001, in which
Robles failed to disclose a gift of copying services received
from Klistoff. The government also concedes that we should
reverse the Count 27 conviction because there was
insufficient evidence that the copying services were gifts.
Because these convictions cannot be upheld post-Skilling,
we reverse Robles’s conviction on Count 16 and Robles’s and
Garrido’s convictions on Counts 22 and 27.
C. Robles’s § 1957 Money Laundering Convictions
Because we reverse Robles’s § 1346 honest services mail
and wire fraud convictions, his convictions on Counts 18
through 21 for money laundering under 18 U.S.C. § 1957
must also be reversed. Convictions under § 1957 require the
government to prove that the offender “engage[d] or
attempt[ed] to engage in a monetary transaction in criminally
derived property . . . derived from specified unlawful
activity.” 18 U.S.C. § 1957(a). The indictment alleged that
26 UNITED STATES V . GARRIDO
the “criminally derived property” was money derived from
Robles’s honest services fraud. Accordingly, because the
§ 1346 honest services convictions were constitutionally
defective under Skilling, so too were the § 1957 convictions.
III.
A. Robles’s 18 U.S.C. § 666 Bribery Convictions
(Counts 33–37)
Counts 33 through 37 charged Robles alone with bribery
in violation of 18 U.S.C. § 666 in connection with the waste-
hauling contract.11 Robles contends that § 666 requires a quid
pro quo—a specific intent to receive a bribe in exchange for
an official act. Robles argues that there was insufficient
evidence to convict him of bribery under § 666 because there
is no evidence that he intended to be, or even could have
been, influenced in his performance of one of his official
duties. Robles claims that, as Treasurer of South Gate, he did
not have the authority to approve the waste-hauling contract;
rather that authority was vested in the city council.
Moreover, as Treasurer, he was required to disburse monies
properly approved by the city.12
11
The Indictment charged Robles with “corruptly accept[ing] and
agree[ing] to accept . . . payments for goods and services and campaign
contributions from Michael Klistoff and All City Services, intending to be
influenced and rewarded in connection with a transaction of [a local
government] . . . namely, the awarding of a multiple-year refuse collection
and recycling contract in South Gate worth approximately $48 million.”
12
The South Gate Municipal Code provides that “[t]he primary function
of the city treasurer is to disburse monies on demand which have been
properly audited and approved, such that once the proper procedures have
been followed, the duty of the city treasurer to disburse the funds is
UNITED STATES V . GARRIDO 27
“‘Claims of insufficient evidence are reviewed de novo.’”
United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008)
(quoting United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th
Cir. 2004)). There is sufficient evidence if, “after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Section 666 concerns bribery in connection with state and
local entities receiving federal funds. An official violates
§ 666 if the official “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 an entity (in this case, the City of
South Gate), if the exchange involves at least $5,000 and the
entity receives federal funds in excess of $10,000. 18 U.S.C.
§ 666(a)(1)(B), (b). The purpose of the statute is to “protect
federal funds by preserving the integrity of the entities that
receive the federal funds.” United States v. Simas, 937 F.2d
459, 463 (9th Cir. 1991) (citing United States v.
Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988)).
Robles’s argument that § 666 requires an official act
“confuses influence with [the] power to act unilaterally.”
United States v. Gee, 432 F.3d 713, 715 (7th Cir. 2005). A
jury could reasonably find that Robles intended to be
mandatory and not discretionary.” South Gate Municipal Code
§ 1.05.050(A) (emphasis added). The treasurer is also responsible for
receiving cash receipts and depositing them into the appropriate city
account. Id. at § 1.05.050(B). This duty is not a “policy decision,” but is
instead “administrative and ministerial.” Id.
28 UNITED STATES V . GARRIDO
influenced in connection with the city’s award of the waste-
hauling contract even though the authority to award the
contract was not part of Robles’s official duties. The
government presented evidence that Robles showed Klistoff
a draft request for proposals for the contract, and that the final
request for proposals incorporated Klistoff’s suggestion that
the waste-hauling contract award one company both
residential and commercial waste-hauling services. Robles
assigned his friend Moret to work as facilitator for the
bidding process for the waste-hauling contract. Robles
further instructed Moret that his “horse in the race” was
Klistoff & Sons. During the selection process, Robles
communicated with Moret frequently and Moret told Robles
information that was not available to the public. Robles
requested that Moret recommend a consultant to assist
Klistoff & Sons in its presentation for the bid, but he did not
request assistance for any other bidders. Klistoff & Sons
hired the recommended consultant. Robles showed Klistoff
the other companies’ competing bids, even though the
information was confidential during the bidding process.
Moret provided Robles and Klistoff & Son’s consultant the
confidential questions the selection committee would ask the
bidders in advance of the presentations, an advantage no other
bidder received. Thus, there was ample evidence that Robles
accepted bribes from Klistoff with the intention to be
influenced in connection with the waste-hauling contract.
Robles indeed used his considerable influence exclusively for
Klistoff’s benefit. Klistoff & Sons was awarded the contract
despite not being the lowest bidder.
In support of his argument that § 666 requires the
government to prove that Robles intended to be influenced in
connection with an official act as treasurer, Robles urges the
court to adopt the standards articulated in United States v.
UNITED STATES V . GARRIDO 29
Sun-Diamond Growers of California, 526 U.S. 398 (1999).
We find Sun-Diamond inapposite. Sun-Diamond concerned
a separate federal statute, 18 U.S.C. § 201, and the reasoning
for requiring an official act under § 201 is inapplicable to
§ 666. Section 201(b) defines bribery as the act of giving,
offering, or promising something of value in order “to
influence any official act” or receiving something of value in
return for “being influenced in the performance of any
official act.” 18 U.S.C. § 201(b)(1)(A), (2)(A); Sun-
Diamond, 526 U.S. at 404. The term “official act” is
expressly and broadly defined in § 201 as “any decision or
action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which
may by law be brought before any public official, in such
official’s official capacity, or in such official’s place of trust
or profit.” 18 U.S.C. § 201(a)(3). Bribery under § 201(b),
therefore, expressly requires “a quid pro quo—a specific
intent to give or receive something of value in exchange for
an official act.” Sun-Diamond, 526 U.S. at 404–05.
Importantly, Sun-Diamond was primarily concerned with
limiting the scope of illegal gratuities under § 201(c). Id. at
405–14. Because § 201(c) criminalizes the giving of
“anything of value,” with no threshold monetary requirement,
underlying Sun-Diamond was a need to distinguish between
illegal gratuities and “token gifts” given “by reason of the
recipient’s mere tenure in office.” Id. at 406, 408. Thus,
requiring an official act under § 201(c) was necessary
because “a contrary holding would criminalize a wide array
of presumptively legal gift giving, like giving officials a hat
or a hot dog.” United States v. Abbey, 560 F.3d 513, 521 (6th
Cir. 2009) (discussing the reasoning in Sun-Diamond). Under
§ 201(c), an official act is therefore the “limiting principle”
30 UNITED STATES V . GARRIDO
that distinguishes “an illegal gratuity from a legal one.”
United States v. Ganim, 510 F.3d 134, 146 (2d Cir. 2007).
Section 666, on the other hand, makes no mention of an
“official act” or a requirement that anything be given in
exchange or return for an official act. Section 666 does not
define or even use the term “official act.” Section 666
“sweeps more broadly than either §§ 201(b) or (c).” McNair,
605 F.3d at 1191. Because the plain language of § 666 does
not use the term “official act,” we must not insert that term
into our reading of the statute. Id. at 1192 (noting that
defendants failed “to show that the statutory language
criminalizes innocent behavior”). Moreover, the need for a
“limiting principle” to distinguish between illegal and legal
gratuities, as expressed in Sun-Diamond, is “not relevant [to
violations of § 666] because § 666 contains both a corrupt
intent requirement and a requirement that the illegal gift or
bribe be worth over $5,000.” Abbey, 560 F.3d at 521. Thus,
we decline to adopt § 201’s official act requirement for § 666.
In so holding, we join our sister circuits, the Third, Sixth,
Seventh, and Eleventh Circuits, who have all held § 666 does
not require that a bribe be given or received with the intent to
influence the public official in an official act.13 See United
13
Robles cites to several cases from the Second Circuit in support of his
argument that § 666 requires a quid pro quo, an exchange for a specific
official act. Most of our sister circuits, however, have rejected the
argument that § 666 requires a quid pro quo. See McNair, 605 F.3d at
1187–88; Abbey, 560 F.3d at 520–21; Gee, 432 F.3d at 714–15; see also
United States v. Boender, 649 F.3d 650, 654 (7th Cir. 2011) (noting that
the Seventh Circuit “like most others, does not require a specific quid pro
quo” under § 666); supra n.9. Moreover, it is possible for a court to
require a quid pro quo but not require that the exchange be for a specific
official act. See United States v. Redzic, 627 F.3d 683, 692 (8th Cir. 2010)
UNITED STATES V . GARRIDO 31
States v. Andrews, 681 F.3d 509, 529-530 (3d Cir. 2012)
(holding that for a conviction under § 666, Harris “did not
have to possess actual authority over the business,
transaction, or series of transactions, that Andrews sought to
influence[;] [r]ather, the Government had to prove only that
Andrews intended, by offering a bribe to Harris, to influence
the sewer contract” (citation omitted)); McNair, 605 F.3d at
1191 (explaining § 666 “requires only that money be given
with intent to influence or reward a government agent ‘in
connection with any business, transaction, or series of
transactions,’” and “does not say ‘official act’”); Abbey,
560 F.3d at 515, 519–21 (affirming § 666 conviction where
the government asserted that “Abbey used his influence and
position to assist Rizzo with several land developments” but
“did not introduce any evidence establishing that . . . Rizzo
and Abbey had an express agreement for a specific official
act to be done in return for Rizzo’s gift”); Gee, 432 F.3d at
715 (affirming § 666 conviction where a jury could find that
“money . . . was exchanged for George’s influence” in
directing contracts towards the organization, because even
though George did not have the power to award the contracts
“George had plenty of clout and used it to [the organization’s]
benefit”).
Although Second Circuit cases refer to bribery in
connection with an official act, the Second Circuit has not
squarely held that official acts or duties are required for a
(stating “the government must present evidence of a quid pro quo, but an
illegal bribe may be paid with the intent to influence a general course of
conduct”).
32 UNITED STATES V . GARRIDO
§ 666 conviction.14 In United States v. Ford, the court stated
that the defendant “accepted [free media] services ‘intending
to be influenced’ in her official duties.” 435 F.3d 204, 212
(2nd Cir. 2006) (emphasis added). The primary focus of
Ford, however, was addressing whether the jury was properly
instructed that the “recipient [of the bribe] must have
accepted the thing of value while ‘intending to be
influenced.’” Id. at 212–14. Although Ford suggests that the
word “corruptly” in § 666 implies a breach of some official
duty, id. at 211, the Eleventh Circuit has interpreted the word
“corruptly” to mean “dishonestly seeking an illegal goal or a
legal goal illegally.” McNair, 605 F.3d at 1188. We agree
with the Eleventh Circuit that “[t]he requirement of a
‘corrupt’ intent in § 666 . . . narrow[s] the conduct that
violates § 666 but does not impose a specific quid pro quo
requirement.” Id. at 1188.
In United States v. Bonito, the Second Circuit upheld a
jury instruction which “made clear that the corrupt
agreement, offer or payment must precede the official act to
be influenced or rewarded.” 57 F.3d 167, 171 (2nd Cir. 1995)
(emphasis added). Bonito assumes “official duties” are
appropriate in a jury instruction, but the court had no
occasion to address the issue because that particular term was
not in dispute. Id. at 171–74. Further, the court’s affirmance
of Bonito’s § 666 conviction suggests that the court did not
require that the public official have actual authority over the
business Bonito sought to influence—there, the purchase of
Bonito’s property. Rather, much like Robles did here, the
14
In Ganim, the Second Circuit “presume[d] that the same standard for
proving a quid pro quo exists under both 18 U.S.C. § 666 and § 201(b)(1),
as neither party ha[d] argued that there is, or should be, any difference
. . . .” Ganim, 510 F.3d at 148 n.7.
UNITED STATES V . GARRIDO 33
public official Bonito bribed “undertook a range of activities
that inhered to Bonito’s financial benefit” which included
setting up meetings for Bonito, becoming involved in
negotiations for the purchase of Bonito’s property, and
contacting officials “to push the deal through.” Id. at 170,
174. There was no evidence that demonstrated that the public
official alone could approve the purchase of Bonito’s
property. Id. at 173–74; see also United States v. Bahel,
662 F.3d 610, 637–38 (2d Cir. 2011) (discussing Ford and
Bonito).15
For the foregoing reasons, we are not persuaded by
Robles’s arguments. We hold that § 666 does not require that
Robles intended to be influenced in an official act. We thus
affirm Robles’s § 666 bribery convictions.
IV.
IN SUM:
We REVERSE Robles’s § 1346 honest services fraud
convictions with respect to Counts 1 through 11, 13 through
15
It may simply be the case that in referring to “official duties,” the
Second Circuit “was not positing an additional element to the statutory
definition of the crime, but instead was explaining the sine qua non of a
violation of § 666.” United States v. Agostino, 132 F.3d 1183, 1190 (7th
Cir. 1997) (explaining that although a prior Seventh Circuit case referred
to a “‘quid pro quo’” as being an “‘essential element’” of § 666, the
“elements of the offense remain those that are set forth in the statutory
language” (citation omitted)). As a practical matter, most bribery cases
“involve an identifiable and particularized official act, but that is not
required to convict” under § 666. McNair, 605 F.3d at 1188; Gee,
432 F.3d at 714 (“A quid pro quo of money for a specific legislative act
is sufficient to violate [18 U.S.C. § 666], but it is not necessary.”).
34 UNITED STATES V . GARRIDO
15, 17, and 23 through 25, and Garrido’s § 1346 honest
services fraud convictions with respect to Counts 23 through
25 because, under Skilling, the jury instructions erroneously
permitted convictions on the unconstitutional theory of a
failure to disclose a conflict of interest.
We REVERSE Robles’s § 1346 honest services fraud
convictions with respect to Counts 16, 22, and 27 and
Garrido’s § 1346 honest services fraud convictions with
respect to Counts 22 and 27, and ACQUIT Robles on Counts
16, 22, and 27 and ACQUIT Garrido on Counts 22 and 27
because these counts are based on Skilling’s unconstitutional
theory of a failure to disclose a conflict of interest in a state
disclosure form, and because there is insufficient evidence to
support Counts 16 and 27.
We REVERSE Robles’s § 1957 money laundering
convictions with respect to Counts 18 through 21 because
they are predicated on the flawed honest services fraud
convictions.
We AFFIRM Robles’s § 666 bribery convictions with
respect to Counts 33 through 37 because § 666 convictions do
not require the defendant intended to be influenced in an
official act.
We REMAND this case to the District Court for further
proceedings consistent with this opinion.
Thus, United States v. Garrido, No. 06-50717, is
REVERSED and REMANDED; and United States v.
Robles, No. 06-50718, is REVERSED in part, AFFIRMED
in part, and REMANDED.