holding that the President of the Virgin Islands Legislature was an agent of the government
How later courts described this case
- holding that the President of the Virgin Islands Legislature was an agent of the government
- holding evidence of past conduct admissible under Rule 404(b) to demonstrate the defendant’s state of mind in accepting bribes
- upholding the admission of a past bribe as evidence tended to show that a government official did not perceive the bribe to be a loan or a gift
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 15-2264
__________
UNITED STATES OF AMERICA
v.
LOUIS MILTON WILLIS,
Appellant
__________
On Appeal from the District Court
of the Virgin Islands
(D.C. Crim. No. 3:14-cr-00028-001)
District Judge: Honorable Curtis V. Gómez
__________
Argued: May 19, 2016
BEFORE: FUENTES, VANASKIE, and RESTREPO,
Circuit Judges
(Opinion Filed: December 13, 2016)
Honorable Julio M. Fuentes assumed Senior Status on July
18, 2016.
__________
Joseph A. DiRuzzo, III
Jeffrey J. Molinaro (Argued)
Fuerst Ittleman David & Joseph
1001 Brickell Bay Drive
Suite 3112
Miami, FL 33131
Counsel for Appellant
Ronald Sharpe
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802
Justin D. Weitz (Argued)
United States Department of Justice
Criminal Division, Public Integrity Section
1400 New York Avenue, N.W.
Washington, DC 20005
Counsel for Appellee
__________
OPINION OF THE COURT
__________
2
FUENTES, Circuit Judge:
Louis Milton Willis, the former Executive Director of
the Legislature of the U.S. Virgin Islands, appeals his
conviction on two counts of federal programs bribery and two
counts of federal extortion. From about 2009 to 2011, the
Legislature’s main building on the island of St. Thomas
underwent major renovations, which required the Legislature
to seek out contractors. The United States claims that, during
this period, Willis engaged in a pattern of corrupt conduct
involving several contractors working on the renovations.
Specifically, the United States claims that Willis solicited and
received a $3,000 cash bribe from one contractor, a $10,000
“loan” and a new air conditioner for his home from a second,
and a $5,000 kickback from a third. According to the United
States, these payments and kickbacks were all made to Willis
to ensure that the contractors would continue to be awarded
work on the renovations. Willis was tried and convicted by a
jury for charges related to the bribes solicited and was
sentenced to a five-year prison term followed by a term of
supervised release.
Willis argues that the District Court erred by (i)
denying his pretrial motion to dismiss two counts of the
indictment, (ii) denying his renewed motion for judgment of
acquittal, and (iii) improperly admitting evidence of his prior
acceptance of bribes.1 Because we find all of Willis’s
arguments unavailing, we will affirm his conviction. 2
1
(Willis Br. 13.)
2
The District Court had jurisdiction under 18 U.S.C. § 3241.
We have jurisdiction under 28 U.S.C. § 1291.
3
I. BACKGROUND
Government officials are vested with a duty to uphold
the law and serve the best interests of the public. This case
involves a government employee who betrayed the trust of
this country’s taxpaying citizens by abusing his power for his
own benefit.
From 2009 to 2012, the United States Government
appropriated $150 million in federal funds each fiscal year to
the Government of the Virgin Islands. During that period,
Louis Milton “Lolo” Willis served as Executive Director of
the Legislature for the Virgin Islands. In that position,
Willis’s main role was to direct and advise division heads and
to oversee administrative matters under the supervision of the
President of the Legislature. He was also delegated the power
from the President of the Legislature to administer contracts
on behalf of the Legislature.
During Willis’s tenure as Executive Director, the
Legislature’s main building underwent major renovations,
and Willis was substantially involved in securing contractors
to perform those renovations. Three of those contractors –
Wilson John Marie, Frank James, and Alwin Williams, Sr. –
later testified at Willis’s trial. Marie, James, and Williams
stated that they all gave cash or other items of value to Willis
to secure more government work or to ensure payment of
their invoices for completed work.
Sometime in 2010, the U.S. Department of the Interior
audited the Legislature’s administrative section while the
renovations were taking place. The Department then released
a report that highlighted a number of flaws in the
administrative section’s fiscal controls. In the report, the
4
Department concluded that the Legislature had mismanaged
public funds and that management of the Legislature lacked
adequate financial safeguards. According to the report, some
contractors worked on the renovation without any written
agreements, and others obtained “sole-source” contracts,
which Willis alone negotiated and issued without going
through the normal process of soliciting bids from multiple
vendors.
After a federal investigation, an indictment eventually
issued for Willis’s prosecution on extortion charges under 18
U.S.C. § 1951(a), which prohibits robbery or extortion
affecting interstate commerce, and bribery charges under 18
U.S.C. § 666(a)(1), which outlaws theft and bribery in entities
receiving more than $10,000 in federal funds. Before trial,
Willis moved to dismiss the indictment. The District Court
denied the motion, and the case proceeded to a jury trial.
During the trial, the United States presented substantial
evidence in support of its case. The three contractors testified
on behalf of the United States, claiming to have been
involved in the bribery and extortion. Each of the contractors
testified that they had given Willis things of value and had
received some form of guaranteed work on the renovations in
return.
Wilson Jean Marie was the first contractor to testify
about his interactions with Willis. What he described, in
short, was a basic kickback scheme. He stated that he was a
carpenter in the U.S. Virgin Islands and claimed to have done
renovation work on the Legislature’s main building from
2010 to 2011. He further stated that Willis drafted a contract
for his work on the renovations. Marie claimed that only
Willis would review the hours that he submitted for work.
5
Willis would then apparently sign the invoice, and the
Legislature’s Business Office would in turn pay Marie.
Marie stated that he would then give some of the money he
had been paid by the Legislature to Willis.
Marie explained that the payments to Willis were “[t]o
keep the job going, keep [Marie] going for the job,”3
suggesting that he paid Willis to secure more renovation
work. Marie also stated that he had given Willis “about
$5,000,” divided up among three payments. 4 Marie also
described a 25% overhead fee that Willis paid him for his
work, which apparently had no clear underlying purpose.
The second contractor to testify was Frank James.
James said that he worked on the Legislature’s main building
during the renovation at a rate of about $2,100 per month
under a contract arranged by Willis. He also testified that, at
various points, Willis asked him for $1,000, which he said
that he needed to pay back certain debts, but James refused.
On another occasion, Willis asked James for $10,000, but,
again, James refused. Nevertheless, James said that he went
to Willis’s home, inspected Willis’s home air conditioning
units, and replaced one of the units without charging him for
the value of the unit or for his services. James estimated that
the air conditioner had a value of about $1,100. Finally,
James claimed that he wrote a company check for $10,000 to
a paving company in order to assist Willis with paving his
driveway. He described the money as a loan to Willis, but he
said he was never repaid.
3
(J.A. 390.)
4
(Id.)
6
Alwin Williams Sr. was the last contractor to testify
against Willis. Williams, the owner of a company that did
excavation and demolition work, entered into a contract to
excavate certain tree roots near the Legislature building. He
claimed that while he was working on the renovations, Willis
told him that he was having money issues and needed help.
Shortly after, Williams gave Willis $3,000 in cash, a payment
which he claimed was made to ensure that Willis would “look
out for [Williams] down the road,” presumably to ensure
future awards for renovation work on the Legislature. 5
Williams also testified that, prior to serving as Executive
Director of the Legislature, Willis had accepted certain bribes
from Williams when Willis was working for the Virgin
Islands Bureau of Internal Revenue. Williams claimed to
have paid the bribes to Willis for the purpose of having a
Bureau of Internal Revenue tax levy lifted from his bank
accounts.
The testimony of these three witnesses was bolstered
by another witness for the United States, Clifford
Charleswell, who explained that Willis told him that he had
received money from the contractors during the renovation
project. All told, James, Williams, and Marie testified to
giving Willis roughly $19,000 in kickbacks and other graft in
exchange for over $300,000 in contract work on the
renovations.
Michael Benjamin, the acting business director for the
Legislature, also testified on behalf of the United States. He
stated that Willis was in charge of managing the contracts for
the renovation work and that Willis answered solely to the
5
(J.A. 621.)
7
President of the Legislature. He also testified that Willis had
the power to seek bids, find the best price, and select
contractors. He further claimed that funds used for the
payment of contractors came from the Government of the
Virgin Islands’ treasury.6 As to the procurement of
contractors, Benjamin stated that sometimes the contracts
would go through legal counsel to the Legislature for review,
but sometimes they did not. Once approved, the contracts
would be signed and finalized by Willis or by the President of
the Legislature. Finally, Benjamin stated that Willis had the
power to bind the Legislature to payment, including during
the time that the renovations took place.
Debra Gottlieb, the Budget Director for the
Government of the Virgin Islands Office of Management and
Budget, also testified. She stated that, as a matter of
government accounting, federal funds were segregated from
the Virgin Islands’ general funds in the Treasury. She also
testified that the Legislature only received money out of the
general fund, which did not include federal funds. She
claimed that the federal funds were kept in a separate treasury
fund.
At the conclusion of the testimony on behalf of the
United States, Willis moved for a judgment of acquittal. The
court denied the motion. After the close of all of the
6
Benjamin’s testimony was ambiguous and conflicting as to
whether or not those funds included only local funds or both
local and federal funds. (J.A. 464-65) (stating that annual
budget for the Legislature consisted of “local funds,” but then
claiming that the money was “appropriated” from “federal
funds”).
8
evidence, Willis then renewed his motion for judgment of
acquittal, which the court again denied. Thereafter, the jury
returned a verdict finding Willis guilty of federal programs
bribery (Counts One and Three) and federal extortion (Counts
Two and Four). However, he was acquitted as to Counts Five
and Six, charges stemming from the alleged bribes involving
Marie. This appeal followed.
II. DISCUSSION
A. Motion to Dismiss the
Indictment
Willis asserts several challenges to his conviction on
appeal.7 First, he argues that the District Court erred by
denying his pretrial motion to dismiss the indictment,
claiming that the indictment failed to adequately set forth the
elements of federal programs bribery under 18 U.S.C. §
666(a)(1)(B). In particular, he claims that Counts One and
Three, the federal programs bribery charges, should have
been dismissed for failure to allege a quid pro quo, that is, “a
specific intent to give or receive something of value in
exchange for an official act.” 8
Federal Rule of Criminal Procedure 7(c) requires an
indictment to “be a plain, concise, and definite written
statement of the essential facts charged.” In United States v.
7
We exercise plenary review over a challenge to the
sufficiency of an indictment. United States v. Bansal, 663
F.3d 634, 656 (3d Cir. 2011).
8
United States v. Sun-Diamond Growers of Cal., 526 U.S.
398, 404-05 (1999) (emphasis omitted).
9
Rankin, we explained that an indictment is deemed sufficient
so long as it “(1) contains the elements of the offense
intended to be charged, (2) sufficiently apprises the defendant
of what he must be prepared to meet, and (3) allows the
defendant to show with accuracy to what extent he may plead
a former acquittal or conviction in the event of a subsequent
prosecution.” 9 We have also said that “no greater specificity
than the statutory language is required so long as there is
sufficient factual orientation to permit the defendant to
prepare his defense.” 10 We should uphold the indictment
“unless it is so defective that it does not, by any reasonable
construction, charge an offense.” 11
Given the language of the statute, the essential
elements that the United States must prove to establish a
violation of § 666 here are that, at the time of the offense: (1)
Willis was an agent of a state government or agency; (2) he
corruptly solicited, demanded, or accepted something of value
with the intent to be influenced or rewarded in connection
with any business of the state government or agency; (3) he
accepted something of value in connection with the business
or transactions of the state government or agency, where the
transactions involved anything of value of $5,000 or more;
(4) the state received in excess of $10,000 in federal funds in
9
870 F.2d 109, 112 (3d Cir. 1989) (internal quotation marks,
alterations, and citation omitted).
10
Rankin, 870 F.2d at 112.
11
United States v. Vitillo, 490 F.3d 314, 324 (3d Cir. 2007)
(internal quotation marks omitted).
10
any single year; and (5) he acted willfully and knowingly. 12
The statutory definitions under § 666(d)(4) further provide
that the term “State” includes “a State of the United States,
the District of Columbia, and any commonwealth, territory, or
possession of the United States.”
Willis contends that the indictment is insufficient as to
the federal programs bribery charges because it fails to charge
an essential element of the offense: a quid pro quo. Willis
concedes that this Circuit has yet to decide whether § 666
requires charging and proof of a quid pro quo to sustain a
conviction13 and urges us to adopt such a requirement. To
that end, Willis argues that the indictment must set forth facts
supporting an allegation of “specific intent to give or receive
something of value in exchange for an official act.” 14
Federal Rule of Criminal Procedure 12(b)(3)(B)(v)
authorizes a defendant to lodge a pretrial challenge to the
sufficiency of an indictment for “failure to state an offense.”
There are two primary ways in which a defendant can
proceed with such a challenge. First, a defendant may
contend that, under the first Rankin element, “an indictment is
insufficient on the basis that it does not satisfy the first
requirement in that it fails to charge an essential element of
12
See 18 U.S.C. § 666; United States v. Cicco, 938 F.2d 441,
444 (3d Cir. 1991); cf. United States v. Foley, 851 F. Supp.
507, 509 n.1 (D. Conn. 1994).
13
See United States v. Andrews, 681 F.3d 509, 527 (3d Cir.
2012) (“We have never decided whether § 666(a)(2) requires
proof of a quid pro quo . . . .”).
14
Sun-Diamond, 526 U.S. at 404-05.
11
the crime.”15 Second, “because an indictment that merely
‘recites in general terms the essential elements of the offense’
does not satisfy the second and third requirements, a
defendant may also claim that an indictment fails to state an
offense on the basis that ‘the specific facts alleged . . . fall
beyond the scope of the relevant criminal statute, as a matter
of statutory interpretation.’”16 It appears that Willis asserts
the first type of challenge, claiming that a quid pro quo
should be an element of a § 666 offense and that the United
States failed to include it in the indictment.
In response, the United States argues that § 666 does
not include a quid pro quo requirement and that we should
follow those Circuits that have declined to read such a
requirement into the statute.17 The United States further
15
United States v. Stock, 728 F.3d 287, 292 (3d Cir. 2013)
(internal quotation marks and citation omitted).
16
Id. (quoting United States v. Panarella, 277 F.3d 678, 685
(3d Cir. 2002), abrogated on other grounds as recognized in
United States v. Wright, 665 F.3d 560, 567 (3d Cir. 2012)).
17
We note that many of our sister circuits are split over this
question. Compare United States v. Redzic, 627 F.3d 683,
692 (8th Cir. 2010) (requiring a quid pro quo), United States
v. Ganim, 510 F.3d 134, 148-50 (2d Cir. 2007) (same, on
plain-error review), and United States v. Jennings, 160 F.3d
1006, 1020-22 (4th Cir. 1998) (finding plain error but
affirming the conviction where the jury instruction omitted a
quid pro quo element), with United States v. McNair, 605
F.3d 1152, 1187-88 (11th Cir. 2010) (no quid pro quo
required), United States v. Abbey, 560 F.3d 513, 520-21 (6th
Cir. 2009) (same), and United States v. Gee, 432 F.3d 713,
714-15 (7th Cir. 2005) (same). “And to some extent,
12
contends that, even if we were to incorporate such a
requirement into § 666, the indictment adequately alleged a
quid pro quo as to all counts.
The bribery proscriptions are covered in subsections
(a)(1)(B) and (a)(2) of § 666. Subsection (a)(1)(B), which
covers one who requests a bribe, provides:
Whoever . . . being an agency of an organization,
or of a State, local, or Indian tribal government,
or any agency thereof . . . corruptly solicits or
demands . . . 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 . . . shall be fined under
this title, imprisoned not more than 10 years, or
both.18
Put another way, § 666 criminalizes the acceptance of
a bribe of $5,000 or more by a government agent of a local
government that receives more than $10,000 a year in federal
funds if the agent intends to be influenced by the bribe when
making a decision to enter into business on behalf of the
government.
confusion reigns in this area because courts often use the term
quid pro quo to describe an exchange other than a particular
item of value for a particular action.” McNair, 605 F.3d at
1190.
18
18 U.S.C. § 666(a).
13
Contrary to Willis’s contention, each § 666 Count that
he challenges clearly alleged a quid pro quo. For instance,
Count One of the indictment alleged:
In or about 2009 to 2010, at St. Thomas, in the
District of the Virgin Islands, the defendant,
LOUIS MILTON “LOLO” WILLIS while an
agent of the Government of the Virgin Islands,
did corruptly solicit, demand, accept, and agree
to accept anything of value from any person
with the intent to be influenced and rewarded in
connection with any business, transaction, and
series of transactions of such government,
involving anything of value of $5,000 or more,
in that WILLIS accepted cash payments
from Contractor A in exchange for
WILLIS’s use of his official position to
provide favorable treatment for Contractor
A in the award of contracting work at the
Legislature of the Virgin Islands and to
ensure payment to Contractor A for such
work.19
Similarly, Count Three of the indictment specifically
alleged:
In or about 2009 to 2011, at St. Thomas, in the
District of the Virgin Islands, the defendant,
LOUIS MILTON “LOLO” WILLIS while an
agent of the Government of the Virgin Islands,
19
(J.A. 76.) (emphasis added).
14
did corruptly solicit, demand, accept, and agree
to accept anything of value from any person
with the intent to be influenced and rewarded in
connection with any business, transaction, and
series of transactions of such government,
involving anything of value of $5,000 or more,
in that WILLIS accepted $10,000, an air
conditioning unit, and free labor associated
with the installation of the air conditioning
unit from Contractor B in exchange for
WILLIS’s use of his official position to
provide favorable treatment for Contractor
B in the award of contracting work at the
Legislature of the Virgin Islands and to
ensure payment to Contractor B for such
work.20
Thus, even if we were to require the United States to
allege and prove a quid pro quo to establish a § 666 bribery
offense – which we decline to do here – we conclude that it
was adequately alleged in the indictment. Put simply, the
indictment stated that Willis accepted cash payments from the
various contractors in exchange for the use of his official
position to provide favorable treatment for each contractor in
the award of more contracting work at the Legislature.
Moreover, we conclude that the indictment adequately
alleged all other required elements of the offense: the parties,
the relevant amounts of money exchanged, where the illegal
20
(J.A. 78.) (emphasis added).
15
transactions allegedly occurred, that Willis used his public
position unlawfully, the specific details of each transaction,
and the improper purposes alleged under the relevant federal
statutes. The District Court therefore properly refused to
dismiss the federal programs bribery charges under Counts
One and Three.
B. The District Court
properly denied Willis’s
renewed motion for
judgment of acquittal.
Next, Willis argues that the District Court erred in
denying his renewed motion for a judgment of acquittal as to
the federal programs bribery charges. He contends that the
United States failed to satisfy the jurisdictional prerequisites
to those charges because it failed to prove a sufficient nexus
between Willis’s alleged conduct or his status as Executive
Director and any corresponding effect on federal funds. In
particular, he asserts that: (1) the Legislature of the Virgin
Islands is distinct from the Government of the Virgin Islands
and received no federal funds; (2) he served as an agent of the
Legislature, and not of the Government of the Virgin Islands,
thus lacking sufficient connection to federal funds; and (3) the
Government failed to adduce evidence sufficient to show that
the Legislature received a federal “benefit” within the
meaning of § 666. In short, all of his challenges hinge on his
ability to separate himself from the federal funds, something
we conclude that he cannot do.21
21
We exercise plenary review over a district court’s grant or
denial of a motion for judgment of acquittal based on the
sufficiency of the evidence. United States v. Brodie, 403 F.3d
16
i. The Legislature of the
Virgin Islands is a covered
entity under § 666.
We first address Willis’s contention that he is entitled
to judgment of acquittal on the federal programs bribery
charges because the Virgin Islands Legislature is separate and
distinct from the Government of the Virgin Islands and
therefore does not receive federal funds. Section 666
establishes federal jurisdiction over bribery and fraud
committed by agents of covered entities, including a state or
territorial “government, or any agency thereof,” that receives
in excess of $10,000 in federal funds in a twelve-month
period.22 The statute defines “government agency” as “a
subdivision of the executive, legislative, judicial, or other
branch of government, including a department, independent
establishment, commission, administration, authority, board,
123, 133 (3d Cir. 2005). A judgment of acquittal is
appropriate under Federal Rule of Criminal Procedure 29 if,
after reviewing the record in a light most favorable to the
prosecution, we determine that no rational jury could have
found proof of guilt beyond a reasonable doubt. United
States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006); see also
United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002)
(stating that, in addressing a Rule 29 motion, a district court
must “‘review the record in the light most favorable to the
prosecution to determine whether any rational trier of fact
could have found proof of guilt beyond a reasonable doubt
based on the available evidence’” (quoting United States v.
Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)).
22
18 U.S.C. § 666.
17
and bureau, and a corporation or other legal entity
established, and subject to control, by a government or
governments for the execution of a governmental or
intergovernmental program.”23
The purpose of this statute is to enhance the ability of
the United States to “vindicate significant acts of theft, fraud,
and bribery involving federal monies” and “to protect the
integrity of the vast sums of money distributed through
Federal programs.” 24 The history of § 666 reveals Congress’s
intent to root out public corruption. In enacting § 666 as part
of the Comprehensive Crime Control Act of 1984, Congress
expressly intended “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.” 25
Moreover, courts have specifically recognized that
§ 666 is broad in scope.26 As the Sixth Circuit noted in
United States v. Valentine, “it is apparent that Congress
intended to expand the federal government’s prosecutorial
23
Id.
24
S. Rep. No. 98-225, at 369-70 (1984), as reprinted in 1984
U.S.C.C.A.N. 3182, 3510.
25
Id. at 369.
26
See Vitillo, 490 F.3d at 321 (stating that § 666 is “broad in
scope, as that statute seeks to ensure the integrity of vast
quantities of federal funds” (citation and internal quotation
omitted)).
18
power to encompass significant misapplication of federal
funds at a local level.” 27
In addressing Willis’s first argument that the
Legislature falls outside the scope of § 666, it is first
important to keep in mind the structure of the Government of
the Virgin Islands, which was created under the “Revised
Organic Act,” 48 U.S.C. § 1541 et seq. That statute vests the
power of the Government of the Virgin Islands in three
coequal branches: the legislative, the executive, and the
judicial. These three branches constitute one territorial entity,
which is substantially funded by the federal government.
Indeed, it is undisputed that the Government of the Virgin
Islands received $150 million dollars in federal funds per year
from 2009 to 2012 and that the renovations took place during
this time. Thus, contrary to Willis’s assertion, we conclude
the Legislature is part and parcel of the Government of the
Virgin Islands, and it received federal funds.
Willis nonetheless relies on Debra Gottlieb’s
testimony wherein she claimed that the Legislature never
received federal funds, as it was funded by a segregated,
general fund consisting of local funds derived from territorial
sources. Based on this testimony, Willis claims that the
Legislature (1) lacks direct control over the disbursement of
federal funds, and (2) did not receive any federal funds.
We begin by noting that courts have been wary of
interpreting § 666 too narrowly. Indeed, the Supreme Court
has repeatedly avoided constructions of § 666 that would
impose limits beyond those set out in the plain meaning of the
27
63 F.3d 459, 463 (6th Cir. 1995).
19
statute. In Salinas v. United States,28 for example, the Court
rejected a defendant’s attempt to read into the statute an
extra-textual requirement of proof that “the bribe in some way
affected federal funds, for instance by diverting or
misappropriating them, before the bribe violates
§ 666(a)(1)(B).”29 In reaching its conclusion, this Court
pointed to the “enactment’s expansive, unqualified language,
both as to the bribes forbidden and the entities covered.” 30
The Supreme Court has also rejected an argument that
§ 666 is unconstitutional because it does not require a nexus
between the bribe and some federal monies or program. In
Sabri v. United States,31 the Court noted that the enactment of
§ 666 was “an instance of necessary and proper legislation” to
execute Congress’s spending power, especially in light of the
fact that “other legislation had failed to protect federal
interests.” 32 The Court stated that while “not every bribe or
kickback offered or paid to agents of governments covered by
§ 666(b) will be traceably skimmed from specific federal
payments, or show up in the guise of a quid pro quo for some
dereliction in spending a federal grant,” the absence of such
links does not “portend[ ] . . . enforcement beyond the scope
of federal interest, for the reason that corruption does not
have to be that limited to affect the federal interest.”33 And,
28
522 U.S. 52 (1997).
29
Id. at 55-56.
30
Id. at 56.
31
541 U.S. 600 (2004).
32
Id. at 607.
33
Id. at 600-01.
20
perhaps most relevant to the present case, the Court said that
“Congress was within its prerogative to ensure that the
objects of spending are not menaced by local administrators
on the take.”34
Willis’s related argument that the Legislature of the
Virgin Islands never “received” federal funds is also
undermined by the First Circuit’s 2013 decision in United
States v. Fernandez,35 relied upon by the District Court in its
opinion. In Fernandez, the court found that the territorial
Legislature of Puerto Rico was part and parcel of the
government of the territory, and that the principles of
separation of powers did not exempt an agent of the
Legislature of Puerto Rico, a Senator, from § 666’s
coverage. 36 The First Circuit’s holding also supports our
conclusion that the Legislature was part and parcel of the
Government of the Virgin Islands, a federally funded entity.
Therefore, we conclude that Willis’s narrow reading of
§ 666’s scope is inconsistent with the legislative intent of the
statute and the broad interpretations of that law advanced by
the Supreme Court. Thus, we further conclude that the
Legislature, as a coequal branch of the Government of the
Virgin Islands – itself a territorial “government” that receives
in excess of $10,000 in federal funds in a twelve-month
period – fell within the scope of § 666 by receiving federal
funds.37 We therefore reject Willis’s argument that he cannot
34
Id. at 601.
35
722 F.3d 1 (1st Cir. 2013).
36
Id. at 10-12.
37
18 U.S.C. § 666.
21
face criminal liability under § 666 because the Legislature
received funds only from territorial sources.
ii. Willis was an “agent”
within the meaning of
§ 666.
In attempting to further sever his connection from the
federal funds at issue, Willis also argues that he was not “a
person authorized to act on behalf of . . . a government” as a
“servant or employee, . . . director, officer, manager, and
representative.”38 We find this argument equally
unpersuasive. The plain language of the statute merely
requires that the individual be “authorized to act on behalf of
another person or government.” 39 Testimony at trial
established that Willis, as Executive Director of the
Legislature, had the authority to “go out and seek offers for a
particular project . . . [w]hatever project [was] deemed
necessary”; that he could determine whether or not it “was the
best price”; and that he or the President of the Legislature
could unilaterally enter into a contract for whatever price that
person wanted. 40 Thus, Willis’s claim that he was not an
agent of the government is without merit.
In Fernandez, the First Circuit rejected a similar
argument, concluding that two senators were agents of the
government because they were a part of the limited category
of government officials who represent the “State” as a
38
18 U.S.C. § 666(d)(1).
39
Id.
40
(J.A. 470.)
22
whole.41 As the United States correctly notes here,
Fernandez supports the conclusion that a territorial legislature
is part and parcel of the government of the territory, and that
the principles of separation of powers do not excuse an agent
of the Legislature from § 666’s coverage. Willis simply
cannot escape the conclusion that he was an agent of the
Virgin Islands’ Government, given his substantial power to
enter into contracts on behalf of the Legislature.
iii. The Legislature received
a “benefit” within the
meaning of § 666.
Willis next argues that the United States failed to
present evidence of the “structure, operation, and purpose” of
the federal funds sufficient to show that the Virgin Islands
Legislature received a federal “benefit” within the meaning of
§ 666.42 Section 666, by its plain terms, limits its application
to qualifying entities that receive “benefits in excess of
$10,000 . . . under a Federal Program.”43 Although the term
“benefit” is not defined in the statute, Willis nonetheless
argues that the United States failed to meet its burden of
demonstrating that the Government of the Virgin Islands
received some type of specific beneficial interest from the
federal funds to satisfy § 666’s jurisdictional requirements.
We find this argument to be without merit.
41
722 F.3d at 9.
42
(Willis Br. 29.)
43
18 U.S.C. § 666(b).
23
In Fischer v. United States,44 the Supreme Court found
§ 666 to be constitutional as applied where the identified
benefit was far more attenuated than the one involved here. 45
There, the federal funds received by healthcare providers
were Medicaid reimbursement payments made by the federal
government to the providers in exchange for services
rendered to Medicaid and Medicare recipients.46 Rejecting
the notion that the patients – as opposed to the service
providers – received the only “benefit” under the program,
the Court stated that the service providers “derive significant
advantage by satisfying the participation standards imposed
by the Government. These advantages constitute benefits
within the meaning of the federal bribery statute.” 47 The
Fischer Court also emphasized that § 666 is “expansive . . .
both as to the [conduct] forbidden and the entities covered.” 48
Thus, the Fischer Court read the statute to reveal Congress’s
“expansive, unambiguous intent to ensure the integrity of
organizations participating in federal assistance programs.” 49
Here, as the District Court noted, the link to a benefit
is fairly direct. The Government of the Virgin Islands
received $150 million per year during the time that Willis was
Executive Director. Those funds, paid directly by the federal
government, significantly supported the Government of the
44
529 U.S. 667 (2000).
45
Id. at 680.
46
Id.
47
Id.
48
Id. (citing Salinas 522 U.S. at 56).
49
Id.
24
Virgin Islands during that period. In consequence, we find
Willis’s argument that the Virgin Islands did not receive a
“benefit” within the meaning of § 666 completely unavailing.
Because we conclude that all of Willis’s challenges to
the applicability of § 666 lack merit, we will therefore affirm
the District Court’s denial of Willis’s judgment of acquittal as
to Counts One and Three.
C. Section 666 does not
violate the Tenth
Amendment or the
Spending Clause.
Willis also challenges his conviction under § 666 on
Tenth Amendment and Spending Clause grounds. Willis
claims that, to permit the application of § 666 as to his
conduct in these circumstances would “transform § 666 into a
general police power,” in violation of the Tenth
Amendment. 50 He further claims that the application of § 666
to his conduct would exceed Congress’s power under the
Spending Clause. 51 He is wrong.
First, the Tenth Amendment reserves certain powers to
“the States,” but it has never been extended to the Virgin
Islands. In fact, as the United States again correctly points
out, the Revised Organic Act of 1954, which dictates the
limits of constitutional protection afforded to the territory,
incorporates only the first nine amendments and not the Tenth
50
(Willis Br. 16.)
51
(Id.)
25
Amendment.52 At least one other court has also explicitly
stated that “[t]he limits of the Tenth Amendment do not apply
to” a constitutional territory because the territory’s “powers
are not ‘[those] reserved to the States’ but those specifically
granted to it by Congress under its constitution.” 53 We agree
that the Tenth Amendment does not apply here and therefore
reject Willis’s argument.
Willis also claims that to apply § 666 to his conduct
would “exceed the proper bounds of Congress under the
spending clause.” 54 Under the Spending Clause, Congress
has the power to “appropriate federal moneys to promote the
general welfare, Art. I, § 8, cl. 1, and it has corresponding
authority under the Necessary and Proper Clause, Art. I, § 8,
cl. 18, to see to it that taxpayer dollars appropriated under that
power are in fact spent for the general welfare.” 55 With
respect to those powers, in Sabri v. United States, the
Supreme Court noted that the enactment of § 666 was “an
instance of necessary and proper legislation” to execute
Congress’s spending power, especially in light of the fact that
“other legislation had failed to protect federal interests.” 56
Willis’s Spending Clause argument is thus foreclosed by
Supreme Court precedent.
52
48 U.S.C. § 1561.
53
Franklin Cal. Tax-Free Trust v. Puerto Rico, 805 F.3d 322,
344 (1st Cir. 2015) (quoting U.S. Const. art. IV, § 3, cl. 2;
amend. X), aff’d, 136 S. Ct. 1938 (2016).
54
(Willis Br. 32.)
55
Sabri v. United States, 541 U.S. 600, 605 (2004).
56
Id. at 607.
26
D. The District Court
properly admitted
evidence of Willis’s
prior acceptance of
bribes.
Finally, Willis contends that the District Court erred in
denying his motion to exclude certain prior-act evidence
under Federal Rule of Evidence 404(b).57 Rule 404(b)
provides that evidence of other crimes, wrongs, or acts is not
admissible to prove character or demonstrate action in
conformity with those acts. 58 Prior-act evidence, though, may
be admitted “for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” 59 To be admissible,
prior-act evidence must satisfy the test set forth in Huddleston
v. United States.60 As the Supreme Court stated there, the
proffered evidence must be: (1) offered for a proper purpose
under Rule 404(b)(2); (2) relevant to that purpose; (3)
sufficiently probative under the Rule 403 balancing
requirement; and (4) accompanied by a limiting instruction, if
57
We review the District Court’s evidentiary rulings
principally for abuse of discretion. United States v. Kolodesh,
787 F.3d 224, 234 n.12 (3d Cir. 2015), cert. denied, 136 S.
Ct. 281 (2016). To demonstrate an abuse of discretion, Willis
must show the district court’s action was “arbitrary, fanciful
or clearly unreasonable.” United States v. Starnes, 583 F.3d
196, 214 (3d Cir. 2009).
58
Fed. R. Evid. 404(b)(1).
59
Fed. R. Evid. 404(b)(2).
60
485 U.S. 681 (1988).
27
requested.61 We have also emphasized that the proffered
evidence must fit “into a chain of logical inferences, no link
of which may be the inference that the defendant has the
propensity to commit the crime charged.” 62
Willis’s defense at trial was that he did not know that
the money he solicited and received from contractors
constituted bribes and instead understood them to be loans.
The United States offered evidence that Willis had accepted a
kickback bribe from Williams when Willis was the Director
of the Virgin Islands Bureau of Internal Revenue, in exchange
for lifting a lien on Williams’s bank account. The United
States offered this evidence to demonstrate that Willis was
not mistaken about the nature of the transactions involved in
the Legislature’s renovation and fully intended to accept
bribes and commit extortion. The prior-acts were also offered
as evidence of motive and knowledge.
Contrary to Willis’s assertion, there was a strong nexus
between this evidence and his state of mind, his intent, his
knowledge, and the absence of any mistake about the
transactions. This evidence showed that he knew that these
payments were not loans, that they were not gifts, and that he
intended to accept cash in exchange for handing out more
government contract work. Moreover, the record reveals that
the District Court discussed the issues substantially with the
61
Id. at 691-92.
62
United States v. Green, 617 F.3d 233, 250 (3d Cir. 2010)
(citing United States v. Himelwright, 42 F.3d 777, 782 (3d
Cir. 1994)).
28
parties, accepted submissions from them, and further engaged
with them at a pretrial omnibus hearing before ruling on the
admission of the evidence. Before admitting the evidence,
the court also provided a specific limiting instruction to the
jury as a prophylactic measure against any tendency by the
jury to consider the evidence for improper purposes.
Consequently, we conclude that the District Court did not
abuse its discretion by admitting evidence of Willis’s prior
conduct.63
III. CONCLUSION
For these reasons, and those set forth in the District
Court’s thorough and persuasive opinion, we will affirm the
judgment of the District Court.
63
We have thoroughly reviewed all of Willis’s remaining
arguments, including his Commerce Clause challenge to his
conviction of Hobbs Act extortion under 18 U.S.C. § 1951(a),
and find them to be without merit.
29