United States v. Marmolejo

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 94-60812

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRIGIDO MARMOLEJO, JR. and MARIO SALINAS,

Defendants-Appellants.

__________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

__________________________________________________

June 13, 1996

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Brigido Marmolejo, Jr. and Mario Salinas, the former Sheriff

and Chief Deputy Sheriff of Hidalgo County, Texas were convicted of

various offenses arising from a series of bribes that Marmolejo

received, and Salinas aided and abetted, in exchange for permitting

conjugal visits for a federal prisoner housed at the Hidalgo County

Jail. Marmolejo appeals his conviction and his sentence. Salinas

appeals only his conviction. We affirm both defendants'

convictions, but vacate Marmolejo's sentence and remand for

resentencing.

I

While Marmolejo was the Sheriff of Hidalgo County, Texas,

Homero Beltran-Aguirre (Beltran) was a federal prisoner housed at

the Hidalgo County Jail pursuant to an agreement between the United

States Marshals Service and Hidalgo County.1 As Sheriff of Hidalgo

County, Marmolejo was in charge of the operation of the Hidalgo

County Jail. Salinas was Marmolejo's immediate subordinate as the

Divisional Chief for Detention of the Hidalgo County Sheriff's

Office.

Beltran was housed at the Hidalgo County Jail on two separate

occasions: first, from June 7, 1991 to April 14, 1992, and second,

from November 6, 1992 to April 26, 1993. The series of bribes

comprising the pattern of racketeering charged in the indictment

against Marmolejo and Salinas occurred during these periods.

As a result of the bribery scheme between Marmolejo and

Beltran, Marmolejo and Salinas were convicted of numerous offenses.

A jury found Marmolejo guilty of violating RICO, in violation of 18

U.S.C. § 1962(c), RICO conspiracy, in violation of 18 U.S.C.

§ 1962(d), two counts of bribery in relation to a program receiving

more than $10,000 in federal funds, in violation of 18 U.S.C.

§ 666(a)(1)(B) and 18 U.S.C. § 2, aiding and abetting money

laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(I) and 18

U.S.C. § 2, two counts of money laundering, in violation of 18

U.S.C. § 1956(a)(1)(A)(I), and travel in interstate commerce to

1

This agreement is described in detail in Part II infra.

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promote bribery, in violation of 18 U.S.C. § 1952(a)(3). A jury

found Salinas guilty of RICO conspiracy, in violation of 18 U.S.C.

§ 1962(d), and two counts of bribery in relation to a program

receiving more than $10,000 in federal funds, in violation of 18

U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2. Both defendants filed

timely appeals.

II

Marmolejo and Salinas argue several points of error concerning

their convictions for bribery under 18 U.S.C. § 666(a)(1)(B), which

prohibits theft and bribery by officials of state and local

agencies that receive federal funds.2 We review questions of

statutory interpretation de novo. United States v. Westmoreland,

841 F.2d 572, 576 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.

Ct. 62, 102 L. Ed. 2d 39 (1988). "Courts in applying criminal laws

generally must follow the plain and unambiguous meaning of the

statutory language. '[O]nly the most extraordinary showing of

contrary intentions' in the legislative history will justify

2

Section 666 applies to an "organization, government, or agency [that]

receives, in any one year period, benefits in excess of $10,000 under a Federal

program involving a grant, contract, subsidy, loan, guarantee, insurance, or

other form of Federal assistance." 18 U.S.C. § 666(b).

The section under which the defendants were convicted punishes anyone who:

(a)(1) being an agent of an organization, or of a State, local, or

Indian tribal government, or any agency thereof))

(B) corruptly solicits or demands for the benefit of any

person, or accepts or agrees to accept, anything of

value from any person, intending to be influenced or

rewarded in connection with any business, transaction,

or series of transactions of such organization,

government, or agency involving anything of value of

$5,000 or more . . . .

18 U.S.C. § 666(a)(1)(B).

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departure from that language." United States v. Albertini, 472

U.S. 675, 680, 105 S. Ct. 2897, 2902, 86 L. Ed. 2d 536 (1985)

(citations omitted) (quoting Garcia v. United States, 469 U.S. 70,

75, 105 S. Ct. 479, 482, 83 L. Ed. 2d 472 (1984)).

A

Section 666(b) restricts the statute to agencies that receive

"in any one year period, benefits in excess of $10,000 under a

Federal program involving a grant, contract, subsidy, loan,

guarantee, insurance or other form of Federal assistance." 18

U.S.C. § 666(b). The defendants contend that the district court

did not have jurisdiction to try the bribery counts under 18 U.S.C.

§ 666 because Hidalgo County did not receive "benefits in excess of

$10,000 under a Federal program" or any "other form of Federal

assistance." Id.

The parties dispute whether it is proper, in determining

whether Hidalgo County Jail received Federal assistance, to focus

on (1) a Cooperative Agreement Plan (CAP), which provided a

$850,000 grant for construction at the Hidalgo County Jail, and an

Intergovernmental Service Agreement (IGA), which provided that

Hidalgo County Jail would house federal prisoners in exchange for

their costs, or (2) just IGA.3 This issue is relevant not only to

3

The government contends that CAP and IGA together constituted a

Federal program under § 666(b). The defendants argue that the construction grant

issued pursuant to CAP is irrelevant to an analysis of what, if any, Federal

assistance the Hidalgo County Jail received while Beltran was in the jail. They

argue that because CAP was entered into and completed in 1984 and the bribery

scheme occurred between 1991 and 1993, CAP could not qualify as Federal

assistance received in a one year period before or after the date of the

commission of the offense. See 18 U.S.C. §§ 666(b) and 666(d)(5). The

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determine whether the arrangement constituted a Federal program or

Federal assistance, but also to determine whether Hidalgo County

satisfies the requirement that it received the benefit within a one

year period.4

The plain language of § 666(b) is ambiguous in defining

"Federal program" and "Federal assistance." Although it is clear

that the assistance can consist of a grant, contract, subsidy,

loan, guarantee, or insurance, the other defining qualities of

"Federal assistance" are still unclear. The legislative history,

however, provides that the term "Federal program involving a grant,

a contract, a subsidy, a loan, a guarantee, insurance, or another

form of Federal assistance" should be construed broadly. S. Rep.

No. 225, 98th Cong., 2d Sess. 369 (1984), reprinted in 1984

U.S.C.C.A.N. 3182, 3511 [hereinafter S. Rep. No. 225]. We must

determine, therefore, whether under a broad interpretation of

"Federal assistance," it is proper to analyze IGA and CAP

collectively as a single agreement because they are so

defendants argue further that IGA does not qualify as "Federal assistance" or a

"Federal program" because it was simply a contract for services rendered, and

thus a commercial transaction exempted from the statute by §§ 666(b) and (c).

4

Section 666(d)(5) defines a one-year period as "a continuous period

that commences no earlier than twelve months before the commission of the offense

or that ends no later than twelve months after the commission of the offense.

Such period may include time both before and after the commission of the

offense." Because Hidalgo County received the $850,000 construction grant in

1984, and because the offenses committed in this case occurred from June 1991 to

April 1992 and from November 1992 to July 1993, and assuming that only CAP is a

Federal program under § 666(b), Hidalgo County would not have received the

required amount of benefit within the relevant one-year period. However, if IGA

and CAP should be viewed collectively as one agreement, and the agreement

constitutes a Federal program, then the one-year requirement would be met,

because Hidalgo County received approximately $840,000 per year pursuant to IGA

for housing federal prisoners at cost per CAP during the time that Beltran was

housed at the jail.

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interrelated.

IGA and CAP were entered into in 1984 to establish and govern

relations between the U.S. Marshals Service and Hidalgo County.

CAP was the first agreement; it provided for "Federal participation

in the funding of local governmental jail construction, renovation

or improvement programs" and was "predicated upon the Federal

government's requirement for detention space and services and the

local government's provision of such services." As a condition to

the receipt of this grant, Hidalgo County Jail had to guarantee

that it would provide detention space for federal prisoners. The

second agreement, IGA, established the actual formal relationship

between the U.S. Marshals Service and other federal user agencies

and Hidalgo County for the detention of federal prisoners.

Although Hidalgo County had already guaranteed that it would

provide such space, IGA established the specific provisions and

requirements of the agreement including the compensation that

Hidalgo County would receive.

These agreements are so interrelated that they must be viewed

collectively as one agreement, especially given the fact that the

grant issued pursuant to CAP was conditioned on the agreement in

IGA. Having reviewed the nature and purposes of CAP and IGA, we

conclude that together they constituted "Federal assistance" or a

"Federal program" under 18 U.S.C. § 666(b), consisting of a grant,

CAP, and a contract, IGA. Our holding is supported by the broad

construction of § 666(b) mandated in the legislative history. S.

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Rep. No. 225 at 3511.

Focusing exclusively on IGA, the defendants argue that the

arrangement between Hidalgo County and the U.S. Marshals Service

was a commercial transaction. In urging that this is a commercial

transaction, the defendants emphasize the fact that the U.S.

Marshals Service received something in return for the funds it

provided to Hidalgo County.5

The legislative history again demonstrates why the defendants'

argument must fail. The Senate Report states that the goal in

enacting 18 U.S.C. § 666 was to protect the integrity of federal

funds by punishing theft and bribery involving Federal programs for

which there is "a specific statutory scheme authorizing the Federal

assistance in order to promote or achieve certain policy

objectives." S. Rep. No. 225 at 3510. Focusing on this

legislative history, the Second Circuit in United States v. Rooney,

986 F.2d 31, 35 (2d Cir. 1993) rejected a quid pro quo argument

similar to that argued by Marmolejo and Salinas. The Rooney court

5

The defendants appear to argue that as a "commercial transaction,"

this arrangement would be excluded from the statute by §§ 666(b) and (c).

However, § 666(c), which excludes "bona fide salary, wages, fees, or other

compensation paid, or expenses paid or reimbursed, in the usual course of

business," refers to the alleged wrongdoing, to ensure that the statute is not

applied to "acceptable commercial and business practices," H.R. Rep. No. 797,

99th Cong., 2d Sess. 30, reprinted in 1986 U.S.C.C.A.N. 6138, 6153, not to the

nature of the benefit that the agency receives pursuant to the Federal program.

See United States v. Valentine, 63 F.3d 459, 465 (6th Cir. 1995) (declining to

hold that the use of employees for personal benefit is in the usual course of

business); United States v. Grubb, 11 F.3d 426 (4th Cir. 1993) (declining to hold

that salary obtained in exchange for $10,000 bribe was "bona fide"). But see

United States v. Nichols, 40 F.3d 999, 1000 (9th Cir. 1994) (applying § 666(c)

to the nature of the Federal assistance). Certainly the defendants are not

arguing that the money they received from Beltran or the benefit that Beltran

received from them was "bona fide" and "in the usual course of business." 18

U.S.C. § 666(c).

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stated that the proper focus in determining whether federal funds

constitute "Federal assistance" under § 666(b) is "whether the

funds disbursed can be considered Federal assistance within a

specific statutory scheme intended to promote public policy

objectives and not payments by the government as a commercial

entity." Rooney, 986 F.2d at 35. Finding that the statute equated

"benefit" with "Federal assistance," the Second Circuit held that

an Farmers Home Administration loan could constitute Federal

assistance under § 666(b), despite the fact that the defendant was

obligated to repay the loan plus interest, because the money the

defendant received was authorized by a specific statute to

accomplish specific policy goals established by Congress. Id. at

34-35.

Likewise, in this case, the funds that the federal government

provided for Hidalgo County were authorized by a specific statute

and were intended to further public policy goals. The fact that

Hidalgo County housed federal prisoners in return for the money it

received from the United States Marshals Service does not preclude

the arrangement from being a Federal program under § 666(b). The

federal funds were authorized by 18 U.S.C. § 4002 to fulfill the

federal government's policy of providing "suitable quarters for the

safekeeping, care, and subsistence of all persons held under

authority of any enactment of Congress," 18 U.S.C. § 4002, and as

stated in CAP, to provide for "[f]ederal participation in the

funding of local governmental jail construction, renovation or

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improvement programs." Therefore the combination of CAP and IGA

qualifies as a Federal program under § 666(b), regardless of the

fact that the government received something in return for the

assistance it provided to Hidalgo County.6

B

The defendants next argue that they were "improperly

prosecuted" under 18 U.S.C. § 666(a)(1)(B). They argue that in

enacting 18 U.S.C. § 666, Congress did not intend to reach their

behavior. Specifically, they contend that there was not a

business, transaction, or series of transactions "involving

anything of value of $5,000 or more," as required under

§ 666(a)(1)(B).

Section 666(a)(1)(B) requires the government to prove that

agents of a local government solicited, demanded, accepted, or

agreed to accept anything of value from any person intending to be

influenced "in connection with any business, transaction, or series

of transactions of such government . . . involving anything of

value of $5,000 or more." 18 U.S.C. § 666(a)(1)(B). The evidence

at trial demonstrated that Beltran was housed at the Hidalgo County

Jail, pursuant to IGA. After observing that several of the federal

prisoners were receiving special treatment at the jail, Beltran

entered into an agreement with Marmolejo to receive special

6

Because we hold that IGA and CAP together constitute a Federal

program, Hidalgo County meets the one-year requirement as defined in 18 U.S.C.

§ 666(d)(5), because it received $840,000 a year for housing federal prisoners

during the period in which the offenses were committed.

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treatment in exchange for monetary consideration. Specifically,

Marmolejo allowed Beltran to have conjugal visits with his wife and

girlfriend in exchange for $6,000 a month and $1,000 per visit.

These visits took place in the jail library and eventually in

Sheriff Marmolejo's office.

The evidence also disclosed that Marmolejo told Beltran's

brother-in-law, Guardado, who often arranged the visits, that if

Marmolejo was not available, he could contact Salinas about

arranging a visit. Marmolejo usually guarded his office door when

Beltran and his wife or girlfriend were visiting. However, Salinas

supervised the visits on several occasions. The evidence also

established that Beltran instructed Guardado to purchase four sets

of men and women's Rado watches, one set of which was given to

Salinas and one set to Marmolejo. Both Salinas and Marmolejo also

received cars from Beltran. Marmolejo was also involved in

numerous financial transactions with Beltran.

We have previously held that § 666(a)(1)(B) does not require

the government to prove that federal funds were directly involved

in a bribery transaction, or that the federal monies funded the

corrupt transaction. Westmoreland, 841 F.2d at 578 (upholding

conviction of a county supervisor under § 666(a)(1)(B) for taking

bribes in connection with the granting of contracts for the

maintenance of local roads and bridges although the funds corruptly

disbursed were not federal funds). Therefore, although the

government did not have to trace any federal funds to the illegal

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transaction between Beltran and Marmolejo and Salinas, we must

consider whether the term "anything of value" in § 666(a)(1)(B) was

intended to cover transactions involving intangibles, such as a

conjugal visits, that are difficult to value.

We turn first to the plain language of the statute. The term

"anything of value" in § 666(a)(1)(B) is broad in scope and

contains no language restricting its application to transactions

involving money, goods, or services. Similarly, the statute does

not require that the organization, government, or agency or the

person giving the agent the bribe, valued the transaction at $5,000

or more. We hold, therefore, that the plain meaning of the statute

compels our conclusion that the term "anything of value" in

§ 666(a)(1)(B) includes transactions involving intangible items,

such as the conjugal visits at issue in this case.7 See United

States v. Mongelli, 794 F. Supp. 529, 531 (S.D.N.Y. 1992) (holding

that term "anything of value" in 18 U.S.C. § 666(a)(1)(B) includes

intangibles).

This broad language squares with Congress's intent in enacting

18 U.S.C. § 666 to safeguard "the integrity of federal funds by

assuring the integrity of the organizations or agencies that

receive them." Westmoreland, 841 F.2d at 577, 578. The Senate

7

We note that the dissent’s belief that the relevant language of

§ 666(a)(1)(B) ambiguous, directly contradicts our finding in Westmoreland, 841

F.2d at 576. In Westmoreland, we rejected the defendant’s argument that

“sufficient statutory ambiguity exists to invoke the rule of strict construction

applicable to criminal statutes and the rule that congressional intent, as

evidenced by the legislative history, controls,” because we found the statutory

language “plain and unambiguous.” Id. at 575-76.

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Report stated that:

[18 U.S.C. § 666 was] designed to create new offenses to

augment the ability of the United States to vindicate

significant acts of theft, fraud, and bribery involving

Federal monies that are disbursed to private

organizations or State and local governments pursuant to

a Federal program.

S.Rep. No. 225 at 3510. Specifically, the statute was intended to

fill a gap in the then-current federal bribery and theft statutes

caused by the difficulty of tracing federal monies.8 To accomplish

its goal, Congress "cast a broad net to encompass local officials

who may administer federal funds, regardless of whether they

actually do." Id. at 577.

We also note that other courts have interpreted the term

"anything of value" in criminal statutes broadly to include

8

The Senate Report described the then-existing state of the law:

[T]itle XI covers both theft and bribery type offenses. With

respect to theft, 18 U.S.C. § 665 makes theft or embezzlement by an

officer or employee of an agency receiving assistance under the Job

Training Partnership Act a Federal offense. However, there is no

statute of general applicability in this area, and thefts from other

organizations or governments receiving Federal financial assistance

can be prosecuted under the general theft of Federal property

statute, 18 U.S.C. 641, only if it can be shown that the property

stolen is property of the United States. In many cases, such

prosecution is impossible because title has passed to the recipient

before the property is stolen, or the funds are so commingled that

the Federal character of the funds cannot be shown. This situation

gives rise to a serious gap in the law, since even though title to

the monies may have passed, the Federal Government clearly retains

a strong interest in assuring the integrity of such program funds.

Indeed, a recurring problem in this area (as well as in the related

area of bribery of the administrators of such funds) has been that

State and local prosecutors are often unwilling to commit their

limited resources to pursue such thefts, deeming the United States

the principal party aggrieved.

With respect to bribery, 18 U.S.C. 201 generally punishes

corrupt payments to Federal public officials, but there is some

doubt as to whether or under what circumstances persons not employed

by the Federal Government may be considered as a "public official"

under the definition in 18 U.S.C. 201(a). . . .

S.Rep. No. 225 at 3510.

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intangibles. See United States v. Nilsen, 967 F.2d 539, 542 (11th

Cir. 1992) (stating that "Congress' frequent use of 'thing of

value' in various criminal statutes has evolved the phrase into a

term of art which the courts generally construe to envelope both

tangibles and intangibles"), cert. denied, 507 U.S. 1034, 113 S.

Ct. 1856, 123 L. Ed. 2d 478 (1993); United States v. Piquet, 963

F.2d 54, 55 (5th Cir.) (holding that the term "anything of value"

in 18 U.S.C. § 1029(a)(2) should be interpreted broadly), cert.

denied, 506 U.S. 902, 113 S. Ct. 290, 121 L. Ed. 2d 215 (1992);

United States v. Girard, 601 F.2d 69, 71 (2d Cir.) (holding that

term "thing of value," when used in criminal statutes, such as in

18 U.S.C. § 641, includes intangibles, such as amusement, sexual

intercourse, a promise to reinstate an employee, and information),

cert. denied, 444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979);

see also United States v. Williams, 705 F.2d 603, 622-23 (2d Cir.)

(holding that term "anything of value" in 18 U.S.C. § 201(c) and 18

U.S.C. § 201(g) can apply to stock that, although it had no actual

value, the defendant expected it to have value), cert. denied, 464

U.S. 1007, 104 S. Ct. 524, 78 L. Ed. 2d 708 (1983); McDonald v.

State, 329 So.2d 583, 587-88 (1975) (holding that sexual

intercourse or the promise of sexual intercourse is a "thing of

value" under state bribery statute), cert. denied, 429 U.S. 834, 97

S. Ct. 99, 50 L. Ed. 2d 99 (1976); Scott v. State, 141 N.E. 19, 22-

23 (1923) (same).

Because the conduct in this case involves serious acts of

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bribery by agents of a local government who were carrying out

their duties under a Federal program, we conclude that this case is

within the scope of conduct Congress intended to encompass with 18

U.S.C. § 666.9 As Sheriff and Chief Deputy Sheriff of Hidalgo

County, the defendants were in charge of carrying out the Federal

program of housing and safekeeping the federal prisoners, including

Beltran, at Hidalgo County Jail. Part of their responsibilities

pursuant to IGA was to provide and regulate the prisoners'

visitation rights. As agents of the Hidalgo County Jail,

8

The defendants argue that even if their actions meet the literal

definition of the statute, Congress did not intend to punish their type of

behavior in enacting 18 U.S.C. § 666. Again, the legislative history supports

our finding that this prosecution was proper. The Senate Report stated that

Congress intended 18 U.S.C. § 666 to encompass behavior in three specific cases,

each of which involved an organization or agency that provided the Federal

government with a service by administering a government program, much like the

Hidalgo County Jail did in this case. S. Rep. No. 225 at 3511 (citing United

States v. Hinton, 683 F.2d 195 (7th Cir. 1982) (involving head of a nonprofit

corporation organized to administer federal funds from a HUD program who

solicited money in exchange for housing rehabilitation contracts funded by HUD),

aff'd sub nom. Dixson v. United States, 465 U.S. 482, 104 S. Ct. 1172, 79 L. Ed.

2d 458 (1984); United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) (involving

head of state administrator of funds from a CETA program who solicited money in

exchange for preferential treatment under the program); United States v. Del

Toro, 513 F.2d 656 (2d Cir.) (involving bribery of city administrator of funds

from HUD program), cert. denied, 423 U.S. 826, 96 S. Ct. 41, 46 L. Ed. 2d 42

(1975).

Defendants cite United States v. Cicco, 938 F.2d 441 (3d Cir. 1991), as

support for their argument that Congress did not intend to reach their behavior

in enacting 18 U.S.C. § 666. The facts of Cicco, however, do not support their

argument. In Cicco, the defendants were indicted for soliciting political

support in exchange for the retention of municipal jobs. The Third Circuit

reasoned that the legislative history revealed that Congress enacted § 666 to

enlarge those covered by federal bribery laws, not "the sort of 'political

patronage harassments' alleged" in that case. Id. at 446 (quoting S.Rep. No.

1245, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S.C.C.A.N. 2883, 2884).

Because the defendants' behavior in Cicco was covered by another criminal

statute, 18 U.S.C. § 601, which was "'directed at protecting federally-funded

employment from partisan favoritism,'" the court concluded that Congress did not

intend to encompass such behavior under § 666. Id. The Cicco court was

persuaded in particular by the fact that if the conduct at issue was covered by

§ 666 as well as § 601, the punishment would have been ten times as severe under

§ 666, and without any mention of § 601 in the legislative history, the Cicco

court was not prepared to conclude that Congress intended such a result. Id.

Instead, the court believed "Congress intended § 666 to address different and

more serious criminal activity" involving theft and bribery. Id.

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Marmolejo and Salinas accepted money, watches, and cars intending

to be influenced in connection with transactions of the jail,

namely, the issuance and regulation of prisoner visits with family

and friends. The transactions involved something of

value))conjugal visits that Beltran was willing to pay for.

We must now determine whether these conjugal visits had a

value of $5,000 or more. Again, we observe that the statute does

not contain language "to indicate that 'any transaction involving

$5,000' means 'any federally funded transaction involving $5,000'

or 'any transaction involving $5,000 of federal funds.'"

Westmoreland, 841 F.2d at 576. "[A]ny reference to federal funds

is conspicuously absent from the operative provisions," allowing

Congress to ensure the integrity of federal funds by protecting the

integrity of the organizations that receive them. Id. at 577-78.

The statute does not specifically require that the payor or the

payee of the bribe value the transaction at $5,000.10 Instead, the

10

Compare Westmoreland, 841 F.2d at 576-78 (stating that the

unambiguous language of § 666(a)(1)(B) does not require the government to

establish any relation between the transaction involving a "thing of value of

$5,000" and the federal funds the agency receives) with United States v. Foley,

73 F.3d 484, 490 (2d Cir. 1996) (stating that § 666(a)(1)(B) was enacted to

permit prosecution for bribery in connection with federal program funds,

therefore, in determining whether a transaction involves "anything of value of

$5,000 or more," the "value must be connected, even if only indirectly, to the

integrity of federal program funds"). The dissent claims that Foley holds that

“the proper method to value a transaction is from the perspective of the

protected entity.” However, Foley’s only statement about assessing the “thing’s

value” states that it must be connected to the integrity of the federal program

funds. Foley, 73 F.3d at 490. Foley does intimate that if the transaction

involved in that case had affected the financial interests of the protected local

organization, then that case might have been properly prosecuted under

§ 666(a)(1)(B). Id. at 492-93. However, the only decisive language in Foley

concerns the fact that the federal program funds were not affected, even

indirectly, by the transaction. Id. at 490, 492 & 493. We note that the

plaintiff in Westmoreland could not have been convicted under § 666(a)(1)(B)

under the holding in Foley. Foley requires a connection between the

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$5,000 triggering provision ensures that the statute reaches acts

of bribery involving transactions of substantial value. Id. at

578. To decide whether a transaction involving intangibles has a

value of $5,000 or more, courts should look to traditional

valuation methods. See Mongelli, 794 F. Supp. at 531. We conclude

that the conjugal visits in this case did have a value which

exceeded $5,000. We arrive at this estimate in the same way that

an appraiser would value an asset))by looking at how much a person

in the market would be willing to pay for them. Id.; see also

Herman v. United States, 289 F.2d 362 (5th Cir.) (stating that to

determine if the value of stolen property is $5,000 or more, as

required in 18 U.S.C. § 2314, courts must look at "the price a

willing buyer would pay a willing seller at the time and place the

property was stolen"), cert. denied, 368 U.S. 897, 82 S. Ct. 174,

7 L. Ed. 2d 93 (1961); United States v. Seagraves, 265 F.2d 876 (3d

Cir. 1959) (stating that amount defendants paid for stolen property

can form basis for expert's valuation of the property under 18

U.S.C. § 2314). Pursuant to the bribery transactions, Beltran was

willing to pay Marmolejo $6,000 a month plus $1,000 for each visit.

Therefore, the transactions between Beltran and Marmolejo and

transaction's value of $5,000 or more and the integrity of the federal program

funds that the government receives. The Foley court stated that the legislative

history indicated that § 666(a)(1)(B) was "not designed for the prosecution of

corruption that was not shown in some way to touch upon federal funds." Foley,

73 F.3d at 493. However, the plaintiff in Westmoreland, a county supervisor, was

convicted of accepting bribes in exchange for effecting sales transactions worth

$14,482.92. We upheld her conviction even though it was undisputed that the

alleged acts of bribery concerned only state monies, not the federal funds that

the county received. To the extent that the Foley court would have reversed her

conviction under § 666(a)(1)(B), this case is in conflict with Fifth Circuit law.

-16-

Salinas involved something "of value of $5,000 or more."

Accordingly, we conclude that Marmolejo and Salinas were properly

prosecuted under 18 U.S.C. § 666(a)(1)(B).11

III

At trial, the government alleged that the defendants violated

TEX. PENAL CODE ANN. § 36.02(a)(1), which constituted "predicate acts

establishing a pattern of racketeering activity" in violation of

RICO.12 See 18 U.S.C. § 1962(c). A state offense can only

constitute a predicate act establishing a pattern of racketeering

activity if the offense is punishable by more than one year in

prison. 18 U.S.C. § 1961(1)(A). Salinas and Marmolejo allege that

their prosecution under TEX. PENAL CODE ANN. § 36.02(a)(1) was

improper because a more specific statute, TEX. PENAL CODE ANN.

11

The defendants' final argument with respect to 18 U.S.C. § 666 is

that the Sheriff's office is not an agent of a local government as required by

§ 666(a)(1). Section 666 applies to every "agent of an organization, or of a

State, local, or Indian tribal government, or any agency thereof." 18 U.S.C.

§ 666(a)(1). "Local" is defined as "of or pertaining to a political subdivision

within a state." 18 U.S.C. § 666(d)(3). It is clear that this statute was

intended to encompass all employees of all governmental agencies and their

subdivisions. See 18 U.S.C. § 666(d)(2). The Hidalgo County Sheriff's office

is an agency of Hidalgo County, and both defendants are agents of the Sheriff's

office; therefore, they are covered by the statute.

Salinas also argues that there was insufficient evidence to convict him of

aiding and abetting Marmolejo's violation of 18 U.S.C. § 666(a)(1)(B). After a

careful review of the record, we conclude there was sufficient evidence to

sustain the conviction.

12

TEX. PENAL CODE ANN. § 36.02(a)(1) provides:

A person commits an offense if he intentionally or knowingly offers,

confers, or agrees to confer on another, or solicits, accepts, or

agrees to accept from another any benefit as consideration for the

recipient's decision, opinion, recommendation, vote, or other

exercise of discretion as a public servant, party official, or

voter.

-17-

§ 36.08(b), applies to their conduct.13 They rely on a well-

established rule of construction "that if two legal provisions

apply, one general and one specific, the specific takes

precedence." United States v. Tunnell, 667 F.2d 1182, 1185 (5th

Cir. 1982). While TEX. PENAL CODE ANN. § 36.02(a)(1) is a felony

punishable by more than one year in prison, TEX. PENAL CODE ANN.

§ 36.08(b) is a misdemeanor which is not punishable by more than

one year in prison. Therefore, if the defendants should have been

prosecuted under § 36.08(b) instead of § 36.02(a)(1), they would

not have committed predicate acts constituting racketeering

activity in violation of RICO.

Having reviewed the evidence against the defendants, we hold

that they were properly charged under TEX. PENAL CODE ANN.

§ 36.02(a)(1), which prohibits accepting bribes, rather than

§ 36.08(b), which prohibits accepting gifts. The appropriate

inquiry is which statute criminalizes the defendants' conduct here.

See Tunnell, 667 F.2d at 1185 (concluding that defendants were

properly charged under the statute which criminalized their exact

behavior). The evidence at trial demonstrated an elaborate system

of bribes between Marmolejo and Beltran, aided and abetted by

Salinas. The cash payments, watches, and other consideration that

the defendants received were not gifts; they were given as payment

13

TEX. PENAL CODE ANN. § 36.08(b) provides that "[a] public servant in

an agency having custody of prisoners commits an offense if he solicits, accepts,

or agrees to accept any benefit from a person the public servant knows to be in

his custody or the custody of his agency."

-18-

for conjugal visits and other special favors. Thus the defendants

were properly convicted under the more serious statute,

§ 36.02(a)(1), which prohibited the exact behavior which they

engaged in))bribery. See id. at 1185; Cerda v. State, 750 S.W.2d

925, 927 (Tex. App.))Corpus Christi 1988, pet. ref'd).14

IV

Salinas appeals the trial court's jury instruction on the RICO

conspiracy count,15 arguing that it erroneously allowed the jury to

convict him without proof that he performed or agreed to perform

personally two of the predicate acts which comprised the pattern of

14

The defendants also argue that the government failed to prove that

they were "public servant[s]" within the meaning of the statute and that they

acted in a discretionary manner in allowing conjugal visits. TEX. PENAL CODE ANN.

§ 1.07(41)(A) defines public servant as one who is "elected, selected, appointed,

employed, or otherwise designated as . . . an officer, employee, or agent of

government." Marmolejo was elected Sheriff of Hidalgo County which is an agent

of government; therefore, he satisfies this broad definition of public servant.

Salinas also satisfies the definition because he was either selected or appointed

as an employee of Hidalgo County.

TEX. PENAL CODE ANN. §36.02(a)(1) punishes the receipt of benefits in

exchange "for the recipient's decision, opinion, recommendation, vote, or other

exercise of discretion as a public servant." The defendants argue that as

jailers they act in a ministerial, not a discretionary manner. This argument is

also without merit. Conjugal visits were not permitted under Hidalgo County Jail

policy. They were allowed in this case, only as a result of Marmolejo's exercise

of discretion, aided and abetted by Salinas, in exchange for money and other

types of consideration.

The defendants also argue that the government failed to prove that Beltran

was in "custody." TEX. PENAL CODE ANN. §36.02(a)(1) does not require custody;

therefore, this argument is also without merit.

15

Salinas was charged with violating a substantive RICO provision, 18

U.S.C. § 1962(c), and with conspiring to violate a substantive RICO provision,

18 U.S.C. § 1962(d). He was acquitted of the substantive count, but convicted

on the conspiracy count. Section 1962(d) provides that it is unlawful "for any

person to conspire to violate any of the provisions of subsection (a), (b), or

(c) of this section." 18 U.S.C. § 1962(d). Section 1962(c) prohibits "any

person employed by or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such enterprise's affairs

through a pattern of racketeering activity or collection of unlawful debt." 18

U.S.C. § 1962(c).

-19-

racketeering activity.16 "While great latitude is shown the trial

court in fashioning jury instructions, we will review [the

instructions] to determine whether they accurately and completely

state the law." Banc One Capital Partners Corp. v. Kneipper, 67

F.3d 1187, 1192 (5th Cir. 1995).

Fifth Circuit cases have obfuscated the issue of whether each

RICO conspirator must agree to commit personally two or more

racketeering acts or whether it is sufficient that the conspirator

simply agree that one of his co-conspirators will commit two or

more racketeering acts.17 This issue has divided the circuits, with

the majority holding that a RICO conspirator need only agree "that

members of the conspiracy will violate [a substantive RICO

provision] through the commission of two proscribed acts," not that

he will personally commit two proscribed acts.18 United States v.

16

The trial court's instruction on the RICO conspiracy count stated:

What you are being asked to decide in Count Two is . . . If Salinas

was only involved in one or two or even none, did he, nevertheless,

know about this pattern. Did he know that this whole pattern of

activity was going on and did he then knowingly and willfully join

in and participate and contribute in some fashion.

17

Both the majority and the minority views on this issue ground their

interpretation of § 1962(d) on United States v. Elliott, 571 F.2d 880 (5th Cir.),

cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978). "However,

a reading of Elliott in conjunction with the later case of United States v.

Sutherland, 656 F.2d 1181 (5th Cir. 1981) reveals that the Fifth Circuit had not

definitively resolved this issue." United States v. Neapolitan, 791 F.2d 489,

496 n.3 (7th Cir.), cert. denied, 479 U.S. 940, 107 S. Ct. 422, 93 L. Ed. 2d 372

(1986).

18

The majority consists of the Sixth, Third, Ninth, Eleventh, and

Seventh Circuits. See United States v. Joseph, 781 F.2d 549, 554 (6th 1986);

United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S.

971, 106 S. Ct. 336, 88 L. Ed. 2d 321 (1985); United States v. Tille, 729 F.2d

615, 619 (9th Cir.), cert. denied, 469 U.S. 845, 105 S. Ct. 156, 83 L. Ed. 2d 93

(1984); United States v. Carter, 721 F.2d 1514, 1529 (11th Cir.), cert. denied

sub nom, Morris v. United States, 469 U.S. 819, 105 S. Ct. 89, 83 L. Ed. 2d 36

-20-

Neapolitan, 791 F.2d 489, 494 (7th Cir.), cert. denied, 479 U.S.

940, 107 S. Ct. 422, 93 L. Ed. 2d 372 (1986).

Our decision in United States v. Elliott, 571 F.2d 880 (5th

Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344

(1978) lays the groundwork for analyzing the present controversy.

The issue in Elliott was whether the government can link together,

under a RICO conspiracy charge, multiple conspiracies whose crimes

may have no relation to each other except for their affiliation

with a common criminal enterprise. Id. at 902-03. In answering

this question affirmatively, we explained:

the object of a RICO conspiracy is to violate a

substantive RICO provision))here, to conduct or

participate in the affairs of an enterprise through a

pattern of racketeering activity))and not merely to

commit each of the predicate crimes necessary to

demonstrate a pattern of racketeering activity. . . .

Under the statute, it is irrelevant that each defendant

participated in the enterprise's affairs through

different, even unrelated crimes, so long as we may

reasonably infer that each crime was intended to further

the enterprise's affairs.

Id. at 902. Our subsequent cases have made it clear that to prove

a RICO conspiracy "no actual acts of racketeering need occur; there

need only exist a conspiracy to perform the necessary acts plus

some overt action by one of the conspirators in furtherance of the

conspiracy." United States v. Phillips, 664 F.2d 971, 1038 (5th

(1984); Neapolitan, 791 F.2d at 497. The First and Second Circuits currently

compose the minority, holding that a RICO conspirator must personally agree to

commit two predicate acts. See United States v. Ruggiero, 726 F.2d 913, 921 (2d

Cir.), cert. denied sub nom., Rabito v. United States, 469 U.S. 831, 105 S. Ct.

118, 83 L. Ed. 2d 60 (1984); United States v. Winter, 663 F.2d 1120, 1136 (1st

Cir. 1981), cert. denied, 460 U.S. 1011, 103 S. Ct. 1250, 75 L. Ed. 2d 479

(1983).

-21-

Cir. 1981) (citing United States v. Sutherland, 656 F.2d 1181, 1187

n.4 (5th Cir. 1981), cert. denied, 455 U.S. 949, 102 S. Ct. 1451,

71 L. Ed. 2d 663 (1982)), cert. denied sub nom., Meinster v. United

States, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982).

Yet, our cases have still not resolved what RICO conspirators must

individually agree to.

Today we join the majority view among the circuits in holding

that to be guilty of RICO conspiracy, the conspirator must simply

agree "to the objective of a violation of RICO; he need not agree

personally to violate the statute." Neapolitan, 791 F.2d at 498.

Our decision is mandated not only by the plain language of the RICO

statute, but also by the nature and purpose of the statute.

Section 1962(d) specifically prohibits a conspiracy to violate

any of the substantive RICO provisions. 18 U.S.C. § 1962(d).

Nothing in this language indicates that Congress intended to do

anything more than to criminalize a conspiratorial objective))the

violation of a substantive RICO provision. Sutherland, 656 F.2d at

1193; Elliott, 571 F.2d at 903; Neapolitan, 791 F.2d at 497. If we

were to hold that in addition to agreeing to the overall criminal

objective, a RICO conspirator had to agree to perform the actual

crime, two predicate acts comprising a substantive violation of

RICO, this holding would be a marked departure from traditional

conspiracy law for which there is no support in the language of the

statute or the statutory history. Neapolitan, 791 F.2d at 497-98

("Requiring an agreement personally to commit two predicate acts

-22-

would establish a new form of conspiring in contradistinction to

section 1962(d)'s base in traditional conspiracy law.").

The Congressional purpose in enacting RICO was to provide a

new remedy to punish organized crime. Id. at 495 & 498; see United

States v. Barton, 647 F.2d 224, 237-38 (2d Cir. 1981) ("It is the

purpose of this Act to seek the eradication of organized crime in

the United States . . . by establishing new penal prohibitions, and

by providing enhanced sanctions and new remedies to deal with the

unlawful activities of those engaged in organized crimes.")

(quoting The Statement of Findings of the Organized Crime Control

Act of 1970, 84 Stat. 923), cert. denied, 454 U.S. 857, 102 S. Ct.

307, 70 L. Ed. 2d 152 (1981). To be guilty of a RICO violation,

one must have violated other laws in a way that implicates RICO.

Neapolitan, 791 F.2d at 497 ("The statute does not create a new

type of crime; it establishes prerequisites for the imposition of

harsher penalties."). Therefore to be an effective tool against

organized crime, a RICO conspiracy should not require anything more

than is required to conspire to violate any other federal crime.

Id. This conclusion is bolstered by the expansive reading that the

Supreme Court has given the statute.19

Having concluded that a RICO conspirator need not agree to

personally perform the two predicate acts which compose the

substantive violation of RICO, we find that the court's

19

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498, 105 S. Ct. 3275,

3286, 87 L. Ed. 2d 346 (1985).

-23-

instructions were an accurate statement of the law.20

V

Section 1963(a) provides that anyone who violates RICO must

forfeit any interest that they have acquired or maintained in

violation of the statute, any enterprise that they have established

or conducted in violation of RICO, and any property constituting or

derived from proceeds obtained from racketeering activity in

violation of RICO. 18 U.S.C. § 1963(a). Section 1963(m) provides

that if by some "act or omission of the defendant" the government

cannot locate the property it is authorized to forfeit by

subsection (a), "the court shall order the forfeiture of any other

property of the defendant up to the value of any property" that the

defendant has made untraceable. 18 U.S.C. § 1963(m). The

government sought the forfeiture of $151,000 in bribe proceeds from

Marmolejo pursuant to 18 U.S.C. § 1963(a). Marmolejo argues that

the court erred in authorizing the forfeiture of substitute assets

without requiring the government to prove that he made unavailable

the assets that he obtained from his violations of RICO. We review

20

Salinas also argues that there was insufficient evidence to support

his conviction for RICO conspiracy. In reviewing a sufficiency of the evidence

challenge, we view "the evidence in the light most favorable to the jury verdict

and affirm[] if a rational trier of fact could have found that the government

proved all essential elements of the crime beyond a reasonable doubt." United

States v. Puig-Infante, 19 F.3d 929, 937 (5th Cir.), cert. denied, ___ U.S. ___,

115 S. Ct. 180, 130 L. Ed. 2d 115 (1994). To prove a RICO conspiracy charge, the

government must prove "that the defendant conspired to engage in a pattern of

racketeering activity." United States v. Marcello, 876 F.2d 1147, 1152-53 (5th

Cir. 1989). To establish a pattern of racketeering activity, the government must

prove "two predicate acts, each of which must be a criminal offense." Id.

Having carefully reviewed the record, we conclude that there was sufficient

evidence to convict Salinas of RICO conspiracy.

-24-

the district court's findings of fact under the clearly erroneous

standard of review, and the question of whether those facts

constitute legally proper forfeiture de novo. United States v.

1977 Porsche Carrera, 946 F.2d 30, 33 (5th Cir. 1991).

One of the specific ways that § 1963(m) provides that the

government can forfeit substitute property is if some of the

property, "as a result of any act or omission of the defendant has

been transferred or sold to, or deposited with, a third party." 18

U.S.C. § 1963(m)(2). At the forfeiture hearing, both Marmolejo and

the government stipulated that if a government agent were called to

testify he would testify that he could not locate the specific

property the government sought to forfeit because "some of the

property had been transferred, sold or deposited with third

parties." Marmolejo's attorney specifically acknowledged that the

government could not trace any of Marmolejo's assets. Furthermore,

Marmolejo did not oppose the district court's Order of Forfeiture

which specifically stated that the parties stipulated that

forfeiture of substitute assets was appropriate. Therefore, given

that both parties stipulated that substitution of assets was

appropriate, and because the court's decision was based on a

legally proper ground, § 1963(m)(2), we hold that the forfeiture

was proper.

VI

Defendants argue that the district court erred in denying

their motions to suppress evidence seized pursuant to a search

-25-

warrant that they allege was invalid.21 In reviewing a district

court's denial of a motion to suppress evidence obtained pursuant

to a search warrant we must decide: "(1) whether the good-faith

exception to the exclusionary rule applies; and (2) whether

probable cause supported the warrant." United States v.

Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) (footnote omitted).

However, because this case does not involve novel issues of law

that need to be resolved to assist law enforcement officers and

magistrate judges in the future, we need not decide whether the

warrant was supported by probable cause if we find that the good-

faith exception to the exclusionary rule applies. Id.; United

States v. Restrepo, 994 F.2d 173, 187 (5th Cir. 1993).

"When a warrant is supported by more than a 'bare bones'

affidavit, officers may rely in good faith on the warrant's

validity" in conducting a search. Satterwhite, 980 F.2d at 321.

However, an affidavit that contains only conclusions and "lack[s]

the facts and circumstances from which a magistrate can

independently determine probable cause" is considered "bare bones"

and cannot be the basis of an objectively reasonable good-faith

21

Before trial, Marmolejo moved to suppress evidence obtained pursuant

to three search warrants. Based on the affidavit of John Trevino, Special Agent

of the Internal Revenue Service, Criminal Division, the government obtained three

warrants to search Marmolejo's residence, ranch, and office. The warrant sought

nine categories of items ranging from personal address and telephone books that

would contain the addresses or telephone numbers of Marmolejo's associates to

documents reflecting receipts or disbursements of money from Beltran to

Marmolejo.

Salinas also sought to suppress evidence found pursuant to a search warrant

that was also obtained based on Special Agent Trevino's affidavit. The warrant

for Salinas' residence sought six categories of items ranging from personal

address and telephone books that might contain Salinas' associates to a set of

his and hers Rado watches given by Beltran to Salinas and his wife.

-26-

reliance by an officer. Id. We review de novo whether the good-

faith exception to the exclusionary rule applies. Id. at 321.

We conclude that the affidavit which supported the search

warrants for Marmolejo's residence, ranch, and office and Salinas'

residence contained sufficient facts from which the magistrate

could determine probable cause. The affidavit contains detailed

first-hand observations by the affiant, as well as detailed

information provided by informants whom the affiant establishes as

reliable.22 It describes the bribery scheme between Beltran and

Marmolejo in detail and Salinas' role in aiding and abetting it.23

22

For example, the affidavit states that confidential source number

one, ("CS-1"):

has provided information about Homero BELTRAN receiving special

privileges and visits at the Hidalgo County Jail, as corroborated by

CS-2, CS-3 and by testimony of a witness before the Federal Grand

Jury in McAllen, Texas. CS-1 has also provided information that

Homero BELTRAN gave a 1989 Pontiac Trans-Am to Brigido MARMOLEJO

JR., which has been independently corroborated by a record check

with the Texas Department of Motor Vehicles and by statements made

to law enforcement officers participating in this investigation by

the current owner of the vehicle that Brigido MARMOLEJO JR., was the

former owner of the vehicle.

Another example of the reliability of the confidential sources demonstrated in

the affidavit is:

CS-3 has provided information to your affiant and other law

enforcement officers for the past three months as to the ownership

of real estate by a convicted drug trafficker, Homero BELTRAN, and

that Brigido MARMOLEJO JR. was involved in the proposed sale of the

property, which has been corroborated by CS-1, CS-2, and independent

investigation by your affiant and special agents assigned to the DEA

OCDETF group in McAllen, Texas.

23

The affidavit explains that by September 1991, Beltran was receiving

special privileges inside the jail because of an agreement that he had with a

jail employee named Zavala. It recounts how Marmolejo then met with Beltran and

agreed to increase the frequency and duration of Beltran's visits with his

family. Initially, Beltran was to pay Marmolejo $5,000 per month for having at

least one visit a week with his family. The affidavit describes how the

agreement was renegotiated to allow for three visits per week for $5,000 per week

and $1,000 per visit. The affidavit states that "CS-1 and CS-2 observed on

several occasions Mario Salinas guarding the door to Brigido Marmolejo's office."

-27-

Many of the facts are corroborated by the observations of others

and by taped conversations with Marmolejo which the affiant helped

record.

Based on these facts, the magistrate could independently

determine probable cause; therefore, the affidavit was more than

"bare bones" which the officers could rely on in good faith. Since

the officers acted in good faith in relying on the search warrants,

we need not determine whether the warrants were supported by

probable cause. We conclude that the defendants' motions to

suppress were properly denied.24

VII

Salinas argues that his criminal prosecution was prohibited by

the Double Jeopardy Clause. He contends that prior to his criminal

trial, the government forfeited his property, two Rado watches,

The affidavit describes the watches that Beltran bought for Marmolejo and

Salinas and their wives. It also explains that Beltran gave Marmolejo $11,000

to complete a pavilion that Marmolejo was building at his ranch for his

daughter's wedding. The affidavit further states that, "CS-2 was present when

Brigido MARMOLEJO JR. had taken Mario SALINAS to his ranch and showed him the

pavilion. Brigido MARMOLEJO JR. stated that 'if it was not for Homero BELTRAN,

I wouldn't have the pavilion.'"

The affidavit also details the many financial transactions that Marmolejo

entered into with Beltran.

24

Salinas also argues that the search exceeded the scope of the search

warrant because officers searched his car which was not authorized in the search

warrants. As result, Salinas argues, all evidence obtained in the search should

be suppressed. However, Salinas does not state what evidence from the vehicles,

was discovered and admitted at trial. The only items of evidence the government

admitted at trial that was seized pursuant to the search warrants were two Rado

watches seized from Salinas' residence and a telephone number list seized from

Salinas' office. Under the severability doctrine, evidence that is illegally

seized has no effect on the admissibility of legally seized evidence. United

States v. Willey, 57 F.3d 1374, 1390 (5th Cir.), cert. denied, ___ U.S. ___, 116

S. Ct. 675, 133 L. Ed. 2d 524 (1995); United States v. Hamilton, 931 F.2d 1046,

1054 (5th Cir. 1991). Therefore, without any allegation of illegally seized

evidence, Salinas' claim is without merit.

-28-

which constituted punishment for his crime, thereby precluding any

subsequent punishment. The district court rejected Salinas' claim,

finding that the government had suspended forfeiture proceedings

and only intended to keep the watches as evidence for trial. We

review the denial of a motion to dismiss on Double Jeopardy grounds

de novo. United States v. Arreola-Ramos, 60 F.3d 188, 191 (5th

Cir. 1995).

Salinas' property was seized by the DEA for forfeiture under

21 U.S.C. § 881 as property used or acquired as the result of a

drug-related offense.25 The DEA sent Salinas a Notice of Seizure

in November 1993. The Notice informed Salinas that he could either

request remission or mitigation of the forfeiture within thirty

days of his receipt of the notice, or contest the forfeiture within

twenty days of the first date of publication of the notice))

November 17, 1993. On December 30, 1993, Salinas sent a Petition

for Remission, or in the Alternative for Mitigation of the

Forfeiture which was then denied by the DEA. The DEA, however,

never issued a Declaration of Forfeiture administratively

forfeiting the watches.

Salinas argues that the watches were effectively forfeited

when he failed to file a claim and post a bond contesting the

forfeiture before the time for contesting expired on December 7,

1993. Salinas argues that this automatic forfeiture occurred

25

The government's theory was that the watches had been purchased by

Beltran with drug proceeds. Beltran was a well-known drug dealer who had made

$4 to 5 million in profits from marijuana smuggling.

-29-

because of 21 C.F.R. § 1316.77(a). Section 1316.77(a) provides

For property seized by officers of the Drug Enforcement

Administration, if . . . a claim and bond are not filed

within the 20 days hereinbefore mentioned, the DEA

Special Agent-in-Charge or DEA Asset Forfeiture Section

shall declare the property forfeited. The DEA Special

Agent-in-Charge or DEA Asset Forfeiture Section shall

prepare the Declaration of Forfeiture and fovard [sic] it

to the Administrator of the Administration as

notification of the action he has taken.

21 C.F.R. § 1316.77(a). If Salinas were correct in arguing that

automatic forfeiture occurs once the twenty days expire, then there

would be no need for the statute to require that either the DEA

Special Agent-in-Charge or DEA Asset Forfeiture Section "declare

the property forfeited" and then prepare a "Declaration of

Forfeiture." The statute would simply provide that the property is

automatically forfeited once the twenty days had expired. We find

that instead of authorizing automatic forfeiture, the statute

authorizes the DEA to declare property forfeited when no person

files a claim within the required period. See United States v.

Baird, 63 F.3d 1213, 1217 (3d Cir. 1995) ("Where no person files a

claim to the seized property within the statutory period, the

agency is authorized to declare the property forfeited.") (citing

19 U.S.C. § 1609(b) and 21 C.F.R. § 1316.77) (emphasis added),

cert. denied, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d. ___

(1996); cf. Arreola-Ramos, 60 F.3d at 190 (stating that once the

time for making a claim and posting a bond has expired, the seizing

agency automatically issues a declaration of forfeiture). However,

if the agency does not issue a "Declaration of Forfeiture," the

-30-

property is not forfeited. Cf. Arreola-Ramos, 60 F.3d at 190

(stating that the declaration of forfeiture by a seizing agency has

"the same effect as a final decree and order of forfeiture entered

in a judicial proceeding").

The Ninth Circuit, in a case that is factually similar to this

one, recently rejected the exact argument that Salinas makes. See

United States v. Sanchez-Cobarruvias, 65 F.3d 781 (9th Cir.), cert.

denied, ___ U.S. ___, 116 S. Ct. 797, ___ L. Ed. 2d ___ (1996). In

Sanchez-Cobarruvias, United States Border Patrol Agents seized

several guns from the defendant's car at which time the defendant

filled out a Petition for Remission or Mitigation of Forfeiture

form. The defendant was thereafter indicted for firearms

violations. Customs officials then initiated civil administrative

forfeiture proceedings against the defendant's car and sent him a

Notice of Seizure explaining how the defendant could contest the

forfeiture. After the twenty day claims period expired, the

defendant moved to dismiss his criminal charges on double jeopardy

grounds. The district court denied the motion, holding that no

final disposition had taken place in the forfeiture proceedings;

therefore, the property had not been forfeited, and jeopardy could

not have attached. Id. at 782. The Ninth Circuit affirmed the

district court's denial of the defendant's motion to dismiss on

double jeopardy grounds based on its interpretation 19 U.S.C.

§ 1609(a), which contains similar procedures as 21 C.F.R.

-31-

§ 1316.77.26 The court stated,

The fact that section 1609(a) uses mandatory rather than

hortatory language means only that the government will

declare seized property forfeited and proceed to auction

it off, if there has been no challenge to the forfeiture

proceedings; it does not mean that forfeiture is complete

as a matter of law simply because the twenty days have

passed. Put another way, a Declaration of Forfeiture or

final Disposition Order is not an empty gesture; it is

the means whereby the government legally obtains title to

seized property in order to dispose of it.

Id. at 783-84. Because there had been neither a Declaration of

Forfeiture nor a final Disposition Order, the Ninth Circuit held

that there had been no finality to the forfeiture proceeding. Id.

at 784. Therefore the defendant's property had not been forfeited,

and there was no double jeopardy bar to his criminal prosecution.

The DEA has never issued a Declaration of Forfeiture for

Salinas' watches. Consequently, we hold that there has been no

finality to the forfeiture proceedings and therefore no forfeiture.

As a result, jeopardy has not attached in the first proceeding to

erect any potential bar to Salinas' subsequent criminal

prosecution.

VIII

The district court departed upward in sentencing Marmolejo

based on its belief that he perjured himself at trial. Marmolejo

argues that this was error because the court failed to give him

adequate notice of its intent to depart upward on this ground. We

agree.

26

See 19 U.S.C. §§ 1608 and 1609(a) and (b).

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Parties must be given notice and an opportunity to comment on

matters relating to sentencing. FED. R. CRIM. P. 32(a)(1); Burns v.

United States, 501 U.S. 129, 137 & 138, 111 S. Ct. 2182, 2187, 115

L. Ed. 2d 123 (1991). If the district court decides sua sponte to

depart from the Sentencing Guidelines without providing adequate

notice, "a critical sentencing determination will go untested by

the adversarial process contemplated by Rule 32 and the

Guidelines." Burns, 501 U.S. at 137, 111 S. Ct. at 2187.

In pronouncing Marmolejo's sentence, the district court stated

that it was departing upward from the Guidelines based on its

belief that he perjured himself at trial. Perjury was not

mentioned in the Presentence Investigation Report as a ground for

upward departure, and it is clear from the transcript of the

sentencing hearing that Marmolejo's attorney did not have notice of

this ground nor was he prepared to comment on it.27 We hold that

the district court erred by failing to give Marmolejo adequate

notice of its intent to depart upward from the Guidelines, see

United States v. Moore, 37 F.3d 169, 175 (5th Cir. 1994); United

States v. Williams, 937 F.2d 979, 981 (5th Cir. 1991); therefore,

we vacate his sentence and remand for resentencing.28

27

When Marmolejo's attorney objected to his lack of notice of the

court's intent, the court responded, "I'm giving it to you now."

28

Marmolejo argues several other points of error, none of which have

merit. First, Marmolejo argues that there was insufficient evidence to convict

him of money laundering. Viewing the evidence in the light most favorable to the

jury verdict, see Puig-Infante, 19 F.3d at 937, we find that a rational trier of

fact could have found that the government proved beyond a reasonable doubt that

Marmolejo was guilty of money laundering.

Marmolejo also contends that the district court erred by admitting hearsay

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IX

For the foregoing reasons, we AFFIRM both defendants'

convictions, but VACATE Marmolejo's sentence and REMAND for

resentencing.

evidence and disallowing other "critical impeachment evidence." We find that the

district court did not abuse its discretion. See United States v. Coleman, 997

F.2d 1101, 1105 (5th Cir. 1993) ("Rulings limiting the scope or extent of cross-

examination are committed to the sound discretion of the trial court and are

reviewed only for abuse of discretion."), cert. denied, ___ U.S. ___, 114 S. Ct.

893, 127 L. Ed. 2d 86 (1994); United States v. Vela, 673 F.2d 86, 90 (5th Cir.

1982) (stating that we review a trial court's decision to admit business records

for abuse of discretion).

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E. GRADY JOLLY, Circuit Judge, concurring in part and dissenting in

part:

I respectfully dissent from Part II B of the majority's

opinion. The majority holds that it is a federal crime for local

jail officials to accept bribes for conjugal visits because

conjugal visits constitute "business" or "transactions" of the

Hidalgo County Jail. It reaches this conclusion even though the

conduct in question did not affect federal funds directly or

indirectly, the only congressional objective of this criminal

statute. Moreover, the majority holds that these conjugal visits

have a value of at least $5,000 based solely on the amount of the

bribes received by the local jail officials. The majority thus

enlarges the scope of this statute by effectively holding that the

statute is violated whenever a bribe satisfies the transactional

amount prescribed by the statute even when the transaction has no

value to the jail and thus could have no effect on federal

interests. With due respect for the majority, I am unable to agree

with this virtually unlimited expansion of 18 U.S.C. §

666(a)(1)(B).

(1)

As noted in the majority opinion, the statute requires that

the government prove that the defendants were agents of the Hidalgo

County Jail, and that the jail received, in any one-year period

encompassing the defendants' conduct, more than $10,000 in

"benefits" from a "Federal program" involving a grant or contract.

18 U.S.C. § 666(a)(1), (b) (1994). The government further must

prove that the defendants, as agents of the jail, accepted

"anything of value" from someone, and did so with the intent to be

influenced or rewarded in connection with "any business,

transaction, or series of transactions" of the jail "involving

anything of value of $5,000 or more." § 666(a)(1)(B).

The majority concludes that the statute clearly encompasses

the conduct of the defendants. I conclude that the statute clearly

does not reach the conduct at issue. These two contrary positions,

each supported by its own rationale, would lead one to conclude

that the statute is ambiguous.

The majority parses the language of the statute to find

clarity where, when fully considered, there is only ambiguity.

Isolating words from the context of the statute, it focuses on

"anything of value" instead of considering the whole of the phrase

"any business, transaction, or series of transactions of such

organization, government, or agency involving anything of value of

$5,000 or more" so as to conclude that the statute is plain and

clear that valuations can be from the perspective of any of the

parties involved. The Second Circuit persuasively demonstrated the

ambiguity involved in this point when it recently rejected the

"clarity" proclaimed by the majority here, by stating:

"§ 666(a)(1)(B) is silent as to the identity of the person or

entity to whom the `[]thing' must have at least a $5,000 value."

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United States v. Foley, 73 F.3d 484, 490 (2d Cir. 1996).29

In its effort to fulfill the elemental requirements of the

statute, specifically that the "transactions" had a "value of

$5,000," the majority confuses and then fuses the value of the

transactions with the amount of the bribe. Yet, the two are

completely distinct under the statute. The text of the statute

makes clear that the acceptance of "anything of value," i.e., the

acceptance of the bribe, is a separate element of the crime from

the amount of the transaction; consequently, the amount of the

bribe has no statutory relevance to the value of the transaction.

Stated differently, the value of the transaction cannot

automatically be extrapolated from the amount of the bribe, but

instead must be established on grounds independent, at least in

some way, of the bribe. Our decision in United States v.

Westmoreland, 841 F.2d 572 (5th Cir.), cert. denied, 488 U.S. 820,

109 S.Ct. 62, 102 L.Ed.2d 39 (1988), illustrates the illogic of the

majority's analysis in using the bribe to satisfy both the

"anything of value" element of the crime and the "value of the

transaction" element. There, a county supervisor accepted bribes

totaling $2,202 in connection with the purchase of $14,482.92 worth

of goods for the county. Id. at 575. The purchases made by the

29

The majority cites Westmoreland to support its claim that the

statutory language is unambiguous. Maj. Op., at 11 n.7. The fact that we found

the statutory language “plain and unambiguous” on one issue, namely, whether §

666(a)(1)(B) imposes a tracing requirement, does not mean that it is “plain and

unambiguous” on all issues.

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county supervisor constituted the series of transactions of the

county "involving anything of value of $5,000 or more"; the bribes

satisfied the "anything of value" element of the crime. In short,

as applied in this case, the language of § 666(a)(1)(B) is at best

ambiguous insofar as it concerns the method of valuing a

transaction.

(2)

Given this ambiguity, it is necessary to turn to the

legislative history for guidance in interpreting and applying the

statute. Hightower v. Texas Hospital Association, 65 F.3d 443, 448

(1995). Faced with legislative history that does not support its

reading of the statute, however, the majority evades grappling

directly with the legislative history.30 Instead, the majority

falls back on generalized descriptions of that legislative history

from our decision in Westmoreland. The majority states that its

broad reading of the language of the statute "squares with

Congress's intent in enacting 18 U.S.C. § 666 to safeguard `the

integrity of federal funds by assuring the integrity of the

30

The majority does quote a passage from the legislative history that

directly contradicts its interpretation of § 666 without attempting to explain

this contradiction:

[18 U.S.C. § 666 was] designed to create new offenses to augment the

ability of the United States to vindicate significant acts of theft,

fraud, and bribery involving Federal monies that are disbursed to

private organizations or State and local governments pursuant to a

Federal program.

Maj. Op., at 11 (quoting S.Rep. No. 225, 98th Cong., 2d Sess., reprinted in 1984

U.S.C.C.A.N. 3182, 3510) (emphasis added).

-38-

organizations or agencies that receive them.'" Maj.Op., at 11

(quoting 841 F.2d at 578). The majority also states that "Congress

`cast a broad net to encompass local officials who may administer

federal funds, regardless of whether they actually do.'" Id. at 12

(quoting 841 F.2d at 577). Unfortunately, the majority quotes from

Westmoreland without reviewing the context of the legislative

history in which those descriptions arose. Such a review

demonstrates the majority's inappropriate use of these descriptions

to support its overly-broad reading of the reach of the statute.

In Westmoreland, a county supervisor was convicted of

receiving kickbacks for purchases of county materials that involved

only non-federal funds of the county. 841 F.2d at 573. The

defendant argued that "the statute requires the involvement of

federal, not merely state, funds in the allegedly corrupt

transactions." 841 F.2d at 575. After reviewing the statutory

language and the legislative history, we said:

[W]hile the legislative history manifests a congressional

intent to preserve the integrity of federal funds,

Congress specifically chose to do so by enacting a

criminal statute that would eliminate the need to trace

the flow of federal monies and that would avoid

inconsistencies caused by the different ways that various

federal programs disburse funds and control their

administration." Id. (emphasis added).

The court in Westmoreland thus recognized that the legislative

history exhibited a clear intent to protect federal funds

distributed to non-federal entities. Recognizing the difficulty

-39-

involved in tracing federal funds, Westmoreland remained faithful

to this congressional objective by holding that § 666 encompassed

transactions involving non-federal funds of an entity receiving

federal funds. Westmoreland did not hold that Congress meant to

criminalize any act of bribery involving non-federal entities

receiving federal funds, but only those acts of bribery that could

somehow be traced, directly or indirectly, to the integrity of

federal program funds. The majority's use of Westmoreland's

generalized descriptions of the legislative history to support its

overly-broad reading of the statute thus does not square with

Westmoreland's own recognition of congressional purpose or the

reasoning behind its holding.

Turning to the precise legislative history, I find that it

clearly reveals that Congress did not intend for § 666(a)(1)(B) to

be applied to conduct such as the acceptance of bribes to allow

conjugal visits. Instead, Congress was only concerned with

protecting the federal monies disbursed to non-federal entities.

"This part of title XI is designed to create new offenses to

augment the ability of the United States to vindicate significant

acts of theft, fraud, and bribery involving Federal monies that are

disbursed to private organizations or State and local governments

pursuant to a Federal program." 1984 U.S.C.C.A.N. at 3510

(emphasis added). Congress also stated that "the purpose of this

section [is] to protect the integrity of the vast sums of money

-40-

distributed through Federal programs from theft, fraud, and undue

influence by bribery." Id. at 3511.

The majority's attempt to find support in the circuit court

cases cited in the legislative history, see Maj.Op., at 13 n.8;

1984 U.S.C.C.A.N. at 3511 & nn.2-3, will not withstand a careful

look. None of the cases from the legislative history cited by the

majority supports the majority's reading of § 666(a)(1)(B) because

the conduct at issue in those cases directly implicated federal

monies. United v. Hinton, 683 F.2d 195 (7th Cir. 1982) (soliciting

money in exchange for award of housing rehabilitation contracts

funded by HUD), aff'd sub nom., Dixson v. United States, 465 U.S.

482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984); United States v.

Mosley, 659 F.2d 812 (7th Cir. 1981) (receiving money in exchange

for giving preferential treatment to individuals seeking jobs

funded by Comprehensive Employment and Training Programs Act);

United States v. Del Toro, 513 F.2d 656 (2d Cir.) (bribing city

administrator to insure that program receiving funding from HUD

would lease building), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46

L.Ed.2d 42 (1975). In this case, allowing conjugal visits to a

federal prisoner, in no way that my eyes can see, implicates

federal monies.

Furthermore, I have found nothing in the legislative history

to indicate that Congress meant to reach acts of bribery--as the

majority does--involving any and all official acts of agents of

-41-

non-federal entities in the same way that 18 U.S.C. § 201 reaches

acts of bribery involving all official acts of federal agents.31

Instead, Congress was focused on providing criminal sanctions

precisely and only for abuse of, or threat to, federal monies that

are disbursed to these non-federal entities. Westmoreland

logically extends the reach of the statute--based on a recognition

of the fungibility of money--to non-federal funds of that entity.

(3)

The majority's decision today also creates a split with the

well-reasoned and more carefully crafted decision of the Second

Circuit in United States v. Foley.32 In Foley, a Connecticut

legislator was convicted of receiving a bribe to help secure the

passage of legislation that would have given a recently-merged bank

a one-year exemption from a divestiture requirement. 73 F.3d at

486-87. Although the defendant received a $25,000 bribe and the

exemption was worth more than $5,000 to the bank, the Second

Circuit held that the transaction did not meet the "$5,000 or more"

requirement of § 666(a)(1)(B) because the government had not shown

31

Section 201 reads in part: "Whoever, being a public official . . .

accepts . . . anything of value . . . for being influenced in the performance of

any official act . . . shall be . . . imprisoned . . . ." 18 U.S.C. § 201(b)

(1994). Congress was well aware of this provision when it passed § 666 because

a circuit split concerning § 201's application to non-federal entities motivated

congressional action on § 666. See 1984 U.S.C.C.A.N. at 3510-11.

32

Surprisingly, the majority supports its holding by citation to United

States v. Mongelli, 794 F.Supp. 529, 531 (S.D.N.Y. 1992), Maj. Op., at 11, 15,

a decision overruled by the Second Circuit in Foley. See 73 F.3d at 496

(Lumbard, J., dissenting).

-42-

that the exemption was worth at least $5,000 to the State of

Connecticut. "[T]he exemption affected neither the financial

interests of the protected organization nor federal funds

directly." Id. at 493. Based on a clear understanding of the

congressional objective in enacting § 666, the Second Circuit

determined that the proper method to value a transaction is from

the perspective of the protected entity, not from the perspective

of "any willing buyer," as the majority would have us accept.

Maj.Op., at 15. The Foley court stated:

[T]he value of a thing for purposes of § 666(a)(1)(B) is

not to be assessed by reference to any and every

perspective or measure of value, no matter how subjective

or arbitrary. Instead, the assessment of the thing's

value must be connected, even if only indirectly, to the

integrity of federal program funds.

73 F.3d at 490.

In an effort to distinguish Foley from these facts and from

Fifth Circuit law, the majority contends that the defendant in the

Fifth Circuit's Westmoreland decision would not have been convicted

under Foley because the transaction in that case did not involve

federal funds. Maj.Op., at 15 n.9. Based on two quoted passages

from Foley mentioning federal funds, the majority strains to

conclude that the Foley Court held that federal funds must be

involved in the transaction and that, therefore, the decision

conflicts with Westmoreland. Id. A casual reading of Foley will

reveal the majority's erroneous interpretation of that decision.

-43-

First, Foley cites with approval our decision in Westmoreland. 73

F.3d at 491. Second, the Foley Court noted that the Second Circuit

has already held that the government is not required to trace the

corrupt transaction to federal program funds. Id. at 490-91

(citing United States v. Coyne, 4 F.3d 100, 108-10 (2d Cir. 1993),

cert. denied, ___ U.S. ___, 114 S.Ct. 929, 127 L.Ed.2d 221

(1994)).33 Third, the Foley Court recognized that the corrupt

transaction violated § 666(a)(1)(B) if it affected either "the

financial interests of the protected organization" or "federal

funds directly." Id. at 493. The majority's attempt to

distinguish Foley is, I respectfully submit, superficial.

(4)

Finally, I would observe that when a criminal statute only

ambiguously applies to the conduct in question, surely the rule of

lenity counsels that we construe the statute in favor of the

defendant. Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct.

2084, 2089, 85 L.Ed.2d 434 (1985).

(5)

To summarize, in interpreting § 666(a)(1)(B), we first must

look to the specific statutory language, and in the light of its

ambiguity, the legislative history, to determine whether this

33

The Coyne court itself recognized that it "agree[s] with the other

circuits who have considered the question," including Westmoreland. 4 F.3d at

110.

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provision intends to reach this conduct. Dowling v. United States,

473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985)

("[W]hen assessing the reach of a federal criminal statute, we must

pay close heed to language, legislative history, and purpose in

order strictly to determine the scope of the conduct the enactment

forbids"). Neither the plain language nor the legislative history

indicates that Congress wrote this provision to reach the

acceptance of bribes for conjugal visits, conduct that left both

federal and state fiscs untouched. Congress intended to reach only

conduct involving--directly or indirectly--the fiscal integrity of

non-federal entities receiving federal monies. Because the

defendant's conduct in no discernable way implicated the fiscal

integrity of the Hidalgo County Jail, and because the majority's

reading of the statute contradicts the clear expression of

congressional intent in the legislative history, I respectfully

dissent.

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