# United States v. Robert Suarez > Court of Appeals for the Sixth Circuit · August 8, 2001 · 263 F.3d 468 URL: https://www.frixlaw.com/law-library/cases/9494307 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Robert SUAREZ, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** August 8, 2001 - **Citations:** 263 F.3d 468; 2001 U.S. App. LEXIS 17667; 2001 WL 883269 - **Precedential status:** Published - **Opinion:** Concurrence by Cole - **Judges:** Keith, Boggs, Cole - **Cited by:** 101 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494307 ## How later opinions describe it (automated extraction) - stating that if the court were writing on a clean slate, it "might well agree that proper application of 18 U.S.C. § 666 requires a minimal nexus between the alleged criminal activity and the federal funding received pursuant to that statute," but in light of Dakota, it was bo… - finding “no sign” that inadmissible evidence related to a charge for which the defendant was acquitted—but unrelated to the charges for which he was convicted—was “so damaging to him as to have had a substantial and injurious effect or influence in determining the jury’s verdi… - holding that a superseding indictment was not vindictive because it “was based to some extent on evidence unavailable at the time of the first indictment” - explaining that this court’s test for finding a constructive amendment requires “a variance between indictment and jury instructions” ## Opinion text R. GUY COLE, JR., Circuit Judge, writing for the Court as to Part VI and concurring in the remainder of the majority opinion. OPINION Were we writing on a clean slate, I, like the dissent, might well agree that proper application of 18 U.S.C. § 666 requires a minimal nexus between the alleged criminal activity and the federal funding received pursuant to that statute. We are not, however, as a review of our decisions in United States v. Valentine, 63 F.3d 459 (6th Cir.1995), and United States v. Dakota, 197 F.3d 821 (6th Cir.1999), makes clear. Thus, while I concur in Parts I through V, I write separately to register my disagreement with the dissent in Part VI, because I believe it disregards the well-established law of this Circuit. In Valentine , a defendant challenged her convictions under 18 U.S.C. § 666 , arguing in part that because the funds she was convicted of misappropriating were entirely local in source and in no way connected to a federal program, her prosecution and conviction violated the statute and offended traditional notions of federalism. See 63 F.3d at 464-65 . She reasoned that a mere coincidence that the city agency for which she worked received § 666 qualifying federal funding was, *490 without more, insufficient to sweep within the scope of a federal statute behavior that in no way touched upon federal funds. See id. We rejected Valentine’s argument after a careful review of the statutory language and the legislative history underlying 18 U.S.C. § 666 , finding that “the statute does not require the government to demonstrate the federal character of the stolen property” and concluding that “[t]he statute addresses the relationship between the federal government and the local government from which the property was stolen, not the relationship between the federal government and the converted property.” Id. at 464 . Likewise, in Dakota , another panel of this Court confronted the question of whether prosecution under 18 U.S.C. § 666 requires a showing of a nexus between the alleged criminal misconduct and the federal funding received by the local agency. See 197 F.3d at 826 . In resolving this question, we recognized that the Supreme Court had previously determined that no direct nexus was necessary, see Salinas v. United States, 622 U.S. 52 , 61, 118 S.Ct. 469 , 139 L.Ed.2d 352 (1997), but suggested that its decision left unanswered the question whether some connection was required for proper application of 18 U.S.C. § 666 . We nevertheless declined to reach this question and, instead, reiterated our view first set forth in Valentine “that 18 U.S.C. § 666 does not require a nexus between the alleged bribes and the federal funding received by [the recipient agency].” Dakota, 197 F.3d at 826 . The dissent argues that “Dakota has been undermined by Fischer v. United States, 529 U.S. 667 , 120 S.Ct. 1780 , 146 L.Ed.2d 707 (2000),” ante at 486, and concludes that in light of Fischer , “it is no longer tenable to hold to the proposition that no connection whatsoever need exist between the federally punished criminal conduct and the federal interest in the programs supported by the funds used to satisfy § 666(b),” ante at 486-87. I disagree. A close examination of Fischer reveals, as the dissent itself concedes, that “the question in Fischer turned on a somewhat different issue, on whether to characterize certain forms of federal aid as ‘benefits.’ ” Ante at 486. Indeed, the Fischer Court never addressed the precise question raised by the instant appeal, i.e., whether the alleged theft or bribery must touch upon the recipient agency’s federal funding. In urging a federal nexus requirement, the dissent relies upon recent Supreme Court federalism jurisprudence and Justice Thomas’s dissent in Fischer (in which Justice Scalia joined) to suggest that a majority of the Court, if confronted with the issue, would require some nexus, because it has in recent cases favored certain “jurisdictional prerequisites for federal regulation of local criminal conduct.” Ante at 486-87 & n. 7. Any such suggestion, however, of what a majority of the Supreme Court might believe is nothing more than mere speculation that should in no way inform our resolution of an issue that is squarely governed by controlling authority: The majority of the argument offered by Tatum appears to rest on Justice Sca-lia’s concurrence and on further analysis of which justices in [H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 , 109 S.Ct. 2893 , 106 L.Ed.2d 195 (1989) ] are still on the court. Such arguments are inappropriate. While we understand that changes in Court personnel may alter the outcomes of Supreme Court cases, we do not sit as fortune tellers, attempting to discern the future by reading the tea leaves of Supreme Court alignments. Each case must be reviewed on its merits in light of precedent, not on speculation about what the Supreme Court might or might not do *491 in the future, as a result of personnel shifts. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101 , 1107 n. 3 (6th Cir.1995) (Boggs, J.) (emphasis added). Thus, until and unless the Supreme Court establishes a nexus requirement, we are obligated to follow the law set forth in Dakota and Valentine. See LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097 , 1105 n. 2 (6th Cir. 1995) (“It is the well-settled law of this Circuit that a panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” (internal quotation marks, citation, and alteration omitted)). I would accordingly affirm the district court’s disposition of this issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494307. Public record. Not legal advice.