Reply Brief — James E. Snyder, Petitioner v. United States

No. 23-108

In the Supreme Court of the United States

JAMES E. SNYDER,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

ANDRÉA E. GAMBINO

53 W. Jackson Blvd.

Chicago, Illinois 60604

(312) 322-0014

LISA S. BLATT

Counsel of Record

SARAH M. HARRIS

AARON Z. ROPER

KARI M. LORENTSON

WILLIAMS & CONNOLLY LLP

680 Maine Avenue SW

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

TABLE OF CONTENTS

Page

I.

The Question Presented Is Important and

Squarely Presented................................................... 2

II.

Section 666 Does Not Criminalize Gratuities ....... 6

CONCLUSION ................................................................... 12

(I)

II

TABLE OF AUTHORITIES

Page

Cases:

Bartenwerfer v. Buckley, 598 U.S. 69 (2023) ..................... 7

Hemphill v. New York, 142 S. Ct. 681 (2022) .................... 5

Jackson v. United States, 583 U.S. 1054 (2018) ................ 6

Leocal v. Ashcroft, 543 U.S. 1 (2004) .................................. 9

Maslenjak v. United States, 582 U.S. 335 (2017) .............. 4

McDonnell v. United States, 579 U.S. 550 (2016) ............. 5

McNair v. United States, 562 U.S. 1270 (2011) ................ 6

Missouri v. Frye, 566 U.S. 134 (2012) ................................ 4

Rimini St., Inc. v. Oracle USA, Inc.,

139 S. Ct. 873 (2019) ...................................................... 11

Roberson v. United States, 142 S. Ct. 1109 (2022) ............ 6

Robles v. United States, 140 S. Ct. 2761 (2020) ................. 6

Robles v. United States, 571 U.S. 1222 (2014) ................... 6

Ruan v. United States, 142 S. Ct. 2370 (2022)................... 4

Salinas v. United States, 522 U.S. 52 (1997) ..................... 8

United States v. Bahel,

662 F.3d 610 (2d Cir. 2011) ............................................. 3

United States v. Freeman,

443 F. App’x 664 (2d Cir. 2011)...................................... 3

United States v. Garrido,

713 F.3d 985 (9th Cir. 2013) ........................................... 6

United States v. Hamilton,

46 F.4th 389 (5th Cir. 2022) ............................................ 5

United States v. Hawkins,

777 F.3d 880 (7th Cir. 2015) ........................................... 3

United States v. Hollingsworth,

No. 1:19-cr-333 (S.D.N.Y.) ............................................. 3

United States v. Impastato,

No. 2:05-cr-325 (E.D. La.) .............................................. 3

United States v. Ng, 934 F.3d 110 (2d Cir. 2019) .............. 3

III

Page

Cases—continued:

United States v. Sun-Diamond Growers of Cal.,

526 U.S. 398 (1999) ........................................................ 10

United States v. Toole,

No. 3:10-cr-317 (M.D. Pa.).............................................. 3

United States v. Zimmerman,

509 F.3d 920 (8th Cir. 2007) ........................................... 3

Van Buren v. United States,

141 S. Ct. 1648 (2021) ...................................................... 7

Statutes and Rule:

18 U.S.C.

§ 201(b) .............................................................................. 7

§ 201(c) ........................................................................ 7, 12

§ 666 ..............................................................................1-12

§ 666(a)(1)(B) .............................................................. 7, 10

§ 666(b) .............................................................................. 9

§ 666(c) ...................................................................... 10, 11

Act of July 31, 1789, ch. 5, 1 Stat. 29 ................................. 12

Fed. R. Crim. P. 30 ................................................................ 6

In the Supreme Court of the United States

JAMES E. SNYDER,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONER

The government barely disputes that this case warrants certiorari. The government (at 8, 18-19) concedes

that the circuits “disagree[]” 5-2 on whether the mostprosecuted federal public-corruption statute, 18 U.S.C.

§ 666, extends beyond quid pro quo bribery to cover gratuities. Amici confirm that the question presented “impacts tens of millions of government employees and private citizens” due to section 666’s “breathtaking scope.”

NACDL Br. 2, 4. Whether someone goes to prison should

not depend “on where they live.” ACLJ Br. 4.

The government (at 8) demurs that it is “unclear”

whether the question presented is frequently outcome-determinative because the government believes it could

(1)

2

prosecute many gratuity cases on a bribery theory. But if

the government thinks it can win under a bribery theory,

prosecutors would presumably try to prove that to a jury.

The gratuity theory makes conviction much easier, freeing

the government from having to prove a corrupt quid pro

quo. The government’s speculation about its conviction

rate in a bribery-only world is no reason to leave a circuit

split unresolved when ten-year prison terms hang in the

balance.

The government (at 20) speculates that Mayor Snyder

“[]likely” could have been convicted on a bribery theory

alone. But that is not how the government tried this case;

instead, prosecutors repeatedly disavowed any burden to

prove quid pro quo bribery. Pet. 9. The Seventh Circuit

thus affirmed Mayor Snyder’s conviction exclusively on a

gratuity theory. Pet.App.38a-41a. Even on that theory,

the trial judge thought the government’s case was “anything but” a “slam dunk.” 10/13/2021 Tr. 173:8-9, Dkt. 586.

The government devotes most of its brief to the merits. But when the circuits are concededly split 5-2 over the

substantive reach of the federal government’s most-prosecuted public-corruption statute, this Court should resolve the merits by granting review.

I.

The Question Presented Is Important and Squarely Presented

Section 666’s “breathtakingly broad” sweep covers

19.2 million state- and local-government employees,

countless constituents, and private entities that accept

federal funds. NACDL Br. 5-7. The 5-2 circuit split

means federal public-corruption convictions “depend[] on

mere geography”—“an intolerable situation” that cries

out for this Court’s review. ACLJ Br. 2; Pet. 19-22.

3

1. The government does not dispute the split or section 666’s sweep. The government (at 19) merely calls it

“far from clear” whether the bribes v. gratuities issue “is

outcome-determinative in a significant number of cases,”

asserting that it could have proven bribery in many previous gratuity cases. But the government often proceeds on

the gratuity theory alone1 or presses both theories, leaving the basis for the jury’s verdict uncertain.2

The government’s frequent use of the gratuity theory

is unsurprising. Gratuity prosecutions are much easier,

relieving the government from having to prove a corrupt

agreement. As this case illustrates, the government can

win guilty verdicts simply by identifying a payment from

a constituent to an official allegedly linked to past action,

without presenting any evidence that the payment altered

the official’s conduct. BIO 2-3.

E.g., United States v. Zimmerman, 509 F.3d 920, 927 (8th Cir. 2007)

(“Zimmerman was indicted for, convicted of, and sentenced for accepting gratuities rather than bribes.”); United States v. Freeman,

443 F. App’x 664, 665 (2d Cir. 2011) (“Freeman pled guilty to … accepting illegal gratuities.”); Clarification Order 2, United States v.

Hollingsworth, No. 1:19-cr-333 (S.D.N.Y. June 28, 2021), Dkt. 64

(“Hollingsworth’s offense conduct was not accepting a bribe but, rather, accepting a gratuity.”); Plea Agreement 2, United States v.

Toole, No. 3:10-cr-317 (M.D. Pa. Oct. 7, 2010), Dkt. 52 (“accepting a

gratuitous reward”); Judgment 1, United States v. Impastato, No.

2:05-cr-325 (E.D. La. May 13, 2009), Dkt. 243 (“Unlawfully soliciting

gratuities”).

1

E.g., United States v. Hawkins, 777 F.3d 880, 881 (7th Cir. 2015)

(“[T]he payments were, if not bribes, then gratuities … [Defendants]

are guilty either way.”); United States v. Ng, 934 F.3d 110, 121 n.13

(2d Cir. 2019) (“Ng was prosecuted under § 666 on both bribery and

gratuity theories.”); United States v. Bahel, 662 F.3d 610, 637 (2d Cir.

2011) (“[T]he jury convicted Bahel under Section 666 at least on the

ground that he accepted illegal gratuities.”); see Pet. 20 n.4.

2

4

That low bar pressures countless defendants to plead

guilty—the way the government obtains 97% of its convictions. See Missouri v. Frye, 566 U.S. 134, 143 (2012).

Knowing the uphill battle ahead, many defendants prefer

a plea deal to the increased penalty they risk after trial. If

the government did not think the gratuity issue mattered,

the government would not routinely seek convictions on

this basis.

2. The government (at 20-21) deems it “unclear”

whether any error was harmless here because the government purportedly could have convicted Mayor Snyder on

a bribery theory. But the salient point is that a win on the

question presented requires vacating the judgment below,

making this case a clean vehicle. Following its “usual

practice,” this Court determines the “[]correct understanding” of a federal criminal statute and leaves “any

harmlessness questions for the courts to address on remand.” Ruan v. United States, 142 S. Ct. 2370, 2382

(2022); Maslenjak v. United States, 582 U.S. 335, 352-53

(2017). The government (at 20) says that the Seventh Circuit found sufficient evidence of bribery. But that court

affirmed exclusively based on its “precedents holding that

18 U.S.C. § 666 applies to gratuities” without reaching the

government’s harmless-error argument. Pet.App.41a.

Holding that section 666 does not cover gratuities would

therefore require vacatur.

Regardless, the error here was not harmless. The

government’s newfound confidence that it could prove

bribery flies in the face of the district court’s observation

at sentencing that “[w]e really don’t know” whether the

jury would have convicted on bribery alone. 10/13/2021 Tr.

111:21-22. Were more needed, the government disclaimed

any obligation to prove a quid pro quo at trial and urged

the jury to convict on a gratuity theory. Pet. 9, 11, 22. And

5

the government offered no evidence of any quid pro quo at

trial, instead invoking supposed “irregularities” in the bid

process. BIO 2-3; but see ACLJ Br. 17-18 (explaining why

these procedures were hardly irregular for small-town

contracting).

The government (at 6, 20) notes that the jury instructions tracked section 666’s text. But as the Fifth Circuit

recognized in vacating a section 666 gratuity conviction,

such a “statute-tracking instruction” does not suffice because “lay jurors” may be unsure whether gratuities are

covered. United States v. Hamilton, 46 F.4th 389, 398-99

(5th Cir. 2022). That is particularly so where, as here, “the

government proceeded on a gratuity theory and now says

that it could have won either way.” Id. at 399. Because

the jury “may have convicted” on an impermissible theory,

Mayor Snyder’s conviction should be vacated. See

McDonnell v. United States, 579 U.S. 550, 579-80 (2016).

3. The government (at 21) strangely claims that

Mayor Snyder forfeited statutory-interpretation arguments not pressed below. By that standard, the government would have forfeited its new structural and historical

arguments (at 10-14), which appear nowhere in its appellate brief. See U.S. C.A. Br. 54-65. Parties forfeit

“claim[s],” not “argument[s].” Hemphill v. New York, 142

S. Ct. 681, 689 (2022). Mayor Snyder repeatedly preserved his claim that section 666 does not cover gratuities.

Pet. 9. He was not required to advance every interpretive

point on a question circuit precedent foreclosed.3

The government (at 7) notes the district court’s finding that Mayor

Snyder “forfeited a posttrial claim about the jury instructions.”

Pet.App.68a. That finding applied only to the posttrial motion, not the

instructional objection; Mayor Snyder clearly preserved the latter, as

the court acknowledged. Def.’s Proposed Instructions 8, Dkt. 458;

3/18/2021 Tr. 2033:21-22, Dkt. 596 (“I’m overruling it. So you’ve got

3

6

4. The government (at 9 & n.2) asserts that this Court

has previously denied five petitions raising the question

presented or “related issues.” One pre-dates the circuit

split. McNair v. United States, 562 U.S. 1270 (2011) (No.

10-533). The other petitions stretch the meaning of “related,” covering questions like whether section 666 requires an “official act,”4 and whether section 666 requires

a quid pro quo as applied to “campaign contribution[s]”5

or “issue-advocacy payments.”6 Previous denials on distinct issues do not counsel denial here.

II. Section 666 Does Not Criminalize Gratuities

The government tellingly devotes 75% of its opposition to the merits. Those arguments, of course, do not dispel the urgency of resolving an intolerable, oft-recurring

circuit split that criminalizes conduct in some jurisdictions

but not others. If anything, the government’s mini-merits

brief underscores that this issue is ripe for resolution.

1. The government is incorrect that section 666 criminalizes gratuities. By requiring “corrupt[]” payments,

section 666 signals its application to bribes alone. Pet. 23;

ACLJ Br. 15-20. The government (at 14-15) claims that

gratuities are “corrupt[]” but never explains why they are

“wrongful, immoral, depraved, or evil.” The district

court’s instruction—which the government presumably

your record.”); see Fed. R. Crim. P. 30(d). The Seventh Circuit

squarely ruled on the jury-instruction issue. Pet.App.41a.

Pet. i, Jackson v. United States, 583 U.S. 1054 (2018) (No. 17-448);

United States v. Garrido, 713 F.3d 985, 999-1001 (9th Cir. 2013), cert.

denied sub nom., Robles v. United States, 571 U.S. 1222 (2014) (No.

13-8099).

4

5

Pet. i, Robles v. United States, 140 S. Ct. 2761 (2020) (No. 19-912).

6

Pet. i, Roberson v. United States, 142 S. Ct. 1109 (2022) (No. 21-605).

7

thinks matches that definition—defined “corruptly” as

“act[ing] with the understanding that something of value

is to be offered or given to reward or influence [the defendant] in connection with his official duties.” Jury Instructions 18, Dkt. 505.

In other words, the jury was told that someone acts

“corruptly” when they know the payment is a “reward” for

“official duties.” But that definition adds nothing to the

statute’s requirement that the defendant “intend[] to be

… rewarded.” 18 U.S.C. § 666(a)(1)(B). That definition

also captures campaign contributions that intentionally

reward official acts—a result the government (at 18) disclaims. Amicus offers other examples that fit this definition but cannot possibly be federal crimes, like donating to

a politician’s favorite charity. NACDL Br. 9-10. Only petitioner’s reading gives the “corruptly” requirement teeth.

Moreover, section 666 mirrors the federal-official

bribery statute, 18 U.S.C. § 201(b), not the gratuity statute, id. § 201(c). Pet. 23-24; ACLJ Br. 24-27. The government (at 12-14) tries to spin this point in its favor, noting

that a short-lived predecessor of section 666 more closely

paralleled the gratuity statute. Citing omnibus legislative

history, the government (at 13) insists that Congress’

overhaul of section 666 two years later to track the federal-official bribery statute was merely “technical.” The

government thus reasons that the current text must also

cover gratuities. That theory defies this Court’s presumption that legislative amendments “have real and substantial effect.” Van Buren v. United States, 141 S. Ct. 1648,

1660 (2021) (citation omitted). Congress’ deletion of the

government’s “textual hook” does not prove the government right. See Bartenwerfer v. Buckley, 598 U.S. 69, 81

(2023).

8

The government’s reading also produces the bizarre

anomaly that state and local officials would face up to ten

years for gratuities, while federal officials would face only

two years. Pet. 24; NACDL Br. 13-14. The government’s

only response (at 15) is that section 666’s short-lived predecessor had the same problem. But Congress’ enactment

and swift repeal of an anomalous sentencing regime in the

mid-1980s does not counsel reading that same anomaly

into today’s differently worded statute.

2. Reading section 666 to cover gratuities also raises

significant federalism, First Amendment, vagueness, and

lenity concerns. Pet. 25-28; ACLJ Br. 6-7, 20-23; NACDL

Br. 10-13. The government (at 15-16) deems these canons

irrelevant because section 666 is purportedly “unambiguous” and this Court has rebuffed other federalism and lenity objections to “unambiguous” aspects of section 666.

Salinas v. United States, 522 U.S. 52, 60 (1997). But section 666 is best read not to criminalize gratuities, much

less to unambiguously criminalize gratuities. Pet. 23-25.

Beyond that categorical response, the government

does not engage with vagueness or lenity concerns. On

federalism, the government (at 16) asserts “a strong interest” in ensuring that federal funds are “not frittered away

in graft.” But gratuity prosecutions hardly further that

goal. By definition, a gratuity involves no frittering—the

official receives the gratuity after the fact. Here, the government did not even allege that Portage’s garbage trucks

are federally funded, making the federal interest especially dubious.

On the First Amendment, the government disclaims

criminalizing political speech, suggesting (at 18) that “legitimate campaign contributions” would not meet section

666’s “corruptly” element. But, the government’s defini-

9

tion of “corruptly” seemingly encompasses every contribution where the official knew the contribution was intended to reward official action. Supra pp. 6-7. Many “legitimate” donations prompted by official acts (signing

bills, announcing new policies, fulfilling campaign promises) would risk federal liability. Pet. 26-27. Even if the

government’s reading did not extend that far, the “sweeping, standardless breadth” of the government’s interpretation would risk a “corrosive,” “chilling effect on political

activity,” triggering constitutional-avoidance concerns.

ACLJ Br. 2; NACDL Br. 9, 12.

The government (at 18) hints at an as-applied fix

whereby section 666 would apparently apply more narrowly to campaign contributions. But this Court ordinarily reads statutes “consistently” across contexts. Leocal

v. Ashcroft, 543 U.S. 1, 12 n.8 (2004). The serious First

Amendment problems with applying section 666 to gratuities counsel against that reading across the board.

The meager “limitations” the government (at 17-18)

accepts on section 666 underscore the staggering breadth

of conduct the government would criminalize. The government notes that the entity must accept “significant”

federal benefits, i.e., $10,000. 18 U.S.C. § 666(b). But federal largesse means that virtually every state, local, and

tribal government meets that threshold, alongside legions

of businesses, schools, and nonprofits. Pet. 20-21;

NACDL Br. 5-8. The government notes that the act must

be “corrupt[].” But the government’s definition—which

encompasses merely “understanding” that a payment is a

reward—drains that word of meaning. Jury Instructions

18, Dkt. 505; supra pp. 6-7. The government notes that

the payment must be connected to official business involving at least $5,000. But even minor functions, like buying

a garbage truck, clear that low bar. And the government

10

notes that section 666 does not encompass bona fide compensation. 18 U.S.C. § 666(c). But countless gifts or donations qualify.

Disturbingly, those non-limitations would jeopardize

amicus’ hypothetical little-league coach who gives city

parks employees baseball hats in thanks for opening a

baseball field. NACDL Br. 10. The city received $10,000plus in federal funding. The coach acted “corruptly” under the government’s definition, i.e., “understanding” that

he was “reward[ing]” the employees for “official duties.”

Jury Instructions 18, Dkt. 505. The baseball field cost

over $5,000. And the hats are not compensation. If passing out little-league-baseball hats risks 10 years in federal

prison, something is deeply awry.

3. The government’s contrary reading (at 9-10) focuses on section 666’s “intending to be … rewarded” language, which the government says “comfortably” covers

gratuities. 18 U.S.C. § 666(a)(1)(B). The government likewise notes that this Court, 13 years after section 666’s enactment in current form, described a gratuity for federal

officials as “a reward” for an official act. United States v.

Sun-Diamond Growers of Cal., 526 U.S. 398, 405 (1999).

Congress in 1986, the government reasons, must have

meant the same thing.

Had Congress wanted to track the federal-official gratuity statute, the more natural approach would have been

to copy that statute’s language—as the original version of

section 666 did. Supra p. 7. Instead, “rewarded” clarifies

that the bribe can be promised before the official action

but paid after—e.g., “if you vote yes, then I will pay you.”

Pet. 24-25; ACLJ Br. 8-9.

11

The government (at 14) claims petitioner’s reading

leaves “rewarded” superfluous because section 666 already covers “agree[ing] to accept” payment “intending to

be influenced.” But that language alone would have left

uncertain whether the defendant was truly “influenced” if

the payment came later or if the defendant intended to

take the act regardless. The use of “rewarded” confirms

that after-the-fact payments are covered. Regardless, superfluity arguments carry little purchase when the party

offering them advances a reading that “would create its

own redundancy problem.” Rimini St., Inc. v. Oracle

USA, Inc., 139 S. Ct. 873, 881 (2019). And here, the government’s interpretation leaves “corruptly” meaningless.

ACLJ Br. 17; supra pp. 6-7.

The government (at 10) invokes section 666(c), which

provides that section 666 “does not apply to bona fide salary, wages, fees, or other compensation.” The government (at 10) claims that compensation is “far more likely

to be mistaken for a gratuity” than a bribe, so section 666

must cover gratuities. Where the government gets that

factual hypothesis is unclear. Compensation could easily

be mistaken for a bribe. Take amicus’ hypothetical smalltown insurance broker who is on the city council. NACDL

Br. 9. Suppose a real-estate developer pays the councilwoman a broker’s fee on a massive insurance policy the

week before the councilwoman approves a key zoning ordinance that benefits the developer’s business. Section

666(c) confirms that the councilwoman cannot be prosecuted for that fee so long as the payment was “in the usual

course of business.”

The government (at 10-12) asserts that gratuities

have long been criminal, implying that Congress must

have made the same choice in section 666. But the government’s historical examples include such gems as a 1789

12

customs act that covered bribes and rewards “for conniving … at a false entry,” 1 Stat. 29, 46-47 (cited at BIO 11

n.3), language that seemingly did require an advance

agreement, i.e., a quid pro quo. Other examples, like the

federal-official gratuity statute, 18 U.S.C. § 201(c) (cited

at BIO 11-12), do cover gratuities. But those examples

show that Congress knew how to criminalize gratuities

and chose differently in section 666. Supra p. 7; Pet. 2324.

In any event, the place to resolve the government’s

merits arguments is on the merits. This Court should

grant certiorari to resolve this cleanly presented, recurring, and critical question on which the circuits are undeniably split.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ANDRÉA E. GAMBINO

53 W. Jackson Blvd.

Chicago, IL 60604

(312) 322-0014

NOVEMBER 21, 2023

LISA S. BLATT

Counsel of Record

SARAH M. HARRIS

AARON Z. ROPER

KARI M. LORENTSON

WILLIAMS & CONNOLLY LLP

680 Maine Avenue SW

Washington, DC 20024

(202) 434-5000

lblatt@wc.com