Amicus Curiae 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 Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit

Brief of Amicus Curiae James Madison Center for

Free Speech In Support of Petitioner

James Bopp, Jr.

Counsel of Record

Eamon McCarthy Earls

THE BOPP LAW FIRM,

PC The National

Building 1 South Sixth

Street Terre Haute, IN

47807 812-232-2434

telephone 812-235-3685

fax jboppjr@aol.com

Counsel for Amicus Curiae

(i)

Table of Contents

Interests of Amicus Curiae ........................................ 1

Summary of the Argument.......................................... 2

Argument ..................................................................... 4

I. First Amendment guarantees of the right to speak

freely and associate freely direct this Court to

block Section 666’s application to gratuities. . . . . 4

A. Section 666 sweeps too broadly in its scope,

criminalizing many forms of legitimate speech

and association ................................................ 4

B. Section 666 effectively criminalizes association

in a small community ...................................... 9

II. Section 666 disrupts the federal structure,

usurping law enforcement responsibilities best

handled by state and local governments. ............ 14

III. Section 666 violates the Constitutional

guarantee of Due Process by providing

inadequate notice to citizens who might

unwittingly break the law while engaged in

lawful activity ....................................................... 19

(ii)

IV. Following the Government’s interpretation of

Section 666, adopted by the Seventh Circuit,

violates accepted canons of statutory

interpretation ...................................................... 22

Conclusion ................................................................. 26

(iii)

Table of Authorities

Cases

American Tradition Partnership v. Bullock, 567 U.S.

516 (2012) .................................................................... 1

Americans for Prosperity Foundation v. Bonta, 141

S.Ct. 2373 (2021) ....................................................... 4

Atascadero State Hospital v. Scanlon, 473 U.S. 234

(1985) ......................................................................... 15

Bittner v. United States, 143 S. Ct. 713 (2023) . . . 23

Bond v. United States, 134 S. Ct. 2077 (2014) ... . 15

Chevron USA v. Echazabal, 536 U.S. 73 (2002) ... 23

Citizens United v. FEC, 558 U.S. 310 (2010)....1,6

Cleveland v. United States, 531 U.S. 12 (2000).. . 15

Connally v. General Constr. Co.,

269 U.S. 385 (1926) ............................................. 19

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Constr. Trades Council, 485 U.S. 568

(1988) ......................................................................... 17

Elrod v. Burns, 427 U.S. 347 (1976) ................. 12, 13

(iv)

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

1

FEC v. Beaumont, 539 U.S. 146 (2003) .................... 1

Fischer v. United States, 529 U.S. 667 (2000) ...... 25

Fowler v. United States, 563 U.S. 668 (2011) ......... 17

Gonzales v. Oregon, 546 U.S. 243 (2006) ............... 23

Grayned v. City of Rockford, 408 U.S. 104 (1972)

.................................................................................... 20

Gregory v. Ashcroft, 501 U.S. 452 (1991)

15, 16, 18

Hill v. Colorado, 530 U.S. 703 (2000) ...................... 20

Holder v. Humanitarian Law Project, 561 U.S. 1

(2010) .......................................................................... 6

Johnson v. United States, 576 U.S. 591 (2015) ..... 19

Jones v. United States, 529 U.S. 848 (2000) ........... 17

Kolender v. Lawson, 461 U.S. 352 (1983)................ 19

McConnell v. FEC, 540 U.S.93 (2003) ...................... 1

McCutcheon v. FEC, 134 S.Ct. 1434 (2014) ............ 1

McDonnell v. United States, 579 U.S. 550 (2016) . . 7

O’Hare Truck Serv. v. City of Northlake, 518 U.S.

(v)

712 (1996) ................................................................... 11

Payne v. Tennessee, 501 U.S. 808 (1991) ................ 21

Philippines v. Pimentel, 553 U.S. 851 (2008) ............ 5

Pittsburgh Press Co. v. Pittsburgh Commn' on

Human Relations, 413 U.S. 376 (1973) ..................... 7

Randall v. Sorrell, 548 U.S. 230 (2006) ..................... 1

Ratzlaf v. United States, 510 U.S. 135 (1994) .......... 17

Republican Party of Minnesota v. White, 536 U.S.

765 (2002) .................................................................... 1

Rewis v. United States, 401 U.S. 808 (1971) . . 15, 17

Ricci v. DeStefano, 557 U.S. 557 (2009).................... 21

Sabri v. United States, 541 U.S. 600 (2004) ............. 25

Sackett v. EPA, 143 S. Ct. 1322 (2023)..................... 24

Salinas v. United States, 522 U.S. 52 (1997) ........... 25

Sec’y of State of Md. v. Munson Co., 467 U.S. 947

(1984) .......................................................................... 6

United States v. Enmons, 410 U.S. 396 (1973) . . . 15

United Sav. Ass’n v. Timbers of Inwood Forest

Assocs, Ltd., 484 U.S. 365 (1988) ............................. 23

(vi)

United States v. Bass, 404 U.S. 336 (1971) ............ 18

United States v. Grubb, 11 F.3d 426 (4th Cir. 1993)

12

United States v. L. Cohen Grocery Co., 255 U.S. 81

(1921) ......................................................................... 20

United States v. Lanier, 520 U.S. 259 (1997) ......... 21

United States v. Locke, 529 U.S. 89 (2000)............. 15

United States v. Snyder, 71 F.4th 555 (7th Cir. 2023)

............................................................... 4, 5, 12, 22, 24

United States v. Snyder, Case No. 21-2986 (7th Cir.

2023) ....................................................................... 5, 10

United States v. Snyder, Cause No. 2:16 CR 00160

(ND Ind 2021) ............................................................ 9

United States v. Stevens, 559 U.S. 460 (2010) ... 6, 8

United States v. Sun- Diamond Growers of Cal., 526

U.S. 398 (1999) ......................................................... 16

United States v. Williams, 866 F.3d 107 (2017)….7, 20

Ward v. Rock Against Racism, 491 U.S. 781

(1989) ......................................................................... 20

West Virginia v. EPA, 142 S. Ct. 2587 (2022) .... 16

Whitman v. American Trucking Assns., Inc.,

(vii)

531 U. S. 457 (2001).............................................

24

Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006)....................................................................

1

Constitutions, Statutes, Regulations & Rules

18 U.S.C. § 1912 ..................................................

25

18 U.S.C. § 201(a)(3) ..........................................

7

18 U.S.C. § 213 ....................................................

25

18 U.S.C. § 666 ............................................... 4, 16, 23

19 U.S.C. § 60 ......................................................

25

22 U.S.C. § 4202 ..................................................

25

U.S. Const. amend V ...........................................

19

U.S. Const. amend. I ..........................................

4

Other Authorities

Kellen Zale, Part-Time Government, 80 OHIO ST.

L.J. 987 (2019) .......................................................... 12

S. Rep. No. 225, 98th Cong. 1st Sess. 369 ................ 24

The Federalist No. 45, pp. 292-293 (C. Rossiter

ed. 1961) .................................................................... 18

1

Interests of Amicus Curiae1

The purpose of the James Madison Center for

Free Speech (“Madison Center”) is to support

litigation and public education activities defending

the rights of political expression and association.2

The Madison Center is an internal educational fund

of James Madison Center, Inc., a District of Columbia

nonprofit corporation. Madison Center is tax exempt

under 26 U.S.C. 501(c)(3). Counsel for Amicus have

authored articles, testimony, and comments and

litigated numerous cases involving campaign finance

and free speech issues.

James Bopp, Jr. is Madison Center’s general

counsel. Cases in which he was counsel in this Court

include Republican Party of Minnesota v. White, 536

U.S. 765 (2002), FEC v. Beaumont, 539 U.S. 146

(2003), McConnell v. FEC, 540 U.S.93 (2003),

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006),

Randall v. Sorrell, 548 U.S. 230 (2006), FEC v.

Wisconsin Right to Life, 551 U.S. 449 (2007), Citizens

United v. FEC, 558 U.S. 310 (2010), American

Tradition Partnership v. Bullock, 567 U.S. 516 (2012),

and McCutcheon v. FEC, 134 S.Ct. 1434 (2014).

Rule 37.6 Statement: No party’s counsel authored this brief in

whole or in part; no party’s counsel or party made a monetary

contribution intended to fund the preparation or submission of this

brief; and no person or entity other than amicus or its counsel

funded its preparation or submission.

1

See Mission Statement, James Madison Center for Free

Speech (Jan. 16, 2024, 10:23 AM),

https://www.jamesmadisoncenter.org.

2

2

Summary of the Argument

Section 666 is unconstitutional as applied to

gratuities because such a broad ambit would

criminalize First Amendment guaranteed free speech

and association, and disrupt the federal system.

Simultaneously, Section 666, as interpreted by the

Government and the Seventh Circuit, violates Fifth

Amendment Due Process guarantees of notice and

strays

from

accepted

canons

of

statutory

interpretation.

Applying Section 666 to gratuities would

criminalize a wide variety of free speech and

association. Broad regulations of speech are inherently

suspect and must be narrowly tailored. By failing to

require proof of a quid pro quo agreement, association

in a small community or virtually any expression of

gratitude undertaken before or after an official act

could be deemed unlawful under Section 666. This

would criminalize many forms of association in small

communities, forcing many governments to contract

exclusively with distant, large corporations.

Government violates the Fifth Amendment’s Due

Process Clause when it takes away life, liberty, or

property under a law so vague that it fails to give

ordinary people fair notice of the conduct it punishes.

The rule of lenity applies when an individual, such as

Mayor Snyder, is convicted under such a statute. The

doctrine of stare decisis allows this Court to apply

experience to reexamine laws it previously upheld,

striking down as unconstitutional provisions that do

not provide adequate notice, such as Section 666.

Regularly

invoked

canons

of

statutory

interpretation also militate against the Government

3

and the Seventh Circuit’s interpretation of Section

666. Applying the canon of expressio unius, a holistic

reading of the statute, and the presumption that

Congress does not hide “elephants in mouseholes,” a

close reading of Section 666 strongly indicates that it

does not apply to gratuities, absent proof of a quid

pro quo agreement.

Applying Section 666 in the way the Government

asks–and the Seventh Circuit has permitted–

threatens to disturb the delicate balance of federal and

state power. Doing so would federalize a vast swath of

crimes, displacing state and local law enforcement. The

United States decentralizes power on purpose, yet

Section 666 applies an exceptionally broad

jurisdictional “hook” to countless activities that might

be deemed to receive federal funds. Past precedent

dictates that this Court avoid Constitutionally dubious

interpretations that would disrupt the system of joint

sovereigns envisioned by the Founders.

For these reasons, the Seventh Circuit’s decision

should be reversed.

4

Argument

I.

First Amendment guarantees of the right to speak

freely and associate freely direct this Court to block

Section 666’s application to gratuities.

A. Section 666 sweeps too broadly in its scope,

criminalizing many forms of legitimate speech

and association.

The First Amendment ensures freedom of speech,

association, and petition.

U.S. Const. amend. I;

Americans for Prosperity Foundation v. Bonta, 141

S.Ct. 2373, 2382 (2021).

Broad regulations

surrounding expression are inherently suspect, and

must be narrowly tailored. Id. at 2384. Although

designed to combat the legitimate public threat of

bribery, Section 666 is a broad regulation, which is not

narrowly tailored to prevent corruption while

preserving freedom of speech and association. Indeed,

by adopting the Government’s viewpoint that Section

666 criminalizes gratuities without proof of a quid pro

quo agreement, the Seventh Circuit transformed

Section 666 into a statute that criminalizes countless

legitimate interpersonal interactions protected by the

First Amendment. The Seventh Circuit failed to

consider the deleterious effects for First Amendment

rights when it upheld the Government’s ultra-broad

interpretation of Section 666. 18 U.S.C. § 666(a)-(d); see

also United States v. Snyder, 71 F.4th 555, 579-80

(7th Cir. 2023).

Imagine a public-spirited citizen. After a state

senator passes legislation to support deployed

5

members of a state’s National Guard, perhaps this

public-spirited citizen writes out a check to the state

senator’s campaign committee, with a brief message

explaining the purpose of the check: “Thanks for

supporting our troops!” Under Section 666, this publicspirited citizen is now a federal criminal, awaiting

indictment for a gratuity to an official of a government

that receives federal funds.

In its decision, the Seventh Circuit brushed past

cautionary analysis of Section 666 by the First Circuit,

included in briefing by counsel for Mayor Snyder.3

This Court has previously held that a “court by

‘definition abuses its discretion when it makes an error

law.’” Philippines v. Pimentel, 553 U.S. 851, 864

(2008)

(internal

citations

omitted).

Despite

acknowledging “[w]e understand the reasoning of the

First and Fifth Circuit,” the Seventh Circuit upheld the

Government’s interpretation of Section 666 without

giving adequate weight to the analysis of these two other

circuit courts, and without considering the deleterious

First Amendment implications of that interpretation of

the statute.

This Court observed “[t]hat. . .speech and

3 See United States v. Snyder , Case No. 21-2986 (7th Cir.

2023) (Appellant Br., 56, ECF No. 25), (“The First Circuit Court

of Appeals, contrary to most other Courts of Appeals, interprets

Section 666 to apply to bribes and finds that ‘reward’ modifies

bribe and is distinguished from gratuity, a word not included in

Section 666, by the timing of the agreement - prior to the offer or

receipt of money, and by the less serious penalty provided for

gratuities in Title 18, United States Code, Section 201”); compare

Snyder, 71 F.4th at 579-80 (noting the decisions of the First and

Fifth Circuits without fully analyzing the reasoning of those

circuits and upholding prior Seventh Circuit interpretations of

Section 666).

6

association for political purposes is the kind of activity

to which the First Amendment ordinarily offers its

strongest protection is elementary.” Holder v.

Humanitarian Law Project, 561 U.S. 1, 42 (2010).

During the same term, this Court spoke emphatically

on protections for speech in the political realm,

precisely the kind of speech most likely to be dampened

by Section 666:

[P]olitical speech must prevail against laws that

would suppress it, whether by design or

inadvertence. Laws that burden political speech

are ‘subject to strict scrutiny,’ which requires

the Government to prove that the restriction

‘furthers a compelling interest and is narrowly

tailored to achieve that interest.’ . . .By taking

the right to speak from some and giving it to

others,

the

Government

deprives

the

disadvantaged person or class of the right to

use speech to strive to establish worth,

standing, and respect for the speaker's voice. . .

The First Amendment protects speech and

speaker, and the ideas that flow from each.

Citizens United v. FEC, 558 U.S. 310, 340 (2010).

Where a statute imposes direct restrictions on

protected First Amendment activities and attempts to

accomplish a government’s objectives through

imprecise means, the statute can be facially attacked.

See Secy’ of State of Md. v. Munson Co., 467 U.S. 947,

967-68 (1984); see also United States v. Stevens, 559

U.S. 460, 473 (2010) (“[A] law may be invalidated as

overbroad if ‘a substantial number of its applications

7

are unconstitutional, judged in relation to the

statute's plainly legitimate sweep’”).

Corrupt agreements are not protected by the First

Amendment. United States v. Williams, 866 F.3d 107,

299 (2017) (“Offers to engage in illegal transactions are

categorically excluded from First Amendment

protections”) (citing Pittsburgh Press Co. v. Pittsburgh

Comm'n on Human Relations, 413 U.S. 376, 388

(1973)). This Court distinguishes between advocacy

and solicitation. See id. (“there remains an important

distinction between a proposal to engage in illegal

activity and the abstract advocacy of illegality.”)

In contrast to the reasoning in Williams, where

this Court upheld a ban on soliciting child

pornography, Section 666–under the federal

government’s interpretation–does not require any

kind of quid pro quo agreement comparable to the

solicitation requirement in Williams. As a result, the

statute directly conflicts with the protections of the

First Amendment.

This Court has previously restrained the federal

government’s broad interpretation of federal bribery

statutes. For instance, this Court rejected the

Government’s broad interpretation of an “official act”

when it construed 18 U.S.C. § 201(a)(3). McDonnell v.

United States, 579 U.S. 550, 566 (2016) (holding that

by arguing Congress used intentionally broad

language in the statute “The Government concludes

that the term ‘official act’ therefore encompasses

nearly any activity by a public official”). As the

majority observed, “[W]e cannot construe a criminal

statute on the assumption that the Government will

‘use it responsibly.’” Id. at 576 (quoting Stevens, 559

U.S. at 480).

8

By failing to require that prosecutors prove a quid

pro quo agreement, Section 666’s criminalization of

gratuities strikes at the heart of the First

Amendment, potentially criminalizing many forms of

speech and association in the context of state and

local governments, public and private universities,

medical facilities, and other organizations.

Left in place, as it applies to gratuities, Section 666

would act as a corrosive force on these Constitutional

rights, giving prosecutors the opportunity to forever

alter the lives of unwary citizens whose gratuitous

behavior provokes the ire of the federal government.

Because of the sheer number of interactions that could

fall within Section 666’s ban on gratuities, as adopted

by the Seventh Circuit, Section 666 would likely be

used on a highly selective basis, potentially as a

means of punishing individuals disfavored by the

federal government.

By failing to give adequate weight to First and

Fifth Circuit analysis–and failing to consider longrun deleterious First Amendment effects–the

Seventh Circuit strayed from this Court’s command

that courts avoid errors of law. The Seventh Circuit

thereby ratified a dangerously broad interpretation of

Section 666.

For the foregoing reasons, this Court should

conclude that Section 666 is unconstitutional as it

applies to gratuities.

9

B. Section 666 effectively criminalizes association

in a small community.

By omitting a requirement to show a quid pro quo

agreement in its interpretation of Section 666, the

Seventh Circuit effectively criminalizes many forms of

association in small communities, neighborhoods, or

among individuals in the same professional network.

By failing to apply First and Fifth Circuit reasoning,

the Seventh Circuit wrongly endorsed the

Government’s interpretation of the statute.

Mayor Snyder’s conviction was based on a gratuity

and prior campaign contributions that the Government

recognized as legal. Cert. Pet. at 12 (citing 3/9/2021 Tr.

134:25- 135:4;

3/18/2021

Tr.

1977:24-1979:8,

2079:23-2081:18). Testimony at trial demonstrates

that Mayor Snyder’s payment from Peterbilt related

to legitimate consulting work that he did for Peterbilt

to afford the costs of multiple children and

outstanding tax liabilities. Id. (citing 3/12/2021 Tr.

1139:6-1140:1, D. Ct. Dkt. 592. and 3/16/2021 Tr.

1609:8-16; 1613:12-1614:2).

Without a quid pro quo requirement, the

Government is able to leverage mere association to

transform governmental discretion into evidence of

something sinister. Discretion is a key premise of

state-established bidding specifications. Discretion

means that local officials in Nome, Alaska can specify

their community needs Chevrolet Tahoe police cruisers

capable of driving on rugged permafrost, rather than

thin-wheeled Toyota Prius sedans.

Relying on its preferred interpretation of Section

666, the Government transformed bid “tailoring” into

bid “rigging.” United States v. Snyder, Cause No. 2:16

10

CR 00160 (ND Ind 2021) (Gov’t Resp. to Def.’s Mot. for

Acquittal, 7-14 (ECF No.519). Because it relied on an

unconstitutional interpretation of Section 666, the

Government prosecuted Mayor Snyder without bearing

its burden of proof. An FBI agent testified that Mayor

Snyder complied with Indiana bidding specifications.

Snyder, Case No. 21-2986 (7th Cir. 2023) (Appellant

Br., 6, ECF No. 24-1) (citing Tr. 2, Vol. 8, p. 1675).

Mayor Snyder was aware of an opportunity to save the

City of Portage $30,000. Id.

The Government asserted that Mayor Snyder

picked an inexperienced associate, Randy Reeder,

to oversee the bidding process, but merely asserted

Reeder’s inexperience and its alleged implications,

even though Reeder was later promoted to become

the current Portage Superintendent of Streets and

Sanitation, weighing against any claim of

inexperience.4

Yet, despite these glaring

contradictions that indicate the Government did not

bear its burden of proof, it obtained a conviction of

Mayor Snyder under its catch-all gratuity

interpretation, wrongly affirmed by the Seventh

Circuit.

Under the Government’s reasoning, adopted by the

Seventh Circuit, municipal governments would need to

do virtually all contracting with large corporations

without personnel or local branches in the municipality

for fear that prosecutors could cast a preexisting

business or personal relationship between a municipal

official and a would-be contractor as a violation of

Streets & Sanitation, City of Portage, (2024),

https://www.portagein.gov/180/Streets-Sanitation

(accessed Feb. 6, 2024).

4

11

Section 666. The Peterbilt dealership at the center of

Mayor Snyder’s conviction illustrates this problem. It

is the only dealership that specializes in providing

vehicles large enough to be garbage trucks within

nearly a 10-mile drive of downtown Portage.5

If an individual can be prosecuted and convicted

for business deals that the Government itself does

not claim are illegal, this application of Section 666

demonstrates its unconstitutional character under

the First Amendment’s guarantee of freedom of

association. This Court’s majority observed in 1996:

Cities and other governmental entities make a

wide range of decisions in the course of

contracting for goods and services. The

Constitution accords government officials a

large measure of freedom as they exercise the

discretion inherent in making these decisions. .

Interests of economy may lead a governmental

entity to retain existing contractors or terminate

them in favor of new ones without the costs and

complexities of competitive bidding. . .These are

choices and policy considerations that ought to

remain open to government officials when

deciding to contract with some firms and not

others, provided of course the asserted

justifications are not the pretext for some

improper practice.

5 See Truck Dealer [near Portage, Ind.], Google Maps, (Jan. 30,

2024), https://www.google.com/maps/search/@41.5912105 87.24

66311 .

12

O’Hare Truck Serv. v. City of Northlake, 518 U.S.

712, 724-25 (1996).

The freedom of association recognized by the First

Amendment would need to yield to much more

distant, arms-length association in any tight-knit

municipality, neighborhood, or closely associated

professional network. As a mid-size community of

38,000 people, Portage, Indiana is a bellwether of

other communities where civic life could be torn apart

at any time by Section 666.

On appeal, the Seventh Circuit recited conclusions

of fact from the district court about Mayor Snyder’s

association with the Buha brothers who own Great

Lakes Peterbilt. See Snyder, 71 F.4th at 573-74. Yet,

in its subsequent analysis of how to interpret Section

666’s applicability to gratuities it did not consider that

contracting parties in small communities also

commonly share business and social ties. See, id. at

579-80;

see also Kellen Zale, Part-Time

Government, 80 OHIO ST. L.J. 987, 988 (2019) (“Parttime government is the rule, not the exception, for

cities in the United States.”)

Nor did the Seventh Circuit consider that its

interpretation would criminalize many local political

contributions because Section 666 does not include an

exception for political contributions. See Snyder, 71

F.4th at 579-80; see also United States v. Grubb,

11 F.3d 426, 434 (4th Cir. 1993). Neglecting this

element would mean that guarantees of free speech

and association do not apply equally at all levels of

government.

This Court has periodically applied the logic of

freedom of association to the lowest echelon of the

13

federal system: municipal government. See Elrod v.

Burns, 427 U.S. 347, 366 (1976) (reasoning that “less

drastic means for insuring government effectiveness”

are preferred). In Elrod, the majority explained:

[T]he government ‘may not deny a benefit to a

person on a basis that infringes his

constitutionally protected interests - especially,

his interest in freedom of speech. For if the

government could deny a benefit to a person

because of his constitutionally protected speech

or associations, his exercise of those freedoms

would in effect be penalized and inhibited. This

would allow the government to ‘produce a

result which [it] could not command directly.’

Such interference with constitutional rights is

impermissible.

Id. at 359 (internal citations omitted).

Although Elrod concerned municipal political

patronage, its commandment that government cannot

interfere with freedom of association strongly supports

the right of individuals to associate at the local level

outside of their official duties as officials in a small

community. See id. The federal government might not

be able to command that municipalities contract with,

for instance, large federal contractors, but under

Section 666 it could effectively do so by raising the

specter of prosecution for any political contribution or

gift exchanged between closely associated officials and

contractors in a municipality.

Section 666 conflicts with the Elrod standard

because it strays from Elrod’s directive that local

14

freedom of association be protected. Even outside the

scenario of government contracting, the broad language

of Section 666 could criminalize other forms of localized

political speech and association, such as the

hypothetical public-minded citizen making a campaign

contribution after a legislator made a policy change,

even without a quid pro quo arrangement.

The First Amendment’s guarantee of freedom of

assembly, restated by this Court as freedom of

association, means that the broad reach of Section 666

would criminalize many forms of association in tightknit communities. Under the misplaced reasoning put

forth by the Government and adopted by the Seventh

Circuit state and municipal officials would have little

choice but to contract with distant, large corporations,

and distance themselves from the citizenry for fear of

being prosecuted under Section 666, yielding Section

666 a significant and unconstitutional restraint on

freedom of association.

By failing to adequately consider the First and Fifth

Circuit interpretations of Section 666’s applicability to

gratuities, and instead applying ill considered circuit

precedent, the Seventh Circuit propounds an

unconstitutional circumstance for small communities.

II.

Section 666 disrupts the federal structure, usurping

law enforcement responsibilities best handled by

state and local governments.

Applying Section 666 as the Seventh Circuit has

in Snyder threatens to disturb the delicate balance of

federal and state authority that undergirds the

15

American system of joint sovereigns. Adopting the

Government’s reading of the statute threatens to

federalize a vast swath of crimes traditionally

enforced at the state level, displacing well-staffed

state and local police and prosecutors in favor of

federal authorities.

Federal courts adhere to a strong presumption

against the preemption of state law, particularly

where a state regulates in an area without a

historically significant federal presence. See United

States v. Locke, 529 U.S. 89, 108 (2000). Although the

Supremacy Clause makes the laws adopted by

Congress the laws of the entire United States, and

gives Congress the power to preempt state laws, the

mere existence of a federal law does not erase state

laws in that field.

The “‘constitutionally mandated balance of power’

between the States and the Federal Government was

adopted by the Framers to ensure the protection of

‘our fundamental liberties.’” Gregory v. Ashcroft, 501

U.S. 452, 458 (1991) (quoting Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 242 (1985)). Indeed,

this Court affirmed “the well-established principle

that ‘it is incumbent upon the federal courts to be

certain of Congress’ intent before finding that federal

law overrides’ the ‘usual constitutional balance of

federal and state powers.’” Bond v. United States, 134

S. Ct. 2077, 2089 (2014).

Because of this long-standing caution, this Court

has rejected broad interpretations of the Travel Act,

the federal mail fraud statute, and the Hobbs Act,

that resemble the broad scope of Section 666 wrongly

endorsed by the Seventh Circuit. See, e.g. Rewis v.

United States, 401 U.S. 808, 812 (1971); Cleveland v.

16

United States, 531 U.S. 12, 24-25 (2000); United

States v. Enmons, 410 U.S. 396, 411-12 (1973). In the

context of corruption statutes, this Court has called for

a narrow reading: “[A] statute in this field that can

linguistically be interpreted to be either a meat axe or

a scalpel should reasonably be taken to be the latter.”

United States v. Sun- Diamond Growers of Cal., 526

U.S. 398, 412 (1999).

By maintaining a federal system of government,

the United States decentralizes power. “[T]he

principal benefit of the federalist system is a check on

abuses of government power.” Ashcroft, 501 U.S. at

458. “To preserve the ‘proper balance between the

States and the Federal Government” and enforce

limits on Congress’s Commerce Clause power, courts

must ‘be certain of Congress’s intent” before finding

that it ‘legislate[d] in areas traditionally regulated by

the States.’” West Virginia v. EPA, 142 S. Ct. 2587,

2621 (2022) (citing Ashcroft, 501 U.S. at 459-460).

Section 666 depends on a stunningly broad

jurisdictional “hook,” applying to virtually all

government, and many non-governmental activities.

See 18 U.S.C. § 666(b) (“The circumstance referred to

in subsection (a) of this section is that the

organization, government, or agency 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.”). Under this broad ambit coupled with

the Seventh Circuit’s decision to apply the statute to

gratuities, a wide-variety of crimes at the state and

local level would fall under the statute, limiting the

utility of well-staffed law enforcement agencies at

lower levels of the federal structure.

17

This Court applies federalism canons to limit the

degree to which Congress can federalize law

enforcement. See Fowler v. United States, 563 U.S.

668, 684 (2011). “We have adopted a federalism

principle that applies when a statute would render

‘traditionally local criminal conduct . . . a matter for

federal enforcement’: ‘[U]nless Congress conveys its

purpose clearly, it will not be deemed to have

significantly changed the federal-state balance in the

prosecution of crimes.’” Id. (Scalia, J. concurring,

quoting Jones v. United States, 529 U.S. 848, 858

(2000)). In Fowler, the majority overturned the

conviction of an individual under the federal witness

tampering statute because it was not clear that the

individual intended to make a communication to a

federal officer. Fowler, 563 U.S. at 684.

Constitutionally doubtful interpretations should

be avoided whenever possible. Jones, 529 U.S. at 850

(citing Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Constr. Trades Council, 485 U.S.

568, 575 (1988)). In Jones, this Court limited the

scope of a federal arson statute. Id. at 857. Rejecting

the “Government’s expansive interpretation,” this

Court reasoned that “hardly a building in the land

would fall outside the federal statute’s domain.” Id.

“Judges should hesitate . . . to treat statutory terms

in any setting [as surplusage], and resistance should

be heightened when the words describe an element of

a criminal offense.” Id. (quoting Ratzlaf v. United

States, 510 U.S. 135, 140-141 (1994)).

Taken together, the rule of lenity and concerns

about federalism militate in favor of striking down

Section 666’s broad scope as unconstitutional. See

Jones, 529 U.S. at 858 (citing Rewis v. United States,

18

401 U.S. 808, 812 (1971)). This Court’s majority directs

that “traditionally local criminal conduct” not become

“a matter for federal enforcement.” Id. (quoting United

States v. Bass, 404 U.S. 336, 350 (1971)).

Section 666 disturbs the federal structure,

deviating from James Madison’s sage observation on

the American system of joint sovereigns:

The powers delegated by the proposed

Constitution to the federal government are

few and. . .Those which are to remain in the

state governments are numerous and

indefinite. . . The powers reserved to the

several States will extend to all the objects

which, in the ordinary course of affairs,

concern the lives, liberties, and properties of

the people, and the internal order,

improvement, and prosperity of the State.

Ashcroft, 501 U.S. at 458 (quoting The Federalist

No. 45, pp. 292-293 (C. Rossiter ed. 1961)).

Therefore, this Court should hold that Section 666

is unconstitutional as applied to gratuities because it

attempts to federalize crimes best prosecuted by

state and local authorities, and reverse the decision

of the Seventh Circuit.

19

III.

Section 666 violates the Constitutional guarantee of

Due Process by providing inadequate notice to

citizens who might unwittingly break the law while

engaged in lawful activity.

The Fifth Amendment provides that “[n]o person

shall . . . be deprived of life, liberty, or property,

without due process of law.” U.S. Const. amend V. This

Court’s cases establish that “the Government violates

this guarantee by taking away someone’s life, liberty,

or property under a criminal law so vague that it fails

to give ordinary people fair notice of the conduct it

punishes, or so standardless that it invites arbitrary

enforcement.” Johnson v. United States, 576 U.S. 591,

595 (2015) (citing Kolender v. Lawson, 461 U.S. 352,

357-358 (1983)).

The prohibition against vagueness in criminal

statutes is a longstanding principle of American law.

A statute that strays from this principle “violates the

first essential of due process.” Johnson, 576 U.S. at

595-96 (quoting Connally v. General Constr. Co.,

269 U.S. 385, 391 (1926)). By neglecting to consider

the Fifth Amendment’s directive against vagueness

and the rule of lenity, when it gave only a cursory

analysis of First and Fifth Circuit interpretations of

Section 666, the Seventh Circuit strayed from the

essentials of due process.

A conviction “fails to comport with due process if the

statute under which it is obtained fails to provide a

person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.”

Williams, 553 U.S. at 304 (citing Hill v. Colorado, 530

20

U.S. 703, 732 (2000) and Grayned v. City of Rockford,

408 U.S. 104, 108-109 (1972)). Even though “perfect

clarity and precise guidance have never been required

even of regulations that restrict expressive activity,”

nor will this Court uphold a vague statute that fails to

give even a modicum of adequate notice. See Williams,

553 U.S. at 304 (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 794 (1989)).

A statute is rendered vague “not [by] the possibility

that it will sometimes be difficult to determine whether

the incriminating fact it establishes has been proved;

but rather the indeterminacy of precisely what that

fact is.” Id. at 306. In Williams, this Court weighed

whether a statute required a “true-or-false

determination” of intent, rather than a “subjective

judgment.” Id. Section 666 under the federal

government’s interpretation can be used by prosecutors

to obtain convictions without prosecutors bearing the

burden of making a “true-or-false determination” for

the finder of fact.

Failure of “‘persistent efforts . . . to establish a

standard’ can provide evidence of vagueness.” Id. at

598 (quoting United States v. L. Cohen Grocery

Co., 255 U.S. 81, 91 (1921)). Under this standard,

then, the dissonance between the Seventh Circuit’s

holding, and the interpretations of the First and Fifth

Circuit’s is evidence of Section 666’s vagueness.

This Court’s holdings “squarely contradict the

theory that a vague provision is constitutional merely

because there is some conduct that clearly falls within

the provision’s grasp.” Id. at 602. A statute banning

“unjust or unreasonable rate[s]” for groceries was

struck down even though charging a thousand dollars

for a pound of sugar would be unreasonable, in the

21

same way that a statute which criminalized people on

sidewalks “conduct[ing] themselves in a manner

annoying to persons passing by,” even though spitting

in a passerby’s face would “surely be annoying.” Id. at

602-603 (internal citations omitted).

Constitutional standards “can provide helpful

guidance in this statutory context.” Ricci v. DeStefano,

557 U.S. 557, 582 (2009). The rule of lenity–a doctrine

that closely aligns with this Court’s caution against

vague statutes, “ensures fair warning by so resolving

ambiguity in a criminal statute as to apply it only to

conduct clearly covered.” United States v. Lanier, 520

U.S. 259, 266 (1997).

The doctrine of stare decisis supports this Court’s

ability to apply experience obtained through the

passage of time to revisit a statute’s constitutionality.

Johnson, 576 U.S. at 605. (“The doctrine of stare

decisis allows us to revisit an earlier decision where

experience with its application reveals that it is

unworkable”) (citing Payne v. Tennessee, 501 U.S.

808, 827(1991)). Even if this Court rejected prior

vagueness challenges, experience allows it to revisit

its past decisions:

Unlike other judicial mistakes that need

correction, the error of having rejected a

vagueness challenge manifests itself precisely

in subsequent judicial decisions: the inability of

later opinions to impart the predictability that

the earlier opinion forecast.

Id. at 605.

Rather than apply stare decisis to ameliorate prior

22

judicial mistakes, conforming its interpretation toward

that of the First and Fifth Circuits, the Seventh Circuit

applied the doctrine of stare decisis to apply precedent

for precedent’s sake. See id.; compare Snyder, 71

F.4th at 580 (“Accordingly, we follow here our

precedents holding that 18 U.S.C. § 666 applies to

gratuities and does not require evidence of a prior quid

pro quo agreement.”) The Seventh Circuit failed to

appropriately consider the vagueness inherent in the

statute and did not apply the long-standing rule of

lenity. See id.

Procedural due process rooted in the Fifth

Amendment strongly supports striking down Section

666’s application to gratuities. Permitting the broad

statutory ambit used to convict Mayor Snyder to

remain in effect would reinforce a statutory scheme

that gives virtually no notice to potential violators,

and permits the federal criminalization of many

forms of association, without adequate tailoring

needed to prevent quid pro quo corruption.

Therefore, this Court should hold that Section 666

is unconstitutional as it applies to gratuities, and

reverse the decision of the Seventh Circuit.

IV.

Following the Government’s interpretation of

Section 666, adopted by the Seventh Circuit,

violates accepted canons of statutory

interpretation.

Regularly

invoked

canons

of

statutory

interpretation, adopted through this Court’s holdings

strongly disfavor the Government’s interpretation of

the statute, as adopted by the Seventh Circuit. Section

23

666 provides that a violation occurs when a person:

“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 any thing of value of

$5,000 or more.” 18 U.S.C. § 666(B).

The canon of expressio unius applies where the

statement of one thing suggests exclusion of others.

See Bittner v. United States, 143 S. Ct. 713, 716

(2023); see also Chevron USA v. Echazabal, 536 U.S.

73, 81 (2002). The inclusion of the phrasing “corruptly

solicits or demands” qualifying “accepts or agrees to

accept” and “intending to be influenced or rewarded,”

drives at a different meaning than the one favored by

the Government. The close association and qualifying

relationship of these clauses indicates, through

application of the expressio unius canon, the

application of the statute to quid pro quo

arrangements to the exclusion of innocent gratuities.

This Court has previously directed that each

statutory provision be read in context of the whole act.

See Gonzales v. Oregon, 546 U.S. 243, 273-74 (2006).

Statutory, interpretation, therefore, is a “holistic”

activity. United Sav. Ass’n v. Timbers of Inwood Forest

Assocs, Ltd., 484 U.S. 365, 371 (1988).

Section 666(c) stipulates: “This section does not

apply to bona fide salary, wages, fees, or other

compensation paid, or expenses paid or reimbursed, in

the usual course of business.” 18 U.S.C. § 666(c). Read

holistically, this subpart, taken together with subpart

(b)’s description of quid pro quo activity, conflicts

dramatically with the Government’s interpretation of

24

Section 666. Prosecutors alleged and introduced

testimony that Mayor Snyder’s business dealings were

lawful, directly contradicting a quid pro quo theory.

See Cert. Pet. at 12 (citing 3/9/2021 Tr. 134:25-135:4;

3/18/2021 Tr. 1977:24-1979:8, 2079:23-2081:18). Thus,

the Government’s interpretation goes against even the

most hasty holistic reading of the statute.

This Court presumes that Congress does not hide

elephants in mouseholes. See Sackett v. EPA, 143 S.

Ct. 1322, 1340 (2023) (citing Whitman v. American

Trucking Assns., Inc., 531 U. S. 457, 468 (2001)).

Even the Department of Justice admits that there is

virtually no legislative history to speak of about

Section 666. It was passed as a minor provision in a

broad slate of tough-on-crime policies in the early

1980s, as a response to rampant organized crime

problems across the nation.

Criminalizing countless innocent gratuities without

clearly saying so in the statute is not what Congress

intended. Giving prosecutors the ability to pull such a

broad criminal provision out of thin air from a mere

483 inapposite words of statutory text is not what the

people’s representatives in the Capitol sought to do in

1984, when Section 666 was passed.6

The Seventh Circuit failed to adequately consider

Congressional intent when it construed Section 666.

See Snyder, 71 F.4th at 579-80. Mayor Snyder’s

counsel in his appeal to this Court offer an incisive

6 See 1003. Legislative History—18 U.S.C. § 666, Department of

Justice, (Feb. 2024),

https://www.justice.gov/archives/jm/criminal-resource-manual-1

003-legislative-history-18-usc-666 (citing S. Rep. No. 225, 98th

Cong. 1st Sess. 369, reprinted in 1984 USCCAN 351).

25

explanation that Section 666 is limited to quid pro

quo agreements based on vital differences between

this statute and other federal bribery statutes. See

Pet. Br. 18-22. Congress has adopted close to a dozen

gratuity statutes, almost all limited in scope to federal

employees. Pet. Br. 29 (citing 18 U.S.C. §§ 213, 1912;

19 U.S.C. § 60; 22 U.S.C. § 4202). Simultaneously,

most corruption statutes treat bribery as more severe

than gratuities, disfavoring the view that Congress

sought to publish both with equal severity in Section

666. See Pet. Br. 33. The foregoing canons of statutory

interpretation and the pattern of federal bribery

statutes strongly indicates that “Congress [did not

create] a gratuities crime covering 19.2 million state

and local officials, thousands of tribal officials,

millions of employees of private organizations that

receive federal funds, and anyone giving these people

gifts.” Pet. Br. 26.

This Court has examined other aspects of Section

666’s constitutionality, yet has not contended with the

Government’s gratuity claim and the circuit split that

emerged in response to this over-broad interpretation.

See, e.g. Sabri v. United States, 541 U.S. 600 (2004);

Fischer v. United States, 529 U.S. 667 (2000); Salinas

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

The absence of prior precedent from this Court on

the question of gratuities under Section 666 despite the

statute’s now 40-year existence supports the notion

that the Government has invented an “elephant” in the

“mousehole” of Section 666, incorrectly ratified by the

Seventh Circuit. Because the Seventh Circuit’s reading

of Section 666 goes contrary to multiple well-grounded

canons of statutory interpretation, this Court should

reject the Seventh Circuit’s interpretation of Section

26

666 outright and reverse Mayor Snyder’s conviction.

Conclusion

For the foregoing reasons, this Court should

reverse the decision of the Seventh Circuit.

February 9, 2024

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Eamon McCarthy Earls

THE BOPP LAW FIRM, PC

The National Building 1

South Sixth Street

Terre Haute, IN 47807

812/2322434 telephone

812/2353685

jboppjr@aol.com

Counsel for Amicus Curiae