Petition for Writ of Certiorari — Stephen M. Calk, aka Sealed Defendant 1, Petitioner v. United States

No. 23-____

In the

Supreme Court of the United States

________________

STEPHEN M. CALK,

Petitioner,

v.

UNITED STATES OF AMERICA,

________________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

PAUL H. SCHOEMAN

DARREN A. LAVERNE

KRAMER LEVIN NAFTALIS &

FRANKEL LLP

1177 Avenue of the Americas

New York, New York 10036

(212) 715-9100

April 19, 2024

ALEXANDRA A.E. SHAPIRO

Counsel of Record

DANIEL J. O’NEILL

AVERY D. MEDJUCK

SHAPIRO ARATO BACH LLP

1140 Avenue of the Americas

17th Floor

New York, New York 10036

(212) 257-4880

ashapiro@shapiroarato.com

Counsel for Petitioner

i

QUESTIONS PRESENTED

1. Whether something with no commercial or objective value can constitute a “thing of value” that

“exceed[s] $1,000,” the receipt of which is punishable as a felony under the bank bribery statute, 18

U.S.C. § 215.

2. Whether the bank bribery statute’s “corrupt” intent element requires a breach of a bank officer’s

duty to act in the best interests of the bank or can

instead be satisfied by acts undertaken with a

good-faith belief they will benefit the bank.

ii

PARTIES TO THE PROCEEDING

Petitioner Stephen M. Calk was the defendant and

appellant below.

Respondent United States of America was the appellee below.

iii

RELATED PROCEEDINGS

The proceedings directly related to this petition

are:

United States v. Calk, No. 22-313 (2d Cir.), judgment entered on November 28, 2023;

United States v. Calk, No. 19-cr-366 (LGS)

(S.D.N.Y.), judgment entered on February 7, 2022.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDING ........................... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF CONTENTS ........................................... iv

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ........................................................1

OPINIONS BELOW ....................................................4

JURISDICTION ..........................................................4

STATUTES ..................................................................4

STATEMENT OF THE CASE ....................................5

A.

Factual Background..........................................5

B.

District Court Proceedings ...............................9

C.

Second Circuit Decision ..................................11

REASONS FOR GRANTING CERTIORARI ...........13

I. THE COURT SHOULD GRANT REVIEW

TO ADDRESS WHETHER INTANGIBLES

WITHOUT OBJECTIVE VALUE CAN BE

“THINGS OF VALUE” WORTH OVER

$1,000 UNDER 18 U.S.C. § 215 ..........................14

A. The Second Circuit’s Interpretation

Of “Anything Of Value” Conflicts

With The Statutory Text And Raises

Serious Due Process Concerns ..................15

B. The Second Circuit’s Decision

Creates A Circuit Split ..............................21

C. This Case Is An Ideal Vehicle ...................25

v

TABLE OF CONTENTS

(Continued)

II. THE COURT SHOULD GRANT REVIEW

TO ADDRESS WHETHER CONDUCT

THAT ENTAILS NO BREACH OF

DUTY CAN BE “CORRUPT” UNDER

18 U.S.C. § 215 .....................................................26

A. The Second Circuit’s Interpretation

Of § 215’s “Corruptly” Is Standardless

And Raises Serious Due Process

Concerns.....................................................26

B. The Question Is Important And

Squarely Presented ...................................33

III. AT A MINIMUM, THIS COURT SHOULD

HOLD THE PETITION PENDING THE

OUTCOMES IN FISCHER AND

SNYDER..............................................................35

CONCLUSION ..........................................................36

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Adcock v. Freightliner LLC,

550 F.3d 369 (4th Cir. 2008) ............................ 21, 22

Bailey v. United States,

516 U.S. 137 (1995) ................................................ 16

Chappell v. United States,

270 F.2d 274 (9th Cir. 1959) .................................. 24

Ciminelli v. United States,

598 U.S. 306 (2023) .................................................. 1

Corley v. United States,

556 U.S. 303 (2009) ................................................ 16

Crandon v. United States,

494 U.S. 152 (1990) ................................................ 18

Fischer v. United States,

No. 23-5572 (U.S. Dec. 13, 2023) ........................... 35

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) .......................................... 15, 17

Hotel Employees & Restaurant Employees

Union, Local 57 v. Sage Hospitality

Resources, LLC,

390 F.3d 206 (3d Cir. 2006) .............................. 22, 23

Johnson v. United States,

576 U.S. 591 (2015) .......................................... 19, 27

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Kelly v. United States,

140 S. Ct. 1565 (2020) .............................................. 1

Leocal v. Ashcroft,

543 U.S. 1 (2004) ................................................ 2, 16

McDonnell v. United States,

579 U.S. 550 (2016) ................................ 3, 18, 27, 32

Percoco v. United States,

598 U.S. 319 (2023) .................................................. 1

Ratlaf v. United States,

510 U.S. 135 (1994) ................................................ 18

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) ................................................ 22

Skilling v. United States,

561 U.S. 358 (2010) .................................... 18, 19, 27

Snyder v. United States,

No. 23-108 (U.S. Dec. 13, 2023) ............................. 35

United States v. Aguilar,

515 U.S. 593 (1995) ................................................ 31

United States v. Buendia,

907 F.3d 399 (6th Cir. 2018) .................................. 31

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Condon,

170 F.3d 687 (7th Cir. 1999) ............................ 23, 24

United States v. Davis,

183 F.3d 231 (3d Cir. 1999) .................................... 32

United States v. Fischer,

64 F.4th 329 (D.C. Cir. 2023) ................. 3, 28, 29, 33

United States v. Girard,

601 F.2d 69 (2d Cir. 1979) .......................... 17, 18, 24

United States v. Granderson,

511 U.S. 39 (1994) .................................................. 20

United States v. Jumper,

838 F.2d 755 (5th Cir. 1988) .................................. 30

United States v. Ogle,

613 F.2d 233 (10th Cir. 1979) ................................ 31

United States v. Poindexter,

951 F.2d 369 (D.C. Cir. 1990) .................... 27, 28, 32

United States v. Reeves,

752 F.2d 995 (5th Cir. 1985) ............................ 28, 31

United States v. Tobias,

836 F.2d 449 (9th Cir. 1988) .................................. 24

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Williams,

705 F.2d 603 (2d Cir. 1983) ........................ 12, 17, 18

Yates v. United States,

574 U.S. 528 (2015) ...................................... 1, 16, 32

Statutes

18 U.S.C. § 201 ..................................................... 17, 23

18 U.S.C. § 215 ..... 1–6, 8–11, 13–21, 24, 26, 30–33, 35

18 U.S.C. § 641 ..................................................... 17, 24

18 U.S.C. § 666 ........................................................... 35

18 U.S.C. § 1503 ......................................................... 31

18 U.S.C. § 1505 ......................................................... 27

18 U.S.C. § 1512 ............................................. 28, 32, 35

26 U.S.C. § 7212 ......................................................... 28

28 U.S.C. § 1254 ........................................................... 4

29 U.S.C. § 186 ..................................................... 21, 22

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Bank Bribery: Hearings on H.R. 2617, H.R. 2839,

& H.R. 3511 Before the Subcommittee on

Criminal Justice of the House Committee

on the Judiciary,

99th Cong., 1st Sess. 61 (1985) .................. 23, 24, 29

Eric J. Tamashasky, The Lewis Carroll Offense: The

Ever-Changing Meaning of “Corruptly” Within the

Federal Criminal Law,

31 J. Legis. 129 (2004) ............................................ 34

H.R. Rep. No. 99-335 (1985) .................... 23, 29, 30, 32

INTRODUCTION

In this case, the Second Circuit endorsed an unbounded and elastic construction of the bank bribery

statute, 18 U.S.C. § 215. Its capacious interpretation

is exactly what this Court has repeatedly admonished

lower courts to avoid where, as here, the text and

structure of a criminal statute supports a narrower

construction. See, e.g., Ciminelli v. United States, 598

U.S. 306, 314–16 (2023); Percoco v. United States, 598

U.S. 319, 328–31 (2023); Kelly v. United States, 140 S.

Ct. 1565, 1571–74 (2020); Yates v. United States, 574

U.S. 528, 540 (2015). The Second Circuit’s opinion

criminalizes any bank transaction in which a bank officer receives any conceivable benefit from a customer,

no matter how profitable the transaction is for the

bank, and no matter how trivial the benefit.

Relying on an expansive construction of two separate elements of the crime, the court affirmed Petitioner’s conviction in connection with loans that were

fully approved, independently underwritten, and

made millions in profits for the bank. In fact, they

were the most profitable loans in the history of the

bank. Petitioner was the bank’s controlling shareholder, so his interests were perfectly aligned with the

bank’s interests. He received no cash, property, or

other item with any objective value in connection with

the transaction. Instead, the Second Circuit affirmed

his conviction because the borrower referred Petitioner for a courtesy screening interview for a government job that Petitioner was never offered.

The decision below raises two important issues

warranting this Court’s review. First, the Second Circuit held that § 215’s requirement that a defendant

2

solicit or accept a “thing of value” in connection with

bank business can be satisfied by the receipt of literally anything the defendant subjectively believes is

important. And it held that the value of the “thing”—

which dictates whether the offense is a felony or a misdemeanor—can also be determined based on the defendant’s subjective appraisal. Those interconnected

holdings ignored the statute’s structure, which establishes that the “thing of value” must be susceptible to

objective monetary valuation. They defy the requirement to “construe language in its context and in light

of the terms surrounding it.” Leocal v. Ashcroft, 543

U.S. 1, 9 (2004). The Second Circuit’s decision also

conflicts with decisions of the Third, Fourth, Seventh,

and Ninth Circuits. Those circuits have construed

similar statutes and held that the term “thing of

value” does not mean “anything the recipient subjectively values.”

Second, the court below held that a loan offered at

a bank’s standard rates and terms based on a defendant’s sincere belief that the loan would benefit the

bank can nonetheless be “corrupt.” To reach that conclusion, the Second Circuit held that acting “corruptly” does not require a breach of duty and instead

only requires an “improper purpose.” That vague definition provides no ascertainable standard to guide

the conduct of bank officers or their customers. For

exactly that reason, numerous courts have held that

defining “corruptly” to simply mean “improper” or

“bad”—like the Second Circuit did here—fails to provide constitutionally adequate notice of what conduct

is proscribed. The “improper purpose” definition is

also irreconcilable with the history of the statute and

decades of decisions equating “corrupt” intent with a

3

conscious breach of an established legal duty or efforts

to induce such a breach.

The Second Circuit’s overbroad interpretation of

§ 215 criminalizes a broad swath of “the most prosaic

interactions” between bankers and their customers.

McDonnell v. United States, 579 U.S. 550, 576 (2016).

If left uncorrected, it would give overzealous prosecutors unchecked power to set the standards for what is

“proper” within the commercial banking industry,

based solely on their “subjective disapproval,” United

States v. Fischer, 64 F.4th 329, 381 (D.C. Cir. 2023)

(Katsas, J. dissenting), cert. granted, 144 S. Ct. 537

(2023). That power exceeds the narrower reach dictated by the text of the statute and would have a profound chilling effect, particularly on small and community banks that depend on building face-to-face relationships with customers.

4

OPINIONS BELOW

The Second Circuit’s opinion (Pet.App.1a) is published at 87 F.4th 164.

JURISDICTION

The Second Circuit issued its opinion and entered

judgment on November 28, 2023, and denied rehearing on February 13, 2024. Pet.App.1a, 49a. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTES

18 U.S.C. § 215(a)(2) provides:

Whoever . . . as an officer, director, employee,

agent, or attorney of a financial institution,

corruptly solicits or demands for the benefit of

any person, or corruptly accepts or agrees to

accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of

such institution . . . shall be fined not more

than $1,000,000 or three times the value of

the thing given, offered, promised, solicited,

demanded, accepted, or agreed to be accepted,

whichever is greater, or imprisoned not more

than 30 years, or both, but if the value of the

thing given, offered, promised, solicited, demanded, accepted, or agreed to be accepted

does not exceed $1,000, shall be fined under

this title or imprisoned not more than one

year, or both.

18 U.S.C. § 215 is reproduced in full in the appendix to this Petition. Pet.App.50a.

5

STATEMENT OF THE CASE

A. Factual Background

Petitioner Stephen M. Calk is a self-made man

who has, throughout his career, dedicated himself to

supporting soldiers, veterans, and his community

through a variety of charitable initiatives. In 2011,

Calk and his brother purchased what became known

as The Federal Savings Bank (“TFSB”), a privately

owned, federally chartered savings association focused on community home ownership and mortgage

lending. Calk owned the majority of the holding company that owned the bank; his brother owned most of

the remainder. C.A.App.352–53. Calk was also the

CEO and Chairman of TFSB. Pet.App.4a.

The indictment charged Calk with bank bribery in

violation of 18 U.S.C. § 215, and conspiracy to commit

bank bribery in violation of 18 U.S.C. § 371. It alleged

that, between July and November 2016, Calk took advantage of his position at TFSB to “corruptly” facilitate approval of loans to Paul Manafort who, in turn,

gave Calk a referral for an initial screening interview

for a position in the administration of then-President

Elect Donald Trump. Pet.App.4a–5a.

The government’s case turned on: (1) whether Calk

accepted “anything of value” from Manafort in connection with the loans; and (2) if so, whether he acted

“corruptly.”

Unlike in nearly all past bank bribery prosecutions, Calk did not receive any sort of cash kickback or

personal financial benefit—the usual hallmark of a

6

bank bribery prosecution. All he received was referrals that the government’s own witnesses conceded

have no market value and are often given freely.

C.A.App.414. Likewise, the government did not claim

that Calk participated in any fraud on the bank, or

that he had facilitated clandestine “buddy” loans. It

would not have made sense for him to do so: As the

majority owner of TFSB he stood to lose the most financially if the loans underperformed or failed. In

fact, Calk and the bank were the victims of a bank

fraud the borrower, Manafort, was separately prosecuted for; he eventually admitted defrauding TFSB by

overstating his income. Pet.App.8a n.2; see also Statement of Offenses and Other Acts at 22, United States

v. Manafort, No. 1:17-cr-00201-ABJ (D.D.C. Sept. 14,

2018), ECF No. 423.

1. There was no evidence that the referral Manafort gave Calk had any objective monetary value,

much less one exceeding $1,000, as is required for a

felony conviction under § 215.

The government claimed Calk traded “loans for influence,” but it was undisputed that Calk gained no

actual influence from Manafort’s referral.

See

Pet.App.14a. Manafort had no power to offer Calk a

job in the Trump administration. All he gave Calk

was an indirect recommendation for a screening interview at Trump Tower with members of the transition

team conducting initial vetting of candidates. Id. at

13a. The government’s own witnesses testified that

Calk’s Trump Tower interview was: (1) merely a courtesy, (2) very unlikely to result in any offer, and (3)

exactly the sort of referral people routinely obtain for

7

free during political campaigns. C.A.App.289–95; see

also Pet.App.13a.

In fact, the evidence showed Calk sought and received—for free—similar recommendations from others with influence on Trump’s transition team,

C.A.App.380–83, 548–55, and that Manafort’s recommendation had the potential to hurt Calk’s chances of

obtaining a position in the Trump administration.

Pet.App.9a.1 Calk did not receive an invitation for a

second interview and never obtained a role in the Administration; in fact, there was no evidence he was

ever close to being selected for a role. Id. at 14a.

2. Likewise, the loans were offered at TFSB’s normal 7.25% interest rate for “portfolio” loans (adjustable upward to 12.25%), with fees and terms that were

standard or better for the bank. The portfolio loan

program was directed at borrowers who might not

qualify for standard loans but were willing to pay

higher interest rates and post substantial collateral.

C.A.App.320–23.

It was undisputed that the terms of the loans at

issue were unanimously approved by TFSB’s loan

committee (which included two other officers as well

1 The government initially claimed that Manafort also gave Calk

an unpaid volunteer position on the Trump campaign’s National

Economic Advisory Council (“NEAC”). The government largely

abandoned that alternative “thing of value” theory on appeal. In

any case, the Second Circuit held that the NEAC position could

not support a conviction because there was no evidence “that

Calk traded a position in NEAC for approval or disbursement of

any of the three loans Manafort sought from TFSB.” Pet.App.30a

n.5.

8

as Calk) and were independently assessed and assigned an “average” rating by TFSB’s underwriters.

Id. at 324–27, 340–42, 350, 437. Calk had no power to

unilaterally offer anyone a loan without the approval

of TFSB’s underwriters and the other loan committee

members. The evidence also showed that Calk repeatedly refused to make even minor concessions to Manafort on fees and costs. See, e.g., id. at 350–52, 532–

34. And when issues arose regarding Manafort’s creditworthiness during the underwriting process, TFSB

responded by requiring additional collateral and increasing the up-front fees from two to three points.

Pet.App.6a.

Ultimately, TFSB stood to make over $1.1 million

annually on the loans—which totaled $16 million and

were secured by $25 million in cash and real estate—

during a period of historically low interest rates. The

loans became the most profitable in TFSB’s history,

even though Manafort eventually defaulted because

the government seized his assets after he was indicted

on charges that included his fraud on TFSB. Although

the government’s forfeiture of Manafort’s assets initially prevented TFSB from foreclosing on the collateral, it was undisputed that by the time of sentencing

TFSB had collected about $200,000 more than Manafort would have paid if he hadn’t defaulted.

C.A.App.562.

Faced with this lack of evidence supporting a prototypical § 215 violation, the government resorted to

novel theories at trial:

First, the government claimed that to establish

that Calk had accepted a “thing of value,” it merely

needed to prove Calk got something he subjectively

9

cared about from Manafort, regardless of whether

that “thing” had any objective real-world value. And

it argued that the $1,000 felony threshold was met because Calk had spent approximately $1,850 on hotel

and airfare to attend the Trump Tower interview, and

therefore must have subjectively believed that Manafort’s referral was worth at least that much.

Pet.App.33a.

Second, the government argued it was irrelevant

whether Calk honestly believed that the Manafort

loans were high quality loans that would make TFSB

money, as long as Calk was in some way influenced or

rewarded by Manafort’s referral. C.A.App.421–22,

433–34.

B. District Court Proceedings

1. At the beginning of the trial, the court gave preliminary instructions to the jury on the elements of

§ 215. With respect to the requirement of receiving or

soliciting a “thing of value” worth over $1,000, Calk

objected to any instruction that might permit any

method of valuation other than market value, negotiated value, or some other non-speculative measure.

C.A.App.220, 226, 254. The court overruled the objection and told the jury that “[v]alue may be measured

by the value to the defendant.” Id. at 254, 268–70.

Calk reiterated the same objection during trial, in

connection with the charge conference. Id. at 255–56.

The court overruled him and instructed the jury that

it could measure the value of the “thing” by looking to

“its value to the parties.” Pet.App.54a.

10

With respect to the requirement that Calk acted

“corruptly,” the government repeatedly sought an instruction to the effect that “it d[id] not matter whether

the actions he took were desirable or beneficial to the

financial institution, or whether the defendant believed them to be desirable or beneficial to the financial institution.” C.A.App.222–24.

Calk objected vociferously to any such instruction.

He argued that his reasons for supporting the Manafort loans were obviously relevant to whether he had

acted “corruptly,” and that the government’s proposed

instructions would improperly allow a conviction

without proof of the intent required by the statute. Id.

at 235, 265.

The court overruled Calk’s objection in material

part. It instructed the jury that any intent “to be influenced or rewarded,” by a personal benefit establishes a “corrupt” intent and that “[i]t is not a defense

that Mr. Calk may have been motivated by both

proper and improper motives.”

Pet.App.53a–54a.

The jury convicted Calk on both counts.

2. Following trial, Calk moved for a judgment of

acquittal under Rule 29. He argued that there was

insufficient evidence that Manafort’s assistance was a

“thing of value” worth over $1,000, because § 215 “governs only bribes that are reliably susceptible to monetary valuation.” D.Ct.Dkt.284 at 5–6. And he argued

that because it was undisputed that the loans were

made on terms that were standard or better for TFSB

and had been approved by the underwriters, there

was insufficient evidence of “corrupt” intent. Id. at 3–

4.

11

The court denied the motion. Pet.App.41a. As to

“thing of value,” it held that the “critical inquiry” was

whether the “thing” had value in the eyes of the recipient. And it held that the evidence showing Calk had

spent $1,850 on travel expenses to attend the Trump

Tower interview was sufficient to prove a “thing of

value” over $1,000. Id. at 47a–48a. As to “corrupt”

intent, the court held that the requisite question was

solely whether “Calk sought and accepted Manafort’s

assistance in securing a position in the Trump Administration (the bribe) in exchange for Calk’s assistance

in securing loans to Manafort from the Bank.” Id. at

43a.

At sentencing, however, the court acknowledged

that whether Manafort’s referral was a “thing of

value” worth over $1,000 was a “novel or fairly debatable” question and granted Calk bail pending appeal

on that basis. C.A.App.581.

C. Second Circuit Decision

On appeal, Calk again argued that the text and

structure of the statute establish that § 215’s “thing of

value” refers only to “things” with objective and ascertainable pecuniary value. C.A.Dkt.27 at 26–35. Calk

also argued that § 215’s “corruptly” element requires

the government to show a bank officer’s conscious

breach of his duty to act in the best interests of the

bank. Id. at 37–42.

The Second Circuit adopted an expansive interpretation of § 215 and affirmed. First, the court held that

§ 215’s “thing of value” “can include intangibles with

a subjective value to the parties, even if they do not

12

have an objective market value.” Pet.App.29a. Rather than focus on the text and structure of the statute, the court concluded that the words “thing of

value” were “words of art” intended to be “given a

broad meaning.” Id. Quoting United States v. Williams, 705 F.2d 603, 623 (2d Cir. 1983), the court held

that “what matters is ‘the value that the defendants

subjectively attached to the items received.’”

Pet.App.29a

Notably, the court rejected the government’s “hotel

and airfare” theory for valuing Manafort’s referral,

“because the $1,800 does not indicate how much Calk

valued Manafort’s assistance. Instead, the $1,800

most clearly reflects how much Calk valued the interview and his travel preferences, including his choice

to stay at a luxury hotel.” Id. at 34a. The court nonetheless held that the evidence supporting the $1,000

felony threshold was sufficient. It said the government had proven “Calk was willing to put millions of

dollars of TFSB’s resources on the line by approving

Manafort’s loans,” id.—even though the evidence indisputably showed the loans were made on standard

terms, or better for the bank, and were so well secured

that they were hugely profitable for TFSB even after

Manafort eventually defaulted. C.A.App.562.

Second, the court held “that ‘corrupt’ conduct describes actions motivated by an improper purpose,

even if such actions (a) did not entail a breach of duty,

and (b) were motivated in part by a neutral or proper

purpose, as well as by an improper purpose.”

Pet.App.3a. Thus, a banker could act “corruptly” even

if she was upholding her fiduciary duties and believed

she was acting in the bank’s best interests. Id. at 24a–

13

26a. The court justified its broad interpretation based

on “the public interest 18 U.S.C. § 215 seeks to protect

—namely, the public’s trust in financial institutions.

Id. at 26a.

The court acknowledged that “not every action that

results in some benefit to an officer of a financial institution will necessarily constitute ‘corrupt’ conduct.”

Id. at 24a. However, the court declined to specify

what sorts of quid pro quos are permissible under the

statute, or what, if not a breach of duty, would render

a defendant’s purpose “improper” in the commercial

banking context. Id. The court also affirmed the district court’s jury instruction suggesting that any

transaction resulting in a personal benefit necessarily

is “corrupt”: “to act ‘corruptly’ for purposes of Section

215(a)(2) is ‘to act voluntarily and intentionally with

an improper motive or purpose to be influenced or rewarded.’” Id. at 21a.

REASONS FOR GRANTING CERTIORARI

The Second Circuit’s decision vastly expands the

scope of the bank bribery statute in plain disregard of

the statutory text, constitutionally derived principles

of statutory interpretation, and this Court’s precedents requiring that criminal statutes be narrowly

construed.

The Second Circuit’s conclusion that an intangible

lacking real-world value and not susceptible to objective valuation can be a “thing of value” worth over

$1,000 ignores the text and structure of § 215. It reflects an outdated mode of statutory construction that

eschews textual analysis and instead uses amorphous

notions of legislative purpose to expand the statutory

14

text—an approach this Court now flatly rejects. The

Second Circuit’s decision also renders the scope of the

statute entirely uncertain and creates a circuit split

on the meaning of “thing of value” in statutes that

share 18 U.S.C. § 215’s structure.

The Second Circuit’s interpretation of “corruptly”

in § 215 is standardless and inscrutable, thus raising

serious concerns about fair notice and the potential for

arbitrary enforcement. It is also flatly at odds with

the fact that the “corrupt” intent requirement was

added to the bank bribery statute to confine its coverage to conduct which induces (or is intended to induce)

a banker’s conscious breach of a fiduciary duty to the

bank. The Second Circuit’s decision also ignores decades of case law interpreting “corruptly” as entailing

the breach of a clearly defined legal duty, i.e., conscious illegality. By eliminating that requirement in

favor of an amorphous “improper purpose” standard,

the decision enables prosecutors and juries—rather

than the legislature—to decide what is and is not a

federal crime.

Each of these questions is squarely presented, outcome determinative, and important. The Court

should grant review to correct the Second Circuit’s

standardless and overbroad interpretation of § 215.

I.

THE COURT SHOULD GRANT REVIEW TO

ADDRESS

WHETHER

INTANGIBLES

WITHOUT OBJECTIVE VALUE CAN BE

“THINGS OF VALUE” WORTH OVER $1,000

UNDER 18 U.S.C. § 215

The Second Circuit’s freewheeling approach to the

statutory phrase “anything of value” is a “relic from a

15

bygone era of statutory construction.” Food Mktg.

Inst. v. Argus Leader Media, 588 U.S. 427, 437 (2019)

(cleaned up). Its holding that intangibles without any

objective market value can support a felony bank bribery conviction—based solely on the defendant’s subjective valuation of the “thing”—conflicts with decisions of the Third, Fourth, Seventh, and Ninth Circuits and raises serious due process concerns. This

Court should grant certiorari and reject the Second

Circuit’s approach.

A. The Second Circuit’s Interpretation Of

“Anything Of Value” Conflicts With The

Statutory Text And Raises Serious Due

Process Concerns

The bank bribery statute makes it a crime for an

officer of a financial institution to “corruptly solicit[]

or demand[] for the benefit of any person, or corruptly

accept[] or agree[] to accept, anything of value from

any person, intending to be influenced or rewarded in

connection with any business or transaction of such

institution.” 18 U.S.C. § 215(a)(2). Consequently, to

obtain a conviction under § 215, the government must

prove the defendant solicited or accepted a “thing of

value”; if there is such proof, a violation is a misdemeanor unless the “thing” is worth more than $1,000.

Id. § 215(a).

1. The Second Circuit held that § 215’s “thing of

value” can include intangibles that aren’t susceptible

to objective valuation, so long as the “thing” is subjectively important to the defendant. Pet.App.28a–30a.

And it held that a violation can be a felony based solely

on the defendant’s subjective appraisal of the value of

the “thing.” Id. at 32a–33a. Those interconnected

16

holdings directly conflict with this Court’s admonition

to “construe language in its context and in light of the

terms surrounding it,” particularly when construing

highly elastic terms like “thing of value.” Leocal, 543

U.S. at 9; accord Yates, 574 U.S. at 537; see also Bailey

v. United States, 516 U.S. 137, 145 (1995) (“We consider not only the bare meaning of the word but also

its placement and purpose in the statutory scheme.”).

A violation of § 215 is a felony only if the “thing of

value” received by the defendant exceeds $1,000. This

provision manifests Congress’s clear intent for the

phrase “thing of value” to apply only to things susceptible to objective, monetary valuation. Otherwise, the

$1,000 threshold for felony convictions would be a nullity. That result would violate “one of the most basic

interpretive canons, that a statute should be construed so that effect is given to all its provisions, so

that no part will be operative or superfluous, void or

insignificant.” Corley v. United States, 556 U.S. 303,

314 (2009) (cleaned up).

Additionally, the penalty provision of § 215 instructs that a defendant convicted of bank bribery

“shall be fined not more than $1,000,000 or three times

the value of the thing given . . . whichever is greater.”

18 U.S.C. § 215(a) (emphasis added). This provision,

similarly, presumes that the “thing” at issue is something susceptible to objective economic calculation

based on the evidence at trial. If that is not the case,

this provision could not be applied, and it would be

impossible to determine the maximum permissible

fine for a conviction under the statute (or to determine

whether the violation was a felony or a misdemeanor).

17

The Second Circuit ignored these features and eschewed any analysis of the statute’s structure.

Instead, the court relied on a line of decades-old

cases interpreting other bribery statutes lacking

§ 215’s particular structural characteristics. Based on

these outdated precedents, the court deemed the

words “thing of value” as “in a sense . . . words of art”

and construed them broadly and flexibly because they

have “consistently been given a broad meaning” as

used in those other statutes. Pet.App.29a (quoting

Williams, 705 F.2d at 623).

Moreover, the cases the Second Circuit cited interpreted those other statutes by making assumptions

about what would constitute sound public policy and

looking at legislative purpose—rather than the statutes’ text. That approach has been relegated to the

dustbin and replaced with rigorous analysis of the text

and structure of statutes. See, e.g., Food Mktg. Inst.,

588 U.S. at 437. In Williams for example, the Second

Circuit concluded that 18 U.S.C. § 201’s “thing of

value” should be given “a broad meaning . . . to carry

out the congressional purpose of punishing misuse of

public office.” 705 F.2d at 623. But the court conducted no analysis of the statutory text and did not

even mention any specific legislative history to support its policy-driven interpretation. United States v.

Girard similarly relied on a hodgepodge of cases construing unrelated state and federal laws (including,

for example, the Copyright Act) to conclude—without

any analysis of the relevant statutory text—that 18

U.S.C. § 641’s “thing of value” covers confidential information. 601 F.2d 69, 71 (2d Cir. 1979).

18

This Court has jettisoned the approach used in

Williams and Girard, but the Second Circuit relied

heavily on both cases. It adopted a broad interpretation of “thing of value” based on its assumption that

the phrase was a term of art, i.e., that when Congress

drafted the bank bribery statute, it meant something

broader than what the text of the law actually says.

But this Court has consistently instructed that

“[b]ecause construction of a criminal statute must be

guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the text.” Ratlaf v. United States, 510 U.S.

135, 148 (1994) (quoting Crandon v. United States,

494 U.S. 152, 160 (1990)). The Second Circuit’s holding was flatly at odds with this Court’s directives on

how to interpret criminal statutes.

2. Construing § 215 to permit a conviction based

upon the alleged receipt of a “thing” with no objective

market value, and measuring the “thing”’s value

based on the defendant’s subjective appraisal, also

raises serious due process concerns. “To satisfy due

process, a penal statute must define the criminal offense (1) with sufficient definiteness that ordinary

people can understand what conduct is prohibited and

(2) in a manner that does not encourage arbitrary and

discriminatory enforcement.”

Skilling v. United

States, 561 U.S. 358, 402–03 (2010); accord McDonnell, 579 U.S. at 576–77.

To avoid those fair notice and arbitrary enforcement concerns, a narrowing construction is required.

See, e.g., Skilling, 561 U.S. at 409. The Second Circuit

ignored this concern, even though it was a key part of

19

Calk’s appeal. The issue is particularly significant

given that the Second Circuit also adopted an extremely lax interpretation of the “corrupt” intent requirement. See infra at 26–33.

A reasonable bank employee or customer could not

predict that § 215 criminalizes giving or receiving nontransferable intangibles that lack objective market

value—or that the distinction between a felony and a

misdemeanor would turn on how much the defendant

subjectively cares about the “thing” given. Nor could

someone reasonably anticipate that a potential technical conflict of interest would give rise to a potential

felony prosecution. But that is exactly what the decision below would allow. After all, if construed to mean

literally “anything” that any individual could subjectively attach value to, “thing of value” would have virtually unlimited breadth, creating “grave uncertainty”

about its scope and raising serious due process concerns. Johnson v. United States, 576 U.S. 591, 597

(2015) (provision with “hopeless[ly] indetermina[te]”

scope held unconstitutional); see also Skilling, 561

U.S. at 409.

Consider, for instance, a credit union loan officer

who approves a loan to the Hush Puppies—a local minor league baseball team—to upgrade and expand the

bleachers at the team’s stadium. The loan is on standard terms, is independently approved by the credit

committee, and is fully underwritten. Moreover, the

Hush Puppies have a consistent track record of economic success and have consistently re-paid prior

loans for capital improvements. Under the Second

Circuit’s rule, if the loan officer accepted an offer to

throw out the ceremonial first pitch at the beginning

20

of baseball season (a “priceless” opportunity for a passionate Hush Puppies fan like the loan officer) as a

sign of the team’s gratitude for the loan, she would

have accepted a “thing of value” in connection with the

transaction—even though throwing out the first pitch

at a baseball game clearly has no objective value. The

actus reus of the offense would be completed, and the

only remaining question would be whether the loan

officer acted “corruptly.” But as discussed below, infra

at 26–33, under the Second Circuit’s vague interpretation of § 215, the requirement of “corrupt” intent is

highly malleable and offers scant protection, sweeping

in anything “improper.”

Or consider a banker who offers his congregation a

loan to make critical repairs to the synagogue. The

loan is, again, on standard terms, the congregation is

credit-worthy, and the bank’s loan committee and underwriters approve. According to the Second Circuit,

if the banker then accepted the privilege of blowing

the shofar blast at the end of the Yom Kippur fast (an

important honor within the community) as a showing

of the congregation’s appreciation, he would have received a “thing of value” in connection with bank business. And if the banker subjectively valued the privilege highly enough the offense would be a felony, even

though that honor is not capable of objective, pecuniary valuation.

Courts must give statutes “a sensible construction

that avoids attributing to the legislature either an unjust or an absurd conclusion.” United States v. Granderson, 511 U.S. 39, 56 (1994) (cleaned up). But that is

what the Second Circuit’s construction of “thing of

21

value” allows. It makes it impossible for ordinary citizens to identify any clear demarcation between

things with value and things without, or to reliably

gauge the subjective valuation that can transform a

misdemeanor into a federal felony.

B. The Second Circuit’s Decision Creates A

Circuit Split

The Second Circuit’s holding that an intangible

without objective pecuniary value can be a “thing of

value” under § 215 conflicts with decisions of the

Third, Fourth, Seventh, and Ninth Circuits.

1. The Third and Fourth Circuits have each interpreted the “thing of value” required by 29 U.S.C.

§ 186—another bribery statute that mirrors the structure of § 215—as covering only “things” that “have at

least some ascertainable value.” Adcock v. Freightliner LLC, 550 F.3d 369, 375 (4th Cir. 2008).

In Adcock, the issue was whether a company gave

“any money or other thing of value” to a labor union,

in violation of 29 U.S.C. § 186(a), the criminal antibribery provision of the Labor Management Relations

Act. Pursuant to an agreement with the union, the

company agreed to: (1) require employees to attend

union presentations during company time, (2) provide

the union with space to meet with employees on company property, and (3) “refrain from making negative

comments about the Union during organizing campaigns.” 550 F.3d at 371. Even though each of these

“things” was obviously valuable to the union, the

Fourth Circuit specifically rejected the argument that

“a ‘thing of value’ means anything that has subjective

22

value to the Union” and held that there was no violation because no “thing of value” had been provided. Id.

at 374.

To reach that conclusion, the court—unlike the

Second Circuit here—relied on “the language itself,

the specific context in which that language is used,

and the broader context of the statute as a whole.” Id.

(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997)). The court particularly emphasized the penalty provision of the statute, which—mirroring the

bank bribery statute—makes a violation a felony unless “the value of the amount of money or thing of

value . . . does not exceed $1,000.” 29 U.S.C.

§ 186(d)(2). The court held that the provision established that “Congress clearly intended [the statute’s]

‘thing of value’ to have at least some ascertainable

value.” 550 F.3d at 375.

The Third Circuit reached the same conclusion in

Hotel Employees & Restaurant Employees Union, Local 57 v. Sage Hospitality Resources, LLC, 390 F.3d

206 (3d Cir. 2006). At issue there was whether a labor

agreement that contained an arbitration clause and

required the employer to give the union a current list

of employees and signature samples for those employees violated 29 U.S.C. § 186. The court held that there

was no violation, even though these provisions of the

labor agreement clearly had subjective value to the

union and benefited it “with efficiency and cost saving.” Id. at 219. The court held that there was no

“thing of value” paid, noting that it “makes no sense”

to treat as a “thing of value” an alleged “bribe” that

involves “no payment, loan, or delivery of anything.”

23

Id. The Second Circuit’s holding that anything a defendant subjectively thinks is “importan[t]” is a “thing

of value,” Pet.App.29a, creates a sharp rift with these

decisions.

2. The decision below also conflicts with the Seventh Circuit’s decision in United States v. Condon, 170

F.3d 687 (7th Cir. 1999) (Easterbrook, J.).

Condon held that a promise of immunity from

prosecution is not “anything of value” under 18 U.S.C.

§ 201. Immunity clearly has subjective “worth” to

someone facing potential criminal prosecution—in

fact, it might be subjectively more valuable than almost anything. But the court held that a narrower

construction was mandated because historical precedent established that immunity was never considered

a “thing” that could create liability for bribery. 170

F.3d at 689.

The same is true of the sort of “courtesy” referral

Manafort provided to Calk here. In 1986, Congress

narrowed the scope of the bank bribery statute because the prior version of the law was overbroad. See

H.R. Rep. No. 99-335, at 3 (1985). In the lead-up to

the enactment of the new version, proponents of the

narrowing amendments pointed to a “letter of recommendation for an institution employee or his relative”

from a “customer of [the] financial institution” as an

example of the type of legitimate—and historically accepted—goodwill activity proscribed under the old

version of law that would be shielded under the

amended version. Bank Bribery: Hearings on H.R.

2617, H.R. 2839, & H.R. 3511 Before the Subcommittee on Criminal Justice of the House Committee on the

Judiciary, 99th Cong., 1st Sess. 61, at 142 (1985)

24

(“Bank Bribery Hearings”); see also id. at 77. In light

of this history, the Second Circuit’s holding conflicts

with Condon.

3. The Second Circuit’s ruling is also at odds with

the Ninth Circuit’s interpretation of the federal conversion statute, 18 U.S.C. § 641. Section 641 criminalizes, inter alia, the theft, embezzlement, and conversion of “any record, voucher, money, or thing of

value of the United States.” 18 U.S.C. § 641 (emphasis

added). Like § 215, it makes any violation a felony if

the value of the “thing” at issue exceeds $1,000.

In United States v. Tobias, the Ninth Circuit held

that classified information is not a “thing of value” under the statute. 836 F.2d 449, 451 (9th Cir. 1988). Applying the court’s earlier decision in Chappell v.

United States, 270 F.2d 274 (9th Cir. 1959), the court

explained that “section 641 should not be read to apply

to . . . intangible goods—like classified information,”

which would raise constitutional concerns. 836 F.2d

at 451. The court specifically acknowledged that it

was splitting with the Second Circuit, which had

reached the opposite conclusion in Girard, one of the

cases the Second Circuit relied on here. But the Ninth

Circuit in Tobias was “not persuaded” to follow the

Second Circuit’s decision. Id.

These decisions on the meaning of “thing of value”

are irreconcilable with the Second Circuit’s decision

here. Had Calk been prosecuted in the Third, Fourth,

Seventh, or Ninth Circuits, his convictions likely

would have been reversed.

25

C. This Case Is An Ideal Vehicle

This case also provides an optimal vehicle to review the issue: It is emblematic of the how the Second

Circuit’s overbroad interpretation of “thing of value”

enables prosecutors to pursue bribery prosecutions

where the quid or the quo is trivial.

The government’s case hinged on Calk’s subjective

belief in the value of Manafort’s referral. Several witnesses testified they would not even think of charging

money for these sorts of informal recommendations.

E.g., C.A.App.294–95, 307–08. And others within

Calk’s network gave him the same sorts of recommendations for free. There was even evidence that Manafort’s recommendation had negative real-world value

because he had fallen out of favor with the Trump

campaign. Pet.App.9a. Government witnesses also

testified that Calk only received the Trump Tower interview as a courtesy, and that he was highly unlikely

to be offered any job. For better or for worse, informal

recommendations like the one Manafort gave Calk are

common—and freely given—in the worlds of business,

politics, and even law.

The government conceded that “[t]here is no market price” for the Manafort referral. C.A.App.415.

And since the Manafort loans were made on standard

terms or better for TFSB (and ultimately made the

bank millions of dollars), the government was also unable to put even an approximate number on the value

of what Calk allegedly gave to Manafort. So the government instead told the jury to focus not on realworld value, but subjective importance to Calk; thus,

it claimed the cost of his hotel and airfare for the

26

Trump Tower interview proved that the value of Manafort’s assistance exceeded the $1,000 felony threshold.

Calk’s subjective belief in the value of Manafort’s

referral was also the sole basis for the Second Circuit’s

decision to affirm. The court held that all that mattered for the purposes of the “thing of value” element

was “that Calk assigned a high subjective value to

Manafort’s political assistance.” Pet.App.31a. Although the court rejected the government’s strained

hotel-and-airfare theory, it nonetheless held that the

$1,000 threshold was met based on its speculation

that Calk’s willingness to support the loans—which

effectively posed no risk and made TFSB millions of

dollars—somehow proved he subjectively attached

great value to Manafort’s assistance. Id. at 34a–35a.

The court made no finding that Manafort’s recommendation had actual value, much less that it was worth

over $1,000. 18 U.S.C. § 215.

If this Court grants review and rejects the Second

Circuit’s statutory interpretation, Calk’s convictions

would have to be reversed.

II.

THE COURT SHOULD GRANT REVIEW TO

ADDRESS WHETHER CONDUCT THAT

ENTAILS NO BREACH OF DUTY CAN BE

“CORRUPT” UNDER 18 U.S.C. § 215

A. The Second Circuit’s Interpretation Of

§ 215’s “Corruptly” Is Standardless And

Raises Serious Due Process Concerns

1. The bank bribery statute prohibits only conduct

that is committed “corruptly.” 18 U.S.C. § 215. Calk’s

27

appeal required the Second Circuit to construe the

meaning of that term. That court rejected his arguments in support of a narrower reading that would require a conscious breach of the independent legal duty

to act in the best interests of the bank. Instead, the

court held “that ‘corrupt’ conduct describes actions

motivated by an improper purpose, even if such actions (a) did not entail a breach of duty, and (b) were

motivated in part by a neutral or proper purpose, as

well as by an improper purpose.” Pet.App.3a. That

interpretation creates no ascertainable rule. It is an

amorphous, malleable concept “so standardless that it

invites arbitrary enforcement” and deprives people of

fair notice about what constitutes “corrupt intent” under the bank bribery statute. Johnson, 576 U.S. at

595; see also supra at 18.

The term “improper purpose” is hopelessly imprecise. What, exactly, makes a purpose “improper,” if

not an intentional breach of some independent, clearly

defined legal duty, i.e., consciousness of illegality? By

adopting a standard that turns on the vague notion of

propriety, rather than the narrower—and more precise—duty-based construction Calk advocated, the

Second Circuit ignored this Court’s insistence on construing criminal statutes narrowly and consistent

with lenity to avoid a “vagueness shoal.” McDonnell,

579 U.S. at 576 (quoting Skilling, 561 U.S. at 368).

For that reason, multiple circuits have held that

absent some narrowing framework, the “improper

purpose” definition of “corruptly” does not pass constitutional muster. In United States v. Poindexter, for

example, the D.C. Circuit held that, as applied to lying

to Congress in putative violation of 18 U.S.C. § 1505,

28

the term “corruptly” is unconstitutionally vague if defined to mean “evil,” “depraved,” or “improper.” 951

F.2d 369, 378–79 (D.C. Cir. 1990). “Vague terms do

not suddenly become clear when they are defined by

reference to other vague terms. Words like ‘depraved,’

‘evil,’ ‘immoral,’ ‘wicked, and ‘improper’ are no more

specific—indeed they may be less specific—than ‘corrupt.’” Id. (cleaned up).

And in United States v. Reeves, the Fifth Circuit—

interpreting the scope of a tax obstruction statute, 26

U.S.C. § 7212—rejected “the interpretation of ‘corruptly’ as meaning ‘with improper motive or bad or

evil purpose.’” 752 F.2d 995, 998 (5th Cir. 1985). The

court noted that such a definition would raise serious

vagueness and overbreadth concerns, obligating the

court to adopt a narrower interpretation “to specifically insure [sic] that potential violators will be on notice of what constitutes corrupt behavior.” Id. at 999.

The court went on to conclude that “merely prohibiting ‘bad,’ ‘evil,’ and ‘improper purposes’ is very probably insufficient” to provide the requisite notice. Id.

at 999–1000.

More recently, Judges Walker and Katsas each

reached the same conclusion in United States v.

Fischer. At issue there was whether 18 U.S.C.

§ 1512(c)(2), which proscribes “corruptly” obstructing,

influencing, or impeding an official proceeding, applies to “assaultive conduct” committed by supporters

of former President Donald Trump on January 6,

2021. Judge Walker, concurring in the judgment, observed that a “broad definition of ‘corruptly’” would

raise serious constitutional concerns that could only

be avoided by “[r]eading ‘corruptly’ to require more

29

than a ‘wrongful purpose.’” Fischer, 64 F.4th at 360–

61 (emphasis added) (Walker, J., concurring in part

and concurring in the judgment). Judge Katsas, dissenting, agreed that a “wrongfulness standard” would

place far too much discretion in the hands of prosecutors, and would allow “an almost boundless area for

individual assessment of the morality of another’s behavior. . . . Under such a vague standard, mens

rea would denote little more than a jury’s subjective

disapproval of the conduct at issue.” Id. at 380–81

(Katsas, J., dissenting) (cleaned up).

2. a. The Second Circuit adopted its overbroad and

standardless “improper purpose” definition even

though the history and purpose of the statute make

clear that “corrupt” intent requires an intentional

breach of duty.

Congress added the “corrupt” intent requirement

to the statute in 1986 because of concerns that the

prior version of the law “reache[d] all kinds of otherwise legitimate and acceptable conduct.” H.R. Rep.

No. 99-335, at 3. During hearings on the proposed legislation, the Department of Justice opposed adding

this term to narrow the statute, arguing that it “would

change the present law to allow a bank officer to claim

that although he got a benefit from giving the loan he

thought the loan was good for the bank.” Bank Bribery

Hearings at 3 (emphasis added). DOJ also argued

that any concerns regarding vagueness or overbreadth with respect to the prior version of the statute

were overstated because prosecutors would exercise

sound discretion based on the guidance found in the

U.S. Attorneys Manual and Prosecutive Guidelines, in

choosing which cases to bring. Id. at 22–23.

30

Congress enacted the bill over DOJ’s objection. It

found the new law more tailored to the offense’s purpose, which was “to deter instances of corruption in

the bank industry where efforts are made to undermine an employee’s fiduciary duty to his or her employer.” H.R. Rep. No. 99-335, at 5 (emphasis added);

see also United States v. Jumper, 838 F.2d 755, 758

(5th Cir. 1988) (statute’s purpose is to prevent “unsound and improvident lines of credit from being

made”). In so doing, Congress manifested its understanding that the “corruptly” element could not be

proven without proof that a defendant lacked a good

faith belief that the transaction at issue would benefit

the bank. By adding “corruptly,” Congress revised the

statute to require proof of not just any act that might

somehow benefit the defendant. Instead, Congress required evidence that the defendant consciously disregarded a specific legal obligation.

Moreover, by amending the statute to require a

“corrupt” mens rea, Congress specifically rejected

DOJ’s suggestion that the expectation of sound “prosecutorial discretion” was sufficient to assuage vagueness and overbreadth concerns, especially because

DOJ’s Prosecutive Guidelines treated § 215’s ambiguities “in nearly meaningless generalities.” H.R. Rep.

No. 99-335, at 5. The Second Circuit’s construction of

§ 215 walks back the narrowing work Congress did

when it amended the statute and defines “corrupt” intent by reference to a “meaningless generality” that

would leave prosecutors with almost unfettered discretion. That is precisely the outcome Congress ought

to avoid when it amended § 215.

31

Indeed, the government has itself previously argued that “[t]he legislative history of § 215 makes

plain that Congress added the word ‘corruptly’ to ensure that the statute would be applied only to acts undertaken with a bad or illegitimate purpose that involve a breach of duty, rather than to ordinary and legitimate practices.” Brief for the United States at

104–5, United States v. Bahel, 662 F.3d 610 (2d Cir.

2011) (No. 08-3327-cr), 2009 WL 8170843 (emphasis

added). It nonetheless took precisely the opposite position in Calk’s case.

b. Additionally, numerous authorities, both preand postdating the 1986 amendments to § 215, recognize that “corruptly,” as used in the criminal laws, “denotes an act done with an intent to give some advantage inconsistent with official duty and the rights

of others.” United States v. Aguilar, 515 U.S. 593, 616

(1995) (Scalia, J., concurring in part and dissenting in

part) (cleaned up).

In United States v. Ogle, the Tenth Circuit rejected

a defendant’s argument that the district court should

have instructed the jury that “corruptly,” as used in

18 U.S.C. § 1503, requires an “evil purpose,” and held

that “corruptly” instead connotes “an intent to give

some advantage inconsistent with official duty and

the rights of others.” 613 F.2d 233, 238 (10th Cir.

1979). The Fifth Circuit adopted Ogle’s definition in

Reeves, 752 F.2d at 998–99, and Justice Scalia, joined

by Justices Kennedy and Thomas, quoted that same

definition approvingly in Aguilar. 515 U.S. at 616

(Scalia, J., concurring and dissenting).

More recently, the Sixth Circuit adopted that same

definition in United States v. Buendia, 907 F.3d 399,

32

402 (6th Cir. 2018). The Third Circuit has similarly

held that the term “corruptly persuades,” as used in

18 U.S.C. § 1512(b), refers to “‘corrupting’ another person by influencing him to violate his legal duty.”

United States v. Davis, 183 F.3d 231, 249 (3d Cir.

1999) (quoting Poindexter, 951 F.2d at 379).

In this case, the Second Circuit ignored authorities

supporting a narrower construction of § 215 limited to

conduct involving a conscious disregard for the law.

Instead, it adopted a vague and sweeping interpretation, in plain contravention of this Court’s directive to

interpret criminal statutes narrowly where such a

construction is permissible. See, e.g., Yates, 574 U.S.

at 548 (“harsher” reading of criminal statute impermissible unless Congress has “spoken in language

that is clear and definite”) (citation omitted).

3. The constitutional concerns presented by the

Second Circuit’s expansive interpretation are not just

abstract. The vague phrase “improper purpose”—

when detached from any independent legal standard—offers no guidance to bank employees or their

customers on what is “corrupt” and what is not. Under the “standardless sweep” of the Second Circuit’s

definition, bankers and their customers “could be subject to prosecution, without fair notice, for the most

prosaic interactions.” McDonnell, 579 U.S. at 576.

The court’s ruling—especially when coupled with its

capacious interpretation of § 215’s “anything of value,”

see supra 14–21—will lead to illogical results. And it

could have a profound chilling effect on the sort of “legitimate and acceptable conduct” that Congress

sought to avoid criminalizing by adding the “corruptly” mens rea requirement. H.R. Rep. No. 99-335,

33

at 3. The consequences will be especially acute for

small community banks, which depend on their employees’ ability to develop relationships with customers.

Consider for example, a loan officer who facilitates

a loan to a local chef opening a new restaurant. The

chef has a sound business plan, excellent credit, and a

solid track record of successful ventures in the neighborhood. The loan officer expects the bank will earn a

profit on the loan, which is well-collateralized and offered on the credit union’s standard terms for small

businesses. Additionally, the loan is approved by the

credit committee and the bank’s loan underwriters.

After the loan closes, the chef shows his gratitude

by extending the loan officer an invitation to attend a

free “friends and family meal” celebrating the restaurant’s opening. If the officer accepted, he would have

received a “thing of value” (a free meal) as a “reward”

“in connection with” bank business. See 18 U.S.C.

§ 215. Whether the banker’s conduct (and the chef’s)

amounts to a federal crime would turn solely on the

amorphous question whether accepting an invitation

for a celebratory meal from a customer is “improper.”

An ordinary person in the loan officer’s position could

not reasonably predict that § 215 would criminalize

this conduct, and yet, it could be a crime under the

Second Circuit’s interpretation of the statute.

B. The Question Is Important And Squarely

Presented

The scope of “corruptly” in § 215 is exceptionally

important. Dozens of federal bribery and obstruction

statutes use that term. See Fischer, 64 F.4th at 341.

34

Nonetheless, the term is a source of persistent confusion and inconsistency within the courts. See generally, e.g., Eric J. Tamashasky, The Lewis Carroll Offense: The Ever-Changing Meaning of “Corruptly”

Within the Federal Criminal Law, 31 J. Legis. 129

(2004). This Court’s review is merited to resolve the

disarray within the lower courts.

This case also presents an ideal vehicle to address

the issue, because it is emblematic of the way prosecutors have taken advantage of the imprecision of

“corruptly” to target conduct beyond the bounds Congress intended to proscribe. At trial, the government

argued that the jury could convict “even if [it] found

that these were the best loans in the world,” and it

made no effort to prove that Calk lacked a good faith

belief that the Manafort loans would benefit TFSB.

C.A.App.434. Nor could it have, given that the loans

were made on standard terms (or better for TFSB),

were approved by the underwriting department, and

were supported by so much collateral that they posed

effectively no risk to the bank.

The Second Circuit was squarely presented with

the question whether “corruptly” requires a breach of

duty. It squarely rejected that argument and held

“‘corrupt’ conduct describes actions motivated by an

improper purpose, even if such actions (a) did not entail a breach of duty, and (b) were motivated in part

by a neutral or proper purpose, as well as by an improper purpose.” Pet.App.3a. Based on that holding,

it affirmed Calk’s convictions. The court’s interpretation of “corruptly” was outcome determinative and is

ripe for this Court’s review.

35

III. AT A MINIMUM, THIS COURT SHOULD

HOLD THE PETITION PENDING THE

OUTCOMES IN FISCHER AND SNYDER

On December 13, 2023, this Court granted two petitions for certiorari requesting that this Court examine the scope of criminal statutes which require the

government to prove a defendant acted “corruptly.” In

Snyder v. United States, No. 23-108 (U.S. Dec. 13,

2023), the question presented is whether 18 U.S.C.

§ 666, the federal program bribery statute, criminalizes gratuities as well as quid pro quo bribes. In

Fischer v. United States, No. 23-5572 (U.S. Dec. 13,

2023), the question is whether 18 U.S.C. § 1512(c), a

federal obstruction statute, criminalizes acts unrelated to investigations and evidence.

In each case, the parties, as well as amici, briefed

the meaning of the term “corruptly,” and the implications of that term with respect to the breadth (and potential vagueness) of the statutes at issue. And in

Snyder, the parties’ briefs discuss Congress’s use of

the term “corruptly” in § 215. The meaning of “corruptly” was also a focus of several Justices’ questions

at oral argument in Snyder, which was held on April

15, 2024, and was discussed during oral argument in

Fischer on April 16, 2024.

This case provides an ideal vehicle to address the

scope of § 215’s “corrupt” intent requirement. At a

minimum, and in the alternative, however, Calk requests that if this Court does not grant his Petition

outright, it hold his Petition pending the outcomes in

Snyder and Fischer.

36

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

ALEXANDRA A.E. SHAPIRO

Counsel of Record

DANIEL J. O’NEILL

AVERY D. MEDJUCK

SHAPIRO ARATO BACH LLP

1140 Avenue of the Americas

17th Floor

New York, New York 10036

(212) 257-4880

ashapiro@shapiroarato.com

PAUL H. SCHOEMAN

DARREN A. LAVERNE

KRAMER LEVIN NAFTALIS &

FRANKEL LLP

1177 Avenue of the Americas

New York, New York 10036

(212) 715-9100

Counsel for Petitioner

April 19, 2024