Petition for Writ of Certiorari — Alejandro Carrasco, Petitioner v. United States

No. ______

In the Supreme Court of the United

States

_____________________

ALEJANDRO CARRASCO, PETITIONER,

v.

UNITED STATES OF AMERICA, RESPONDENT.

_____________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_____________________

PETITION FOR A WRIT OF CERTIORARI

_____________________

Rachel Brill

Franco L. Pérez-Redondo

José David Rodríguez

Counsel of Record

FEDERAL PUBLIC DEFENDER,

DISTRICT OF PUERTO RICO

241 F.D. Roosevelt Ave.

San Juan, PR 00918

Counsel for Petitioner

QUESTIONS PRESENTED

I. Does an external consultant retained by a state or local

government qualify as a government “agent” subject to

prosecution under 18 U.S.C. § 666 where the consultant lacks

authority to act with respect to the entity’s funds?

II. Is the government free to convict a public official of quid

pro quo bribery without having to show that the defendant

engaged in an official act? Put differently, is any “act” by a

public official sufficient quo to convict under 18 U.S.C. § 666

or, as with other federal bribery laws, must the government

establish that the official accepted payment in exchange for

an “official act”?

i

PARTIES

Alejandro Carrasco, Petitioner, was the defendantappellant below.

The United States of America, Respondent, was the

plaintiff-appellee below.

RELATED PROCEEDINGS

United States v. Alejandro Carrasco, No. 21-1396 (1st Cir.

opinion and judgment issued August 28, 2023; order denying

rehearing issued Jan. 16, 2024; mandate issued Jan. 24,

2024).

United States v. Alejandro Carrasco, No. 3:14-cr-423-FAB1 (D.P.R. judgment entered April 27, 2021).

ii

CONTENTS

Questions Presented ........................................................... i

Parties ................................................................................ii

Related Proceedings...........................................................ii

Authorities ..................................................................... vi-x

Opinion Below .................................................................... 1

Jurisdiction ........................................................................ 1

Statutory Provision Involved ............................................. 2

Statement ...................................................................... 2-13

A. Statutory and Factual Background........................... 5

B. Procedural History .................................................... 8

Reasons for Granting the Petition.............................. 14-34

I.

This Court Should Clarify When, If at

All, An External Consultant Can Be

Prosecuted as a Governmental “Agent”

Under 18 U.S.C. § 666. .............................. 14

A. The Circuits are split on who

qualifies as an “agent” subject to

criminal liability under § 666. ................... 14

iii

B. Who can be prosecuted as an

“agent” under § 666 is a fundamental

issue of widespread applicability. .............. 17

C. The decision below adopted an

incorrect rule of law. .................................. 20

II.

This Court Should Clarify that

McDonnell’s Official Act Requirement

Applies to Public Corruption Cases

Prosecuted Under 18 U.S.C. § 666. ........... 22

A. The decisions of six Circuit

Courts conflict with McDonnell. ................ 23

B. The Circuits are split on whether

§ 666 requires an official act. ..................... 25

C. The “official act” issue presents

an important question of federal law. ....... 26

D. The decision below adopted an

incorrect rule of law. .................................. 29

Conclusion ............................................................................. 34

iv

APPENDIX

Appendix A

Order denying Petition for Rehearing, United

States

Court of Appeals for the First Circuit, United States v.

Carrasco, No. 21- 1396 (Jan. 16, 2024)…………………Appx-1a

Appendix B

Opinion, United States Court of Appeals for the

First

Circuit, United States v. Carrasco, No. 21-1396 (Aug. 28,

2023) ………...................................................................Appx-2a

Appendix C

Judgment, United States District Court for the District

of Puerto Rico, United

States v. Carrasco, No. 14-CR-42301 (FAB) (Apr. 27, 2021) ……………………..………Appx-21a

Appendix D

Excerpt from Trial Transcript, United States District

Court for the District of Puerto Rico, United States v.

Carrasco, No. 14-CR-423-01 (FAB)

(Feb 8, 2022)…………………………………………..….Appx-28a

Appendix E

Relevant Statutory Provisions,

18 U.S.C.A. § 666 …………………………………..Appx-30a

Appendix F

Relevant Statutory Provisions,

18 U.S.C.A. § 201 …………………………..………Appx-32a

v

AUTHORITIES

PAGE

United States Supreme Court Authorities

Dixson v. United States,

465 U.S. 482 (1984) ............................................................ 30

Evans v. United States,

504 U.S. 255 (1992) ............................................................ 30

McCormick v. United States,

500 U.S. 257 (1991) ...................................................... 26, 32

McDonnell v. United States,

579 U.S. 550 (2016) .................................................... passim

McNally v. United States,

483 U.S. 350 (1987) ............................................................ 27

Percoco v. United States,

598 U.S. 319 (2023) ............................................................ 28

Skilling v. United States,

561 U.S. 358 (2010) ................................................ 30, 32, 33

United States v. Birdsall,

233 U.S. 223 (1914) ............................................................ 31

United States v. Sun-Diamond Growers of California,

526 U.S. 398 (1999) ................................................ 29, 32, 33

vi

Appellate Court Authorities

See Snyder v. United States,

No. 23-108 ........................................................................... 29

United States v. Allison,

27 F.4th 913 (3d Cir. 2022) ................................................ 25

United States v. Carrasco,

79 F.4th 153 (1st Cir. 2023) ............................................... 14

United States v. Alejandro Carrasco,

No. 21-1396, 2022 WL 443607 (1st Cir. Feb. 8, 2022) ....... 12

United States v. Dawkins,

999 F.3d 767 (2d Cir. 2021) .......................................... 14, 18

United States v. Fernandez,

722 F.3d 1 (1st Cir. 2013) ............................................. 28, 30

United States v. Hamilton,

46 F.4th 389 (5th Cir. 2022) ......................................... 25, 31

United States v. Hudson,

491 F.3d 590 (6th Cir. 2007) ........................................ 15, 20

United States v. Keen,

676 F.3d 981 (11th Cir. 2012) ................................. 14, 15 19

United States v. Lindberg,

39 F.4th 151 (4th Cir. 2022) ......................................... 24, 25

vii

United States v. Lupton,

620 F.3d 790 (7th Cir. 2010) .............................................. 15

United States v. Martinez,

994 F.3d 1 (1st Cir. 2021) ................................................... 26

United States v. Ng Lap Seng,

934 F.3d 110 (2d Cir. 2019) .......................................... 24, 25

United States v. Phillips,

219 F.3d 404 (5th Cir. 2000) .............................................. 15

United States v. Pinson,

860 F.3d 152 (4th Cir. 2017) .................................. 16, 17, 20

United States v. Porter,

886 F.3d 562 (6th Cir. 2018) .............................................. 24

United States v. Roberson,

998 F.3d 1237 (11th Cir. 2021) ........................................... 24

United States v. Robinson,

663 F.3d 265 (7th Cir. 2011) .............................................. 28

United States v. Robles,

698 F. App’x 905 (9th Cir. 2017) ........................................ 25

United States v. Sotomayor-Vazquez,

249 F.3d 1 (1st Cir. 2001) ............................................. 14, 21

United States v. Suhl,

885 F.3d 1106 (8th Cir. 2018) ............................................ 25

viii

United States v. Vitillo,

490 F.3d 314 (3d 2007) ................................................. 15, 21

United States v. Whitfield,

590 F.3d 325 (5th Cir. 2009) .............................................. 15

District of Puerto Rico Court Authorities

United States v. Alejandro Carrasco,

14-cr-423-FAB-1 ................................................................. 11

United States Code Sections

18 U.S.C. § 201 .............................................................. passim

18 U.S.C. § 201(a)(1) ............................................................... 4

18 U.S.C. § 666 .............................................................. passim

18 U.S.C. § 666(a)(1) ............................................................... 4

18 U.S.C. § 666(a)(1)(A) & (B) ................................................. 6

18 U.S.C. § 666(a)(1)(B)................................................... 2, 6, 8

18 U.S.C. § 666(a)(2) ............................................................... 6

18 U.S.C. § 666(b) .............................................................. 6, 18

18 U.S.C. § 666(d)(1) ............................................................... 6

18 U.S.C. § 666(d)(3) ............................................................... 6

18 U.S.C. § 666(d)(4) ........................................................... 4, 6

18 U.S.C. § 1343 .................................................................... 23

18 U.S.C. § 1346 .................................................................... 23

ix

18 U.S.C. § 1951(a) ................................................................ 23

28 U.S.C. § 1254(1) .................................................................. 2

Research Articles

Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts 318 (2012) .............................. 31

Felix Frankfurter, Some Reflections on the Reading of

Statutes, 47 Colum. L. Rev. 527, 537 (1947) ......................... 31

Justin Weitz, The Devil Is in the Details: 18 U.S.C. S 666

After Skilling v. United States, 14 N.Y.U. J. Legis. & Pub.

Pol’y 805, 817–18 (2011).................................................. 22, 30

U.S. Dept. of Just., Bureau of Just. Stat., FY 2022 Number of

Persons in Cases Filed: 18 U.S.C. § 666,

https://fccps.bjs.ojp.gov/ ........................................................... 5

x

No. ______

In the Supreme Court of the United

States

_____________________

ALEJANDRO CARRASCO, PETITIONER,

v.

UNITED STATES OF AMERICA, RESPONDENT.

_____________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_____________________

PETITION FOR A WRIT OF CERTIORARI

_____________________

OPINION BELOW

Alejandro Carrasco respectfully petitions for a writ of

certiorari to review the judgment of the First Circuit.

Pet.App.2a-20a. It is reported at 79 F.4th 153.

JURISDICTION

The First Circuit entered judgment on August 28, 2023,

and denied a timely petition for rehearing en banc on January

16, 2024. Pet.App.1. Justice Jackson extended the time to file

a petition for writ of certiorari until May 15, 2024, and then

further extended the time for filing a petition to June 14,

2024. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

18 U.S.C. § 666(a)(1)(B) provides:

Whoever…being an agent of an organization, or of a State,

local, or Indian tribal government, or any agency

thereof…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…shall be fined

under this title, imprisoned not more than 10 years, or both.

18 U.S.C. § 666 is reproduced in full, infra, Pet.App.30a31a.

STATEMENT

This case raises two important questions about the scope

of 18 U.S.C. § 666, the most widely charged federal anticorruption statute. The first question asks the Court to

address, for the first time, who can be prosecuted under the

statute. Question two asks the Court to settle whether § 666,

like other federal bribery offenses, requires an official act as

part of the quo.

On the first issue, the circuits are split. The First, Second,

Third, and Eleventh Circuits define “agent” broadly. Within

those circuits, any employee or private contractor acting on

behalf of a government entity or organization is subject to

2 of 34

prosecution—without requiring a connection to the entity’s

funds. Conversely, the Fifth Circuit has adopted a narrower

rule, requiring that an agent have authority to act on behalf

of the government or organization with respect to its funds.

Clarifying the class of people subject to criminal liability

under § 666 is critical given the large number of people

affected. In the First, Second, Third, and Eleventh Circuits,

19.2 million state and local government employees are

“agents” and thus subject to up to 10 years in prison.

Additionally, many private institutions—from hospitals to

universities to think tanks— meet the $10,000 federal grant

threshold, placing millions of their employees at risk of

liability.

This Court should resolve the split and clarify that an

“agent” under § 666 must exercise some degree of control over

the entity’s funds.

The second question is no less consequential. This Court

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

that not every act by a public official qualifies as an official

act for purposes of bribery laws. Informal actions—such as

introducing people or setting up an event—are insufficient for

conviction. Id. at 567, 573. Instead, an “official act” is

required, and such an “official act” must be narrowly defined.

To hold otherwise would intrude upon public officials’

interactions with their constituents and raise a host of

“significant” constitutional problems. Id. at 574-577.

Contrary to McDonnell, the Second, Fourth, Sixth, and

Eleventh Circuits have held that § 666 does not require an

3 of 34

official act for conviction. According to these Circuits, because

§ 666 does not explicitly mention “official act,” any promise by

a public official in exchange for money is sufficient for quid

pro quo bribery. Never mind that the charged offenses in

McDonnell did not include the words “official act” either.

The situation is different in the Third Circuit. There, the

relevant parties—government, defendants, and district

court— are operating under the assumption that McDonnell

applies to § 666, and an official act is being required.

The Fifth Circuit, for its part, has suggested that § 666

demands an official act. And, in the First Circuit, official acts

have been required in some cases while not in others (like this

one) without any consistency or clarity.

Settling whether § 666 requires an official act is essential

because the “significant” constitutional concerns that this

Court identified in McDonnell are even more pressing in the

§ 666 context. Unlike the bribery statute in McDonnell, which

targets federal officials, see 18 U.S.C. 201(a)(1), section 666

focuses on state and local officials. See 18 U.S.C. §§ 666(a)(1)

& (d)(4). Because § 666 intrudes upon the interactions of state

and local officials with their constituents, and because

Congress’ interest in preventing corruption at the state and

local level is lower than in preventing corruption at the

federal level, the quo in § 666’s quid pro quo cannot be broader

than the quo in § 201.

Allowing the federal government to convict state and local

officials without proving official action undermines

constitutional rights and democratic principles. The Court

4 of 34

should clarify that McDonnell’s requirements apply fully to

§ 666.

This case is an ideal vehicle to address both questions

presented. On the first question, Mr. Carrasco, a sole

practitioner, was charged as a public official under § 666

because his legal consulting contracts allowed him to

represent three municipalities in court, without evidence

linking his work to the corrupt activities alleged in the

indictment. His mere position as outside counsel was deemed

sufficient for liability as a government “agent.”

On the second question, trial testimony showed that Mr.

Carrasco accepted payments from a private client (an

environmental engineer) for introducing the client to mayors

and informing the client about new proposal requests for

environment engineering work in the three municipalities.

Despite these actions being similar to the informal acts

rejected in McDonnell as insufficient quo, the district court

declined to instruct the jury on the necessity of an official act.

Mr. Carrasco was convicted of § 666 bribery as a public official

and sentenced to 10 years in prison.

A. Statutory and Factual Background

1. Section 666—officially titled “Theft or bribery

concerning programs receiving Federal funds”— is the most

frequently used public corruption statute in the federal

government’s arsenal. See U.S. Dept. of Just., Bureau of Just.

Stat., FY 2022 Number of Persons in Cases Filed: 18 U.S.C.

§ 666, https://fccps.bjs.ojp.gov/. This statute prohibits a public

official, referred to as an “agent,” from stealing property of a

5 of 34

state, local, tribal, or territorial government, or from

accepting or requesting a bribe. See 18 U.S.C. § 666(a)(1)(A)

& (B). It also sanctions private citizens who bribe or attempt

to bribe the public official. 18 U.S.C. § 666(a)(2).1

Section 666 provides that any agent of a local government

who corruptly solicits, demands, accepts, or agrees to accept

anything of value, intending to be influenced or rewarded in

connection with any government business or transactions

“involving any thing of value of $5,000 or more,” faces up to

10 years in prison. 18 U.S.C. § 666(a)(1)(B).

An “agent” is defined as “a person authorized to act on

behalf of another person or a government and, in the case of

an organization or government, includes a servant or

employee, and a partner, director, officer, manager, and

representative.” 18 U.S.C. § 666(a)(d)(1).

A state or local government is an entity covered by the

statute if said state or local government received at least

$10,000 in federal benefits the previous year. 18 U.S.C.

§ 666(b). The term “State” includes “any commonwealth,

territory, or possession of the United States.” 18 U.S.C.

§ 666(d)(4). The term “local” means “of or pertaining to a

political subdivision within a State.” 18 U.S.C. § 666(d)(3).

2. Two key figures are central to this case. The first is

Alejandro Carrasco, the petitioner, a 67-year-old former

1 Likewise, the statute applies to an “agent” of a private organization

that receives at least $10,000 in federal grants.

6 of 34

attorney who had a distinguished solo practice in Puerto Rico,

serving both private and government clients.

The second is Juan Carlos Mercado, an environmental

engineer and owner of I Technical Group (ITG), a mid-size

firm specializing in landfill and environment issues, primarily

serving local governments in Puerto Rico.

Carrasco and Mercado met in the early 2000s, while

working as outside consultants for a local municipality. They

developed a professional relationship and friendship, with

Carrasco occasionally handling legal matters for Mercado and

Mercado assisting Carrasco with construction projects.

Between 2009 and 2012, Carrasco was retained as an

outside consultant for three Puerto Rico municipalities: Rio

Grande, Juncos, and Barceloneta.2 According to the

prosecution, Mercado and Carrasco developed a “scheme” to

help Mercado secure contracts for ITG from these

municipalities. Pet.App.7a. Carrasco allegedly arranged

meetings with the mayors of these municipalities, who were

also his friends, and kept Mercado informed about new

proposal opportunities in exchange for “bribes” disguised as

legal fees. Pet.App.28a-29a.

Carrasco was not the only person receiving payment from

Mercado. The testimony at trial revealed that Mercado was

paying bribes to the mayors of Rio Grande and Barceloneta,

as well as to Barceloneta’s Planning Director, to secure

Rio Grande’s population is 47,060; Juncos’ 37,012; and

Barceloneta’s 22,657. See Puerto Rico - Census Bureau Profiles Results.

2

7 of 34

lucrative municipal contracts worth millions of dollars.

12/4/19 Tr. 19:23-25, 20:1-4, 25:20-23, D. Ct. Dkt. 375.

In 2012, Mercado was arrested and charged federally with

bribery. Pet.App.6a. Mercado cooperated with federal

authorities and was offered pretrial diversion. The charges

against Mercado were eventually dropped, without Mercado

spending a single night behind bars.

B. Procedural History

In 2014, Mr. Carrasco was charged federally with four

counts of federal funds bribery under 18 U.S.C. § 666(a)(1)(b).

The government alleged that, between 2009 and 2012,

Carrasco helped Mercado secure three contracts with Rio

Grande, one with Barceloneta, and one with Juncos, all in

exchange for payment. Pet.App.6a.

The government did not charge Mr. Carrasco with aiding

and abetting Mercado’s bribery of the mayors. Instead, the

prosecution adopted the ambitious legal position that Mr.

Carrasco was himself a public official or “agent,” and it

charged him as such.

During a six-day jury trial in December 2019, the only

evidence presented to establish Carrasco’s status as a § 666

“agent” were his legal-services contract with each

municipality. Pet.App.7a. These contracts indicated that Mr.

Carrasco’s duties as an external consultant included

representing the municipalities in court. Pet.App.7a. The

prosecution presented no evidence of the specific tasks

Carrasco performed or how his role in representing the

8 of 34

municipalities related to the alleged corrupt acts charged in

the indictment. Pet.App.7a.

The government relied solely on Mercado’s testimony to

establish the alleged corrupt acts. Mercado explained that the

mayors had the authority to award contracts, and Mercado

had to submit proposals and negotiate the terms of each

contract with municipal staff. 12/4/19 Tr. 28:17-25, 29:1-3, D.

Ct. Dkt. 375.

When the prosecution asked about the acts Carrasco

performed in exchange for the alleged bribes, Mercado

indicated they were informal tasks like setting up meetings

and keeping Mercado informed about work opportunities:

The Prosecution: Did the Defendant offer to help

you get those additional contracts or at least some

of those additional contracts in Barceloneta, Rio

Grande, Juncos, between 2009 and 2012?

The Defense: Objection, Your Honor. Leading.

The Court: Overruled.

Mercado: Yes.

The Prosecution: How?

Mercado: Well, [Carrasco] kept me up to date as to

the opportunities that would come up in Rio

Grande. In Barceloneta, he would take me to the

mayor to help him solve multiple problems that

were coming up with multiple agencies. And in

Juncos, the same thing. There was a big problem

9 of 34

at the Federal level with the landfill. And so he

took me to Papo [the mayor], and we worked from

then [sic].

Pet.App.28a-29a.

That was as specific as the prosecution’s evidence got

regarding the alleged quo to Mercado’s quid. Despite multiple

attempts by the prosecution to inquire about the quid pro quo,

Mercado’s responses remained vague and amorphous—even

though Mercado was an adverse witness to the defense and

had full immunity. For instance, when asked what he

expected Carrasco to do for him, Mercado responded with

“[a]cess, protection, watch my back.” Pet.App.11a. Pressed to

clarify, Mercado said he hoped that by paying kickbacks

Carrasco would not speak poorly of him to the mayors or with

the municipal staff, although no evidence was presented that

Carrasco would do so. 12/5/19 Tr. 36:5-8, D. Ct. Dkt. 376;

12/5/19 Tr. 9:23-25, 10:1-5 D. Ct. Dkt. 362.

Mercado also testified that Carrasco was friends with the

mayors and that it “appeared” to him that Carrasco had “total

access” and “total influence” with the mayors. Pet.App.11a.

Mercado, however, was unable to give any concrete examples

of how this alleged “influence” was exercised other than

setting up meetings.

Checks purporting to be the alleged bribes were presented

in evidence. The checks, encompassing a period of four years,

totaled over $100,000. Mercado labeled them as payments for

legal services and deducted the amounts as legal fees on his

tax returns. 12/5/19 Tr. 82:17-21, D. Ct. Dkt. 376. Mercado

10 of 34

also stated that Carrasco was not acting as his attorney when

arranging the meetings with the mayors and keeping him

informed about work opportunities. Mercado, however,

acknowledged that several checks were indeed for actual legal

services Carrasco provided to him, his company, or his family.

12/5/19 Tr. 56:3-4, D. Ct. Dkt. 376.

After the close of evidence, the defense requested that the

jurors be instructed that, to convict a public official of bribery

under § 666, the prosecution must establish that the “agent”

agreed to be paid in exchange for engaging in an “official act,”

as defined in McDonnell. See Motion Submitting Proposed

Jury Instructions, United States v. Carrasco, 14-cr-423-FAB1, ECF No. 370 at 1-3 (Dec. 9, 2019). The prosecution opposed

this, arguing that § 666 does not require an official act. The

district court agreed with the prosecution, and the jury was

not instructed to identify any official act. See Final Jury

Instructions, United States v. Carrasco, 14-cr-423-FAB-1,

ECF No. 380 at 16-18 (Dec. 11, 2019).

The jury returned a guilty verdict on all counts. Carrasco

moved for a judgment of acquittal, arguing that the

government had failed to establish (1) that he was an “agent”

under § 666 and (2) that he agreed to engage in any “official

actions” in exchange for payment. See Motion for Acquittal,

United States v. Carrasco, 14-cr-423-FAB-1, ECF No. 394 at

3-4, 14 (Dec. 30, 2019). The district court denied the motion,

holding that Carrasco was an agent for § 666 purposes

because, as an attorney, Carrasco could “represent” the

municipalities in court. See Opinion and Order, United States

v. Carrasco, 14-cr-423-FAB-1, ECF No. 406 at 17 (Feb. 26,

11 of 34

2020). As to an official act, the district court held that it did

not apply to public corruption cases prosecuted under § 666.

Id. at 21. Carrasco was sentenced to 10 years in prison, the

statutory maximum. Pet.App.22a.

Carrasco appealed, contending that the evidence failed to

establish that he—as an independent contractor with no

managerial responsibilities or decision-making ability to act

with respect to the municipalities’ funds—was an “agent” of a

local government under § 666. See Appellant’s Br., United

States v. Carrasco, No. 21-1396, 2022 WL 443607, at *13, 15

(1st Cir. Feb. 8, 2022). Carrasco also argued that “[t]he

government failed to prove that [he] engaged in any behavior

qualifying as an official act under the statute and McDonnell,

and moreover, the jury was not adequately instructed on that

requirement.” Id. at *21.

Carrasco explained that, “[g]iven the constitutional

concerns that arise whenever the government seeks to

criminalize an interaction between the public and a public

official, the official act requirement must be met in all public

official bribery cases, regardless of the specific statutes under

which the government chooses to charge. Any other view

would turn McDonnell on its head.” Id. at *26. Here, “[t]he

instructions that were provided to the jury were flawed,

leaving the jury free to convict without finding the kind of

official act McDonnell requires.” Id. at 25.

The First Circuit affirmed the conviction. On the “agent”

issue, the panel held that, because the legal-services

contracts authorized Carrasco to represent the municipalities

12 of 34

in court, “it would appear that the evidence does suffice to

support the ‘agent’ element of the offense.” Pet.App.7a.

On the “official act” issue, the First Circuit, despite

recognizing that the jury was not instructed that an “official

act” was required, indicated that § 666 does not require

official action to convict because “unlike the text of [18 U.S.C.]

§ 201 that the Supreme Court construed in McDonnell, [§ 666]

does not include the phrase ‘official act.’” Pet.App.10a.

The First Circuit acknowledged that “although our Circuit

has proceeded in some cases on the understanding that § 666

does contain an ‘official act’ element, we have done so only in

cases in which the government did not dispute the point and

in which the jury had been instructed that the offense does

contain an ‘official act’ element.” Pet.App.10a.

The court also mentioned that four Circuit Courts had held

that the federal government “need not show that a defendant

engaged in an ‘official act’ to secure a conviction under § 666.”

Pet.App.10a. The three-judge panel added, however, that

even if an official act were required, Mercado’s testimony

“suffice[d] to permit a finding that Carrasco advised the

mayors knowing or intending that his advice would form the

basis for an official act taken by the mayors – namely, the

award of the contracts to Mercado.” Pet.App.11a. (cleaned up).

Carrasco petitioned to rehear the case, but a majority of

the active judges in the First Circuit denied rehearing en

banc. Pet.App.1a.

13 of 34

REASONS FOR GRANTING THE PETITION

This petition raises two important questions about the

scope of 18 U.S.C. § 666, the most prosecuted federal public

corruption statute: Who is subject to liability as an “agent” of

a government or organization under this statute? And does

§ 666 require an “official act” to convict a public official of

bribery?

The Circuit Courts are divided on both questions, and

confusion abounds. Moreover, the issues are of utmost

importance: They affect millions of citizens who could face to

up to 10 years in prison for engaging in conduct that may well

be protected by the Constitution. The issues also raise serious

federalism and democratic concerns, such as the

federalization of ethics standards for state and local officials.

I. This Court Should Clarify When, If at All, An External

Consultant Can Be Prosecuted as a Governmental

“Agent” Under 18 U.S.C. § 666.

A. The Circuits are split on who qualifies as an

“agent” subject to criminal liability under § 666.

Currently, there is a 4-1 split on how broadly to define the

term “agent” in § 666. The First, Second, Third, and Eleventh

Circuits have adopted the broad interpretation where an

agent is anyone who can act in any way on behalf of the

covered government or organization. See United States v.

Carrasco, 79 F.4th 153, 158-59 (1st Cir. 2023) (Pet.App.7a8a); United States v. Dawkins, 999 F.3d 767, 784 (2d Cir.

2021); United States v. Keen, 676 F.3d 981, 989-90 (11th Cir.

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2012); United States v. Vitillo, 490 F.3d 314, 323 (3d 2007).

For example, the Eleventh Circuit considers a low-level

county employee a § 666 “agent” simply for being authorized

to drive a county vehicle. No more is required. See Keen, 676

F.3d at 991.

Meanwhile, the Fifth Circuit has adopted a narrower

definition: An “agent” for § 666 purposes is anyone who can

act on behalf of the government or organization with respect

to its funds. See United States v. Whitfield, 590 F.3d 325, 344

(5th Cir. 2009). For example, a parish tax assessor who lacks

authority to act or make decisions about the parish’s funds is

not an “agent” of the parish subject to liability. See United

States v. Phillips, 219 F.3d 404, 411, 413 (5th Cir. 2000).

Without expressly announcing their position on the split,

other Circuits have taken sides. The Seventh Circuit appears

to agree with those Circuits that interpret the term broadly,

as seen in a case where a real estate broker hired by a local

government was deemed an agent of the local government

despite having no authority over government funds. See

United States v. Lupton, 620 F.3d 790, 800-801 (7th Cir.

2010). The Sixth Circuit agrees with the narrower

interpretation, recognizing a private contractor as a § 666

“agent” only if they have managerial responsibilities and

make purchases on behalf of the district. See United States v.

Hudson, 491 F.3d 590, 594-95 (6th Cir. 2007).

The term “agent” is particularly confusing for outside

consultants and independent contractors hired by § 666covered entities. For, even within the Circuits that have

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adopted the broadest interpretation, there are major

inconsistencies. The Third Circuit, despite holding that a

§ 666 “agent” need not have the authority or ability to act with

respect to the entity’s funds, specifies in its jury instructions

that “[a]n outside consultant who exercises significant

managerial responsibility within the organization is an agent

of that organization if the consultant is authorized to act on

behalf of the organization.” U.S. Court of Appeals for the

Third Circuit, Model Jury Instruction, Ch.6 Final

Instructions: Elements of Offenses: 18 U.S.C. § 666A et seq.,

https://www.ca3.uscourts.gov/model-criminal-jury-tablecontents-and-instructions. (emphasis added). Meanwhile, in

the First Circuit, an outside consultant—like the petitioner

here—is still an “agent” subject to liability even if he lacks any

managerial duties with respect to the entity. See Pet.App.7a8a.

The Fourth Circuit has adopted a different analysis

altogether: The critical question is not whether the contractor

exercises managerial responsibilities or if they can act with

respect to the entity’s funds, but whether there is evidence of

a “close link” between the contractor and the § 666 entity.

United States v. Pinson, 860 F.3d 152, 166 (4th Cir. 2017).

Despite the defendant in Pinson being a manager in the

construction for which the county had hired an outside firm,

the Fourth Circuit ruled that he was not an “agent” for

purposes of § 666 where the evidence showed only minimal

interactions between Pinson and the county government. Id.

at 165.

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This Court should resolve the Circuit split and clarify who

can be an “agent” under § 666. Currently, an external

consultant (or the employees of a consulting firm) hired by a

state or local government to conduct an audit, for example,

can be charged as an “agent” of the state or local government

in the First, Second, Third, and Eleventh Circuits if

authorized to act on behalf of the entity. In contrast, in the

Fifth Circuit, the same consultant would only be charged if

they had authority over the entity’s funds.

The same consultant would not face liability in the Third

Circuit unless they exercised “significant managerial

responsibility.” See supra p.16. But that consultant is

criminally liable in the First Circuit regardless of any

managerial responsibilities, significant or not. While in the

Fourth Circuit, their liability will depend on whether a court

finds sufficiently close interactions with the government

entity, regardless of managerial responsibilities or ability to

act with respect to the entity’s funds. See Pinson, 860 F.3d at

166.

Such inconsistent, variable interpretations breed

confusion and unpredictability. This Court should address the

split among the Circuits and provide clear guidance on this

fundamental issue.

B. Who can be prosecuted as an “agent” under § 666

is a fundamental issue of widespread applicability.

The question of who qualifies as an “agent” under § 666 is

crucial due to its broad impact. The statute’s jurisdictional

threshold is minimal: Any public or private entity receiving

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$10,000 annually in federal funds is covered. See 18 U.S.C.

§ 666(b). This means over 19 million government employees,

from town hall janitors to mayors, could be subject to

prosecution unless a narrow definition is adopted.

Additionally, millions of employees at private institutions

receiving federal grants are also at risk, regardless of how

removed their duties and responsibilities are from anything

resembling the management of institutional funds. See

Dawkins, 999 F.3d at 782. In this day and age, some of the

most vital organizations in the country—from universities, to

hospitals, to think tanks—receive well over $10,000 annually

through federal programs and grants. Clarifying to the

officers and employees of § 666-covered institutions whether

they come within the sweep of the statute is therefore vital.

The issue is particularly important for external

consultants and private contractors. These individuals, hired

to provide specific services that the covered entity is unable or

unwilling to do, often have no direct ties to the covered entity’s

management of funds. Yet, under the broad interpretation

adopted by some Circuits, these private citizens and

companies can be considered § 666 agents and face

prosecution. Regardless of whether they have any control or

discretion over how the government or organization spends its

funds.

The consulting industry, a multibillion-dollar industry, is

especially vulnerable, with consultants navigating a legal

minefield where they may be prosecuted as § 666 “agents” in

some jurisdictions but not others. See supra pp.15-17. This is

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an untenable situation that requires this Court’s involvement

to finally settle if, or under what circumstances, these

independent contractors —like Mr. Carrasco— can face

criminal liability as “agents” under § 666.

Addressing this issue is vital because once someone is

deemed an “agent” they can be charged under § 666 for any

number of actions. The Eleventh Circuit, for example,

affirmed the conviction of a low-level county employee who, in

his private capacity, included false information in a request

for government assistance. See Keen, 676 F.3d at 986. The

federal government proceeded under the theory that, once a

person is deemed an “agent,” almost anything that can

potentially affect the entity’s funds in general (it need not be

related to a federal program) is prosecutable under § 666.

And the Eleventh Circuit bought that theory. Id. at 990-91.

Because Mr. Keen was authorized to drive a municipal

vehicle, he was deemed an “agent” of the local government,

even though, as a zoning inspector, he lacked the ability to

affect the county’s funds and even though the unlawful

conduct charged was unrelated to his official duties. Id. at

991.

The terms of § 666 (prohibiting accepting “anything of

value” in connection with “any business” or “transaction”) and

their broad interpretation by lower courts mean that anyone

deemed an agent runs the risk of being charged for all sorts of

conduct. Clarifying who qualifies as an “agent” under § 666

presents an urgent and critical matter.

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C. The decision below adopted an incorrect rule of

law.

The First Circuit concluded that Carrasco was a § 666

agent because his legal consulting contracts authorized him

to represent the municipalities in court. In so holding, the

First Circuit adopted a rule by which it deemed the terms of

a contract dispositive. Pet.App.7a. It did not matter that the

government presented no evidence of the actual work

Carrasco did for the municipalities, or of any connection

between his contractual duties and the alleged corrupt acts.

It also did not matter to the Circuit that no evidence was

presented showing that Carrasco had any managerial duties

or the ability to affect the local governments’ funds. Instead,

the Circuit fixated on the word “represent” in the legal

services contracts and engaged in the following problematic

syllogism: (1) § 666 states that a “representative” of a covered

entity can be an “agent;” (2) an attorney is by definition a

representative; (3) therefore Carrasco is an agent for purposes

of § 666. Pet.App.7a.

The rule adopted by the First Circuit here clashes with

that of other Circuits, which reject such mechanical “agent”

analysis. See Pinson, 860 F.3d at 165-66; Hudson, 491 F.3d at

595. Furthermore, under the First Circuit’s erroneous rule, all

attorneys hired by a state or local government instantly

become government “agents” liable under § 666. The First

Circuit’s approach risks labeling any professional with a

“representative” role as an agent, including attorneys,

financial advisors, accountants—even if they have no

managerial responsibilities or control over funds. That is so

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despite other Circuits having held that traditional agency

principles do not automatically apply in the § 666 context. See

Vitillo, 490 F.3d at 323.

The rule adopted in this case is even inconsistent with

prior holdings by the same Court. For example, in SotomayorVazquez, 249 F.3d 1, 8-9 (1st Cir. 2001), it rejected that

contractual terms could be dispositive. To find that the

outside consultant in that case qualified as a § 666 agent, the

First Circuit deemed it critical to consider the evidence

presented at trial regarding the actual tasks performed by the

defendant, including evidence of tasks showing that he

exercised “significant managerial responsibility” on behalf of

the entity. Id. at 8-9. No such evidence of the actual tasks

performed by Carrasco was presented in this case, nor did the

First Circuit deemed it relevant this time that said evidence

be presented in order to determine whether Carrasco, despite

his outside consultant status, could qualify as an “agent” of

the local government. Pet.App.7a, 9a.

Given the broad impact on millions of citizens currently

subject to prosecution under a lax interpretation of the term

“agent” in § 666, clarifying the scope of that term is crucial.

The vague terms of the statute and expansive interpretations

by lower courts mean that anyone deemed an agent risks

prosecution for any number of actions. This Court’s

intervention is necessary to establish a limiting principle,

ensuring that only those with control over funds are

considered agents.

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By making clear that a § 666 “agent” must exercise some

control over the entity’s funds, this Court would align the

offense’s reach with Congress’ original intent: protecting the

integrity of federal funds entrusted to state and local

governments and private organizations. See Justin Weitz,

Note, The Devil Is in the Details: 18 U.S.C. S 666 After

Skilling v. United States, 14 N.Y.U. J. Legis. & Pub. Pol’y 805,

817–18 (2011). A narrow construction of the term “agent,” as

adopted by the Fifth Circuit, is essential to prevent § 666 from

being misused beyond Congress’ intended scope.

II. This Court Should Clarify that McDonnell’s Official

Act Requirement Applies to Public Corruption Cases

Prosecuted Under 18 U.S.C. § 666.

Six Circuit Courts have held that § 666 does not require

an official act to convict in public-official bribery cases,

conflicting with this Court’s rationale in McDonnell.

Meanwhile, one Circuit Court has suggested that McDonnell’s

“official act” requirement applies to § 666 prosecutions, while

another Circuit routinely requires official acts in § 666 publiccorruption cases. And, in the First Circuit, the official act

requirement is applied inconsistently; it has been required in

some cases but not in others (like this one) without any clear

rationale. Guidance from this Court is urgently needed.

The issue is also of the utmost importance. It affects the

right of state and local government officials to interact with

their constituents. Without an “official act” quo component,

campaign donations and promises could be prosecuted as

bribery under § 666. Meanwhile, prosecutors are free to

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disregard McDonnell by simply charging public officials and

citizens with § 666 instead of with other federal bribery laws

where this Court has already made clear that an official act is

necessary.

A. The decisions of six Circuit Courts conflict with

McDonnell.

A quick refresher on McDonnell. In McDonnell, the federal

government accused the Virginia governor of accepting money

and gifts from the CEO of a company in exchange for

promoting the company’s business by arranging meetings

between the CEO and government officials, hosting events for

the CEO at the Governor’s Mansion, and discussing the

company’s product with other officials. See McDonnell, 579

U.S. at 556-561. The government charged McDonnell with

Hobbs Act extortion (18 U.S.C. § 1951(a)) and honest services

fraud (18 U.S.C. §§ 1343, 1346) under the theory that the

payments were part of a quid pro quo scheme. Id. at 562. As

to honest services fraud, the parties agreed to define the term

“honest services” with reference to 18 U.S.C. § 201, the

principal federal bribery statute, which makes it a crime for a

public official to accept something of value in exchange for

“any official act.” Id. McDonnell was convicted; he appealed,

and the Fourth Circuit affirmed. Id. at 556.

Before this Court, the government argued that virtually

any action undertaken by a public official—like the acts

McDonnell undertook to promote the CEO’s business—

qualified as an official act. Id. at 566-67. This Court rejected

such an expansive interpretation of the quo in federal bribery

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cases partly because it would “raise significant constitutional

concerns” such as a host of First Amendment, due process,

and federalism issues. Id. at 575-577. This Court

unanimously vacated McDonnell’s conviction and held that an

official act must involve a definite “decision or action” by a

public official “on” a specific government question or matter.

Id. at 572, 573.

The Court thus set forth a two-part test for what

constitutes an “official act.” First, the government must

identify a “formal exercise of governmental power” that is

“specific and focused.” Id. at 574. Second, the government

must show the official agreed to take a definite “decision or

action” on that matter. Id. Activities such as “setting up a

meeting, calling another public official, or hosting an event,”

or “expressing support for [whatever a supporter wants], at a

meeting, event, or call” do not qualify as official acts. Id. at

567, 573.

Despite this clear ruling, describing the “substantial” and

“significant” constitutional problems in allowing the

prosecution to treat nearly any act by a public official as an

official act, the Second, Fourth, Sixth, and Eleventh Circuits

have explicitly rejected applying McDonnell to § 666 cases.

See United States v. Lindberg, 39 F.4th 151, 169 (4th Cir.

2022); United States v. Roberson, 998 F.3d 1237, 1246 (11th

Cir. 2021); United States v. Ng Lap Seng, 934 F.3d 110, 134

(2d Cir. 2019); United States v. Porter, 886 F.3d 562, 565-66

(6th Cir. 2018). According to these Circuits, the prosecution

need not establish that the official agreed to take official

action in exchange for money. Any act by a public official

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suffices for conviction. See Lindberg, 39 F.4th at 169; Ng Lap

Seng, 934 F.3d at 133, 138.

The Eight and Ninth Circuits, for their part, have implied

that McDonnell is irrelevant for purposes of § 666. See United

States v. Suhl, 885 F.3d 1106, 1112-14 (8th Cir. 2018); United

States v. Robles, 698 F. App’x 905, 906 (9th Cir. 2017).

B. The Circuits are split on whether § 666 requires

an official act.

The Third Circuit operates as if McDonnell directly applies

to § 666 cases. See United States v. Allison, 27 F.4th 913, 920

(3d Cir. 2022) (“[We] assume, but do not decide, that the

Government had to show Allison bought official acts.”). In

§ 666 prosecutions within the Third Circuit, prosecutors and

the defense are stipulating from the get-go that an official act

is required to convict a public official of bribery. Id.

Similarly, the Fifth Circuit has also held that § 666

contains an official act requirement. In a recent decision, it

vacated the defendant’s conviction in part because the jury

was not instructed that “any ‘official act’ by the

councilmembers was required.” Hamilton, 46 F.4th at 393

(citation omitted). The Fifth Circuit further recognized that

“[t]reating § 666 as though it covers all sorts of interactions

with local public officials raises First Amendment, federalism,

and due-process concerns.” Id. at 398 (citing McDonnell, 579

U.S. at 550; McCormick v. United States, 500 U.S. 257 (1991)).

And the First Circuit held, in one case at least, that

McDonnell’s “official act” requirement applies to § 666,

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stating that to convict the defendant “the government was

required to prove that defendant accepted a thing of value

while intending to be influenced by it to perform an official

act.” United States v. Martinez, 994 F.3d 1, 6-7 (1st Cir. 2021)

(cleaned up).

In this case, however, the First Circuit backtracked and

strongly implied that an official act is not required.

Pet.App.10a. The court minimized its prior ruling by

characterizing Martinez as a case where the parties had

stipulated that the jury should be instructed in accordance

with McDonnell, something that did not happen in Mr.

Carrasco’s case. Pet.App.10a.

As shown, then, the situation in the Circuits is chaotic.

Several refuse to require an official act, in contravention of

McDonnell. Others require it. And the First Circuit remains

inconsistent. This Court should step in to settle the law, which

affects litigants and the general public due to the important

constitutional rights involved and the potential 10-year

prison term citizens face.

C. The “official act” issue presents an important

question of federal law.

This Court is currently evaluating whether evidence of a

quid pro quo is required to convict under § 666. See Snyder v.

United States, No. 23-108. If the Court answers that question

in the affirmative, the next big question is how that quo

should be defined, i.e., whether it includes an “official act.” If

the Court answers the Snyder question in the negative and

holds that § 666 also covers gratuities in addition to quid pro

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quo arrangements, then clarifying whether an official act

must be tied to said gratuity is essential to avoid rendering

the statute standardless. See United States v. Sun-Diamond

Growers of California, 526 U.S. 398, 408 (1999). Either way,

addressing whether § 666 requires an official act is an

inescapable issue of momentous consequence.

Whether or not the government must establish an official

act in public corruption cases brought under § 666—federal

prosecutors’ preferred public-corruption statute—raises

constitutional concerns of primary order. The same First

Amendment, overbreadth, and democratic concerns identified

in McDonnell are at stake in public-bribery prosecutions

under § 666. See McDonnell, 579 U.S. at 575. In fact, the

concerns are even greater here because, unlike § 201 (which

generally applies to federal officials), § 666 governs state and

local officials’ interaction with constituents.

Whether an official act is required under § 666 thus

implicates the extent to which the federal government can

intrude into the democratic affairs of other governments.

Federalism concerns are therefore at its peak in the § 666

context. And, without an “official act” limitation, the federal

government is free to impose its own standards about how

local officials should interact with constituents. This is so

despite this Court traditionally declining to construe a statue

“‘in a manner that leaves its outer boundaries ambiguous and

involves the Federal Government in setting standards’ of

‘good government for local and state officials.’” McDonnell,

579 U.S. at 577 (quoting McNally v. United States, 483 U.S.

350, 360 (1987)).

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Likewise, the vagueness and due process concerns

identified in McDonnell are heightened in the case of § 666.

See McDonnell, 579 U.S. at 576. Part of the reason why this

Court rejected the theory that any act by a public official could

constitute an “official act” was because such an expansive quo

would not provide clear guidance to public officials and

citizens (as well as to the jurors tasked with assessing their

guilt) on what conduct is prohibited by the bribery laws and

what is protected under the Constitution. Id.

The same problem exists in the § 666 context—if no official

act is required to convict. Moreover, the problem is aggravated

because, unlike § 201, section 666 does not explicitly include

the phrase “official act” (although, as will be discussed in the

next section, such a requirement is implicitly incorporated in

public-official bribery cases). Without a clear official act

requirement, the term “in connection with any business or

transaction” in § 666 becomes dangerously vague, leading to

potential prosecutorial overreach and arbitrary enforcement.

See United States v. Fernandez, 722 F.3d 1, 14 (1st Cir. 2013);

United States v. Robinson, 663 F.3d 265, 274 (7th Cir. 2011).

Without an official act component clearly delimiting

§ 666’s quo, “well-connected and effective lobbyists,” for

example, are vulnerable to prosecution and face up to 10 years

in prison. See Percoco v. United States, 598 U.S. 319, 331

(2023). Similarly, campaign donations and political promises

could easily be recast by creative prosecutors as quid pro quo

schemes chargeable under § 666. An official act requirement

helps draw a line between these legitimate interactions and

unlawful policies-for-money transactions.

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Settling once and for all that § 666, like other federal

bribery statutes, requires an official act in public bribery cases

is also important to promote consistency in the federal

criminal law. In light of the decisions of six Circuit Courts—

plus the First Circuit—holding or strongly suggesting that

official action is not required to convict, prosecutors can easily

turn McDonnell into dead letter simply by charging

defendants under § 666 rather than under other applicable

statutes. Section 666, after all, already is the most prosecuted

federal bribery statute. Making clear that the prosecution’s

burden to prove an official act is the same under § 666 as in

§ 201, honest services fraud, or Hobbs Act extortion, is thus

crucial to foster uniformity in the federal criminal system and

avoid incongruous results between similarly situated

defendants.

D. The decision below adopted an incorrect rule of

law.

The First Circuit, relying on the decisions of four Circuit

Courts, ruled that no official action is required under § 666

because “the text of § 666, unlike the text of § 201 that the

Supreme Court construed in McDonnell, does not include the

phrase ‘official act’.” Pet.App.10a. This interpretation is

mistaken.

While § 666 does not expressly include the words “official

act,” neither did the statutes used to prosecute McDonnell:

Hobbs Act extortion and honest services fraud. See

McDonnell, 579 U.S. at 562; see also Skilling v. United States,

561 U.S. 358, 404 (2010) (construing honest services fraud to

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forbid “fraudulent schemes to deprive another of honest

services through bribes and kickbacks”); Evans v. United

States, 504 U.S. 255, 260, 269 (1992) (construing Hobbs Act

extortion to include “‘taking a bribe’”).

In any event, statutory construction tools make pellucid

that an “official act” is required in § 666 public-official bribery

cases. Section 666 “was born as the stepchild of another

statute, 18 U.S.C. § 201.” United States v. Fernandez, 722

F.3d 1, 20 (2013) (quoting Weitz, Note, The Devil is in the

Details: 18 U.S.C. § 666 after Skilling v. United States, 14

N.Y.U. J. Legis. & Pub. Pol’y 805, 816 (2011). It was enacted

at a time when it was not clear whether § 201 could also be

used to prosecute not just federal officials but also state and

local government ones as well as private parties exercising

governmental functions. (This Court later held that it

extended to those officials in Dixson v. United States, 465 U.S.

482 (1984)). See Weitz, The Devil is in the Details…, 14 N.Y.U.

J. Legis. & Pub. Pol’y 816. In light of the legal uncertainty

that existed, Congress enacted § 666 to ensure that the

federal government could prosecute acts of corruption

involving federal funds received by state and local

governments, as well as private organizations. Id.

Section 666 “tracks closely with § 201(b)’s bribery

provision.” Hamilton, 46 F.4th at 397. It does not have the

phrase “official act” in it like § 201 does, presumably because

§ 666 was written to cover not only public-official corruption

cases but also private corruption by organizations receiving

federal funds. As far as public-corruption cases are concerned,

however, § 666 brought with it the “old soil” from § 201 and

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therefore should be construed to import the official act

element from the statute after which it was modeled and that

it closely resembles. See Felix Frankfurter, Some Reflections

on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)

(“[I]f a word is obviously transplanted from another legal

source, whether the common law or legislation, it brings the

old soil with it.”).

Further, there is a long tradition that the quo in bribery

cases are the official acts of the public servant. See United

States v. Birdsall, 233 U.S. 223, 230-31 (1914) (holding that

to be deemed bribery “the action sought to be influenced [must

be] official action”). This common law meaning of bribery as

dealing with official acts informed the enactment of § 201 and,

consequently, it is also in the DNA of § 201’s stepchild. See

Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts 318 (2012) (“A statute will be

construed to alter the common law only when that disposition

is clear.”). Although § 666 uses the phrase “business or

transaction” instead of “official act” (since § 666 also covers

conduct by non-governmental parties) there is no doubt that,

when public corruption is concerned, the government’s

business and transactions are its official acts: “[F]or bribery,

there must be a quid pro quo—a specific intent to give or

receive something of value in exchange for an official act.”

Sun-Diamond Growers of Cal., 526 U.S. at 404-05.

Moreover, the First Circuit and other Circuits that have

held that McDonnell does not apply to § 666 because the

phrase “official act” does not explicitly appear in the statute,

overlook that an important part of this Court’s analysis in

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McDonnell was anchored in constitutional concerns. See

McDonnell, 579 U.S. at 574-577. And, as we have seen, these

same constitutional concerns, which the Court characterized

as “substantial” and “significant,” are even more serious in the

§ 666 context. See supra pp.27-28.

Without an official act requirement, § 666 gives the

government a new vehicle to resurrect theories of criminal

liability long rejected by this Court. The Court has held, for

instance, that campaign contributions cannot form the basis

of a bribery charge unless there is a clear exchange for an

official act. See McCormick v. United States, 500 U.S. 257, 273

(1991). The prosecution, however, can turn McCormick on its

head by proceeding under § 666 rather than under the Hobbs

Act, the relevant statute in McCormick.

Likewise, to save the statute from unconstitutional

infirmity, this Court construed honest services fraud to

include only “paradigmatic cases of bribes and kickbacks.”

Skilling v. United States, 561 U.S. 358, 411 (2010). The

paradigmatic federal bribery statute is 18 U.S.C. § 201. See

Id. at 412-13 n.45. If § 666 is read to not require an official

act, the government can sidestep the limitations Skilling

imposed by defining honest services fraud with reference to

§ 666 rather than § 201.

And, although this Court adopted the official acts doctrine

in McDonnell as an important limitation on expansive

theories of public bribery liability, since state and local

government officials can be prosecuted under both § 201 and

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§ 666, the prosecution can render McDonnell an empty

gesture by simply proceeding under the latter statute.

When the federal government adventures to criminalize

and prosecute allegedly unlawful interactions between

citizens and public officials, this Court has long held that “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.” Sun-Diamond Growers of Cal., 526 U.S. at 408.

It is inconsistent with this Court’s jurisprudence and with the

Constitution to treat almost any act by a state or local official

as sufficient quo to convict of quid pro quo public bribery

under § 666. Such a “meat axe” approach, analogous to the

government’s theory in McDonnell, should be rejected and the

decisions of the lower courts that have so held, corrected.

The jury in Carrasco’s case was not given an official-act

instruction; they were not told that bribery requires an official

act to convict. The evidence they heard at trial about the acts

Carrasco agreed to do in exchange for the alleged bribes were

of the informal and routine kind, like those in McDonnell:

procuring meetings and keeping Mercado informed about

work opportunities. But in McDonnell this Court made clear

that bribery laws are not concerned with simple influence but

rather with the sale of one’s official position.

Because the jurors below were not asked to identify an

official action taken by Carrasco nor instructed about what an

official act is, there is a serious risk that they may have

convicted Carrasco without finding that he committed or

agreed to commit an official act. In other words, they may

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have found that “influence” or “access” were sufficient quo

under the law. This Court should review and clarify this

important issue about which there is considerable confusion

in the lower courts.

CONCLUSION

Based on the reasons above, the petition for a writ of certiorari should be granted.

Respectfully submitted.

Rachel Brill

Franco L. Pérez-Redondo

Jose David Rodríguez

Federal Public Defender,

District of Puerto Rico

241 F.D. Roosevelt Ave.

San Juan, PR 00918

Counsel for Petitioner

June 14, 2024

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