# Petition for Writ of Certiorari — Rosado v. Curtis

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0033%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1058

## Text

(i) 96 TBS NOV 1 2 19%
OFPI@E OF THE CLERK
No.

In The

Supreme Court of the United States
October Term, 1996

¢

MARIO SALINAS,
Petitioner,

UNITED STATES OF AMERICA,
Respondent.

+

Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

+

Enriquez & Cantu, L.L.P.
Francisco J. ENRIQUEZ
4200-B N. Bicentennial
McAllen, Texas 78504
210-686-5291

Attorney for Petitioner

COCKLE LAW SRIEF PRINTING CO. 225-6964
OR CALL COLLECT (402)

pha Ot ad nd eee

a
wl...
ee ee ee Pe ee oe a

i

QUESTIONS PRESENTED

I. The Defendant, Mario Salinas, was a deputy sheriff
employed by the Office of the Sheriff of Hidalgo County.
Counts 3 and 4 of the indictment charged him with
Federal Bribery violations under 18 U.S.C. Section 666.
The case against him does not meet the prerequisites for
such a federal prosecution. The facts do not bring it
within the class of cases for which there can be a convic-
tion under 18 U.S.C. Section 666 because the Sheriff's
Office did not receive federal assistance during the rele-

vant time periods as required by the statute. 18 U.S.C.
Section 666(b). The question presented here is:

Are payments made by the federal government
to the Sheriff's Office for the housing of federal pris-
oners in the county jail federal assistance or simply
payments in return for services rendered?

Il. The case against Salinas does not meet the prereq-
uisites for a federal prosecution under 18 U.S.C. Section
666 the Federal Bribery Statute because no federal funds
were in any manner impinged upon. The case involved
bribery from a prisoner in return for contact visits. It had
nothing whatsoever to do with the disbursement of or
impingement upon federal, or even state or local, funds.
The question presented here is:

What kind of cases involving state employees
are subject to prosecution under the Federal Bribery
Statute 18 U.S.C. Section 666? Do such cases include
cases where no federal funds are disbursed or

impinged?

a a ad 77
%

ee
" o “uy ~ 4

ii

QUESTIONS PRESENTED - Continued

Ill. Counts 1 and 2 of the indictment cover RICO sub-

stantive and RICO conspiracy respectively. The RICO

substantive statute requires that the government prove
two predicate acts before a defendant can be found guilty.

Salinas was found not guilty of Count 1 (RICO substan-
tive). Salinas contends that before he could be found
guilty of RICO conspiracy the government must have

proven that Salinas personally committed or agreed to
commit two RICO predicate acts.

The trial court did not charge the jury in this
manner and, in fact, required no acts on Salinas’ part. The

question presented here is:

Before a defendant can be found guilty of the
Conspiracy provisions of the RICO statute, must the
government prove that he personally committed or
agreed to commit two RICO predicate acts?

IV. The law on this issue, prior to the opinion by the
Fifth Circuit in this case, was such that before Salinas
could be found guilty of RICO conspiracy the govern-
ment must have proven that Salinas personally commit-
ted or agreed to commit two RICO predicate acts. The
Fifth Circuit opinion changed the law so as to not require

any predicate acts. The question presented here is:
Are a Defendant's due process rights violated

when there is such a basic change in the law on criminal
responsibility?

V. There were two search warrants issued searching
for a specific item, i.e. two RADO watches. One search

iii

QUESTIONS PRESENTED - Continued

warrant was issued for Salinas’ home, the other for his
office. The RADO watches were found in his home. The
law requires that a search warrant be supported by prob-
able cause that the evidence will be found in a particular
place. There was none in this case. This is a classic fishing
expedition. The question presented here is:

Is the Fourth Amendment requirement of prob-
able cause violated when there is no information in the
search warrant that would indicate that an item of evi-

dence can be found in a particular place?

iv Vv
TABLE OF CONTENTS TABLE OF CONTENTS - Continued
Page Page
V. The Search Warrant Lacked Probable Cause
QUESTIONS PRESENTED ..............cccccceeees Because Tt Was A Classic Fishing Expedition
Ga Ts OC ai Se ii eRe CN i's she HERTRAR arn Protection 4 fey brine ty mer
RMD . Ub chObab Th ucwhcoes 5
United States v. Wyncoop, 11 F. 3d 119 (9th Cir.

Ps cccankvecdalidhvedetdrdd Dik etestoudeecdes es 7
CONSTITUTIONAL PROVISIONS
NERS EE a 2
oe es ectecseetebwou’ 2, 11
STATUTES AND RuLes
Supreme Court Rule 13.1 ...........6 cc eeeceeeeeees 1
Sp ns ME ITS oc Sac cos cb eine ccccvocse 2, 4, 5, 6
BE I TO is onic 6:0 0 WbS co te cb eeBe vovcevcees 2
on oo dace bacepeedssvdbentene 2
BOEI GE, Geet HNO Peo ie oc ccc ccc ecddevecccdacees 2,4
ee nM nn 6 aon dobdepbsddonvesecebeos 2

~~~? 7 FT

— “.- -— lle

1

PETITION FOR WRIT OF CERTIORARI

Mario Salinas respectfully prays that a writ of cer-
tiorari issue to review the judgment and opinion of the
United States Court of Appeals for the Fifth Circuit
entered in this proceeding on July 17, 1996, in order to
resolve the conflicts between the Fifth, First, Second,
Third and Tenth Courts of Appeals on the important
issues presented herein, to resolve conflicts between the
Fifth Circuit and Supreme Court and to resolve Constitu-
tional issues based on the Fourth and Fifth Amendments,
to the United States Constitution.

S

OPINION BELOW

The opinion of the United States Court of Appeals for
the Fifth Circuit that gives rise to this petition is pub-
lished. App. 1. By order filed August 15, 1996, the Fifth
Circuit denied the petition for rehearing and suggestion
for rehearing en banc. App. 2.

¢

JURISDICTION

The district court imposed sentence on Salinas on
November 23, 1994. Salinas timely appealed to the Fifth
Circuit, which affirmed in an opinion filed on July 17,
1996. On August 15, 1996, the Fifth Circuit denied Salinas
timely-filed motion for rehearing and suggestion for
rehearing en banc. Pursuant to Supreme Court Rule 13.1,
this petition has been filed within 90 days of the denial of

rehearing.

The jurisdiction of the court is invoked pursuant to
28 U.S.C. § 1254(1).

¢

STATUTES INVOLVED IN THIS CASE
Fourth and Fifth Amendments to the U.S. Constitution

i8 U.S.C. Section 666
18 U.S.C. Section 1961
18 U.S.C. Section 1962
18 U.S.C. Section 4002
(See App. 3 for text of statutes)

*

STATEMENT OF THE CASE

On or about June 1991 Homero Beltran, a federal
prisoner, was placed in the Hidalgo County Jail, Hidalgo
County, Texas, by the U.S. Marshall's office. He remained
there until approximately March or April of 1992 at
which time he was moved to other institutions eventually
being placed in a federal penitentiary. During this first
stay he pled guilty in January 1992 to a number of federal
drug violations. On or about November of 1992 Beltran
was returned again at the Marshall’s direction to the
Hidalgo County Jail. He was kept there pending a case
against an associate of his against whom he was sup-

posed to have testified. His stay this time ended in April
1993.

He has claimed that during this time he and his
brother-in-law Juan Antonio Guardado paid numerous
bribes to Brigido Marmolejo, Sheriff of Hidalgo.County in
return for the Sheriff arranging and allowing contact and
conjugal visits. According to Beltran most of these visits
took place in the Sheriff’s personal office.

Defendant Mario Salinas at all times important to this
prosecution was a deputy sheriff and held the title of a
Chief Deputy. He was assigned the duties of managing
the jail in Hidalgo County, its employees and prisoners.
The hierarchy of the Sheriff's Department shows the
Sheriff as the head, with Deputy Bob Davis immediately
below the Sheriff. Reporting to Bob Davis and the Sheriff,
the next level is the “Chief Deputies”. Below the Chief
Deputies were Captains and Lieutenants, and so forth.

The testimony showed that the persons entitled to
grant contact visits were the Sheriff, Bob Davis, the
Chiefs, the Captains and in some instances the Lieuten-
ants. Contact visits are visits where the prisoner actually
has physical contact with the visitor.

Defendant Salinas was indicted for allegedly partici-
pating in this bribe scheme in return for contact visits for
the prisoner Homero Beltran. The original indictment
included allegations of bribery involving another pris-
oner, but those charges were dismissed by the Govern-
ment upon resting its case.

s

a

4

REASONS FOR GRANTING THE WRIT

I. The Fifth Circuit’s Opinion Directly Conflicts With
The Supreme Court’s Opinion In Logue Which
Establishes The Commercial Nature Of The Rela-
tionship Between The Sheriff's Office And The
United States Government.

Before an individual can be found liable under Sec-
tion 666, the Government is required to prove that the
organization the individual worked for received federal
assistance during the relevant time period. 18 U.S.C. Sec-
tion 666 (b).

The Government has sought to base the applicability
of Section 666 on an alleged contract for services between
the Hidalgo County Sheriff’s Office and the United States
Marshall’s Service. It relied on a contract between the
Sheriff’s Office for the housing of Federal Prisoners and
payments made thereunder. App. 4.

No Federal program and no Federal assistance is
involved.

This contract is made pursuant to 18 U.S.C. Section
4002 entitled “Federal Prisoners in State Institutions;
Employment.” However, the Supreme Court of the
United States has firmly established the nature of the
relationship created by such contracts. Logue v. United
States, 412 U.S. 521 (1973).

Though petitioners do not always distinguish
between their two theories, they appear to con-

tend alternatively that the Nueces County jail is
a “Federal agency” by reason »f its contract for
the care of federal prisoners, or that the
employees of the jail are “acting on behalf of”

5

the Bureau of Prisons or the Government in
performing services for federal prisoners. The
Court of Appeals rejected these contentions, and
we believe that it was right in doing so.

Id. at 526. The role of the Sheriff's Office in this case was
defined as that of an independent contractor.

Thus, Congress not only authorized the Govern-
ment to make contracts such as the one here in

but rather clearly contemplated that
the day-to-day. operations of the contractor’s
facilities were to be in the hands of the contrac-
tor, with the Government's role limited to the
payment of sufficiently high rates to induce the
contractor to do a good job.

Id. at 529.

Obviously, there is no federal assistance here. This
issue has also been foreclosed against the Government by
the legislative history of Section 666. United States v.
Stewart, 727 F. Supp. 1068, 1072 (N.D. Tex. 1989).

At trial, the Government’s witness on these matters
testified unequivocally that the payments made were con-
tract payments for services rendered and that they were
not grant money, federal assistance or anything of that
nature. App. 5.

In summary, the contract funds the Government rely
on do not give rise to a Federal Crime under Section 666.

6

Il. The Fifth Circuit's Opinion Directly Conflicts With
The Second Circuit Decision In Foley And The
Third Circuit Decision In Cicco Which Indicate
That The Type Of Actions Prosecuted In Salinas Do
Not Fall Under The Federal Bribery Statute.

The Government complains of the alleged contact
visits given, supposedly in return for consideration
received by the defendants. The statute makes it an
offense for someone to corruptly solicit or demand, or
accept, or agree to accept, anything of value from any
person with intent to be influenced or rewarded in con-
nection with any “business, transaction, or series of trans-
actions . . . involving value of $5,000.00 or more.” 18
US.C. Section 666 (a) (1) (B).

However, this case does not involve any granting of
contracts in return for kickbacks, accepting of bids,
embezzling of government money, theft of government
property, granting of leases in return for payoffs, or any-
thing of that nature. The statute simply does not apply.

In the case of United States v. Cicco, 938 ©. 2d 441 (3rd
Cir. 1991), the defendants were charged under Section 666
for alleged corrupt solicitation of political services and
loyalty in exchange for municipal jobs.

The court reviewed in depth the legislative history of
the statute and the case law interpreting it. The court
held, “It is thus apparent that the crimes Congress tar-
geted when it created Section 666 are simply different in
kind than those alleged in the case at bar.” Id. at 445. The
court found that the conduct upon which the indictment
was based was simply not a “transaction of a local gov-
ernment” and that Section 666 was ambiguous. Id. at 444.

7

In the case presently before this Court the Government
has not alleged and cannot show any transactions of the

nature proscribed by the statute.

Additionally, “The Senate Report specifically states
that the new statute, section 666, was intended to .. .
‘protect the integrity of the vast sums of money distrib-
uted through federal programs from . . . undue influence
by bribery... . ’ The emphasis was on protecting federal
funds.” United States v. Wyncoop, 11 F. 3d 119, 122 (9th Cir.
1993). No federal funds were in any manner impinged
upon, nor was any proof submitted on this issue.

Finally, as noted in United States v. Foley, 73 F. 3d 484,
493 (2d Cir. 1996), if the act has “affected neither the
financial interests of the protected organization nor fed-
eral funds directly” there is no violation.

Ill. The Fifth Circuit’s Opinion On The Issue Of RICO
iracy Elements Is Directly In Conflict With
The First Circuit Decision In Carrozza, The Second
Circuit Decision In Ruggiero And The Tenth Cir-

cuit Decision In Sanders.

The Court's instructions to the jury allowed a finding
of guilt to conspiracy without the necessity of the jury
finding that this defendant either actually committed two
or more of the alleged racketeering acts or that he agreed
personally to perform two or more of the specific acts.
The defendant, to be found guilty of RICO conspiracy,
must have committed or have agreed to commit at least
two separate crimes in furtherance of the conspiracy.
United States v. Phillips, 664 F.2d 971, 1039 (Sth Cir. 1981),
cert. denied, 457 U.S. 1136, 102 S.Ct. 2965 (1982); United

ra Ay Me ee ee ane ieee eee

States v. Elliot, 571 F. 2d 880, 902 (5th Cir. 1978); United
States v. Carrozza, 4 F. 3d 70, 79 n.8 (ist Cir. 1993), cert.
denied, 114 S.Ct. 1644 (1994); United States v. Ruggiero, 726
F. 2d 913, 921 (2d Cir.), cert. denied, 469 U.S. 831 (1984);
United States v. Sanders, 929 F. 2d 1466, 1473 (10th Cir.),
cert. denied, 502 U.S. 846 (1991). See also, United States v.
Marcello, 876 F. 2d 1147, 1153 (5th Cir. 1989) (two predi-
cate acts required to sustain a RICO Conspiracy); United
States v. Faulkner, 17 F. 3d 745, 773 (5th Cir. 1994) (“We
need not resolve this issue”).

The conspiracy case against Salinas was tried by the
government under these theories.

Despite this the Court instructed the jury that Defen-
dant Salinas could be found guilty of RICO conspiracy
even if he was not involved in any predicate acts. App. 6.
This was error.

Apparently it was the intent of the trial court to
either test the Fifth Circuit’s prior rulings on this matter
or to bring about a change in the law to conform to what
it believed to be the law of some other circutits.

The Court: And there’s this problenm that
there’s some old Fifth Circuit

Now, the Eleventh Circuit, sup-
posedly has now said that the
fifth circuit probably never meant
that and wouldn’t mean it today.
That case you all gave me a
month ago says, ‘well, we don’t
need to reach that’, but I’m just
saying that even if I get reversed

ee me ee fet ho Ot ee el Te OO ES ee a

on it, at least we'll get the law
cleared up.

App. 7.

Even under other circuits’ standard the Salinas con-
spiracy count would still have been charged in the man-
ner required. For example, an Eleventh Circuit case which
discusses this issue in depth and with extended analysis
is United States v. Carter, 721 F. 2d 1514 (11th Cir. 1984).
Yet, the holding in that case would mandate a submission

of the kind requested.

In summary, we hold that where the govern-
ment’s evidence establishes that a defendant
agreed to participate in a conspiracy with a
single objective, the requisite pattern of rack-
eteering necessary to the objective of a RICO
conspiracy is lacking. Only by demonstrating
that the defendant agreed to personally commit
two or more predicate acts is this lack cured. In
a case of this type, the trial court must instruct
the jury that an essential element of a RICO
conspiracy charge is an agreement to participate
in the enterprises’s affairs by personally com-
nitting, or agreeing to personally commit, two
or more predicate acts.

Id. at 1531. Eventually, the Salinas case was submitted on
one prisoner, involving one bribe scheme - that is, one
objective. The trial court recognized this when it stated,
“I mean, granted, it’s one arrangement... . “ App. 8.
Therefore, even under an Eleventh Circuit analysis the
RICO conspiracy counts would have been submitted in a
manner which required the jury to find that Salinas had

agreed to personally perform two or more predicate acts.

10

This issue is worthy of Supreme Court consideration
because the Fifth Circuit panel decision makes a funda-
mental change in conspiracy law as it applies to RICO.
The panel opinivin «t best views the prior Fifth Circuit
case law on this point as vague and obfuscating. The
conflict is something trial courts must deal with, and do
grapple with. The conflict creates great uncertainty as to
what a court must instruct a jury and how a defendant
must defend himself and what kind of actions constitute
criminal violations.

IV. The Trial Court's Instruction To The Jury On RICO
Conspiracy And The Fifth Circuit’s Opinien On
The Issue Of RICO Elements Changes Prior Law
On The Subject And, Consequentiy, Denied
Salinas Constitutional Right To A Fair Trial And
Due Process.

As noted above, it was the intent of the trial court to
either test the Fifth Circuit's prior rulings on this matter
or to bring about a change in the law to conform to what
it believed to be the law of some othe: circuits.

The Court: And there’s this problem that
there’s some old Fifth Circuit
cases that arguably mean some-

that and wouldn’t mean it today.
That case you all gave me a
month ago says, ‘well, we don’t
need to reach that’, but I’m just
saying that even if I get reversed

re a Fe ere

11

on it, at least we'll get the law
cleared up.

App. 7.

Where there is doubt as to whether a conviction is
predicated on an impermissible ground the conviction
should be vacated. See Stromberg v. California, 283 U.S.
359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Also, the rule of
lenity would apply in this case and require a dismissal.
United States v. Hartec Enterprises, Inc., 967 F. 2d 130, 133
(Sth Cir. 1992). It also appears that due process consider-
ations would prohibit a change in the law applying retro-
actively to this case and this defendant. Fifth Amendment
to the Constitution.

Where standards are applied retroactively to the
potential detriment of a defendant in a criminal case the
Due Process Clause is implicated and a conviction based
on such standards will be reversed. Marks v. United States,
430 U.S. 188, 196, 97 S.Ct. 990, 995, 51 L.Ed. 2d 260 (1977).
In that case, the various circuit courts of appeal applied
the new standards in differing ways. Some applied the
standards retroactively, some did not. 430 U.S. at 189 n. 1.
The Court stated that although the Ex Post Facto Clause
of the U.S. Constitution did not apply directly to the
judicial branch, the principles it enunciates apply by vir-
tue of the Fifth Amendment. 430 U.S. at 191 and 192.
“(T]he notion that persons have a right to fair warning of
that conduct which will give rise to criminal penalties — is
fundamental to our concept of constitutional liberty.” 430
U.S. at 191.

The conspiracy case against Salinas was tried by the
government under the belief that the law required the

Each individual has to be identi.
fied with at least two specific
racketeering acts.

App. 9.

The wider net established in the present Salinas case
should not apply. The panel opinion at best views the
prior Fifth Circuit case law on this point as vague and
obfuscating. The case was tried under a theory which
would require a jury to find two predicate acts. It would
seem that a defendant, under these circumstances, is not
adequately placed on notice on what he must defend
against and how he must defend himself.

V. The Search Warrant Lacked Probable Cause Because

A warrant is supported by probable cause if “ iy
en
all the circumstances set forth in the Affidavit, there i. ,

fair probability that contraband or evidence of a crime

ll at ett ee ie ee Ee bn i: Jib a

13

will be found in a particular place.” United States v.
McKeever, 5 F. 3d 863, 865 (5th Cir. 1993) (emphasis
added); see Illinois v. Gates, 462 U.S. 213, 239 (1983). As to
the watches, there is no indication in the search warrant
affidavit as to where the watches might be located. This is
a classic fishing expedition. In fact, both the Salinas war-
rants, the one for the office and the one for his home, list
the watches. It is obvious the Government had no infor-
mation where the watches might be located and, instead,
they went on a hopeful fishing expedition. App. 10. It had
no information that the watches would be found in a
particular place. Therefore, there was an unlawful search
and seizure. No nexus was shown. See United States v.
Garcia, 27 F. 3d 1009 (5th Cir.), cert. denied sub nom.,
Chavez v. United States, 115 S.Ct. 531, 130 L.Ed. 2d 435
(1994); United States v. Laury, 985 F. 2d 1293 (5th Cir.

1993).

S

CONCLUSION

For the foregoing reasons, the petition for writ of
certiorari should be granted.

Respectfully submitted,
Enriquez & Cantu, L.L.P.
Francisco J. Enriquez
4200-B N. Bicentennial
McAllen, Texas 78504
210-686-5291

Attorney for Petitioner

APPENDIX

So ae ee ee Se ee ee ee ee ee Oe a ee ogee eae yp Se | ee i gee ae ia re Be ne ee OC Ua, Se ay Se enn ee

Brigido MARMOLEJO, Jr. and Mario
Salinas, Defendants-Appellants.

No. 94-60812.

United States Court of Appeals,
Fifth Circuit.

July 17, 1996.

Appeal from the United States District Court for the
Southern District of Texas.

Before JOLLY, WIENER and EMILIO M. GARZA, Cir-
cuit Judges.

EMILIO M. GARZA, Circuit Judge:

Brigido Marmolejo, Jr. and Mario Salinas, the former
Sheriff and Chief Deputy Sheriff of Hidalgo County,
Texas were convicted of various offenses arising from a
series of bribes that Marmolejo received, and Salinas
aided and abetted, in exchange for permitting conjugal
visits for a federal prisoner housed at the Hidalgo County
Jail. Marmolejo appeals his conviction and his sentence.
Salinas appeals only his conviction. We affirm buth defen-
dants’ convictions and Marmolejo’s sentence.

7]

App. 2

While Marmolejo was the Sheriff of Hidalgo County,
Texas, Homero Beltran-Aguirre (Beltran) was a federal
prisoner housed at the Hidalgo County Jail pursuant to
an agreement between the United States Marshals Service
and Hidalgo County. As Sheriff of Hidalgo County, Mar-
molejo was in charge of the operation of the Hidalgo
County Jail. Salinas was Marmolejo’s immediate subordi-
nate as the Divisional Chief for Detention of the Hidalgo
County Sheriff’s Office.

Beltran was housed at the Hidalgo County Jail on
two separate occasions: first, from June 7, 1991 to April
14, 1992, and second, from November 6, 1992 to April 26,
1993. The series of bribes comprising the pattern of rack-
eteering charged in the indictment against Marmolejo
and Salinas occurred during these periods.

As a result of the bribery scheme between Marmolejo
and Beltran, Marmolejo and Salinas were convicted of
numerous offenses. A jury found Marmolejo guilty of
violating RICO, in violation of 18 U.S.C. § 1962(c), RICO
conspiracy, in violation of 18 U.S.C. § 1962(d), two counts
of bribery in relation to a program receiving more than
$10,000 in federal funds, in violation of 18 U.S.C.
§ 666(a)(1)(B) and 18 U.S.C. § 2, aiding and abetting
money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) and 18 U.S.C. § 2, two counts of money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i),
and travel in interstate commerce to promote bribery, in
violation of 18 U.S.C. § 1952(a)(3). A jury found Salinas

1 This agreement is described in detail in Part II infra.

App. 3

guilty of RICO conspiracy, in violation of 18 U.S.C.
§ 1962(d), and two counts of bribery in relation to a
program receiving more than $10,000 in federal funds, in
violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2.
Both defendants filed timely appeals.

II

Marmolejo and Salinas argue several points of error
concerning their convictions for bribery under 18 U.S.C.
§ 666(a)(1)(B), which prohibits theft and bribery by offi-
cials of state and local agencies that receive federal
funds.2 We review questions of statutory interpretation de
novo. United States v. Westmoreland, $41 F.2d 572, 576 (5th
Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39
(1988). “Courts in applying criminal laws generally must

2 Section 666 applies to an “organization, government, or
agency [that] receives, in any one year period, benefits in excess
of $10,000 under a Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other form of Federal
assistance.” 18 U.S.C. § 666(b).

The section under which the defendants were convicted
punishes anyone who:
(a)(1) being an agent of an organization, or of a
State, local, or Indian tribal government, or any
agency thereof -
(B) 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 anything of value of $5,000 or more... .

18 U.S.C. § 666(a)(1)(B).

App. 4

follow the plain and unambiguous meaning of the statu-
tory language. ‘[O]nly the most extraordinary showing of
contrary intentions’ in the legislative history will justify
departure from that language.” United States v. Albertini,
472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536
(1985) (citations omitted) (quoting Garcia v. United States,
469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984)).

A

Section 666(b) restricts the statute to agencies that
receive “in any one year period, benefits in excess of
$10,000 under a Federal program involving a grant, con-
tract, subsidy, loan, guarantee, insurance or other form of
Federal assistance.” 18 U.S.C. § 666(b). The defendants
contend that the district court did not have jurisdiction to
try the bribery counts under 18 U.S.C. § 666 because
Hidalgo County did not receive “benefits in excess of
$10,000 under a Federal program” or any “other form of
Federal assistance.” Id.

The parties dispute whether it is proper, in determin-
ing whether Hidalgo County Jail received Federal assis-
tance, to focus on (1) a Cooperative Agreement Plan
(CAP), which provided a $850,000 grant for construction
at the Hidalgo County Jail, and an Intergovernmental
Service Agreement (IGA), which provided that Hidalgo
County Jail would house federal prisoners in exchange
for their costs, or (2) just IGA. This issue is relevant not

3 The government contends that CAP and IGA together
constituted a Federal program under § 666(b). The defendants
argue that the construction grant issued pursuant to CAP is

eS he | A ee ee ee SIP ae eee a eee PP eee Le ee ee ee A. oe a ee ee ee ae

App. 5

only to determine whether the arrangement constituted a
Federal program or Federal assistance, but also to deter-
mine whether Hidalgo County satisfies the requirement
that it received the benefit within a one year period.‘

The plain language of § 666(b) is ambiguous in defin-
ing “Federal program” and “Federal assistance.”
Although it is clear that the assistance can consist of a

irrelevant to an analysis of what, if any, Federal assistance the
Hidalgo County Jail received while Beltran was in the jail. They
argue that because CAP was entered into and completed in 1984
and the bribery scheme occurred between 1991 and 1993, CAP
could not qualify as Federal assistance received in a one year
period before or after the date of the commission of the offense.
See 18 U.S.C. §§ 666(b) and 666(d)(5). The defendants argue
further that IGA does not qualify as “Federal assistance” or a
“Federal program” because it was simply a contract for services
rendered, and thus a commercial transaction exempted from the

statute by §§ 666(b) and (c).

* Section 666(d)(5) defines a one-year period as “a
continuous period that commences no earlier than twelve
months before the commission of the offense or that ends no
later than twelve months after the commission of the offense.
Such period may include time both before and after the
commission of the offense.” Because Hidalgo County received
the $850,000 construction grant in 1984, and because the
offenses committed in this case occurred from June 1991 to April
1992 and from November 1992 to July 1993, and assuming that
only CAP is a Federal program under § 666(b), Hidalgo County
would not have received the required amount of benefit within
the relevant one-year period. However, if IGA and CAP should
be viewed collectively as one agreement, and the agreement
constitutes a Federal program, then the one-year requirement
would be met, because Hidalgo County received approximately
$840,000 per year pursuant to IGA for housing federal prisoners
at cost per CAP during the time that Beltran was housed at the
jail.

App. 6

grant, contract, subsidy, loan, guarantee, or insurance, the
other defining qualities of “Federal assistance” are still
unclear. The legislative history, however, provides that
the term “Federal program involving a grant, a contract, a
subsidy, a loan, a guarantee, insurance, or another form
of Federal assistance” should be construed broadly.
S.Rep. No. 225, 98th Cong., 2d Sess. 370 (1984), reprinted
in 1984 U.S.C.C.A.N. 3182, 3511 [hereinafter S.Rep. No.
225]. We must determine, therefore, whether under a
broad interpretation of “Federal assistance,” it is proper
to analyze IGA and CAP collectively as a single agree-
ment because they are so interrelated.

IGA and CAP were entered into in 1984 to establish
and govern relations between the U.S. Marshais Service
and Hidalgo County. CAP was the first agreement; it
provided for “Federal participation in the funding of
local governmental jail construction, renovation or
improvement programs” and was “predicated upon the
Federal government's requirement for detention space
and services and the local government's provision of such
services.” As a condition to the receipt of this grant,
Hidalgo County Jail had to guarantee that it would pro-
vide detention space for federal prisoners. The second
agreement, IGA, established the actual formal relation-
ship between the U.S. Marshals Service and other federal
user agencies and Hidalgo County for the detention of
federal prisoners. Although Hidalgo County had already
guaranteed that it would provide such space, IGA estab-
lished the specific provisions and requirements of the
agreement including the compensation that Hidalgo
County would receive.

App. 7

These agreements are so interrelated that they must
be viewed collectively as one agreement, especially given
the fact that the grant issued pursuant to CAP was condi-
tioned on the agreement in IGA. Having reviewed the
nature and purposes of CAP and IGA, we conclude that
together they constituted “Federal assistance” or a “Fed-
eral program” under 18 U.S.C. § 666(b), consisting of a
grant, CAP, and a contract, IGA. Our holding is sup-
ported by the broad construction of § 666(b) mandated in
the legislative history. S.Rep. No. 225 at 3511.

Focusing exclusively on IGA, the defendants argue
that the arrangement between Hidalgo County and the
U.S. Marshals Service was a commercial transaction. In
urging that this is a commercial transaction, the defen-
dants emphasize the fact that the U.S. Marshals Service
received something in return for the funds it provided to
Hidalgo County.

5 The defendants appear to argue that as a “commercial
transaction,” this arrangement would be excluded from the
statute by §§ 666(b) and (c). However, § 666(c), which excludes
“bona fide salary, wages, fees, or other compensation paid, or
expenses paid or reimbursed, in the usual course of business,”
refers to the alleged wrongdoing, to ensure that the statute is
not applied to “acceptable commercial and business practices,”
H.R.Rep. No. 797, 99th Cong., 2d Sess. 30, reprinted in 1986
U.S.C.C.A.N. 6138, 6153, not to the nature of the benefit that the
agency receives pursuant to the Federal program. See United
States v. Valentine, 63 F.3d 459, 465 (6th Cir.1995) (declining to
hold that the use of employees for personal benefit is in the
usual course of business); United States v. Grubb, 11 F.3d 426 (4th
Cir.1993) (declining to hold that salary obtained in exchange for
$10,000 bribe was “bona fide”). But see United States v. Nichols,
40 F.3d 999, 1000 (9th Cir.1994) (applying § 666(c) to the nature
of the Federal assistance). Certainly the defendants are not

~~ — ©. -— 29. 3

App. 8

The legislative history again demonstrates why the
defendants’ argument must fail. The Senate Report states
that the goal in enacting 18 U.S.C. § 666 was to protect the
integrity of federal funds by punishing theft and bribery
involving Federal programs for which there is “a specific
statutory scheme authorizing the Federal assistance in
order to promote or achieve certain policy objectives.”
S.Rep. No. 225 at 3511. Focusing on this legislative his-
tory, the Second Circuit in United States v. Rooney, 986 F.2d

31, 35 (2d Cir.1993), rejected a quid pro quo argument
similar to that argued by Marmolejo and Salinas. The

Rooney court stated that the proper focus in determining
whether federal funds constitute “Federal assistance”
under § 666(b) is “whether the funds disbursed can be
considered Federal assistance within a specific statutory
scheme intended to promote public policy objectives and
not payments by the government as a commercial entity.”
Rooney, 986 F.2d at 35. Finding that the statute equated
“benefit” with “Federal assistance,” the Second Circuit
held that an Farmers Home Administration loan could
constitute Federal assistance under § 666(b), despite the
fact that the defendant was obligated to repay the loan
plus interest, because the money the defendant received
was authorized by a specific statute to accomplish speci-
fic policy goals established by Congress. Id. at 34-35.

Likewise, in this case, the funds that the federal

government provided for Hidalgo County were autho-
rized by a specific statute and were intended to further

arguing that the money they received from Beltran or the benefit
that Beltran received from them was “bona fide” and “in the
usual course of business.” 18 U.S.C. § 666(c).

App. 9

public policy goals. The fact that Hidalgo County housed
federal prisoners in return for the money it received from

the United States Marshals Service does not preclude the
arrangement from being a Federal program under
§ 666(b). The federal funds were authorized by 18 U.S.C.
§ 4002 to fulfill the federal government's policy of pro-
viding “suitable quarters for the safekeeping, care, and
subsistence of all persons held under authority of any
enactment of Congress,” 18 U.S.C. § 4002, and as stated in
CAP, to provide for “[fjederal participation in the fund-
ing of local governmental jail construction, renovation or
improvement programs.” Therefore the combination of
CAP and IGA qualifies as a Federal program under
§ 666(b), regardless of the fact that the government
received something in return for the assistance it pro-
vided to Hidalgo County.®

The defendants next argue that they were “improp-
erly prosecuted” under 18 U.S.C. § 666(a)(1)(B). They
argue that in enacting 18 U.S.C. § 666, Congress did not
intend to reach their behavior. Specifically, they contend
that there was not a business, transaction, or series of
transactions “involving anything of value of $5,000 or
more,” as required under § 666(a)(1)(B).

6 Because we hold that IGA and CAP together constitute a
Federal program, Hidalgo County meets the one-year
requirement as defined in 18 U.S.C. 666(d)(5), because it
received $840,000 a year for housing federal prisoners during
the period in which the offenses were committed.

App. 10

Section 666(a)(1)(B) requires the government to prove
that agents of a local government solicited, demanded,
accepted, or agreed to accept anything of value from any
person intending to be influenced “in connection with
any business, transaction, or series of transactions of such
government . . . involving anything of value of $5,000 or
more.” 18 U.S.C. § 666(a)(1)(B). The evidence at trial
demonstrated that Beltran was housed at the Hidalgo
County Jail, pursuant to .GA. After observing that several
of the federal prisoners were receiving special treatment
at the jail, Beltran entered into an agreement with Mar-
molejo to receive special treatment in exchange for mone-
tary consideration. Specifically, Marmolejo allowed
Beltran to have conjugal visits with his wife and girl-
friend in exchange for $6,000 a month and $1,000 per
visit. These visits took place in the jail library and eventu-
ally in Sheriff Marmolejo’s office.

The evidence also disclosed that Marmolejo told
Beltran’s brother-in-law, Guardado, who often arranged
the visits, that if Marmolejo was not available, he could
contact Salinas about arranging a visit. Marmolejo usu-
ally guarded his office door when Beltran and his wife or
girlfriend were visiting. However, Salinas sv~ervised the
visits on several occasions. The evidence also established
that Beltran instructed Guardado to purchase four sets of
men and women’s Rado watches, one set of which was
given to Salinas and one set to Marmolejo. Both Salinas
and Marmolejo also received cars from Beltran. Marmo-
lejo was also involved in numerous financial transactions
with Beltran.

We have previously held that § 666(a)(1)(B) does not
require the government to prove that federal funds were

App. 11

directly involved in a bribery transaction, or that the
federal monies funded the corrupt transaction. Westmore-
land, 841 F.2d at 578 (upholding conviction of a county
supervisor under § 666(a)(1)(B) for taking bribes in con-
nection with the granting of contracts for the mainte-
nance of local roads and bridges although the funds
corruptly disbursed were not federal funds). Therefore,
although the government did not have to trace any fed-
eral funds to the illegal transaction between Beltran and
Marmolejo and Salinas, we must consider whether the
term “anything of value” in § 666(a)(1)(B) was intended
to cover transactions involving intangibles, such as a
conjugal visit, that are difficult to value.

We turn first to the plain language of the statute. The
term “anything of value” in § 666(a)(1)(B) is broad in
scope and contains no language restricting its application
to transactions involving money, goods, or services. Sim-
ilarty, the statute does not require that the organization,
government, or agency or the person giving the agent the
bribe, valued the transaction at $5,000 or more. We hold,
therefore, that the plain meaning of the statute compels
our conclusion that the term “anything of value” in
§ 666(a)(1)(B) includes transactions involving intangible
items, such as the conjugal visits at issue in this case.”

7 We note that the dissent’s belief that the relevant
language of § 666(a)(1)(B) is ambiguous, directly contradicts our
finding in Westmoreland, 841 F.2d at 576. In Westmoreland, we
rejected the defendant's that “sufficient statutory
ambiguity exists to invoke the rule of strict construction
applicable to criminal statutes and the rule that
intent, as evidenced by the legislative history, controls,”
because we found the statutory language “plain and

unambiguous.” Id. at 575-76.

App. 12

See United States v. Mongelli, 794 F.Supp. 529, 531
(S.D.N.Y.1992) (holding that term “anything of value” in
18 U.S.C. § 666(a)(1)(8) includes intangibles).

This broad language squares with Congress's intent
in enacting 18 U.S.C. § 666 to safeguard “the integrity of
federal funds by assuring the integrity of the organiza-
tions or agencies that receive them.” Westmoreland, 841
F.2d at 577, 578. The Senate Report stated that:

[18 U.S.C. § 666 was] designed to create new
offenses to augment the ability of the United
States to vindicate significant acts of theft,
fraud, and bribery involving Federal monies
that are disbursed to private organizations or
State and local governments pursuant to a Fed-

eral program.

S.Rep. No. 225 at 3510. Specifically, the statute was
intended to fill a gap in the then-current federal bribery
and theft statutes caused by the difficulty of tracing fed-
eral monies.* To accomplish its goal, Congress “cast a

8 The Senate Report described the then-existing state of the
law:

[T]itle XI covers both theft and bribery type offenses.
With respect to theft, 18 U.S.C. § 665 makes theft or
embezzlement by an officer or employee of an agency
receiving assistance under the Job Training
Partnership Act a Federal offense. However, there is
no statute of general applicability in this area, and
thefts from other organizations or governments
receiving Federal financial assistance can be
prosecuted under the general theft of Federal
property statute, 18 U.S.C. § 641, only if it can be
shown that the property stolen is property of the
United States. In many cases, such prosecution is

App. 13

broad net to encompass local officials who may adminis-
ter federal funds, regardless of whether they actually do.”
Id. at 577.

We also note that other courts have interpreted the
term “anything of value” in criminal statutes broadly to
include intangibles. See United States v. Nilsen, 967 F.2d
539, 542 (11th Cir.1992) (stating that “Congress’ frequent
use of ‘thing of value’ in various criminal statutes has
evolved the phrase into a term of art which the courts
generally construe to envelope both tangibles and intang-
ibles”), cert. denied, 507 U.S. 1034, 113 S.Ct. 1856, 123
L.Ed.2d 478 (1993); United States v. Picquet, 963 F.2d 54, 55
(Sth Cir.) (holding that the term “anything of value” in 18
U.S.C. § 1029(a)(2) should be interpreted broadly), cert.

impossible because title has passed to the recipient
before the property is stolen, or the funds are so

that the Federal character of the funds
cannot be shown. This situation gives rise to a serious
gap in the law, since even though title to the monies
may have passed, the Federal Government clearly
retains a strong interest in assuring the integrity of
such program funds. Indeed, a recurring problem in
this area (as well as in the related area of bribery of
the administrators of such funds) has been that State
and local prosecutors are often unwilling to commit
their limited resources to pursue such thefts, deeming
the United States the principal party aggrieved.
With respect to bribery, 18 U.S.C. 201 generally
punishes corrupt payments to Federal public officials,
but there is some doubt as to whether or under what
circumstances persons not employed by the Federal
Government may be considered as a “public official”
under the definition in 18 U.S.C. 201(a). .. .

S.Rep. No. 225 at 3510.

App. 14

denied, 506 U.S. 902, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992);
United States v. Girard, 601 F.2d 69, 71 (2d Cir.) (holding
that term “thing of value,” when used in criminal stat-
utes, such as in 18 U.S.C. § 641, includes intangibles, such
as amusement, sexual intercourse, a promise to reinstate
an employee, and information), cert. denied, 444 US. 871,
100 S.Ct. 148, 62 L.Ed.2d 96 (1979); see also United States v.
Williams, 705 F.2d 603, 622-23 (2d Cir.) (holding that term
“anything of value” in 18 U.S.C. § 201(c) and 18 U.S.C.
§ 201(g) can apply to stock that, although it had no actual
value, the defendant expected it to have value), cert.
denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1983);
McDonald v. State, 57 Ala.App. 529, 329 So.2d 583, 587-88
(1975) (holding that sexual intercourse or the promise of
sexual intercourse is a “thing of value” under state brib-
ery statute), cert. denied, 429 U.S. 834, 97 S.Ct. 99, 50
L.Ed.2d 99 (1976); Scott v. State, 107 Ohio St. 475, 141 N.E.
19, 22-23 (1923) (same).

Because the conduct in this case involves serious acts
of bribery by agents of a local government who were
carrying out their duties under a Federal program, we
conclude that this case is within the scope of conduct
Congress intended to encompass with 18 U.S.C. § 666.°

9 The defendants argue that even if their actions meet the
literal definition of the statute, Congress did not intend to
punish their type of behavior in enacting 18 U.S.C. § 666. Again,
the legislative history supports our finding that this prosecution
was proper. The Senate Report stated that Congress intended 18
U.S.C. § 666 to behavior in three specific cases, each
of which involved an organization or agency that provided the
Federal government with a service by administering a

government program, much like the Hidalgo County Jail did in

swe.

App. 15

As Sheriff and Chief Deputy Sheriff of Hidalgo County,
the defendants were in charge of carrying out the Federal

this: case. S.Rep. No. 225 at 3511 (citing United States v. Hinton,
683 F.2d 195 (7th Cir.1982) (involving head of a nonprofit
corporation organized to administer federal funds from a HUD
program who solicited money in for housing
rehabilitation contracts funded by HUD), aff'd sub nom. Dixson v.
United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984);
United States v. Mosley, 659 F.2d 812 (7th Cir.1981) (involving
head of state administrator of funds from a CETA program who
solicited money in exchange for treatment under
the program); United States v. Del Toro, 513 F.2d 656 (2d Cir.)
(involving bribery of city administrator of funds from HUD
program), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42
(1975).

Defendants cite United States v. Cicco, 938 F.2d 441 (3d
Cir.1991), as support for their argument that Congress did not
intend to reach their behavior in enacting 18 U.S.C. § 666. The
facts of Cicco, however, do not support their argument. In Cicco,

the defendants were indicted for soliciting political support in

enacted § 666 to enlarge those covered by federal bribery laws,
not “the sort of ‘political patronage harassments’ alleged” in that
S.Rep. No. 1245, 94th Cong., 2d Sess. 2,
reprinted in 1976 U.S.C.C.A.N. 2883, 2884). Because the
defendants’ behavior in Cicco was covered by another criminal
statute, 18 U.S.C. § 601, which was “ ‘directed at protecting
federally-funded employment from partisan favoritism,’” the
court concluded that did not intend to encompass such
behavior under § 666. Id. The Cicco court was persuaded in

by the fact that if the conduct at issue was covered by
§ 666 as well as § 601, the would have been ten times
as severe under § 666, and without any mention of § 601 in the

history, the Cicco court was not prepared to conclude
that Congress intended such a result. Id. Instead, the court
believed “Congress intended § 666 to address different and more

serious criminal activity” involving theft and bribery. Id.

App. 16

program of housing and safekeeping the federal pris-
oners, including Beltran, at Hidalgo County Jail. Part of
their responsibilities pursuant to IGA was to provide and
regulate the prisoners’ visitation rights. As agents of the
Hidalgo County Jail, Marmolejo and Salinas

money, watches, and cars intending to be influenced in
connection with transactions of the jail, namely, the issu-
ance and regulation of prisoner visits with family and
friends. The transactions involved something of value -
conjugal visits that Beltran was willing to pay for.

We must now determine whether these conjugal
visits had a value of $5,000 or more. Again, we observe
that the statute does not contain language “to indicate
that ‘any transaction involving $5,000’ means ‘any feder-
ally funded transaction involving $5,000’ or ‘any transac-
tion involving $5,000 of federal funds.’” Westmoreland,
841 F.2d at 576. “[A]ny reference to federal funds is
conspicuously absent from the operative provisions,”
allowing Congress to ensure the integrity of federal funds
by protecting the integrity of the organizations that
receive them. Id. at 577-78. The statute does not speci-
fically require that the payor or the payee of the bribe
value the transaction at $5,000.1° Instead, the $5,000 trig-
gering provision ensures that the statute reaches acts of

1° Compare Westmoreland, 841 F.2d at 576-78 (stating that the
unambiguous language of § 666(a)(1)(B) does not require the
government to establish any relation between the transaction
involving a “thing of value of $5,000” and the federal funds the
agency receives) with United States v. Foley, 73 F.3d 484, 490 (2d
Cir.1996) (stating that § 666(a)(1)(B) was enacted to permit
prosecution for bribery in connecticn with federal program
funds, therefore, in determining whether a transaction involves
“anything of value of $5,000 or more,” the “value must be

» -' eRe es Do ee |” Pee re Lak OU ee eee. | ~~? wy Oe ae eee Sty Re Dg em ee Le eae or ie
wv

App. 17

bribery involving transactions of substantial value. Id. at
578. To decide whether a transaction involving intang-
ibles has a value of $5,000 or more, courts should look to
traditional valuation methods. See Mongelli, 794 F.Supp. at
531. We conclude that the conjugal visits in this case did
have a value which exceeded $5,000. We arrive at this
estimate in the same way that an appraiser would value
an asset ~ by looking at how much a person in the market

connected, even if only indirectly, to the integrity of federal
program funds”). The dissent claims that Foley holds that “the
proper method to value a transaction is from the perspective of
the protected entity.” However, Foley's only statement about
assessing the “thing’s value” states that it must be connected to
the integrity of the federal program funds. Foley, 73 F.3d at 490.
Foley does intimate that if the transaction involved in that case
had affected the financial interests of the protected local
organization, then that case might have been properly
prosecuted under § 666(a)(1)(B). Id. at 492-93. However, the only
decisive language in Foley concerns the fact that the federal
program funds were not affected, even indirectly, by the
transaction. Id. at 490, 492 & 493. We note that the plaintiff in
Westmoreland could not have been convicted under
§ 666(a)(1)(B) under the holding in Foley. Foley requires a
connection between the transaction’s value of $5,000 or more
and the integrity of the federal program funds that the
government receives. The Foley court stated that the legislative
history indicated that § 666(a)(1)(B) was “not designed for the
prosecution of corruption that was not shown in some way to
touch upon federal funds.” Foley, 73 F.3d at 493. However, the
plaintiff in Westmoreland, a county supervisor, was convicted of

bribes in exchange for effecting sales transactions
worth $14,482.92. We upheld her conviction even though it was
undisputed that the alleged acts of bribery concerned only state
monies, not the federal funds that the county received. To the
extent that the Foley court would have reversed her conviction
under § 666(a)(1)(B), this case is in conflict with Fifth Circuit

law.

App. 18

would be willing to pay for them. Id.; see also Herman v.
United States, 289 F.2d 362 (Sth Cir.) (stating that to deter-
mine if the value of stolen property is $5,000 or more, as
required in 18 U.S.C. § 2314, courts must look at “the
price a willing buyer would pay a willing seller at the
time and place the property was stolen”), cert. denied, 368
U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961); United States v.
Seagraves, 265 F.2d 876 (3d Cir.1959) (stating that amount
defendants paid for stolen property can form basis for
expert’s valuation of the property under 18 U.S.C.
§ 2314). Pursuant to the bribery transactions, Beltran was
willing to pay Marmolejo $6,000 a month plus $1,000 for
each visit. Therefore, the transactions between Beltran
and Marmolejo and Salinas involved something “of value
of $5,000 or more.” Accordingly, we conclude that Mar-
molejo and Salinas were properly prosecuted under 18
U.S.C. § 666(a)(1)(B).1?

1! The defendants’ final argument with respect to 18 U.S.C.
§ 666 is that the Sheriff’s office is not an agent of a local
government as required by § 666(a)(1). Section 666 applies to
every “agent of an organization, or of a State, local, or Indian
tribal government, or any agency thereof.” 18 U.S.C. § 666(a)(1).
“Local” is defined as “of or pertaining to a political subdivision
within a state.” 18 U.S.C. § 666(d)(3). It is clear that this statute
was intended to encompass all employees of all
agencies and their subdivisions. See 18 U.S.C. § 666(d)(2). The
Hidalgo County Sheriff's office is an agency of Hidalgo County,
and both defendants are agents of the Sheriff's office; therefore,

they are covered by the statute.
Salinas also argues that there was insufficient evidence to
convict him of aiding and Marmolejo’s violation of 18

U.S.C. § 666(a)(1)(B). After a careful review of the record, we
conclude there was sufficient evidence to sustain the conviction.

wer tes ee ae ee OY OSA ee

App. 19

At trial, the government alleged that the defendants
violated Tex.PENAL Cope ANN. § 36.02(a)(1), which consti-
tuted “predicate acts establishing a pattern of racketeer-
ing activity” in violation of RICO.’? See 18 U.S.C.
§ 1962(c). A state offense can only constitute a predicate
act establishing a pattern of racketeering activity if the
offense is punishable by more than one year in prison. 18
U.S.C. § 1961(1)(A). Salinas and Marmolejo allege that
their prosecution under Tex.PenaL Cope Ann. § 36.02(a)(1)
was improper because a more specific statute, Tex.PENAL
Cope ANNn. § 36.08(b), applies to their conduct.’ They rely
on a well-established rule of construction “that if two
legal provisions apply, one general and one specific, the
specific takes precedence.” United States v. Tunnell, 667
F.2d 1182, 1185 (5th Cir.1982). While Tex.Penat Cope Ann.
§ 36.02(a)(1) is a felony punishable by more than one year
in prison, Tex.Penat Cope ANN. § 36.08(b) is a misde-
meanor which is not punishable by more than one year in
prison. Therefore, if the defendants should have been

12 Tex.Penat Cove Ann. § 36.02(a)(1) provides:

A person commits an offense if he intentionally or
knowingly offers, confers, or agrees to confer on
another, or solicits, accepts, or agrees to accept from
another any benefit as consideration for the

_ recipient’s decision, opinion, recommendation, vote,
or other exercise of discretion as a public servant,
party official, or voter.

13 Tex.Penat Cope Ann. § 36.08(b) provides that “[a] public

servant in an agency having custody of prisoners commits an
offense if he solicits, accepts, or agrees to accept any benefit

from a person the public servant knows to be in his custody or
the custody of his agency.”

App. 20

prosecuted under § 36.08(b) instead of § 36.02(a)(1), they
would not have committed predicate acts constituting
racketeering activity in violation of RICO.

Having reviewed the evidence against the defen-
dants, we hold that they were properly charged under
Tex.PeNAL Cope ANN. § 36.02(a)(1), which prohibits
accepting bribes, rather than § 36.08(b), which prohibits
accepting gifts. The appropriate inquiry is which statute
criminalizes the defendants’ conduct here. See Tunnell,
667 F.2d at 1185 (concluding that defendants were prop-
erly charged under the statute which criminalized their
exact behavior). The evidence at trial demonstrated an
elaborate system of bribes between Marmolejo and
Beltran, aided and abetted by Salinas. The cash payments,
watches, and other consideration that the defendants
received were not gifts; they were given as payment for
conjugal visits and other special favors. Thus the defen-
dants were properly convicted under the more serious
statute, § 36.02(a)(1), which prohibited the exact behavior
which they engaged in — bribery. See Id. at 1185; Cerda v.
State, 750 S.W.2d 925, 927 (Tex.App. - Corpus Christi
1988, pet. ref’d).'4

14 The defendants also argue that the government failed to
prove that they were “public servant(s]” within the meaning of
the statute and that they acted in a discretionary manner in
allowing conjugal visits. Tex.Penat Cove Ann. § 1.07(a)(41)(A)
defines public servant as one who is “elected, selected,
appointed, employed, or otherwise designated as . . . an officer,
employee, or agent of government.” Marmolejo was elected

¢ a tne 5 . v &
i ge eb Riles ye ee ed Oe I i Be

App. 21

IV

Salinas appeals the trial court’s jury instruction on
the RICO conspiracy count,’> arguing that it erroneously
allowed the jury to convict him without proof that he
performed or agreed to perform personally two of the
predicate acts which comprise the pattern of racketeering

Salinas also satisfies the definition because he was either
selected or appointed as an employee of Hidalgo County.

Tex.Penat Cove Ann. § 36.02(a)(1) punishes the receipt of
benefits in exchange “for the recipient’s decision, opinion,
recommendation, vote, or other exercise of discretion as a public
servant.” The defendants argue that as jailers they act in a
ministerial, not a discretionary manner. This argument is also
without merit. Conjugal visits were not permitted under
Hidalgo County Jail policy. They were allowed in this case, only
as 2 result of Marmolejo’s exercise of discretion, aided and
abetted by Salinas, in exchange for money and other types of
consideration.

The defendants also argue that the government failed to
prove that Beltran was in “custody.” Tex.Penat Cove Ann.
§ 36.02(a)(1) does not require custody; therefore, this argument
is also without merit.

18 Salinas was charged with violating a substantive RICO
18 U.S.C. § 1962\c), and with conspiring to violate a
substantive RICO provision, 18 U.S.C. § 1962(d). He was
acquitted of the substantive count, but convicted on the
count. Section 1962(d) provides that it is unlawful
“for any person to conspire to violate any of the provisions of
subsection (a), (b), or (c) of this section.” 18 U.S.C. § 1962(d).
Section 1962(c) prohibits “any person employed by or
associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity or
collection of unlawful debt.” 18 U.S.C. § 1962(c).

Ce eae oes ee UR OR ee ee os 1 ears td Bae |

App. 22

activity.’ “While great latitude is shown the trial court in
fashioning jury instructions, we will review [the instruc-
tions] to determine whether they accurately and com-
pletely state the law.” Banc One Capital Partners Corp. v.
Kneipper, 67 F.3d 1187, 1192 (5th Cir.1995).

Fifth Circuit cases have obfuscated the issue of
whether each RICO conspiiator must agree to commit
personally two or more rackcteering acts or whether it is
sufficient that the conspirator simply agree that one of his
co-conspirators will commit two or more racketeering
acts.'7 This issue has divided the circuits, with the major-
ity holding that a RICO conspirator need only agree “that
members of the conspiracy will violate [a substantive
RICO provision] through the commission of two pro-
scribed acts,” not that he will persunally commit two

16 The trial court’s instruction on the RICO conspiracy
count stated:

What you are being asked to decide in Count Two
is . . . If Salinas was only involved in one or two or
even none, did he, nevertheless, know about this
pattern. Did he know that this whole pattern of
activity was going on and did he then knowingly and
willfully join in and participate and contribute in
some fashion.

17 Both the majority and the views on this issue
ground their interpretation of § 1962(d) on United States v.
Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct.
349, 58 L.Bd.2d 344 (1978). “However, a reading of Elliott in

with the later case of United States v. Sutherland, 656
F.2d 1181 (5th Cir.1981) reveals that the Fifth Circuit had not

resolved this issue.” United States v. Neapolitan, 791
F.2d 489, 496 n. 3 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct.
422, 93 L.Ed.2d 372 (1986).

es ie le ti: i el Be en A ah eel

App. 23

proscribed acts.'* United States v. Neapolitan, 791 F.2d 489,
494 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93
L.Ed.2d 372 (1986).

Our decision in United States v. Elliott, 571 F.2d 880
(Sth Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58
L.Ed.2d 344 (1978), lays the groundwork for analyzing
the present controversy. The issue in Elliott was whether
the government can link together, under a RICO conspir-
acy charge, multiple conspiracies whose crimes may have
no relation to each other except for their affiliation with a
common criminal enterprise. Id. at 902-03. In answering
this question affirmatively, we explained:

the object of a RICO conspiracy is to violate a
substantive RICO - here, to conduct
or te in the affairs of an enterprise
through a pattern of racketeering activity - and
not merely to commit each of the predicate
crimes necessary to demonstrate a pattern of

1% The majority consists of the Sixth, Third, Ninth,
Eleventh, and Seventh Circuits. See United States v. Joseph, 781
R.2d 549, 554 (6th Cir. 1986); United States v. Adams, 759 F.2d
1099, 1116 (3d Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 336, 88
L.Ed.2d 321 (1985); United States v. Tille, 729 F.2d 615, 619 (9th
Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93
(1984); United States v. Carter, 721 F.2d 1514, 1529 (11th Cir.), cert.
denied sub nom., Morris v. United States, 469 U.S. 819, 105 S.Ct. 89,
83 L.Ed.2d 36 (1984); Neapolitan, 791 F.2d at 497. The First and
Second Circuits currently compose the minority, holding that a
RICO conspirator must personally agree to commit two

acts. See United States v. Ruggiero, 726 F.2d 913, 921 (2d
Cir.), cert. denied sub nom., Rabito v. United States, 469 U.S. 831,
105 S.Ct. 118, 83 L.Ed.2d 60 (1984); United States v. Winter, 663
F.2d 1120, 1136 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct.
1250, 75 L.Ed.2d 479 (1983).

7 =~ eS tS or oe | eee ).) le

App. 24

racketeering activity. . . . Under the statute, it is
irrelevant that each defendant participated in
the enterprise’s affairs through different, even
unrelated crimes, so long as we may

infer that each crime was intended to further the

enterprise’s affairs.

Id. at 902. Our subsequent cases have made it clear that to
prove a RICO conspiracy “no actual acts of racketeering
need occur; there need only exist a conspiracy to perform
the necessary acts plus some overt action by one of the
conspirators in furtherance of the conspiracy.” United
States v. Phillips, 664 F.2d 971, 1038 (5th Cir.1981) (citing
United States v. Sutherland, 656 F.2d 1181, 1187 n. 4 (5th
Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1451, 71
L.Ed.2d 663 (1982)), cert. denied sub nom., Meinster v.
United States, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d
1354 (1982). Yet, our cases have still not resolved what
RICO conspirators must individually agree to.

Today we join the majority view among the circuits in
holding that to be guilty of RICO conspiracy, the conspir-
ator must simply agree “to the objective of a violation of
RICO; he need not agree personally to violate the stat-
ute.” Neapolitan, 791 F.2d at 498. Our decision is manda-
ted not only by the plain language of the RICO statute,
but also by the nature and purpose of the statute.

Section 1962(d) specifically prohibits a conspiracy to
violate any of the substantive RICO provisions. 18 U.S.C.
§ 1962(d). Nothing in this language indicates that Con-
gress intended to do anything more than to criminalize a
conspiratorial objective - the violation of a substantive
RICO provision. Sutherland, 656 F.2d at 1193; Elliott, 571
F.2d at 903; Neapolitan, 791 F.2d at 497. If we were to hold

App. 25

that in addition to agreeing to the overall criminal objec-
tive, a RICO conspirator had to agree to perform the
actual crime, two predicate acts comprising a substantive
violation of RICO, this holding would be a marked depar-
ture rom traditional conspiracy law for which there is no
support in the language of the statute or the statutory
history. Neapolitan, 791 F.2d at 497-98 (“Requiring an
agreement personally to commit two predicate acts
would establish a new form of conspiring in contradis-
tinction to section 1962(d)’s base in traditional conspiracy
law.”).

The Congressional purpose in enacting RICO was to
provide a new remedy to punish organized crime. Id. at

495 & 498; see United States v. Barton, 647 F.2d 224, 237-38
(2d Cir.1981) (“It is the purpose of this Act to seek the
eradication of organized crime in the United States . . . by
establishing new penal prohibitions, and by providing
enhanced sanctions and new remedies to deal with the
unlawful activities of those engaged in organized
crimes.”) (quoting The Statement of Findings of the Orga-
nized Crime Control Act of 1970, 84 Stat. 923), cert. denied,
454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981). To be
guilty of a RICO violation, one must have violated other
laws in a way that implicates RICO. Neapolitan, 791 F.2d
at 497 (“The statute does not create a new type of crime; it
establishes prerequisites for the imposition of harsher
penalties.”). Therefore to be an effective tool against orga-
nized crime, a RICO conspiracy should not require any-
thing more than is required to conspire to violate any
other federal crime. Id. This conclusion is bolstered by the

App. 26

expansive reading that the Supreme Court has given the
statute.!9

Having concluded that a RICO conspirator need not
agree .0 personally perform the two predicate acts which
compose the substantive violation of RICO, we find that
the court’s instructions were an accurate statement of the
law.79

Vv

Section 1963(a) provides that anyone who violates
RICO must forfeit any interest that they have acquired or
maintained in violation of the statute, any enterprise that
they have established or conducted in violation of RICO,
and any property constituting or derived from proceeds
obtained from racketeering activity in violation of RICO.

19 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498, 105 S.Ct.
3275, 3286, 87 L.Ed.2d 346 (1985).

20 Salinas also argues that there was insufficient evidence
to support his conviction for RICO conspiracy. In reviewing a
sufficiency of the evidence , we view “the evidence in
the light most favorable to the jury verdict and affirm ] if a
rational trier of fact could have found that the
proved all essential elements of the crime beyond a reasonable
doubt.” United States v. Puig-Infante, 19 F.3d 929, 937 (Sth Cir.),
cert. denied, __ U.S. __, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). To
prove a RICO conspiracy charge, the government must prove
“that the defendant conspired to engage in a pattern of
racketeering activity.” United States v. Marcello, 876 F.2d 1147,
1152-53 (Sth Cir.1989). To establish a pattern of racketeering
activity, the government must prove “two predicate acts, each of
which must be a criminal offense.” Id. Having carefully
reviewed the record, we conclude that there was sufficient
evidence to convict Salinas of RICO conspiracy.

App. 27

18 U.S.C. § 1963(a). Section 1963(m) provides that if by
some “act or omission of the defendant” the government
cannot locate the property it is authorized to forfeit by
subsec/. »n (a), “the court shall order the forfeiture of any
other property of the defendant up to the value of any
property” that the defendant has made untraceable. 18
U.S.C. § 1963(m). The government sought the forfeiture of
$151,000 in bribe proceeds from Marmolejo pursuant to
18 U.S.C. § 1963(a). Marmolejo argues that the court erred
in authorizing the forfeiture of substitute assets without
requiring the government to prove that he made unavail-
able the assets that he obtained from his violations of
RICO. We review the district court's findings of fact
under the clearly erroneous standard of review, and the
question of whether those facts constitute legally proper
forfeiture de novo. United States v. 1977 Porsche Carrera, 946
F.2d 30, 33 (5th Cir.1991).

One of the specific ways that § 1963(m) provides that
the government can forfeit substitute property is if some
of the property, “as a result of any act or omission of the
defendant has been transferred or sold to, or deposited
with, a third party.” 18 U.S.C. § 1963(m)(2). At the forfei-
ture hearing, both Marmolejo and the government stipu-
lated that if a government agent were called to testify he
would testify that he could not locate the specific prop-
erty the government sought to forfeit because “some of
the property had been transferred, sold or deposited with
third parties.” Marmolejo’s attorney specifically acknowl-
edged that the government could not trace any of Mar-
molejo’s assets. Furthermore, Marmolejo did not oppose
the district court’s Order of Forfeiture which specifically

App. 28

stated that the parties stipulated that forfeiture of substi-
tute assets was appropriate. Therefore, given that both
parties stipulated that substitution of assets was appro-
priate, and because the court’s decision was based on a
legally proper ground, § 1963(m)(2), we hold that the
forfeiture was proper.

VI

Defendants argue that the district court erred in
denying their motions to suppress evidence seized pur-
suant to a search warrant that they allege was invalid.2
In reviewing a district court’s denial of a motion to sup-
press evidence obtained pursuant to a search warrant we
must decide: “(1) whether the good-faith exception to the
exclusionary rule applies; and (2) whether probable cause
supported the warrant.” United States v. Satterwhite, 980

21 Before trial, Marmolejo moved to suppress evidence
obtained pursuant to three search warrants. Based on the
affidavit of John Trevino, Special Agent of the Internal Revenue
Service, Criminal Division, the government obtained three
warrants to search Marmolejo’s residence, ranch, and office. The
warrant sought nine categories of items ranging from personal
address and telephone books that would contain the addresses
or telephone numbers of Marmolejo’s associates to documents
reflecting receipts or disbursements of money from Beltran to
Marmolejo.

Salinas also sought to suppress evidence found pursuant to
a search warrant that was also obtained based on Special Agent
Trevino’s affidavit. The warrant for Salinas’ residence sought
six categories of items from personal address and
telephone books that might contain Salinas’ associates to a set of
his and hers Rado watches given by Beltran to Salinas and his
wife.

Pe ee ee et ee Oe ee! ee een a? ee ee ey

ee a wh Ol Mee 27) «Oo a ee een
— = . ~ >

App. 29

F.2d 317, 320 (5th Cir.1992) (footnote omitted). However,
because this case does not involve novel issues of law
that need to be resolved to assist law enforcement officers
and magistrate judges in the future, we need not decide
whether the warrant was supported by probable cause if
we find that the good-faith exception to the exclusionary
rule applies. Id.; United States v. Restrepo, 994 F.2d 173, 187
(5th Cir.1993).

“When a warrant is supported by more than a ‘bare
bones’ affidavit, officers may rely in good faith on the
warrant’s validity” in conducting a search. Satterwhite,
980 F.2d at 321. However, an affidavit that contains only
conclusions and “lack[s] the facts and circumstances from
which a magistrate can independently determine proba-
ble cause” is considered “bare bones” and cannot be the
basis of an objectively reasonable good-faith reliance by
an officer. Id. We review de novo whether the good-faith
exception to the exclusionary rule applies. Id. at 321.

We conclude that the affidavit which supported the
search warrants for Marmolejo’s residence, ranch, and
office and Salinas’ residence contained sufficient facts
from which the magistrate could determine probable
cause. The affidavit contains detailed first-hand observa-
tions by the affiant, as well as detailed information pro-
vided by informants whom the affiant establishes as
reliable.2? It describes the bribery scheme between

22 For example, the affidavit states that confidential source
number one (“CS-1”):
has provided information about Homero BELTRAN

receiving special privileges and visits at the Hidalgo
County Jail, as corroborated by CS-2, CS-3 and by

App. 30

Beltran and Marmolejo in detail and Salinas’ role in aid-
ing and abetting it.27 Many of the facts are corroborated

testimony of a witness before the Federal Grand Jury
in McAllen, Texas. CS-1 has also provided
information that Homero BELTRAN gave a 1989
Pontiac Trans-Am to Brigido MARMOLEJO JR.,
which has been independently corroborated by a
record check with the Texas of Motor
Vehicles and by statements made to law enforcement
officers participating in this investigation by the
current owner of the vehicle that Brigido
MARMOLEJO JR., was the former owner of the
vehicle.

Another example of the reliability of the confidential sources
demonstrated in the affidavit is:

CS-3 has provided information to your affiant and
other law enforcement officers for the past three
months as to the ownership of real estate by a
convicted drug trafficker, Homero BELTRAN, and
that Brigido MARMOLEJO JR. was involved in the
proposed sale of the property, which has been
corroborated by CS-1, CS-2, and independent
investigation by your affiant and special agents
assigned to the DEA OCDETF group in McAllen,
Texas.

23 The affidavit explains that by September 1991, Beltran
was receiving special privileges inside the jail because of an
agreement that he had with a jail employee named Zavala. It
recounts how Marmolejo then met with Beltran and agreed to
increase the frequency and duration of Beltran’s visits with his
family. Initially, Beltran was to pay Marmolejo $5,000 per month
for having at least one visit a week with his family. The affidavit
describes how the agreement was to allow for
three visits per week for $5,000 per week and $1,000 per visit.
The affidavit states that “CS-1 and CS-2 observed on several

App. 31

by the observations of others and by taped conversations
with Marmolejo which the affiant helped record.

Based on these facts, the magistrate could indepen-
dently determine probable cause; therefore, the affidavit
was more than “bare bones” which the officers could rely
on in good faith. Since the officers acted in good faith in
relying on the search warrants, we need not determine
whether the warrants were supported by probable cause.
We conclude that the defendants’ motions to suppress
were properly denied.**

occasions Mario Salinas guarding the door to Brigido
Marmolejo’s office.”

The affidavit describes the watches that Beltran bought for
Marmolejo and Salinas and their wives. It also explains that
Beltran gave Marmolejo $11,000 to complete a pavilion that
Marmolejo was building at his ranch for his daughter’s
wedding. The affidavit further states that, “CS-2 was present
when Brigido MARMOLEJO JR. had taken Mario SALINAS to
his ranch and showed him the pavilion. Brigido MARMOLEJO
JR. stated that ‘if it was not for Homero BELTRAN, I wouldn’t
have the pavilion.’ ”

The affidavit also details the many financial transactions
that Marmolejo entered into with Beltran.

2% Salinas also argues that the search exceeded the scope of
the search warrant because officers searched his car which was
not authorized in the search warrants. As result, Salinas argues,
all evidence obtained in the search should be suppressed.
However, Salinas does not state what evidence from the
vehicles, was discovered and admitted at trial. The only items of
evidence the government admitted at trial that was seized
pursuant to the search warrants were two Rado watches seized
from Salinas’ residence and a number list seized from
Salinas’ office. Under the severability doctrine, evidence that is

seized has no effect on the admissibility of legally
seized evidence. United States v. Willey, 57 F.3d 1374, 1390 (5th

ee Ee Lag oe pee eC Toe ree ere .

App. 32

vil

Salinas argues that his criminal prosecution was pro-
hibited by the Double Jeopardy Clause. He contends that
prior to his criminal trial, the government forfeited his
property, two Rado watches, which constituted punish-
ment for his crime, thereby precluding any subsequent
punishment. The district court rejected Salinas’ claim,
finding that the government had suspended forfeiture
proceedings and only intended to keep the watches as
evidence for trial. We review the denial of a motion to
dismiss on Double Jeopardy grounds de novo. United
States v. Arreola-Ramos, 60 F.3d 188, 191 (5th Cir.1995).

Salinas’ property was seized by the DEA for forfei-
ture under 21 U.S.C. § 881 as property used or acquired
as the result of a drug-related offense.> The DEA sent
Salinas a Notice of Seizure in November 1993. The Notice
informed Salinas that he could either request remission or
mitigation of the forfeiture within thirty days of his
receipt of the notice, or contest the forfeiture within
twenty days of the first date of publication of the notice -
November 17, 1993. On December 30, 1993, Salinas sent a
Petition for Remission, or in the Alternative for Mitiga-
tion of the Forfeiture which was then denied by the DEA.

Cir.), cert. denied, __ U.S. ___, 116 S.Ct. 675, 133 L.Ed.2d 524
(1995); United States v. Hamilton, 931 F.2d 1046, 1054 (5th
Cir.1991). Therefore, without any allegation of illegally seized
evidence, Salinas’ claim is without merit.

25 The government's theory was that the watches had been
purchased by Beltran with drug proceeds. Beltran was a well-
known drug dealer who had made $4 to $5 million in profits

from marijuana smuggling.

App. 33

The DEA, however, never issued a Declaration of Forfei-
ture administratively forfeiting the watches.

Salinas argues that the watches were effectively for-
feited when he failed to file a claim and post a bond
contesting the forfeiture before the time for contesting
expired on December 7, 1993. Salinas argues that this
automatic forfeiture occurred because of 21 C.F.R.
§ 1316.77(a). Section 1316.77(a) provides

For property seized by officers of the Drug
Enforcement Administration, if... a claim and
bond are not filed within the 20 days herein-
before mentioned, the DEA Special Agent-in-
Charge or DEA Asset Forfeiture Section shall
declare the property forfeited. The DEA Special
Agent-in-Charge or DEA Asset Forfeiture Sec-
tion shall prepare the Declaration of Forfeiture
and fovard [sic] it to the Administrator of the
Administration as notification of the action he
has taken.

21 C.F.R. § 1316.77(a). If Salinas were correct
in arguing that automatic forfeiture occurs once
the twenty days expire, then there would be no
need for the statute to require that either the
DEA Special Agent-in-Charge or DEA Asset
Forfeiture Section “declare the property for-
feited” and then prepare a “Declaration of For-
feiture.” The statute would simply provide that
the property is automatically forfeited once the
twenty days had expired. We find that instead
of authorizing automatic forfeiture, the statute
authorizes the DEA to declare property forfeited
when no person files a claim within the
period. See United States v. Baird, 63 F.3d 1213,
1217 (3d Cir.1995) (“Where no person files a
claim to the seized property within the statutory

App. 34

period, the agency is authorized to declare the

forfeited.”) (citing 19 U.S.C. § 1609(b)
and 21 C.F.R. § 1316.77) ( added), cert.
denied, __ U.S. __, 116 S.Ct. 909, 133 L.Ed.2d
841 (1996); cf. Arreola-Ramos, 60 F.3d at 190 (stat-
ing that once the time for making a claim and
posting a bond has expired, the seizing agency
automatically issues a declaration of forfeiture).
However, if the agency does not issue a “Decla-
ration of Forfeiture,” the is not for-
feited. Cf. Arreola-Ramos, 60 F.3d at 190 (stating
that the declaration of forfeiture by a seizing
agency has “the same effect as a final decree and
order of forfeiture entered in a judicial proceed-

ing”).
The Ninth Circuit, in a case that is factually

similar to this one, recently rejected the exact
argument that Salinas makes. See United States v.

App. 35

Ninth Circuit affirmed the district court’s denial
of the defendant’s motion to dismiss on double
jeopardy grounds based on its interpretation 19
U.S.C. § 1609(a), which contains similar pro-
cedures as 21 C.F.R. § 1316.77.% The court
stated,

The fact that section 1609%(a) uses mandatory
rather than hortatory language means only that
the government will declare seized property for-
feited and to auction it off, if there has
i no challenge to the forfeiture proceedings;

each 9 oe mean that forfeiture is complete as a
matter of law simply because the twenty days
have passed. Put another way, a Declaration of
Forfeiture or final Disposition Order is not an
empty gesture; it is the means whereby the gov-
ernment legally obtains title to seized property
in order to dispose of it.

~~ sp Fee

Sanchez-Cobarruvias, 65 F.3d 781 (9th Cir.), cert.
denied, __ U.S. __, 116 S.Ct. 797, 133 L.Ed.2d
745 (1996). In Sanchez-Cobarruvias, United States
Border Patrol Agents seized several guns from
the defendant's car at which time the defendant
filled out a Petition for Remission or Mitigation
of Forfeiture form. The defendant was thereafter
indicted for firearms violations. Customs offi-
cials then initiated civil administrative forfeiture
proceedings against the defendant’s car and
sent him a Notice of Seizure explaining how the
defendant could contest the forfeiture. After the
twenty day claims period expired, the defendant
moved to dismiss his criminal charges on dou-
ble jeopardy grounds. The district court denied
the motion, holding that no final tion had
taken place in the forfeiture ; there-
fore, the property had not beem forfeited, and
jeopardy could not have attached. Id. at 782. The

Id. at 783-84. Because there had been neither a Declara-
tion of Forfeiture nor a final Disposition Order, the Ninth
Circuit held that there had been no finality to the forfei-
ture proceeding. Id. at 784. Therefore the defendant's
property had not been forfeited, and there was no double

jeopardy bar to his criminal prosecution.

The DEA has never issued a Declaration of Forfeiture
for Salinas’ watches. Consequently, we hold that there
has been no finality to the forfeiture proceedings and
therefore no forfeiture. As a result, jeopardy has not
attached in the first proceeding to erect any potential bar
to Salinas’ subsequent criminal prosecution. .

:

26 See 19 U.S.C. §§ 1608 and 1609%(a) and (b).

App. 36

vill

The district court enhanced Marmolejo’s sentence for
obstruction of justice based on its belief that Marmolejo
perjured himself at trial. Marmolejo argues that this was
error because the court failed to give him adequate notice
of its intent to enhance his sentence on this ground.

Parties must be given notice and an opportunity to
comment on matters relating to sentencing. Fep.R.Crm.P.
32(a)(1); Burns v. United States, 501 U.S. 129, 137 & 138,
111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991). However, the
Fifth Circuit has recently held that “if the defendant has
actual knowledge of the facts on which the district court
bases an enhancement or a denial of a reduction, the
Sentencing Guidelines themselves provide notice of the
grounds relevant to the proceeding sufficient to satisfy
the requirements of Rule 32 and U.S.S.G. § 6A1.3.” United
States v. Knight, 76 F.3d 86, 88 (5th Cir.1996). Because
Marmolejo had actual knowledge of the facts upon which
the district court based its enhancement - his testimony
at trial - Marmolejo had adequate notice of the court's
intent to enhance his sentence for obstruction of justice.””

27 Marmolejo argues several other points of error, none of

verdict, see Puig-Infante, 19 F.3d at 937, we find that a rational

admitting hearsay evidence and disallowing other “critical
impeachment evidence.” We find that the district court did not

ai”

App. 37

Ix

For the foregoing reasons, we AFFIRM Marmolejo’s
sentence and both defendants’ convictions.

E. GRADY JOLLY, Circuit Judge, concurring in part
and dissenting in part:

I respectfully dissent from Part II B of the majority's
opinion. The majority holds that it is a federal crime for

local jail officials to accept bribes for conjugal visits
because conjugal visits constitute “business” or “transac-
tions” of the Hidalgo County Jail. It reaches this conclu-
sion even though the conduct in question did not affect
federal funds directly or indirectly, the only congressional
objective of this criminal statute. Moreover, the majority
holds that these conjugal visits have a value of at least
$5,000 based solely on the amount of the bribes received
by the local jail officials. The majority thus enlarges the
scope of this statute by effectively holding that the statute
is violated whenever a bribe satisfies the transactional
amount prescribed by the statute even when the transac-
tion has no value to the jail and thus could have no effect
on federal interests. With due respect for the majority, I

abuse its discretion. See United States v. Coleman, 997 F.2d 1101,
1105 (Sth Cir.1993) (“Rulings limiting the or extent of
cross-examination are committed to the sound of the
trial court and are reviewed only for abuse of discretion.”), cert.
denied, _ U.S. __, 114 S.Ct. 893, 127 L.Ed.2d 86 (1994); United
States v. Vela, 673 F.2d 86, 90 (Sth Cir.1982) (stating that we
review a trial court’s decision to admit business records for
abuse of discretion).

App. 38

am unable to agree with this virtually unlimited expan-
sion of 18 U.S.C. § 666(a)(1)(B).

(1)

As noted in the majority opinion, the statute requires
that the government prove that the defendants were
agents of the Hidalgo County Jail, and that the jail
received, in any one-year period encompassing the defen-
dants’ conduct, more than $10,000 in “benefits” from a
“Federal program” involving a grant or contract. 18
U.S.C. § 666(a)(1), (b) (1994). The government further
must prove that the defendants, as agents of the jail,
accepted “anything of value” from someone, and did so
with the intent to be influenced or rewarded in connec-
tion with “any business, transaction, or series of transac-
tions” of the jail “involving anything of value of $5,000 or
more.” § 666(a)(4)(B).

The majority concludes that the statute clearly
encompasses the conduct of the defendants. I conclude
that the statute clearly does not reach the conduct at

issue. These two contrary positions, each supported by its
own rationale, would lead one to conclude that the stat-

ute is ambiguous.

The majority parses the language of the statute to
find clarity where, when fully considered, there is only
ambiguity. Isolating words from the context of the stat-
ute, it focuses on “anything of value” instead of consider-
ing the whole of the phrase “any business, transaction, or
series of transactions of such organization, government,

or agency involving anything of value of $5,000 or more”
so as to conclude that the statute is plain and clear that

an Dei, in ie, tata Cte SU“ - ~ —_— = —

App. 39

valuations can be from the perspective of any of the
parties involved. The Second Circuit persuasively demon-
strated the ambiguity involved in this point when it
recently rejected the “clarity” proclaimed by the majority
here, by stating: “Sec. 666(a)(1)(B) is silent as to the
identity of the person or entity to whom the ‘[ ]thing’
must have at least a $5,000 value.” United States v. Foley,
73 F.3d 484, 490 (2d Cir.1996).7

In its effort to fulfill the elemental requirements of
the statute, specifically that the “transactions” had a
“value of $5,000,” the majority confuses and then fuses
the value of the transactions with the amount of the
bribe. Yet, the two are completely distinct under the
statute. The text of the statute makes clear that the accep-
tance of “anything of value,” i.e., the acceptance of the
bribe, is a separate element of the crime from the amount
of the transaction; consequently, the amount of the bribe
has no statutory relevance to the value of the transaction.
Stated differently, the value of the transaction cannot
automatically be extrapolated from the amount of the
bribe, but instead must be established on grounds inde-
pendent, at least in some way, of the bribe. Our decision
in United States v. Westmoreland, 841 F.2d 572 (5th Cir.),
cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39
(1988), illustrates the illogic of the majority’s analysis in
using the bribe to satisfy both the “anything of value”

28 The majority cites Westmoreland to support its claim that
the statutory language is unambiguous. Slip. Op., at 4709 n. 7.
The fact that we found the statutory language “plain and
unambiguous” on one issue, namely, whether § 666(a)(1)(B)
imposes a tracing requirement, does not mean that it is “plain
and unambiguous” on all issues.

App. 40

element of the crime and the “value of the transaction”
element. There, a county supervisor accepted bribes total-
ing $2,202 in connection with the purchase of $14,482.92
worth of goods for the county. Id. at 575. The purchases

made by the county supervisor constituted the series of

transactions of the county “involving anything of value of
$5,000 or more”; the bribes satisfied the “anything of
value” element of the crime. In short, as applied in this
case, the language of § 666(a)(1)(B) is at best ambiguous
insofar as it concerns the method of valuing a transaction.

(2)

Given this ambiguity, it is necessary to turn to the
legislative history for guidance in interpreting and apply-
ing the statute. Hightower v. Texas Hospital Association, 65
F.3d 443, 448 (1995). Faced with legislative history that
does not support its reading of the statute, however, the
majority evades grappling directly with the legislative
history.” Instead, the majority falls back on generalized
descriptions of that legislative history from our decision
in Westmoreland. The majority states that its broad reading

29 The majority does quote a passage from the legislative
history that directly contradicts its interpretation of § 666
without attempting to explain this contradiction:

[18 U.S.C. § 666 was] to create new offenses

to augment the ability of the United States to

vindicate significant acts of theft, fraud, and bribery

involving Federal monies that are disbursed to private
organizations or State and local governments
pursuant to a Federal program.
Slip. Op., at 4709 (quoting S.Rep. No. 225, 98th Cong., 2d Sess.,
reprinted in 1984 U.S.C.C.A.N. 3182, 3510) (emphasis added).

App. 41

of the language of the statute “squares with Congress's
intent in enacting 18 U.S.C. § 666 to safeguard ‘the integ-
rity of federal funds by assuring the integrity of the
organizations or agencies that receive them.’ ” Maj.Op., at
__ (quoting 841 F.2d at 578). The majority also states that
“Congress ‘cast a broad net to encompass local officials
who may administer federal funds, regardless of whether
they actually do.’ ” Id. at 4709 (quoting 841 F.2d at 577).
Unfortunately, the majority quotes from Westmoreland
without reviewing the context of the legislative history in
which those descriptions arose. Such a review demon-
strates the majority’s inappropriate use of these descrip-
tions to support its overly-broad reading of the reach of
the statute.

In Westmoreland, a county supervisor was convicted
of receiving kickbacks for purchases of county materials
that involved only non-federal funds of the county. 841
F.2d at 573. The defendant argued that “the statute
requires the involvement of federal, not merely state,
funds in the allegedly corrupt transactions.” 841 F.2d at
575. After reviewing the statutory language and the legis-
lative history, we said:

[While the legislative history manifests a congres-
pom na winches tin fer oy hear
nds, y to do so
fu py Gosh 7
the need to trace the flow of federal monies and
that would avoid inconsistencies caused by the
different ways that various federal programs
disburse funds and control their administra-

tion.” Id. (emphasis added).

App. 42

The court in Westmoreland thus recognized that the
legislative history exhibited a clear intent to protect fed-
eral funds distributed to non-federal entities. Recogniz-
ing the difficulty involved in tracing federal funds,
Westmoreland remained faithful to this congressional
objective by holding that § 666 encompassed transactions
involving non-federal funds of an entity receiving federal
funds. Westmoreland did not hold that Congress meant to
criminalize any act of bribery involving non-federal enti-
ties receiving federal funds, but only those acts of bribery
that could somehow be traced, directly or indirectly, to the
integrity of federal program funds. The majority’s use of
Westmoreland’s generalized descriptions of the legislative
history to support its overly-broad reading of the statute
thus does not square with Westmoreland’s own recognition

of congressional purpose or the reasoning behind its
holding.

Turning to the precise legislative history, I find that it
clearly reveals that Congress did not intend for
§ 666(a)(1)(B) to be applied to conduct such as the accep-
tance of bribes to allow conjugal visits. Instead, Congress
was only concerned with protecting the federal monies
disbursed to non-federal entities. “This part of title XI is
designed to create new offenses to augment the ability of
the United States to vindicate significant acts of theft,
fraud, and bribery involving Federal monies that are dis-
bursed to private organizations or State and local govern-
ments pursuant to a Federal program.” 1984 U.S.C.C.A.N.
at 3510 (emphasis added). Congress also stated that “the
purpose of this section [is] to protect the integrity of the
vast sums of money distributed through Federal programs

App. 43

_ from theft, fraud, and undue influence by ribery.” Id. at

3511.

The majority’s attempt to find support in the circuit
court cases cited in the legislative history, see Slip Op., at
4710 n. 9; 1984 U.S.C.C.A.N. at 3511 & nn. 2-3, will not
withstand a careful look. None of the cases from the
legislative history cited by the majority supports the
majority’s reading of § 666(a)(1)(B) because the conduct
at issue in those cases directly implicated federal monies.
United States v. Hinton, 683 F.2d 195 (7th Cir.1982) (solicit-
ing money in exchange for award of housing rehabilita-
tion contracts funded by HUD), aff'd sub nom., Dixson v.
United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458
(1984); United States v. Mosley, 659 F.2d 812 (7th Cir.1981)
(receiving money in exchange for giving preferential
treatment to individuals seeking jobs funded by Compre-
hensive Employment and Training Programs Act); United
States v. Del Toro, 513 F.2d 65€ (22 Cir.) (bribing city
administrator to insure that program receiving funding
from HUD would lease building), cert. denied, 423 U.S.
826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). In this case, allow-
ing conjugal visits to a federal prisoner, in no way that
my eyes can see, implicates federal monies.

Furthermore, I have found nothing in the legislative
history to indicate that Congress meant to reach acts of
bribery - as the majority does - involving any and all
official acts of agents of non-federal entities in the same
way that 18 U.S.C. § 201 reaches acts of bribery involving

App. 44

all official acts of federal agents.*° Instead, Congress was
focused on providing criminal sanctions precisely and
only for abuse of, or threat to, federal monies that are
disbursed to these non-federal entities. Westmoreland log-
ically extends the reach of the statute - based on a recog-
nition of the fungibility of money - to non-federal funds
of that entity.

, am

(3)

The majority’s decision today also creates a split with
the well-reasoned and more carefully crafted decision of
the Second Circuit in United States v. Foley.*' In Foley, a
Connecticut legislator was convicted of receiving a bribe
to help secure the passage of legislation that would have
given a recently-merged bank a one-year exemption from
a divestiture requirement. 73 F.3d at 486-87. Although the
defendant received a $25,000 bribe and the exemption
was worth more than $5,000 to the bank, the Second
Circuit held that the transaction did not meet the “$5,000

3° Section 201 reads in part: “Whoever, being a public
official . .. accepts . . . anything of value . . . for being influenced
in the performance of any official act . . . shall be
... imprisoned. . . . ” 18 U.S.C. § 201(b) (1994). Congress was
well aware of this provision when it passed § 666 because a
circuit split concerning § 201’s application to non-federal
entities motivated congressional action on § 666. See 1984
U.S.C.C.A.N. at 3510-11.

31 Surprisingly, the majority s :pports its holding by
citation to United States v. Mongelli, 794 F.Supp. 529, 531
(S.D.N.Y.1992), Slip Op., at 4711, 4712, a decision overruled by
the Second Circuit in Foley. See 73 F.3d at 496 (Lumbard, J.,
dissenting).

App. 45

or more” requirement of § 666(a)(1)(B) because the gov-
ernment had not shown that the exemption was worth at
least $5,000 to the State of Connecticut. “[T]he exemption
affected neither the financial interests of the protected
organization nor federal funds directly.” Id. at 493. Based
on a clear understanding of the congressional objective in
enacting § 666, the Second Circuit determined that the
proper method to value a transaction is from the perspec-
tive of the piotected entity, not from the perspective of
“any willing buyer,” as the majority would have us
accept. Slip Op., at 4711. The Foley court stated:

[T]he value of a thing for purposes of
§ 666(a)(1)(B) is not to be assessed by reference
to any and every perspective or measure of
value, no matter how subjective or arbitrary.
Instead, the assessment of the thing’s value
must be connected, even if only indirectly, to the
integrity of federal program funds.

73 F.3d at 490.

In an effort to distinguish Foley from these facts and
from Fifth Circuit law, the majority contends that the
defendant in the Fifth Circuit's Westmoreland decision
would not have been convicted under Foley because the
transaction in that case did not involve federal funds. Slip
Op., at 4711 n. 10. Based on two quoted passages from
Foley mentioning federal funds, the majority strains to
conclude that the Foley Court held that federal funds
must be involved in the transaction and that, therefore,
the decision conflicts with Westmoreland. Id. A casual
reading of Foley will reveal the majority’s erroneous inter-
pretation of that decision. First, Foley cites with approval
our decision in Westmoreland. 73 F.3d at 491. Second, the

App. 46

Foley Court noted that the Second Circuit has already
held that the government is not required to trace the
corrupt transaction to federal program funds. Id. at
490-91 (citing United States v. Coyne, 4 F.3d 100, 108-10 (2d
Cir.1993), cert. denied, __ US. __, 114 S.Ct. 929, 127
L.Ed.2d 221 (1994)).32 Third, the Foley Court recognized
that the corrupt transaction violated § 666(a)(1)(B) if it
affected either “the financial interests of the protected
organization” or “federal funds directly.” Id. at 493. The
majority’s attempt to distinguish Foley is, I respectfully
submit, superficial.

(4)

_ Finally, 1 would observe that when a criminal statute

only ambiguously applies to the conduct in question,
surely the rule of lenity counsels that we construe the
statute in favor of the defendant. Liparota v. United States,
471 U.S. 419, 427, 105 S.Ct. 2084, 2089, 85 L.Ed.2d 434
(1985).

(5)

To summarize, in interpreting § 666(a)(1)(B), we first
must look to the specific statutny language, and in the
light of its ambiguity, the legislative history, to determine
whether this provision intends to reach this conduct.
Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127,

3131, 87 L.Ed.2d 152 (1985) (“[W]hen assessing the reach

32 The Coyne court itself recognized that it “agree[s] with
the other circuits who have considered the question,” including
Westmoreland. 4 F.3d at 110.

App. 47

of a federal criminal statute, we must pay close heed to
language, legislative history, and purpose in order strictly
to determine the scope of the conduct the enactment
forbids”). Neither the plain language nor the legislative
history indicates that Congress wrote this provision to
reach the acceptance of bribes for conjugal visits, conduct
that left both federal and state fiscs untouched. Congress
intended to reach only conduct involving - directly or
indirectly — the fiscal integrity of non-federal entities
receiving federal monies. Because the defendant's con-
duct in no discernable way implicated the fiscal integrity
of the Hidalgo County Jail, and because the majority's
reading of the statute contradicts the clear expression of
congressional intent in the legislative history, I respect-
fully dissent.

App. 48

APPENDIX 2
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIR:‘CUIT

No. 94-60812

UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
BRIGIDO MARMOLEJO, JR; MARIO SALINAS ~
Defendants - Appellants

Appeal from the United States District Court
for the Southern District of Texas, Laredo

ON PETITIONS FOR REHEARING AND SUGGESTIONS
_FOR REHEARING EN BANC ~

(Opinion 7/17/96, 5 Cir., __, __ F3d __)

(Fiked Aug. 15, 1996)

Before JOLLY, WYENER, and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:

(/) The Petitions for Rehearing are DENIED and no
nnember of this panel nor judge in regular active service
on the court having requested that the court be polled on
Rehearing En Banc, (FRAP and Local Rule 35) the Sugges-
tions for Rehearing En Banc are also DENIED.

App. 49

( ) The Petitions for Rehearing are DENIED and the
court having been polled at the request of one of the
members of the court and a majority of the judges who
are in regular active service not having voted in favor,
(FRA and Local Rule 35) the Suggestions for Rehearing
En Banc are also DENIED.

( ) A member of the court in active service having
requested a poll on the reconsiderations of this cause en
banc, and a majority of the judges in active service not
having voted in favor, Rehearings En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Emilio M. Garza
United States Circuit Judge

REHG-15

App. 50

APPENDIX 3
ARTICLE [IV]

The right of the people to be secure in their persons,
houses, papers,and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

ARTICLE [V]

No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself; nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.

18 U.S.C. § 666. Theft or bribery concerning programs
receiving Federal funds

(a) Whoever, if the circumstance described in sub-
section (b) of this section exists —

App. 51
(1) being an of an organization, or of
State, Vocal, ne todos tbe! ean 6 eit
agency thereof -

(A) embezzles, steals, obtains by fraud, or
otherwise without authority knowingly converts

(2) corruptly gives, offers, or agrees to give
value to any person, with intent to influ-

4

shall be fined under this title, imprisoned not more than
10 years, or both.
(b) The circumstance referred to in subsection (a) of

this section is that the organization, government, or
agency receives, in any one year period, benefits in excess

App. 52

of $10,000 under a federal program involving a grant,
contract, subsidy, loan, guarantee, insurance, or other
form of Federal assistance.

(c) This section does not apply to bona fide salary,

wages, fees, or other compensation paid, or expenses
paid or reimbursed, in the usual course of business.

(d) As used in this section -
(1) the term “agent” means a person authorized

(3) the term “local” means of or pertaining to a
political subdivision within a State;

(4) the term “State” includes a State of the

App. 53

time both before and after the commission of the
offense.

18 U.S.C. § 4002. Federal prisoners in State institutions;
employment

For the purpose of providing suitable quarters for the
safekeeping, care and subsistence of all persons held
under authority of any enactment of Congress, the Attor-
ney General may contract, for a period not exceeding
three years, with the proper authorities of any State,
Territory, or political subdivision thereof, for the

Such Federal prisoner shall be employed only in the
manufacture of articles for, the production of supplies for,
the construction of public works for, and the maintenance
and care of the institutions of, the State or political subdi-

vision in which they are imprisoned.
The rates to be paid for the care and custody of said

persons shall take into consideration the character of the

quarters furnished, sanitary conditions, and quality of
subsistence and may be such as will permit and encour-
age the proper authorities to provide reasonably decent,
sanitary and healthful quarters and subsistence for such
persons.

App. 54

18 U.S.C. § 1961. Definitions
As used in this chapter -

(1) “racketeering activity” means (A) any act or
threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, dealing in obscene matter, or
dealing in narcotic or other dangerous drugs, which is
chargeable under State law and punishable by imprison-
ment for more than one year; (B) any act which is indict-
able under any of the following provisions of title 18,
United States Code: Section 201 (relating to bribery), sec-
tion 224 (relating to sports bribery), sections 471, 472, and
473 (relating to counterfeiting), section 659 (relating to
theft from interstate shipment) if the act indictable under
section 659 is felonious, section 664 (relating to embezzle-
ment from pension and welfare fuads), sections 891-894
(relating to extortionate credit transactions), section 1029
(relating to fraud and related activity in connection with
access devices), section 1084 (relating to the transmission
of gambling information), section 1341 (relating to mail
fraud), section 1343 (relating too wire fraud), section 1344
(relating to financial institution fraud), sections 1461-1465
(relating to obscene matter), section 1503 (relating to
obstruction of justice), section 1510 (relating to obstruc-
tion of criminal investigations), section 1511 (relating to
the obstruction of State or local law enforcement), section
1512 (relating to tampering with a witness, victim, or an
informant), section 1513 (relating to retaliating against a
witness, victim, or an informant), section 1951 (relating to
interference with commerce, robbery, or extortion), sec-
tion 1952 (relating to racketeering), section 1953 (relating
to interstate transportation of wagering paraphernalia),

App. 55

section 1954 (relating to unlawful welfare fund pay-
ments), section 1955 (relating to the prohibition of illegal
gambling businesses), section 1956 (relating to the \aun-
dering of monetary instruments), section 1957 (relating to
engaging in monetary transactions in property derived
from specified unlawful activity), section 1958 (relating to
use of interstate commerce facilities in the commission of
murder-for-hire), sections 2312 and 2313 (relating to

interstate transportation of stolen motor vehicles), sec-
tions 2314 and 2315 (relating to interstate

transportation
of stolen property), section 2321 (relating to trafficking in
certain motor vehicles or motor vehicle parts), sections
2341-2346 (relating to trafficking in contraband ciga-
rettes), sections 2421-24 (relating to white slave traffic),
(C) any act which is indictable under title 29, United
States Code, section 186 (dealing with restrictions on
payments and loans to labor organizations) or section
501(c) (relating to embezzlement from union funds), (D)
any offense involving fraud connected with a case under
title 11, fraud in the sale of securities, or the felonious
manufacture, importation, receiving, concealment, buy-
ing, selling, or otherwise dealing in narcotic or other
dangerous drugs, punishable under any law of the
United States, or (E) any act which is indictable under the
Currency and Foreign Transactions Reporting Act;
(2) “State” means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico,
any territory or possession of the United States, any
Ras gin Pg ge department, agency, or
instrumentality thereof;

(3) “person” includes any individual or entity capa-
ble of holding a legal or beneficil interest in property;

|

App. 56

(4) “enterprise” includes any individual, partner-
ship, corporation, association, or other legal entity, and
any union or group of individuals associated in fact
although not a legal entity;

(5) “pattern of racketeering activity” requires at
least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and the
last of which occurred within ten years (excluding any
period of imprisonment) after the commission of a prior
act of racketeering activity;

(6) “unlawful debt” means a debt (A) incurred or
contracted in gambling activity which wes in violation of
the law of the United States, a State or political subdivi-
sion thereof, or which is unenforceable under State or
Federal law in whole or in part as to principal or interest
because of the laws relating to usury, and (B) which was
incurred in connection with the business of gambling in
violation of the law of the United States, a State or
political subdivision thereof, or the business of lending
money or a thing of value at a rate usurious under State
or Federal law, where the usurious rate is at least twice
the enforceable rate;

(7) “racketeering investigator” means any attorney
or investigator so designated by the Attorney General
and charged with the duty of enforcing or carrying into
effect this chapter;

(8) “racketeering investigation” means any inquiry
conducted by any racketeering investigator for the pur-
pose of ascertaining whether any person has been
involved in any violation of this chapter or of any final
order, judgment, or decree of any court of the United

App. 57

States, duly entered in any case or proceeding arising
under this chapter;

(9) “documentary material” includes any book,
paper, i mh record, recording or other material; and

(10) “Attorney General” includes the Attorney Gen-
eral of the United States, the Deputy Attorney General of
the United States, the Associate Attorney General of the
United States, any Assistant Attorney General of the

United States, or any employee of the Department of
Justice or any employee of any department or agency of
the United States so designated by the Attorney General
to carry out the powers conferred on the Attorney Gen-
eral by this chapter. Any department or agency so desig-
nated may use in investigations authorized by this
chapter either the investigative provisions of this chapter
or the investigative power of such department or agency
otherwise conferred by law.

18 U.S.C. § 1962. Prohibited activities

(a) It shall be unlawful for any person who has
received any income derived, directly or indirectly, from
a pattern of racketeering activity or through collection of
an unlawful debt in which such person has participated
as a principal within the meaning of section 2, title 18,
United States Code, to use or invest, directly or indirectly,
any part of such income, or the proceeds of such income,
in acquisition of any interest in, or the establishment or
operation of, any enterprise which is engaged in, or the
activities of which affect, interstate or foreign commerce.

App. 58

A purchase of securities in the open market for purposes
of investment, and without the intention of controlling or
participating in the control of the issuer, or of assisting
another to do so, shall not be unlawful under this subsec-
tion if the securities of the issuer held by the purchaser,
the members of his immediate family, and his or their
accomplices in any pattern or racketeering activity or the
collection of an unlawful debt after such purchase do not
amount in the aggregate to one percent of the outstand-
ing securities of any one class, and do not confer, either in
law or in fact, the power to elect one or more directors of
the issuer.

(b) It shall be unlawful for any person through a
pattern of racketeering activity or through collection of
an unlawful debt to acquire or maintain, directly or indi-
rectly, any interest in or control of any enterprise which is
engaged in, or the activities of which affect, interstate or
foreign commerce.

(c) It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce,
to conduct or participate, directly or indirectly, in the
conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire
to violate any of the provisions of subsection (a), (b), or
(c) of this section.

ae ae ee eS PO eee eee, eS ee ee, ee nh ae

App. 59
APPENDIX 4
United States Department Intergovernment Service
of Justice Agreement

United States Marshals Housin Federal Prisoners
Service sof

1. AGREEMENT NUMBER
J-D79-M-001

2. EFFECTIVE DATE
9/1/84

3. REQUISITION /PURCHASER/REQUEST NO.
0181-D79-84

4. CONTROL NO.

5. ISSUING OFFICE
UNITED STATES MARSHALS SERVICE
Operations Support Division
Program Administration Branch
1-TYSONS CORNER CENTER
MCLEAN, VIRGINIA 22102

6. GOVERNMENT ENTITY FACILITY CODE(S) 6GV

NAME AND ADDRESS (Street, city, county, State and
ZIP code)

[Hidalgo County Detention Center, P.O. Box 359 Ed-
ingburg, Texas 78539]

Contact Person Juan Jose Munoz, Chief
Area Code & Telephone No. (512) 383-8114 ext. 73

8. ITEM NO. (1)

9. SUPPLIES/SERVICES This Agreement is for the
safekeeping and subsistence of adult male and

housing,
female federal prisoners in accordance with the contents
set forth herein.

—- — sees Se Ar se er eee; Se ee” 6hvVh eC mc; a ied ee

App. 60
10. QUANTITY ESTIMATED USMS PRISONER DAYS/
YR. 36,500
11. UNIT PDs
12. UNIT PRICE FIXED RATE $25.09

13. AMOUNT ESTIMATED ANNUAL PAYMENT
$915,785

ITEM NO. (2)

SUPPLIES/SERVICES This Agreement consists of the
following:

(A) I-G-A Cover Page, Form #241
(B) Agreement Schedule, pages 2-5.

14. AGENCY CERTIFYING

To the best of my knowledge and belief, data submitted in
support of this a t is true and correct, the document
has been duly authorized by the governing body of the

Department or Agency and the Department or Agency will
comply with ALL PROVISIONS SET FORTH HEREIN.

15. NAME AND TITLE OF PERSON(S) AUTHORIZED
TO SIGN OFFER.

/s/ Brig Marmolejo Date 9-13-84
(Signature)
/s/ Brig Marmolejo _ Sheriff
Name (Type or Print) Title
Date
(Signature)
Name (Type or Print) Title

App. 61

16. TYPE OF USE
[ ] Hold Over
@ Regular Support
[ ] Seasonal Support
{ ] Other
17. PRISONER TYPE TO BE INCLUDED
UNSENTENCED SENTENCED
@ Adult Male ™@ Adult Male
@ Adult Female @ Adult Female
{ ] Juvenile Male { ] Juvenile Male
{[ ] Juvenile Female { ] Juvenile Female
@ Aliens [ ] Work Release

{ ] YCA Male

{ ] YCA Female
18. LEVEL OF USE
{ ] Minimum
[ ] Medium
@ Major

19. This Negotiated Agreement is Hereby Approved and
Accepted for

THE UNITED STATES OF AMERICA
BY DIRECTION OF THE DIRECTOR OF THE
UNITED STATES MARSHALS SERVICE

BY /s/ Enders
IGNATURE OF CO ING OFFICER)

20. ANTICIPATED ANNUAL USAGE
UNSENTENCED SENTENCED ALIENS TOTAL

No. of
Prisoners 100 100

Prisoner Days 36,500 ~ 36,500

Guard Hours

See

:
}
:

App. 62

21. NAME OF AUTHORIZING OFFICIAL
(Type or Print)

Joseph B. Enders
DATE SIGNED
August 30, 1984

UNITED STATES MARSHALS SERVICE
AGREEMENT SCHEDULE
(SUPPORT OF U.S. PRISONERS)

ARTICLE I — PURPOSE

The purpose of this Intergovernmental Service Agree-
ment (IGA) is to establish a formal binding relationship
between the U.S. Marshals Service and other federal user
agencies (the government) and Hidalgo County, Texas
(The County) for the detention of persons charged with
or convicted of violations of federal law or held as mate-
rial witnesses (federal prisoners) at the Hidalgo County
Jail (the facility).

ARTICLE II - SUPPORT AND MEDICAL SERVICES

1. The County agrees to accept and provide for the
secure custody, care and safekeeping of federal prisoners
in accordance with state and local laws, standards, poli-
cies, procedures, or court orders applicable to the opera-
tions of the facility.

2. The County agrees to provide federal prisoners with
the same level of medical care and services provided local
prisoners including the transportation and security for

App. 63

prisoners requiring removal from the facility for emer-
gency medical services. All costs associated with hospital
or health care services provided outside the facility will
be paid directly by the government.

3. The County agrees to notify the U.S. Marshal as soon
as possible of all emergency medical cases

removal of a prisoner from the facility and to obtain prior
authorization for removal for all other medical services
required.

ARTICLE Il —- RuCEIVING AND DISCHARGE

1. The County agrees to accept as federal prisoners
those persons committed by federal law enforcement offi-
cers for violations of federal laws only upon presentation
by the officer of proper law enforcement credentials.

2. The County agrees to release federal prisoners only to
law enforcement officers of agencies initially committing
the prisoner (i.e. DEA, INS, etc.) or to a Deputy United
States Marshal. Those prisoners who are remanded to
custody by a U.S. Marshal may only be released to a U.S.
Marshal or an agent specified by the U.S. Marshal of the
Judicial District.

3. Federal prisoners may not be released from the facil-
ity or placed in the custody of state of local officials for
any reason except for medical or emergency situations.
Federal prisoners sought for a state or local court pro-
ceeding must be acquired th

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0033%3A2. Public record. Not legal advice.