Respondents Brief — Rosado v. Curtis

Supreme Court of the United States

October Term, 1996

¢

MARIO SALINAS,

Petitioner,

vV.

UNITED STATES OF AMERICA,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

S

BRIEF FOR RESPONDENT BRIGIDO MARMOLBEJO, JR.

IN SUPPORT OF PETITIONER MARIO SALINAS

7

Geratp H. Go.pstein*

CynTHIA Hujar Orr

GoLpsTEIN, GoLDsTEIN & HiILLey

29th Floor Tower Life Building

San Antonio, Texas 78205

(210) 226-1463

“Attorney of Record

Representing Brigido Marmolego, Jr.

QUESTION PRESENTED

The case against Salinas does not meet the prerequi-

sites 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 has nothing whatsoever to do with the dis-

bursement 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? ;

ii

RULE 29.1 STATEMENT

Pursuant to Rule 29.1 of the Rules of this Court,

Respondent hereby lists the following as parties to the

proceedings:

Brigido Marmolejo, Jr., Respondent

1024 W. Schunior

Edinburg, Texas 78539

Attorneys for Respondent

Gerald H. Goldstein

Cynthia Hujar Orr

Goldstein, Goldstein & Hilley

29th Floor Tower Life Building

San Antonio, Texas 70205

(210) 226-1463

Attorneys for Respondent, United States

of America, At Trial:

Gregory J. Surovic

Assistant U.S. Attorney

1701 W. Business Highway 83

McAllen, Texas 78501

Jose Angel Moreno

Assistant U.S. Attorney

Federal Courthouse

Laredo, Texas 78040

Attorney for Respondent, United States

of America, on Appeal:

Paula Offenhauser

Assistant U.S. Attorney

Appellate Division Chief

910 Travis, Suite 1500

Houston, Texas 77202

iii

RULE 29.1 STATEMENT -— Continued

Attorneys for Respondent, United States

of America, on Petition for Certiorari

Walter Dellinger, Acting Solicitor General

John C. Keeney, Acting Assistant Attorney General

Richard A. Friedman, Attorney

Room 5614

Department of Justice

10 Street and Constitution Ave. N.W.

Washington, D.C. 20530-0001

Attorney for Petitioner Mario Salinas

Frank Enriquez

4200-B N. Bicentenneial

McAllen, Texas 78504

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED... |... 2... eee ene eeeeees i

RULE 29.1 STATEMENT ...........----2-eeeeeeeee ii, iii

TABLE OF AUTHORITIES .................. vi, vii, viii

INTEREST OF RESPONDENT SUPPORTING PETI-

TIONER’S POSITION. ..... 2.266660 cece cece eeeees 1

SUMMARY OF THE ARGUMENT ................. 1

pS ci ||, SPP tt eee 2

1. SECTION 666 REQUIRES THE DEFENDANT BE

AN AGENT OF AN ORGANIZATION RECEIV-

ING OVER $10,000 IN BENEFITS UNDER A

FEDERAL PROGRAM THUS RAISING A QUES-

TION WHETHER BRIBERY UNDER SECTION

666 MUST AFFECT THE FEDERAL FISC....... 3

2. THE LEGISLATIVE HISTORY OF SECTION 666

SHOWS THAT IT WAS INTENDED TO FILL «

GAP WHICH CALLED INTO QUESTION THE

ABILITY OF THE GOVERNMENT TO PROS-

ECUTE PERSONS FOR BRIBERY WHO WERE

NOT FEDERAL OFFICIALS BUT WHO DID

3. EARLIER LEGISLATION, WHICH PROVIDED

THE MODEL FOR §666, CONFIRMS THAT CON-

GRESS WAS CONCERNED ONLY WITH BRIB-

ERY INVOLVING FEDERAL FUNDS........... 7

4. THE UNITED STATES’ SUGGESTION THAT LEG-

ISLATIVE HISTORY SUPPORTS ITS EXPANSIVE

v

TABLE OF CONTENTS - Continued

Page

5. FURTHER, THE AMBIGUITY REGARDING

WHETHER BRIBERY UNDER §666 MUST

IMPINGE ON FEDERAL FUNDS MUST BE

RESOLVED IN FAVOR OF LENITY ............

AMERICAN FEDERALISM PRECLUDES APPLI-

CATION OF A FEDERAL STATUTE TO AN

AREA HISTORICALLY COVERED BY THE

POLICE POWERS OF THE STATES ABSENT

CONGRESS’ CLEAR STATEMENT TO THE

ERED S coscupgcnncpeqceneesdtaccocececces

CONJUGAL VISITS DO NOT CONSTITUTE “ANY-

11

12

vi

TABLE OF AUTHORITIES

Page

Cases

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). .... 2.6.66. c ce ene 4

Dixson v. U.S., 465 U.S. 482 (1984) ..... 6, 12, 16, 17, 20

Good Samaritan Hosp. v. Shalala, 113 S.Ct. 2151

SEE nccodsecduedncctcccdovesbosdvdceces codbedoéus 4

Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 16

Howe v. Smith, 452 U.S. 473 (1980) .............666005- 4

Logue v. U.S., 412 U.S. 521 (1973) .......-- 6. eee ee ees 2

McNally v. U.S., 483 U.S. 350 (1987).............. 17, 18

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .... 16

South Dakota v. Dole, 488 U.S. 203 (1987)............. 1

U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235

Se adcctckaveceonsoennansésdsacesounbessennsedéa 4

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

SeEace cece sonneweeseceseesdessnerouenssscsaves 17

U.S. v. Bass, 404 U.S. 336 (1971).............. 12, 15, 16

U.S. v. Coyne, 4 F.3d 100 (2d Cir. 1993).............. 11

U.S. v. Dransfield, 104 F.3d 350, 1996 WL 537919

Se GE, BD ecestecesnecedshoenecedescdoesaness 6, 7

U.S. v. Enmons, 410 U.S. 396 (1973) .......... 11, 12, 16

U.S. v. Foley, 73 F.3d 484 (2d Cir. 1996) ........ 4,7, 15

U.S. v. Hinton, 683 F.2d 195 (7th Cir. 1982)........... 6

U.S. v. Lopez, 115 S.Ct. 1624 (1995)............... 15, 17

U.S. v. Marmolejo, 89 F.3d 1185 (Sth Cir. 1996) ..2, 3, 4, 21

vii

TABLE OF AUTHORITIES - Continued

Page

U.S. v. Moeller, 80 F.3d 1053 (5th Cir. 1996).......... 10

U.S. v. Valentine, 63 F.3d 459 (6th Cir. 1995)......... 11

U.S. v. Westmoreland, 841 F.2d 572 (5th Cir. 1988) .... 11

U.S. v. Wincoop, 11 F.3d 119 (9th Cir. 1993).......... 11

Williams v. U.S., 458 U.S. 279 (1982)................. 16

STATUTES

Be Gee A intucierdoctsbcsecssicconecccones passim

ee ED os ocudccesenccsendcetsoacancds 19

Be NY bob GU dei ccctccsecdecuededdeese 13, 14

Se EE Pc nndocédavccoesctcascescetsescoese 2, 13

Fe IS nbn dda dd cdccccésvsesdcisoutive 15

i p20 cenesevebasccesesoseencéses eee

ee SR en bree dnceduccctocdsececoa@eccoes 15

CT ST T.53A, Ch. 952, Pt. XI, Refs & Anos.......... 15

PT tdedivadcdesdéedesiedibeotsoctacévunds 15

ET OE Sa cdeccscd cevecccsobsndeecés dibs 15

SE EE Sendbidenscnncovicssdeseuecésdedetss 15

RuLes

Rule 12.6 of the Supreme Court...................... 1

Rule 29.1 of the Supreme Court...................... ii

TT

viii

TABLE OF AUTHORITIES - Continued

Page

Leciscative History

Senate Report No. 2213, 87th Cong., 2d Sess. 1962,

reprinted in 1962 U.S.C.C.A.N. 3852, 3853-56...... 19

Senate Report No. 225, 98th Cong., 2d Sess. 370

(1984), reprinted in 1984 U.S.C.C.A.N. 3182...... 1,2

Senate Report No. 97-307, 97th Cong., Ist Sess.

Fees GED GUO ce docccccncncccveccsvescasccsecose 8

MISCELLANEOUS

The Prisoners’ Mail Box and the Evolution of Fed-

eral Inmate Rights, 144 F.R.D. 127................ 14

INTEREST OF RESPONDENT

SUPPORTING PETITIONER’S POSITION

Mr. Brigido Marmolejo, Jr. and Petitioner were co-

defendants in the courts below. Pursuant to Supreme

Court Rule 12.6, Mr. Marmolejo submits this brief on the

merits as a Respondent supporting the position of Peti-

tioner. By filing this document |ir. Marmolejo hereby

notifies the Court of his intere:: 1 the outcome of this

case, and qualifies himself for :clief from this Court.

¢

SUMMARY OF THE ARGUMENT

In light of legislative history, the rule of lenity, and

given the significant incursion by the federal government

into the States’ primacy over criminal matters and into

the affairs of state governance in this case, Marmolejo’s

and Salinas’ convictions must be reversed absent an

unambiguous expression of Congressional intent to apply

18 U.S.C. § 666 to the circumstances of this case and a

clear threat to a federal interest. Neither exists in this

case. Congress expressly limited its jurisdiction under

§ 666 to situations involving theft, fraud, and bribery

involving federal monies.' See Senate Report No. 225, 98

Cong., 2d Sess. 370 (1984), reprinted in 1984 U.S.C.C.A.N.

1 The jurisdictional restriction is consistent with Spending

Clause doctrine regulations of federal expenditures which

“might be illegitimate if they are unrelated to the federal

interest in particular national projects or programs,” or if

Congress’ desire to regulate is not unambiguously conveyed.

See South Dakota v. Dole, 488 U.S. 203, 207, 97 L.Ed.2d 171, 178,

107 S.Ct. 2793, 2796 (1987).

3182, 3511 [hereinafter S.Rep. No. 225]. Here, no federal

monies were even remotely affected by the bribery con-

duct.

ARGUMENT

In order to find federal jurisdiction in this case the

Fifth Circuit majority opinion grouped a Cooperative

Agreement Plan (hereinafter CAP) with Intergovernmen-

tal Service Agreement (hereinafter IGA) to form one

agreement which it deemed was a “Federal program”.

U.S. v. Marmolejo, 89 F.3d 1185, 1189 n.4 (5 Cir. 1996). It

reasoned that this combination constituted a “Federal

Program” because the CAP agreement stated that it pro-

vided “Federal participation in the funding of local gov-

ernmental jail construction, renovation or improvement

programs”. U.S. v. Marmolejo, 89 F.3d 1185, 1190-1191 (S®

Cir. 1996).?

2 However, Title 18 United States Code § 4002 provides for

suitable quarters for the “safekeeping, care and subsistence” of

federal prisoners and states no policy objectives. See also Logue v.

U.S., 412 U.S. 521, 37 L.Ed.2d 121, 93 S.Ct. 2215 (1973) [County

Jail was an independent contractor under 18 U.S.C. § 4002

contract which was governed by Bureau of Prison rules

governing, inter alia, visitation privileges]. Although, 18 U.S.C.

§ 666 does not define “federal program”, the Senate report

accompanying the statute’s enactment provides an explicit

definition of federal program which excludes payments in

exchange for services such as those under the IGA and the CAP.

“The term ‘Federal program’ means that there must

exist a specific statutory scheme authorizing the

Federal assistance in order to promote or achieve

certain policy objectives. Thus, not every Federal

More importantly, the majority held that the provi-

sion of conjugal visits to inmate Beltran constituted a

thing of value which the federal government intended to

regulate under § 666 because such visits were of value to

Beltran and were a part of Marmolejo’s and Salinas’

responsibility to control Beltran’s visitation under the

federal prison housing “program”. U.S. v. Marmolejo, 89

F.3d 1185, 1192-1193 (5 Cir. 1996). It valued the conjugal

visit at the going market rate of $5,000 to meet the juris-

dictional requirement that the “transaction” involve

“anything of value of $5,000 or more”. U.S. v. Marmolejo,

89 F.3d 1185, 1192-1193 (5 Cir. 1996).

1. SECTION 666 REQUIRES THE DEFENDANT BE

AN AGENT OF AN ORGANIZATION RECEIVING

OVER $10,000 IN BENEFITS UNDER A FEDERAL

PROGRAM THUS RAISING A QUESTION

WHETHER BRIBERY UNDER SECTION 666 MUST

AFFECT THE FEDERAL FISC

Section 666(a)(1)(B) applies to an agent of an organi-

zation, who “ . . . agrees to accept, anything of value from

any person, intending to be influenced or rewarded in

connection with any business, transaction, or series of

contract or disbursement of funds would be covered.

For example, if a government agency lawfully

purchase more than $10,000 in equipment from a

supplier, it is not the intent of this section to make a

theft of $5,000 or more from the supplier a Federal

crime. It is, however, the intent to reach thefts and

bribery in situations of the types involved in the De

Toro, Hinton, and Mosley cases cited herein.” S.Rep.

No. 225 at 3510.

transactions of such organization, government, or agency

involving anything of value of $5,000 or more... .” 18

U.S.C. § 666(a)(1)(B). The organization must receive bene-

fits of over $10,000 under a federal program within a year

before its agent can be charged with bribery under

§ 666(a)(1)(B). Subsection (a) requires that the circum-

stance described in subsection (b) exists.

“The circumstance referred to in subsection (a)

of this section is that the organization

... receives, in any one year period, benefits in

excess of $10,000 under a Federal Program... . ”

18 U.S.C. § 666(b).

The split among the circuit courts is patent evidence of

the ambiguity. Compare U.S. v. Marmolejo, 89 F.3d 1185,

1194 (5 Cir. 1996); with, U.S. v. Foley, 73 F.3d 484, 490 (2d

Cir. 1996). The requirement that the organization receive

benefits under a federal program would not need to be in

§ 666 at all if this statute were not meant to protect the

integrity of the federal fisc.

“The starting point in interpreting a statute is its

language, for ‘if the intent of Congress is clear, that is the

end of the matter.’ ” Good Samaritan Hosp. v. Shalala, 124

L.Ed.2d 368, 113 S.Ct. 2151, 2157 (1993) (quoting Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842, 81 L.Ed.2d 694, 104 S.Ct. 2778 (1984)); U.S.

v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 103 L.Ed.2d

290, 109 S.Ct. 1026 (1989); Howe v. Smith, 452 U.S. 473, 480,

69 L.Ed.2d 171, 101 S.Ct. 2468 (1980).

Because, the words of § 666(a)(1)(B) can be inter-

preted to support both the contentions that 1) federal

funds must b disbursed or impinged by the bribery; and

2) that federal funds need not be disbursed or impinged

by the bribery, it is appropriate to examine the legislative

history of § 666.

2. THE LEGISLATIVE HISTORY OF SECTION 666

SHOWS THAT IT WAS INTENDED TO FILE A

GAP WHICH CALLED INTO QUESTION THE

ABILITY OF THE GOVERNMENT TO PROSECUTE

PERSONS FOR BRIBERY WHO WERE NOT FED-

ERAL OFFICIALS BUT WHO DID ADMINISTER

FEDERAL FUNDS

The Senate Report concerning § 666 states that this

offense was created to augment the government's ability

to “vindicate significant acts of theft, fraud, and bribery

involving Federal monies. . . .” S.Rep. No. 225 at 3510. And

further stated that the purpose of § 666 was “to protect

the integrity of the vast sums of money distributed

through Federal programs from theft, fraud and undue

influence by bribery.” S.Rep. No. 225 at 3511. Section 666

was intended simply to fill a gap in the existing statutory

scheme, which had left in dispute the federal govern-

ment’s authority to prosecute bribery of persons who

were not federal officials but who administered federal

funds. The Senate Report explained that § 666 was

designed to allow such prosecutions by federal authori-

ties, explicitly recognizing that state and local authorities

had not brought such prosecutions under their own laws

because they perceived the federal government to be “the

principal party aggrieved.” S.Rep. No.225 at 3510.

Congress recognized that a conflict then existed

among, and within, the federal circuits “on the question

whether a person employed by a private organization

receiving Federal monies pursuant to a program is a

‘public official’ for purposes of section 201.” S.Rep. No.

225 at 3510-3511 and n.2-3. Congress recognized that

resolving this conflict might not be necessary, because the

same “issue [was] due to be decided soon by the Supreme

Court,” which had granted review in U.S. v. Hinton, 683

F.2d 195 (7 Cir. 1982), aff'd sub nom, Dixson v. U.S., 465

U.S. 482, 79 L.Ed.2d 458, 104 S.Ct. 1172 (1984). S.Rep. No.

225 at 3510-3511, n.2. It appears that Congress enacted

§ 666 because it was not clear how the Court would rule

in Hinton and because any ruling might be limited to “the

context of the particular HUD program in that case.”

S.Rep. No. 225 at 3510-3511, n.2.

Accordingly, far from expressing an intent to intrude

broadly into the domain of state and local government,

Congress expressed an intent only to prosecute a narrow

category of crimes, which state and local officials them-

selves considered within the domain of the federal gov-

ernment. The crimes of bribery and theft are not

federalized simply because the wrongdoing involves an

organization which receives money from the federal gov-

ernment. If Congress had intended to criminalize essen-

tially every instance of bribery of a state or local official,

whether or not the bribery affected any program involv-

ing federal funds, Congress presumably would have

mentioned so dramatic an expansion of the law some-

where in its discussion of § 666.

In practice Courts have applied § 666 in this manner.

In U.S. v. Dransfield, 104 F.3d 350, 1996 WL 537919 (2¢ Cir.

1996), contracts for noise abatement were awarded to

persons under a bid rigging scheme and Federal Aviation

Administration funds paid for the contract work through

the New York School Construction Authority. Although

the payments could not be identified as the direct receipt

of federal funds the Court found the conduct was covered

by § 666 because the conduct involved the city contracting

with an independent entity to administer federal funds.

U.S. v. Dransfield, 104 F.3d 350, 1996 WL 537919 (2d Cir.

1996).

Marmolejo and Salinas did not contract with inmate

Beltran to administer federal funds. They took private

money in exchange for extending superfluous privileges.

In U.S. v. Foley, 73 F.3d 484, 490-91 (2d Cir. 1996), the

Second Circuit held that the Government is not “required

to trace the agent’s corrupt expenditures to the federal

program funds; but . . . there was no violation [of

666(a)(1)(B)] where the preservation of federal funds was

not implicated by the defendant’s conduct”.

“Plainly some briberies of state officials may

come within the scope of Sec. 666(a)(1)(B), but

we infer from the legislative history that that

section was not designed for the prosecution of

corruption that was not shown in some way to

touch upon federal funds.” U.S. v. Foley, 73 F.3d

484, 494 (2d Cir. 1996).

3. EARLIER LEGISLATION, WHICH PROVIDED THE

MODEL FOR § 666, CONFIRMS THAT CONGRESS

WAS CONCERNED ONLY WITH BRIBERY

INVOLVING FEDERAL FUNDS

The Senate Report on § 666 notes that it was “derived

from” S. 1630, a bill introduced in the prior Congress,

and, in particular, the comprehensive bribery provision in

section 1751 of that bill. S.Rep. No. 225 at 3510 n.1. The

legislative history of section 1751 is therefore instructive

as to what Congress did or did not intend to reach in

§ 666.

The drafters of section 1751 viewed the then existing

federal bribery provisions as inadequate because they did

not cover all the persons or organizations which should

be included or activities which should be illegal. Senate

Report No. 97-307, 97 Cong., 18t Sess. 797. Section 1751

therefore included organizations charged by a federal

statute with administering federal program monies:

“an organization charged by a federal stat-

ute .. . with administering monies or property

derived from a federal program, and the recip-

ient’s conduct is related to the administration of

such program.” Section 1751 (c)(1)(I), S.Rep. No.

97-307, 97% Cong., 18* Sess. 797.

This provision was designed “to protect the integrity of

the vast sums of money distributed pursuant to federal

programs from undue influence through bribery, by cre-

ating federal jurisdiction when the conduct sought to be

affected is related to the administration of the program.”

S.Rep. No. 97-307, 97 Cong., 1%t Sess. 803. This Senate

Report noted that “unfortunately, although understand-

ably, states and localities are often reluctant to pursue

such cases out of a belief that the aggrieved party is

primarily the Federal government”. S.Rep. No. 97-307,

97% Cong., 1% Sess. 803.

The Senate Report on the bribery provision of § 666

expressly cross-references this discussion of § 1751. In so

doing, the Senate Report confirms that in § 666, as in

§ 1751, Congress was concerned with criminalizing brib-

ery of state, local, and private officials where such brib-

ery relates to the administration of “Federal programs”.

S.Rep. No 225 at 3510 n.1. Congress expressed no interest

in prohibiting bribery of such officials in circumstances

where the integrity of federal funds is not implicated.

4. THE UNITED STATES’ SUGGESTION THAT LEG-

ISLATIVE HISTORY SUPPORTS ITS EXPANSIVE

CONSTRUCTION OF § 666 IS MISPLACED

A. CONGRESS’ DIRECTIVE THAT “FEDERAL

PROGRAM” BE BROADLY CONSTRUED IS

IRRELEVANT.

In support of its expansive reading of the bribery

provision of § 666, the United States has, in its brief to the

Fifth Circuit at page 38, previously invoked the directive

in the Senate Report “that the term ‘Federal program ... ’

be construed broadly.” S.Rep. No 225 at 3511. But this

definition of “Federal program” does not address

whether the act of bribery charged must implicate federal

funds. That term addresses which types of federal fund-

ing of a state and local or private program may trigger

the statute, not whether the statute may be triggered even

when no federal funding of any type is affected by the

conduct.

In fact, in the same sentence providing for this

“broad construction” of “Federal program,” Congress

confirmed the limited purpose of § 666. “the purpose of

this section [is] to protect the integrity of the vast sums of

money distributed through federal programs.” S.Rep. No.

225 at 3510.

10

In U.S. v. Moeller, 80 F.3d 1053, 1056 (5 Cir. 1996)

persons who solicited campaign contributions were

rewarded with sham consulting contracts for the Texas

Federal Inspection Service. Whether the offense was

indeed a federal offense was not raised in U.S. v. Moeller,

80 F.3d 1053 (5 Cir. 1996).

B. CONGRESS’ CONCERN WITH “COMMING-

LING” OF FEDERAL AND NON-FEDERAL

FUNDS IS LIKEWISE IRRELEVANT WHERE,

AS HERE, THE OFFENSE IS BRIBERY NOT

THEFT.

The United States has also relied on the Senate

Report’s statement that § 666 was designed to reach cir-

cumstances in which “the funds are so commingled that

the Federal character of the funds cannot be shown.”

S.Rep. No. 225 at 3510. The Senate Report made this

statement with respect to the theft provision, 666(a)(1)(a),

and not with respect to the bribery provision. The theft

provision was expressly designed to fill a separate gap in

the law that then existed under 18 U.S.C. § 641. Speci-

fically, Congress intended to criminalize thefts even when

“title has passed to the recipient before the property is

stolen, or the funds are so commingled that the Federal

character of the funds cannot be shown.” S.Rep. No. 225

at 3510. Congress specifically designed § 666’s theft pro-

vision to parallel 18 U.S.C. § 665, which prohibits agents

of federal job training programs from stealing “moneys

funds, assets, or property which are the subject of a

[federal] financial assistance agreement or contract.”

S.Rep. No 225 at 3510. Congress stated that the theft

provision of § 666 was to serve as “statute of general

11

applicability in this area,” S.Rep. No. 225 at 3510, thereby

implying that this provision was to apply only where the

defendant's actions, like those under § 665, affected the

disposition of federal funds. In other words, in the theft

provision of § 666 as well as in the bribery provision,

Congress was concerned only with reaching misconduct

involving federal funds.

Consistent with this legislative history, in U.S. v.

Valentine, 63 F.3d 459, 464 (6™ Cir. 1995) the Court, not

surprisingly, found that misappropriated funds need not

be traced to federal program funds.

The same was found by the Ninth Circuit in U.S. v.

Wincoop, 11 F.3d 119, 121 (9 Cir. 1993), by the Second

Circuit in U.S. v. Coyne, 4 F.3d 100 (2d Cir. 1993), and in

the Fifth Circuit in U.S. v. Westmoreland, 841 F.2d 572,

576-77 (5 Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102

L.Ed.2d 39 (1988) [in this context “it is clear that Congress

has cast a broad net to encompass local officials who may

administer federal funds, regardless of whether they

actually do”].

5. FURTHER, THE AMBIGUITY REGARDING

WHETHER BRIBERY UNDER § 666 MUST

IMPINGE ON FEDERAL FUNDS MUST BE

RESOLVED IN FAVOR OF LENITY

The rule of lenity dictates that Marmolejo’s and

Salinas’ convictions be set aside. If there are any doubts

in interpreting an ambiguous statute, they are resolved in

the defendants’ favor. U.S. v. Enmons, 410 U.S. 396, 411, 35

L.Ed.2d 379, 93 S.Ct. 1007 (1973). “This being a criminal

statute, it must be strictly construed, and any ambiguity

12

must be resolved in favor of lenity.” U.S. v. Enmons, 410

U.S. 396, 411, 35 L.Ed.2d 379, 93 S.Ct. 1007 (1973). In light

of the rule of lenity, and given the significant incursion by

the federal government into the states’ primacy over

criminal matters and into affairs of state governance in

this case, Marmolejo’s and Salinas’ convictions must be

reversed absent an unambiguous expression of Congres-

sional intent to apply § 666 to the circumstances of this

case and a clear threat to a federal ir.ec.: :t.

6. AMERICAN FEDERALISM PRECLUDES APPLICA-

TION OF A FEDERAL STATUTE TO AN AREA

HISTORICALLY COVERED BY THE POLICE

POWERS OF THE STATES ABSENT CONGRESS’

CLEAR STATEMENT TO THE CONTRARY

Thus, it cannot be presumed that Congress intended

in § 666 to vastly expand federal criminal jurisdiction to

reach virtually all bribery involving state and local offi-

cials without any mention in its text, statutory findings,

or legislative history. Instead, under U.S. v. Bass, 404 U.S.

336 (1971), and its progeny, before courts may construe a

federal criminal statute to so fundamentally alter the

relationship between federal and state governments, Con-

gress must have clearly stated its intent to do so. Con-

gress has made no such statement here. The

Government's reading of § 666 is all the more implausible

given the history of federal bribery legislation, which

traditionally has applied only to areas of direct federal

interest. See generally Dixson v. U.S., 465 U.S. 482, 491-92

(1984). See also Section 2 supra. If Congress had intended

to criminalize essentially every instance of bribery of a

state or local official, whether or not the bribery affected

13

any program involving federal funds, Congress presuma-

bly would have mentioned so dramatic an expansion of

the law somewhere in its discussion of § 666.

The integrity of the funds expended under the IGA

and CAP were not affected in any way by the scheme to

pay private funds in exchange for conjugal visits. The

payment of $840,000 received by Hidalgo County per

year for housing federal prisoners at cost was not diver-

ted or expended in an improper manner because of the

exchange of private money by Beltran for superfluous

visitation privileges. The conjugal visits were not pro-

vided for in the IGA, CAP or 18 U.S.C. § 4001 et seq.

The authority for the USMS, a branch of the Depart-

ment of Justice, to enter into the CAP and IGA is found in

18 U.S.C. §§ 4001-009 & 4041-042. In particular, § 4002

provides:

“For the purposes of providing suitable quarters

for the safekeeping, care, and subsistence of all

persons held under authority of any enactment

of Congress, the Attorney General may contract,

for a period not exceeding three years, with the

proper authorities of any State, Territory, or

political subdivision thereof, for the imprison-

ment, subsistence, care, and proper employment

of such persons.” 18 U.S.C. § 4002.5

3 Section 4002 further provides that the rates to be paid for

the care and custody of federal prisoners depends on the

character of the quarters, sanitary conditions and quality of

subsistence. Section 4006 states that “[t]he Attorney General

shall allow and pay only the reasonable and actual cost of the

subsistence of prisoners. . . . “ With respect to construction,

§ 4003 authorizes the Attorney General to select sites for

14

No significant acts of theft, fraud or bribery involv-

ing Federal monies occurred. Beltran was provided the

same “safekeeping, care and subsistence” which other

federal inmates received under the housing agreements at

no extra cost to him or expense to the federal govern-

ment. Beltran made separate arrangements for the super-

fluous privilege of receiving conjugal visits in a manner

which did not affect the federal fisc.

The Fifth Circuit majority would extend federal juris-

diction beyond matters involving or affecting the integ-

rity of the federal fisc to include anything a private

person might assign a value of $5,000 or more. Under the

Fifth Circuit’s analysis, as long as Marmolejo and Salinas

were seeing to the needs of federal inmates, in exchange

for $5,000 or more, anything they might provide, includ-

ing “intangibles”, would bring their conduct within 18

U.S.C. § 666. Such “intangibles” could conceivably

building prisons when space is not available, and § 4009

authorizes appropriations “for the purpose of leasing or

acquiring a site, preparation of plans and erections of necessary

buildings under § 4003.”

It is clear from the history of §§ 4001 et seq. that Congress

was simply trying to find a way to provide adequate federal

prison space for housing federal prisoners. Prior to 1895 there

were no federal prisons and all federal prisoners were confined

to state prisons. See Ira P. Robbins, The Prisoners’ Mail Box and the

Evolution of Federal Inmate Rights, 144 F.R.D. 127, 132-35. The

statute further authorized the Attorney General to appropriate

money for the “leasing or acquiring of a site, preparation of

plans, and erection of necessary buildings.” May 14, 1930, c. 274,

at § 5, 46 Stat. 326.

With minor revisions, the pertinent portions of that act are

now codified at 18 U.S.C. §§ 4001 et seq.

15

include cell assignment, top versus bottom bunk sleeping

arrangements, extra recreation time, permission to smoke

cigarettes, or an extra visit from family members arriving

at the jail during non-visitation hours.* Neither the text

nor the legislative history of § 666 provides any indica-

tion, much less the clear indication required by U.S. v.

Bass, 404 U.S. 336, 349, 30 L.Ed.2d 488, 92 S.Ct. 515 (1971)

and its progeny, that Congress intended to criminalize

nearly every act of bribery of state and local government

that involves at least $5,000.

Public officials who receive payments above their

salaries in exchange for such privileges may be charged

under Texas Penal Code § 36.01 with bribery. This is also

true in other states. See, e.g., AL ST § 13A-10-60 et seq.; AK

ST § 11.56.100 et seq.; AR ST § 21-8-607; CT ST T.53A, Ch.

952, Pt. XI, Refs & Anos.; MN St § 609.42; NY CIV SERV

§ 107; WV ST § 61-5-7. “Federalism serves to assign

political responsibility,” and to hold government account-

able to the people. See U.S. v. Lopez, 115 S.Ct.1624, 1638,

131 L.Ed.2d 626 (1995) [Kennedy, J., concurring]. Because

this is so, the concept of American federalism requires

Marmolejo’s and Salinas’ convictions be set aside.

4 “(T]he legislative history of Sec. 666 indicates that the

value of a thing for purposes of Sec. 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 things of value must be connected, even if

only indirectly, to the integrity of federal program funds.” U.S.

v. Foley, 73 F.3d 484, 490 (24 Cir. 1996).

16

Congress will not be seen as having made “conduct

readily denounced as criminal by the states” a federal

offense unless it “clearly” states this purpose. U.S. v. Bass,

404 U.S. 336, 349, 30 L.Ed.2d 488, 92 S.Ct. 515 (1971). See

Gregory v. Ashcroft, 501 U.S. 452, 461, 115 L.Ed.2d 410, 111

S.Ct. 2395 (1991) [“this plain statement rule is nothing

more than an acknowledgment that the states retain sub-

stantial sovereign powers under our constitutional

scheme, powers with which Congress does not readily

interfere” }.

This Court has long required that Congress speak

with particular clarity if it intends to criminalize the sort

of conduct that historically has been prosecuted by the

states. See U.S. v. Bass, 404 U.S. 336, 349, 30 L.Ed.2d 488,

92 S.Ct. 515 (1971); Williams v. U.S., 458 U.S. 279, 287, 290,

73 L.Ed.2d 767, 102 S.Ct. 3088 (1982); U.S. v. Enmons, 410

U.S. 396, 411-12, 35 L.Ed.2d 379, 93 S.Ct. 1007 (1973); Rice

v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L.Ed. 1447,

67 S.Ct. 1146, 1152 (1947). Congress did not do so in § 666

despite the fact that “[mJost if not all States criminally

prosecute bribery and acceptance of bribes.” Dixson v.

U.S., 465 U.S. 482, 512 n.*, 79 L.Ed.2d 458, 104 S.Ct. 1172

(1984) [O’Connor, J., dissenting].

Congress expressly limited federal jurisdiction under

§ 666 to criminalize the bribery of, and solicitation of

bribery by, state and local officials in connection with

their administration of federal funds. But Congress

nowhere indicated any intent to reach virtually all brib-

ery involving state and local officials, even where, as

here, the bribery has no connection to any federally

funded program. Accordingly, if Congress intends that

17

the federal criminal statutes reach all such bribery, how-

ever attenuated the connection to any federal funds, Con-

gress should be directed to “speak more clearly than it

has.” McNally v. U.S., 483 U.S. 350, 360, 97 L.Ed.2d 292,

107 S.Ct. 2875 (1987).

Just as overreaching by the federal government can

obscure political accountability, see U.S. v. Lopez, 115

S.Ct.1624, 1638, 131 L.Ed.2d 626 (1995) [Kennedy, J., con-

curring], overreaching into areas particularly amenable to

the state political process can usurp the electorate’s role

as the primary watchdog over its elected officials and

their actions. See generally U.S. Term Limits, Inc. v. Thorn-

ton, 514 U.S. 779, 131 L.Ed.2d 881, 115 S.Ct. 1842, 1863-64

(1995) [discussing electorate’s important role in govern-

ing under our republican government]. Because policing

the ethical behavior of state and local public officials is

uniquely amenable to the state electoral process, absent a

clear threat to a significant federal interest, federal law

should not be read to sanction Congressional oversight of

state government. See Dixson v. U.S., 465 U.S. 482, 509-11,

79 L.Ed.2d 458, 104 S.Ct. 1172 (1984) [O’Connor, J., dis-

senting] (recognizing that application of bribery statute to

state or local government raises significant problems of

autonomy and federalism).

7. CONJUGAL VISITS DO NOT CONSTITUTE “ANY-

THING OF VALUE” OF $5,000 OR MORE

Moreover, the conjugal visits provided to Homero

Beltran in exchange for $5,000 and $6,000 cash payments

must constitute a thing valued at $5,000 or more in con-

nection with the Hidalgo County Jail’s business which

18

the federal government has an interest in policing. The

cash for contact and conjugal visits transactions do not

present a clear threat to a federal interest, but instead

present a wrong historically within the police powers of

the state.

Recently, in McNally v. U.S., 483 U.S. 350, 360 (1987),

the Court rejected the government's claim that the mail

fraud statute, 18 U.S.C. § 1341, criminalized schemcs thai

deprived the citizenry of their right to “honest govern-

ment services.” Before § 1341 would be read to intrude so

dramatically on traditional state criminal jurisdiction,

said the Court, Congress would have to “speak more

clearly.” McNally v. U.S., 483 U.S. 350, 360 (1987). In

particular, application of § 1341 to otherwise lawful con-

duct of state and local government officials would “take a

much clearer indication” of congressional intent. McNally

v. U.S., 483 U.S. 350, 360 (1987).

A. Even if the contractual arrangement between the

USMS and Hidalgo County constitutes a Federal program

for jurisdictional purposes, the statute is still inapplicable

because the corrupt acts in this case did not affect any

federal interest that § 666 is intended to protect. Thus,

pursuant to the plain language and legislative history of

the statute, as well as the principles of federalism and

rule of lenity discussed above, Marmolejo’s and Salinas’

convictions must be reversed.

The clear congressional objective in enacting § 666

was to safeguard the integrity of federal funds, rather

than ensuring the integrity and honesty of public ser-

vants generally. The text of the statute targets only those

organizations which administer federal funds disbursed

19

pursuant to a federal program. Moreover, § 666(a)

requires the theft or embezzlement of at least $5,000

worth of property from the organization receiving federal

funds, or, with respect to bribery, the wrongdoer must act

with the intent to influence or be influenced “in connec-

tion with any business, transaction, or series of transac-

tions of such organization . . . involving anything of value

of $5,000 or more.” 18 U.S.C. § 666(a). Thus, according to

its language, § 666 is clearly aimed at vindicating acts

which adversely affect financial resources.

A congressional intent to protect funds in which the

government retains an interest also finds support in

§ 666’s legislative history. With respect to bribery in par-

ticular, Congress enacted § 666 to alleviate the difficulties

in prosecuting bribery under 18 U.S.C. § 201. Section

201’s primary objective, clearly supported by its text and

legislative history, is to promote and maintain high ethi-

cal standards of behavior of persons holding positions of

public trust. See S.Rep. No. 2213, 87th Cong., 2d Sess.

1962, reprinted in 1962 U.S.C.C.A.N. 3852, 3853-56 [here-

inafter S.Rep. No. 2213]; U.S. v. Dixson, 465 U.S. 482,

491-96 (1984). The language of § 201 does not even

remotely require a threat to federal funds as a prerequi-

site to prosecution; instead, Congress enacted § 201 to

ensure the honest services of people performing a broad

spectrum of official duties. Section 201’s applicability

hinges upon whether the corrupt activity involves a

“public official or person who has been selected to be a

public official.”5 See 18 U.S.C. § 201(b)&(c). Although

5 “The term ‘any person acting for or on behalf of the

United States’ was coined in the recodifications of the 1870's,

20

“public official” is defined broadly, and includes anyone

“acting for or on behalf of the United States, or any

department, agency or branch of Government thereof,”

see 18 U.S.C. § 201(a), courts have had difficulty demar-

cating the limits of the government's interest in ensuring

the honesty of people potentially connected to the federal

government. In particular, at the time of § 666’s enact-

ment, courts were divided on whether a person employed

by a private organization receiving Federal monies was a

public official for purposes of § 201. See S.Rep. No. 225 at

3510-11.

Section 666 alleviates this problem by protecting the

integrity of federal funds directly, rather than protecting

the integrity of the persons charged with administering

them. Unlike § 201, which focuses on whether a sufficient

nexus exists between the person administering the fed-

eral funds and the federal government, § 666’s text and

legislative history focus on whether a sufficient nexus

exists between the corrupt acts and the federal govern-

ment’s interest in protecting the objects of those acts,

namely, federal funds disbursed to achieve public policy

goals. Although federal funds arguably do not have to be

directly implicated by the corrupt transaction, the general

dishonesty of the wrongdoers, completely unrelated to a

threat to federal funds, clearly is not enough under § 666.

Rev. Stat. §§ 5451, 5501, and replaced the phrase ‘person holding

any place of [public] trust or profit, or discharging any official

function under, or in connection with [the Government],’ which

appeared in previous statutes.” U.S. v. Dixson, 465 U.S. 482, 493

n.11 (1984).

21

B. Marmolejo and Salinas were charged with accepting

“anything of value from any person, intending to be

influenced or rewarded in connection with any business,

transaction, or series of transaction of [Hidalgo County

Jail] involving anything of value of $5,000 or more.” 18

U.S.C. § 666(a)(1)(B). Specifically, Marmolejo and Salinas

allegedly received money in excess of $5,000 in exchange

for arranging conjugal visits for a federal prisoner. Their

alleged conduct did not even remotely affect, either

directly or indirectly, the federal funds appropriated by

the federal government to house prisoners. Thus, as the

dissent in the court below correctly recognized, the brib-

ery transaction did not threaten any federal interest

which § 666 serves to protect. See U.S. v. Marmolejo, 89

F.3d 1185, 1201 (5th Cir. 1996).

The majority’s difficulty in determining whether the

bribery scheme influenced a transaction involving “any-

thing of value of $5,000 or more,” only serves to under-

score the fact that federal funds were not threatened by

the scheme. The statute’s language is ambiguous with

respect to whether the “anything of value of $5,000 or

more,” which triggers prosecution under § 666, is valua-

ted from the perspective of the receiving party or the

organization whose business is affected by the bribery

scheme.

The fact that a dollar sum is placed on the second

“anything of value” is consistent with Congress’s intent

to vindicate “significant” acts of theft or bribery from the

government's perspective, and to vindicate only those

acts which ultimately implicate things capable of mone-

tary valuation. Thus, the language of the statute coupled

with the clear legislative intent, strongly suggests that the

22

bribery scheme must ultimately impact the distribution

or disbursement of federal funds.

Conjugal visits simply are not worthy of monetary

valuation from the government's perspective. As previ-

ously explained, Congress’s purpose in enacting § 666 is

to protect the integrity of federal funds, not to ensure

honest services generally. That the court below had diffi-

culty placing a monetary value on the conjugal visits only

underscores the fact that no significant federal monetary

interests were implicated. Thus, although the alleged

bribery scheme clearly involved dishonesty, § 666 is sim-

ply not the proper vehicle for vindicating the conduct in

this case.

¢

CONCLUSION

It thus cannot be presumed that Congress intended in

§ 666 to vastly expand federal criminal jurisdiction - to

reach virtually all bribery involving state and local offi-

cials - without any mention in its text, statutory findings,

or legislative history. Instead, under Bass and its progeny,

before courts may construe a federal criminal statute to

so fundamentally alter the relationship between federal

and state governments, Congress must have clearly

stated its intent to do so. Congress has made no such

statement here.

The appropriate course, therefore, is to read the

phrase “anything of value of $5,000 or more” in

§ 666(a)(1)(B) to parallel “$10,000 under a Federal pro-

gram” in § 666(b). This construction criminalizes bribery

of public officials when the transaction at issue involves a

23

minimum of $5,000 in federal funds. Such a reading is

fully consistent with the federal interests identified in the

legislative history: protecting the integrity of federal

funds, whether those funds are being administered by

federal officials, or by officials of state or local govern-

ment or private organizations.

Respectfully submitted,

Geratp H. Go.psrein

Bar No. 08101000

CyrnTHia Hujar Orr

Bar No. 15313350

Goupstein, Goupstein & Hittey

29th Floor Tower Life Building

San Antonio, Texas 78205

(210) 226-1463

Attorneys for Respondent,

Brigido Marmolejo, Jr.