# Respondents Brief — Rosado v. Curtis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1058

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0033%3A6. Public record. Not legal advice.