Brief for the United States — Sabri v. United States
Supreme Court brief2004
Ask Donna
What actually matters in this document.
Text
a Supe me our ts
No. 03-44 JAN 3 20°
a
Jn the Supreme Court of the Gnited States.
——_—— ==
BASIM OMAR SABRI, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES
THEODORE B. OLSON
Solicitor General
Counsel of Record
CHRISTOPHER A. WRAY
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
JEFFREY P. SINGDAHLSEN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
BEST AVAILABLE COPY
QUESTION PRESENTED
Whether petitioner is entitled to the dismissal of the
indictment charging him with bribing an agent of local
government bodies that receive federal benefits, in
violation of 18 U.S.C. 666(a)(2), (b), on the ground that
the statute does not require a sufficient nexus to a fed-
eral interest and is, as a result, facially unconstitutional.
TABLE OF CONTENTS
Opinions below
Jurisdiction
Constitutional and statutory provisions involved ...................
Statement
1. The statutory background
2. The present controversy
Summary of argument
Argument:
Section 666 is a facially constitutional exercise of
Congress’s authority to protect the integrity of
federal funds and programs
I. Section 666, as properly construed by the
court of appeals, does not require proof of a
federal nexus beyond the statutory terms ...............
A. The text of Section 666 unambiguously
defines the elements of the offense ..................
B. The purpose and background of Section 666
confirm that it requires no federal nexus
beyond that set forth in the text
C. Section 666 is not ambiguous
II. Section 666 is necessary and proper legislation
to ensure the integrity of federal funds and
programs
A. Congress has the authority to protect
federal spending under the Necessary and
Proper Clause
B. Section 666 is “necessary” federal legislation
to protect federal benefits programs ...............
1. Congress selected reasonable means of
achieving its interest in the protection of
federal funds and programs
(IIT)
IV
Table of Contents—Continued: Page
2. Congress is not limited to protecting
against corruption in federal instrumen-
talities ...... 33
3. This Ceurt’ decisions in Lopez and
Morrisor. lend no support to a claim
that Section 666 reaches too far ................
C. Section 666 is “proper” legislation under the
Constitution
D. Petitioner is not assisted by his reliance on
the standards of South Dakota v. Dole ........... 41
1. The Dole test for spending conditions
does not exhaust Congress’s “necessary
and proper” authority 41
2. Petitioner’s conditional funding argu-
ments are without merit
III. Section 666 is at most subject to as applied
challenges 45
Conclusion 49
Appendix la
TABLE OF AUTHORITIES
Cases:
Alden v. Maine, 527 U.S. 706 (1999) 11, 39, 40
Anderson v. Edwards, 514 U.S. 143 (1995) 24
Almendarez-Torres v. United States, 523 U.S. 224
(1998) 22
Babbitt v. Sweet Home Chapter of Communities for a
Great Ore., 515 U.S. 687 (1995) 47
Board of Educ. v. Mergens, 496 U.S. 224 (19990) ............... 45
Butts v. Merchants & Miners Transp. Co., |
230 U.S. 126 (1913) 47
California v. United States, 438 U.S. 645 (1978) ............. 3
Chicago v. Morales, 527 U.S. 41 (1999) 25
V
Cases—Continued: Page
Dizxson v. United States, 465 U.S. 482 (1984) ............. 3, 4, 16,
26, 34, 35, 36
Fischer v. United States, 529 U.S. 667 (2000) ................ 27, 28,
31, 34, 48
Ivanhoe Irrigation Dist. v. McCracken, 357 U.S.
275 (1958) 44
James Everard’s Breweries v. Day, 265 U.S. 545
(1924) 29
Janklow v. Planned Parenthood, 517 U.S. 1174
(1996) 25
Jinks v. Richland County, 123 S. Ct. 1667 (2008) ........... 29
Kansas v. United States, 214 F.3d 1196 (10th Cir.),
cert. denied, 531 U.S. 1035 (2000) 45
Katzenbach v. Morgan, 384 U.S. 641 (1966) 29
Laro v. New Hampshire, 259 F 3d 1 (1st Cir.
2001) 29, 30
Legal Tender Case, 110 U.S. 421 (1884) 29
M’Culloch v. Maryland, 17 US. (4 Wheat.) 316
(1819) 10, 13, 23,
27, 29, 30, 38
New York v. United States, 505 U.S. 144 (1992) .............. 44
Oklahoma v. United States Civil Service Comm'n,
330 U.S. 127 (1947) 45
Pennsylvania Dep't of Corrs. v. Yeskey, 524 U.S.
206 (1998) 22
Pierce County v. Guillen, 537 U.S. 129 (2008) ................. 43
Printz v. United States, 521 U.S. 898 (1997) ............ 11, 39, 40
Reno v. Flores, 507 U.S. 292 (1993) 24
Ring v. Arizona, 536 U.S. 584 (2002) ...... 49
Salinas v. United States, 522 U.S. 52 (1997) .............. passim
South Dakota v. Dole, 483 U.S. 203 (1987) 14, 23, 36,
41, 43, 44
Steward Machine Co. v. Davis, 301 U.S. 548 (1937) ........ 44
Tennessee Elec. Power Co. v. TVA, 306 U.S. 118
(1939) 43
VI
Cases—Continued: Page
United States ex rel. Marcus v. Hess, 317 US.
537 (1943) 16, 26, 36
United States v. Bonito, 57 F.3d 167 (2d Cir.
1995), cert. denied, 516 U.S. 1049 (1996) 31
United States v. Brunshtein, 344 F.3d 91 (2d Cir.
2003) 28, 31, 49
United States v. Butler, 297 U.S. 1 (1936) 23, 29
United States v. Bynum, 327 F.3d 986 (9th Cir.),
cert. denied, 124 S. Ct. 279 (2003) 24
United States v. DeLaurentis, 230 F.3d 659 (3d
Cir. 2000) 33
United States v. Del Toro, 513 F.2d 656 (2d Cir.),
cert. denied, 423 U.S. 826 (1975) 4,21
United States v. Edgar, 304 F.3d 1320 (11th Cir.),
cert. denied, 537 U.S. 1078 (2002) 24, 30, 32
United States v. Foley, 73 F.3d 484 (2d Cir. 1996) ...... 20, 49
United States v. Grossi, 143 F.3d 348 (7th Cir.),
cert. denied, 525 U.S. 879 (1998) 11, 32-33
United States v. Hall, 98 U.S. 343 (1878) ............... 25, 26,34
United States v. Lipscomb, 299 U.S. 303 (Sth Cir.
2002) 32, 42
United States v. Lopez, 514 U.S. 549 (1995) 36
United States v. Lue, 134 F.3d 79 (2d Cir. 1998) .............. 30
/nited States v. Marks, 26 F. Cas. 1162 (C.C.D.
Ky. 1869) 26
United States v. Morrison, 529 U.S. 598 (2000) ............... 36
United States v. Paradies, 98 F.3d 1266 (11th Cir.
1996), cert. denied, 521 U.S. 1106 (1997) 20
United States v. Plotts, 347 F.3d 873 (10th Cir.
2003) 30
United States v. Raines, 362 US. 17 (1960) ................ 24, 46
United States v. Rooney, 37 F.3d 847 (2d Cir.
1994) 9, 28
United States v. Salerno, 481 U.S. 739 (1987) .............- 24, 46
United States v. Santopietro, 166 F 3d 88 (2d Cir.
1999) 17
Vil
Cases—Continued: Page
United States v. Simas, 937 F.2d 459 (9th Cir.
1991) 20
United States v. Westmoreland, 841 F 2d 572 (5th
Cir.), cert. denied, 488 U.S. 820 (1988) 18, 20, 31
United States v. Wyncoop, 11 F.3d 119 (9th Cir.
1993) 20
United States v. Zwick, 199 F.3d 672 (3d Cir.
1999) 17, 20,
22, 49
Virginia v. Hicks, 123 S. Ct. 2191 (2003) 25
Webster v. Reproductive Health Servs., 492 US.
490 (1989) 48
Westfall v. United States, 274 U.S. 256 (1927) ........ 26, 27, 34
35, 37, 40-41
Wisconsin Dep't of Health & Family Servs. v.
Blumer, 534 U.S. 473 (2002) 3
Constitution and statutes:
US. Const.:
Art. I, § 8:
Cl. 1 (Spending Clause) passim, la
Cl. 18 (Necessary and Proper Clause) ........ passim, la
Amend. X 14, 43
Amend. XV 46
Amend. XXI 43
Reclamation Act of 1902, ch. 1093, 32 Stat. 388 ..........-.000-0« 3
18 U.S.C. 201 3, 4, 35
18 U.S.C. 201(a) 34
18 U.S.C. 641 ... 3
18 U.S.C. 666 ... passim, la
18 U.S.C. 666(a) 40, la
18 U.S.C. 666(a)(1)(B) 2a
18 U.S.C. 666(a)(2) 2, 12, 18, 30, 2a
18 U.S.C. 666(b) 2, 5, 8, 12,
16, 18, 19, 20, 2a
2, 3a
18 U.S.C. 666(4)(2)
Vill
BP BD ccerersesmnseneesseeemmmemmemnmnemmenemenanes
Gs SOG, cnernensnnmmnnmmenmmnmnn
Miscellaneous:
Letter of Sept. 2, 1819 to Spencer Roane, in 8
The Writings of James Madison (Gaillard Hunt ed.
Statutes—Continued: Page
29
3
TTEEEED custecnmsunssetnsntatanesenepstessandamnes ‘ 30
S. 1630, 97th Cong., Ist Sess. (1981) .. , 21
S. Rep. No. 225, 98th Cong., 1st Sess. (1983) ............... 3, 4, 15,
19, 20, 21
S. Rep. No. 307, 97th Cong., Ist Sess. (1981) ..........c.ccccesese0- 21
1 Laurence H. Tribe, American Constitutional Law
SN IIIT crtrctecenicrrttcetaaietesstesmnarataceteaiadeiaanneaeiasiaciatacaniaas 30
U.S. Attorney Manual (Sept. 1997) ........sscsessssssssssnseeee 48
In the Supreme Court of the Gnited States
No. 03-44
BASIM OMAR SABRI, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. Al-
A36) is reported at 326 F.3d 937. The opinion of the
district court (J.A. A7-A40) is reported at 183 F. Supp.
2d 1145.
JURISDICTION
The judgment of the court of appeals was entered on
April 7, 2003. The petition for a writ of certiorari was
filed on July 2, 2003, and was granted on October 14,
2003. The jurisdiction of this Court rests on 28 U.S.C.
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Relevant provisions of the United States Constitu-
tion and 18 U.S.C. 666 are reproduced infra, App. 1la-3a.
(1)
2
STATEMENT
Petitioner was indicted on three counts of bribing an
agent of an entity receiving federal benefits, in violation
of 18 U.S.C. 666(a)(2), (b). Pet. App. A63-A66. Before
trial, the United States District Court for the District
of Minnesota dismissed the indictment on the ground
that Section 666 is unconstitutional on its face. J.A. AT-
A40. The court of appeals reversed. Pet. App. Al-A36.
1. The Statutory Background
Entitled “Theft or bribery concerning programs re-
ceiving Federal funds,” 18 U.S.C. 666 makes it unlawful
corruptly to offer, give, or agree to give anything of
value “with intent to influence or reward an agent of an
organization or of a State, local or Indian tribal gov-
ernment, or any agency thereof, 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)(2), if the
“circumstance” set forth in Section 666(b) exists. The
circumstance required by Section 666(b) is that “the
organization, government, or agency 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). Section 666 defines the
term “government agency” as “a subdivision of the exe-
cutive, legislative, judicial, or other branch of govern-
ment, including a department, independent establish-
ment, commission, administration, authority, board, and
bureau,” as well as certain government corporations.
18 U.S.C. 666(d)(2).
Section 666 was enacted in 1984 to “protect the integ-
rity of the vast sums of money distributed through Fed-
eral programs from theft, fraud, and undue influence by
3
bribery.” See S. Rep. No. 225, 98th Cong., 1st Sess. 370
(1983). Before Section 666’s enactment, the United
States had sought to protect its funds and programs
through the federal theft statute, which makes it un-
lawful to steal money or things of value “of the United
States or of any department or agency thereof,” 18
U.S.C. 641, and the federal bribery statute, which
prohibits corrupt efforts to influence public officials
acting for or on behalf of the United States, 18 U.S.C.
201. Those statutes, however, had proved inadequate
for federal programs administered by private organiza-
tions, States, local governments, and their agencies,
including many federally funded programs of “coopera-
tive federalism” administered by States or local govern-
ments to achieve federal goals.’
Prosecuting theft under 18 U.S.C. 641 had often
proved impossible because that statute required proof
that the defendant misappropriated funds “of the
United States.” Under many federal programs, title to
the money or property would often “pass[] to the recipi-
ent before” being “stolen, or the funds [would be] so
commingled that the Federal character of the funds
cannot be shown.” S. Rep. No. 225, supra, at 369. That
gave “rise to a serious gap in the law, since even though
title to the monies may have passed, the Federal Gov-
1 “Federal grant programs to state and local governments as
well as to private organizations have been in existence since the
19th century.” See Dixson v. United States, 465 U.S. 482, 506
(1984) (O’Connor, J., dissenting). Currently, the United States and
the States work together to administer numerous such programs,
which range from Medicaid, see 42 U.S.C. 1396 et seg., which pro-
vides medical services to eligible needy persons, see Wisconsin
Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 478, 495
(2002), to programs that finance massive public works projects
sparining numerous States, see California v. United States, 438
U.S. 645, 650 (1978) (discussing the Reclamation Act of 1902).
4
ernment clearly retain[ed] a strong interest in assuring
the integrity of such program funds.” Jbid. Similarly,
bribery prosecutions under 18 U.S.C. 201 proved
difficult because that provision applied only to “public
official{s].” There was “some doubt as to whether or
under what circumstances persons not employed by the
Federal Government [could] be considered as a ‘public
official’ under the definition in 18 U.S.C. 201(a).” S.
Rep. No. 225, supra, at 370; see Salinas v. United
States, 522 U.S. 52, 58 (1997) (noting the circuit conflict
on that issue that existed before Section 666’s enact-
ment).” The varying mechanisms for disbursing and
accounting for federal funds created gaps in coverage as
well. See Salinas, 522 U.S. at 58-59 (describing the
impact of '/nited States v. Del Toro, 513 F.2d 656, 661-
662 (2d Cir.), cert. denied, 423 U.S. 826 (1975)); S. Rep.
No. 225, supra, at 369.
Section 666 sought to fill those gaps so as to restore
the United States’ “ability * * * to vindicate signifi-
cant acts of theft, fraud, and bribery” that might
threaten “Federal monies * * * disbursed io private
organizations or State and local governments pursuant
to a Federal program.” S. Rep. No. 225, supra, at 369.
To that end, Section 666 “does not require the Govern-
ment to prove [that] federal funds were involved in the
bribery transaction” or that “the bribe in question had
any particular influence on federal funds.” Salinas, 522
U.S. at 60, 61. Instead, Congress shifted the focus to
proscribe the corruption of those private and public
organizations that receive and administer substantial
2 Shortly after Section 666’s enactment, this Court resolved
that conflict in Dixson, holding that local officials administering
federal programs could be “public officials” within the meaning of
Section 201. 465 U.S. at 497, 501.
5
federal funds (more than $10,000 per year) under
federal programs. See 18 U.S.C. 666(b).
2. The Present Controversy
a. At all relevant times, petitioner was a real estate
developer and landlord doing business in the City of
Minneapolis, Minnesota (the City). Pet. App. A64. In
2000 and 2001, petitioner was pursuing a large com-
mercial real estate development project involving a
proposed hotel and accompanying commercial retail
concerns. The indictment charges that petitioner of-
fered to and did bribe City Councilperson Brian Herron
of the Minneapolis City Council to obtain favorable gov-
ernment action for the project. At the time, Mr. Her-
ron represented the Eighth Ward, which included the
area for which petitioner had planned his real estate
development. /bid. Mr. Herron was also on the City
Council’s Ways and Means/Budget Committee. Ibid.
During the calendar year beginning January 1, 2001,
the City received, and the City Council administered,
approximately $28.8 million in federal assistance. Jd. at
A63.
As a member of the City Council, Herron also served
on the Board of Commissioners for the Minneapolis
Community Development Agency (MCDA). Pet. App.
A64. The MCDA was created by the City Council to
fund housing and economic redevelopment projects and
activities within the City. Jd. at A63. The MCDA also
had an executive director appointed by the mayor.
Ibid. The MCDA and its programs were funded in part
by federal assistance, including federal Community De-
velopment Block Grants. Jbid. In the calendar year
beginning January 1, 2001, the MCDA received ap-
proximately $23 million in such federal assistance. /bid.
Councilman Herron, together with the mayor and-the
other members of the City Council, were members of
6
the policy board that managed the Minneapolis Neigh-
borhood Revitalization Program (MNRP). Pet. App.
A64. Formed by the City and other local government
entities to fund the economic revitalization of City
neighborhoods, the MNRP was wholly funded by the
MCDA. Id. at A63-A64.
Count 1 of the indictment alleged that petitioner
gave Herron $5000 for Herron’s assistance in obtaining
necessary regulatory approvals from the City. Count 2
alleged that petitioner offered Herron $10,000 to meet
with the owners of property in the area of the planned
development and to threaten that, absent cooperation
with the development plan, the MCDA might exercise
its eminent domain power to condemn their property.
Count 3 alleged that petitioner offered to give Herron
$80,000 as a 10% kickback in return for his assistance in
obtaining $800,000 in federal community economic de-
velopment grants for the real estate project through
the City, the MCDA, and other entities. Pet. App. A64-
A66.
The government’s evidence includes conversations
between petitioner and Herron that had been recorded
on a hidden video camera. See Gov’t Trial Br. 3-11
(C.A. App. 41-49). In those conversations, petitioner of-
fered Herron a secret investment interest in the devel-
opment equal to sixty or seventy percent of any “free”
government money Herron obtained for the project.
Id. at 4, 5 (C.A. App. 42, 43). Petitioner later changed
his offer to a kickback of “ten percent . . . of what [he]
get(s]” in “free money.” Jd. at 7 (C.A. App. 45); see also
id. at 8 (“Five when you say yes, I agree to the deal,”
and “then ten percent” of “whatever free money I get”).
In those discussions, petitioner asked Herron to help
him obtain federal “Empowerment Zone” funds admin-
istered by a Minneapolis city employee. Gov’t Trial Br.
7
8-9 (C.A. App. 46-47). He urged Herron to get his “staff
workin’ on this right now, like hawks.” Jd. at 9 (C.A.
App. 47). When Herron reported that there was a “real
good possibility [he could] get about eight hundred
thousand” in federal funds, petitioner confirmed that
Herron’s pay-off would be ten percent, or eighty-thou-
sand dollars. Jd. at 9-10 (C.A. App. 47-48). In another
conversation, petitioner offered Herron $10,000 to
threaten existing property owners with use of the
MCDA’s eminent domain power so as to secure their
cooperation: “If you threaten that * * * you’re gonna
exercise your right for eminent domain at this site,”
petitioner stated, the property owners “will start
thinkin’, ‘okay, Brian Herron . . . is gonna tell the
MCDA to go forward to eminent domain us. So let’s try
to work ourself in the project.’” Jd. at 6 (C.A. App. 44).
Before trial, petitioner moved to dismiss the indict-
ment on the ground that Section “666(a)(2) is unconsti-
tutional on its face as it does not require a connection
between the alleged bribe and the federal funds.” J.A.
A4, All. As part of its response, the government stated
that the evidence would show a nexus between the
bribery and federal funds:
In the present case, the evidence similarly will
demonstrate that (1) Councilperson Herron, the
“agent” of the local government involved, had direct
influence over the federal funds received by Min-
neapolis and the MCDA, (2) those federal funds
were directly related to economic development pro-
grams of the City and the MCDA, (3) the economic
development programs of the City and the MCDA
were directly involved in the real estate develop-
ment that was being proposed by the defendant and
(4) that the bribe payments and offers of the
defendant sought to directly corrupt the operation
8
of the city’s economic redevelopment process and
even sought to corruptly obtain the very funds that
the federal government had provided to the City
and the MCDA.
J.A. Ad.
The district court granted petitioner’s motion to dis-
miss. The court ruled that Section 666(a)(2) “does not
require the government to prove a connection between
the offense conduct and the expenditure of federal
funds,” J.A. A25, and therefore “is an unconstitutional
exercise of Congress’s power under the Spending
Clause,” J.A. A35. The district court also held that the
government’s proffer that the evidence would establish
a connection between the charged conduct and federal
funds and programs was irrelevant, because the statute
did not require such proof as an element of the offense.
J.A. A25 n.9.
b. The court of appeals reversed and remanded,
holding that Section 666 is not unconstitutional on its
face. Pet. App. A1-A29.
i. The court of appeals began by examining Section
666’s text to determine the elements of the offense it
establishes. The court observed that Subsection (b) of
Section 666 “requires proof that the relevant organiza-
tion, government, or agency received benefits under a
federal program in excess of $10,000 in any one-year
period.” Pet. App. A4. But the court concluded that
Section 666 does not, by its terms, impose a “require-
ment that the government prove some [other] connec-
tion between the offense conduct and federal funds
beyond the express statutory requirement found in
§ 666(b).” Ibid.
The plain language encompasses the activity of local
agents wherever subsection (b) [ob]tains. There is
no qualification that the prohibited conduct must
9
have some relation to federal funds. Indeed, the
statute proscribes the conduct of local agents in con-
nection with “any” agency business or transaction.
The word “any” is unambiguous and unqualified.
Id. at A8-A9. “The statute applies to all offense conduct
* * * so long as the relevant agency received the
requisite amount of federal benefits ($10,000) within the
defined time period as required by § 666(b).” Id. at A9.
Reviewing the legislative history, the court of ap-
peals found nothing to contradict the statute’s text.
Pet. App. All-Al4. Congress had enacted Section 666,
the court observed, to “fill the gaps in the prior anticor-
ruption scheme,” id. at Al2, and thereby “safeguard
finite federal resources from corruption and to police
those with control of federal funds,” id. at All (quoting
United States v. Rooney, 37 F.3d 847, 851 (2d Cir.
1994)). Because the criminal laws that preceded Sec-
tion 666 required proof that the affected funds were
federal, the court further observed, those laws had
proved inadequate where title had passed to the recipi-
ent before the funds were stolen and where the funds
were commingled. Jd. at All-Al2. Congress had
therefore “decided that the most effective way to insure
the integrity of federal funds disbursed to subnational
agencies was to change the enforcement paradigm from
one that monitored federal funds to one that monitored
the integrity of the recipient agencies.” Jd. at Al2.
The court of appeals also rejected petitioner’s argu-
ment that Section 666, so construed, is facially unconsti-
tutional because it exceeds Congress’s enumerated
powers. Pet. App. Al4-A29. The court first rejected
the government’s argument that Section 666 could be
sustained under the Spending Clause itself. Relying on
the fact that Section 666 does not impose a condition on
a recipient of federal benefits but instead regulates the
10
conduct of third parties, the court concluded that Sec-
tion 666 is not the typical sort of spending condition
previously upheld by this Court. Jd. at A15-A19.
Nonetheless, the court of appeals concluded that
Section 666 is valid legislation under the Necessary and
Proper Clause to protect and effectuate Congress’s
exercise of its spending powers. Pet. App. Al9-A28.
Far from seeking to regulate private conduct through
an exercise of general police power, the court explained,
Section 666 was designed to protect the efficacy of
federal spending and Congress’s control over federal
funds by assuring the integrity of the entities receiving
them. It is “an incontestable proposition,” the court
stated, “that the disbursement of federal funds to sub-
national agencies to advance the general welfare is a
legitimate end within the scope of the Constitution.”
Id. at A21. Congress “has a legitimate right to protect
these disbursements from misappropriation once
made.” Ibid.
The court also concluded that Section 666 is “plainly
adapted” to protecting the integrity of federal disburse-
ments and programs and is therefore “necessary and
proper to the execution of the spending power” under
M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
Pet. App. A24. Although Section 666 might have been
more narrowly crafted, the court noted, Congress rea-
sonably determined that “the most effective way to
protect the integrity of federal funds is to police the
integrity of the agencies administering those funds.”
Id. at A25. A more limited statutory regime had been
“rendered toothless because of the difficulty of tracing
federal funds once they had been disbursed.” Jbid. In
addition, the court observed, because “money is fungi-
ble and its effect transcends program boundaries,” the
“maladministration of funds in one part of an agency
A a te
—$—<—$s$ > a eee “
11
ean affect the allocation of funds, whether federal or
local in origin, throughout an entire agency.” Ibid.
(quoting United States v. Grossi, 143 F.3d 348, 350 (7th
Cir.), cert. denied, 525 U.S. 879 (1998)).
Thus, to suggest that corruption involving a discrete
department or section of an agency that does not
itself receive federal funds or administer a federal
program can have no effect on the integrity or
efficacy of a federal program is to ignore the fact
that money is fungible and that federal funds are
often comingled with funds from other sources. Sec-
tion 666 addresses this problem by policing the in-
tegrity of the entire organization that receives fed-
eral benefits.
Id. at A25-A26. Finally, the court rejected the sugges-
tion that Section 666 is not “proper” legislation under
the Constitution on the theory that it interferes with
state sovereignty, explaining that the statute does not
regulate the States as such, but instead regulates
individuals whose conduct can threaten federal funds
and federally funded programs. /d. at A21-A22 n.6.
ii. Judge Bye dissented. Pet. App. A29-A36. Al-
though acknowledging that the majority’s “reading of
M’Culloch is, of course, received wisdom” and that “the
majority makes a fairly convincing argument that the
‘fit’ between § 666(a)(2) and Congress’ underlying ob-
jective to preserve the integrity of federal programs is
rational,” Judge Bye concluded that Section 666 is not
“proper,” within the meaning of the Necessary and
Proper Clause. Jd. at A31. Drawing on Printz v.
United States, 521 U.S. 898 (1997), and Alden v. Maine,
527 U.S. 706 (1999), Judge Bye perceived state sover-
eignty limits on the type of legislation that can be
deemed “proper.” Pet. App. A31-A33. Because of the
breadth and quantity of federal assistance provided to
12
state and local governments, Judge Bye concluded that
Section 666 “federaliz[es] anticorruption law” and im-
properly “usurp[s] the traditional domain of state
authority.” Jd. at A33.
SUMMARY OF ARGUMENT
Section 666 protects federal benefits and federally
funded programs against significant corruption in the
entities that receive the benefits. That protection is a
constitutionally valid exercise of Congress’s power.
I. Congress enacted Section 666 for the legitimate
purpose of protecting the integrity of the federal funds
it disburses to private organizations and State and local
governments under federal programs. To that end,
Section 666 proscribes corrupt efforts to influence a
transaction or series of transactions of a private
organization or State, local, or tribal government or an
agency thereof involving something worth $5000 or
more, if one further condition is met. 18 U.S.C.
666(a)(2). That condition is that “the organization,
government, or agency” must have “receive[d], 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). Those requirements
limit Section 666 to significant acts of corruption where,
because the relevant agency receives the requisite
federal! benefits, there is a strong federal interest in the
integrity of federal funds and programs. As a matter of
the statute’s text, there is no further federal nexus
requirement.
Congress enacted Section 666 because earlier crimi-
nal statutes, which required proof of an effect on spe-
cific federal funds or programs, had proved insufficient
given the difficulty of tracing fungible funds, the
peculiarities of funding mechanisms, and impediments
13
arising from the passage of title to the funds from the
United States to the fund recipient. Congress there-
fore “decided that the most effective way to insure the
integrity of federal funds disbursed by subnational
agencies was to change the enforcement paradigm from
one that monitored federal funds to one that monitored
the integrity of the recipient agencies” responsible for
administering them. Pet. App. A12.
II. Section 666 is necessary and proper legislation to
protect Congress’s exercise of the Spending Power.
Under the Necessary and Proper Clause, U.S. Const.
Art. I, § 8, Cl. 18, Congress has authority to enact legis-
lation that is “necessary,” 2.e., “convenient, or useful”
and “plainly adapted,” to the execution of federal
powers. M’Culloch v. Maryland, 17 U.S. (4 Wheat.)
316, 354, 413, 421 (1819). Section 666 is “necessary”
legislation. It ensures that federal funds are not
diverted from their intended use and that corruption
does not threaten the integrity of federal programs.
Section 666 also ensures that federal funds do not
subsidize acts of fraud and corruption.
The Constitution does not require that a statute
addressing a matter of profound federal concern be
perfectly calibrated so that every one of the statute’s
conceivable applications directly implicates that con-
cern. Rather, Congress may enact legislation that
sweeps somewhat more broadly when a narrower ap-
proach to the problem might jeopardize federal inter-
ests. Section 666 is not invalid on the theory that it
requires the Court to pile inference upon inference to
find a permissible federal interest. Section 666 is
closely tied to the United States’ strong interest in
guarding against the threat to its funds and programs
created by financial corruption in the agencies that
administer them. While Section 666 may overlap with
14
traditional areas of state criminal law, it does so in
order to protect distinct federal interests.
Section 666 is also “proper” legislation under the
Necessary and Proper Clause. Section 666 neither
regulates the States as sovereigns nor commandeers
state officials. It therefore does not implicate state sov-
ereignty interests. It imposes a requirement on indivi-
duals-—subjecting acts of corruption to potential federal
prosecution—only when an entity (private or govern-
mental) has elected to accept and administer the requi-
site amount of federal funds under a federal program.
Federalism principles do not preclude Congress from
protecting the federal interests in those funds and
programs.
Petitioner argues that the analysis in conditional-
funding cases like South Dakota v. Dole, 483 U.S. 203
(1987), describes the limits of Congress’s Necessary and
Proper authority to implement the Spending Power,
and that, under Dole, regulation of private parties is
invalid. That argument, like petitioner’s contention
that Section 666 violates the Tenth Amendment, is
misplaced. If petitioner were correct, Dole would pre-
clude the federal government from criminalizing acts of
corruption involving the theft from grant recipients of
the federal funds themselves, and would remit the gov-
ernment to withholding federal funds from recipients.
Nothing in the Constitution prevents Congress from
directly imposing penalties on individuals whose crimi-
nal acts would frustrate legitimate federal spending
programs.
III. Reduced to its essence, petitioner’s argument is
that, because Section 666 does not require case-specific
proof that a federal interest has been adversely af-
fected, the statute is capable of reaching instances
where the federal interest is attenuated; accordingly,
15
he concludes, it is facially unconstitutional. Congress,
however, had sound reasons for dispensing with such a
case-by-case inquiry that would potentially leave fed-
eral programs and funds without sufficient protection.
The legislature was not required to direct courts and
juries to make a potentially elusive factual inquiry into
effects on federal funds and programs. In any event, a
claim that some applications of Section 666 may be
beyond federal concern does not meet petitioner’s
burden of showing that Section 666 is unconstitutional
“on its face.” This Court has twice upheld convictions
under Section 666, thus recognizing the constitu-
tionality of its application to straightforward fraud and
bribery cases involving federal funds and programs. To
the extent that there are peripheral applications that
might exceed Congress’s constitutional authority, such
concerns should be addressed through as-applied
challenges in individual cases.
ARGUMENT
SECTION 666 IS A FACIALLY CONSTITUTIONAL
EXERCISE OF CONGRESS’S AUTHORITY TO PRO-
TECT THE INTEGRITY OF FEDERAL FUNDS AND
PROGRAMS
Congress has authority under the Spending Clause to
appropriate federal monies to promote the general
welfare. U.S. Const. Art. I, § 8, Cl. 1. Congress also
has corresponding authority under the Necessary and
Proper Clause, U.S. Const. Art. I, § 8, Cl. 18, to protect
that money and the integrity of the federal programs it
supports. Congress enacted 18 U.S.C. 666 to “protect
the integrity of the vast sums of money distributed
through Federal programs from theft, fraud, and undue
influence.” S. Rep. No. 225, 98th Cong., lst Sess. 370
(1983). The legitimacy of that purpose is beyond
16
dispute. As this Court has observed, “grant funds to
state and local governments ‘are as much in need of
protection * * * as any other federal money.’”
Dixson v. United States, 465 U.S. 482, 501 (1984) (quot-
ing United States ex rel. Marcus v. Hess, 317 —.S. 537,
544 (1943)).
There can be no serious question that bribing a local
government official whose duties include managing
federally funded programs and influencing the alloca-
tion of federal funds implicates the federal govern-
ment’s interest in the integrity of its funds and the
programs they support. Petitioner contends, however,
that Section 666 is “[flacially [uJnconstitutional,” Pet.
Br. 24; Pet. Reply 1-2 (“The Petition is clear that the
issue presented is a facial challenge to the constitu-
tionality of 18 U.S.C. § 666.”), because, in petitioner’s
view, Congress extended Section 666 too broadly and
thereby reached cases in which the misconduct affected
no federal program or federal funds. Pet. Br. 7-8.
According to petitioner, the jurisdictional nexus re-
quired by Section 666(b)—the requirement that the
“organization, government, or agency” at which the
corruption is directed have “receive(d], in any one year
period, benefits in excess of $10,000 under a Federal
[assistance] program’”—does not ensure that the pro-
hibited corruption will “uniformly have the requisite
connection to federal spending.” Pet. Br. 33 (emphasis
added).
Petitioner’s claim of facial unconstitutionality must
be rejected. Congress may enact statutes of sufficient
breadth to achieve the legislature’s goal of protecting
its spending programs, even if some applications of the
statute do not directly advance that goal. Where legiti-
mate federal goals might be underprotected and frus-
trated by narrower provisions, Congress may enact
17
statutes to avoid that pitfall, even if such laws have the
potential to sweep in some circumstances that are of
remote federal interest. The failure of Congress’s
earlier and narrower efforts to combat corruption
touching on federal funds and programs demonstrated
to the legislature that it had to do more than enact a
' statute directed solely at corruption with a proven
effect on the federal funds themselves. Instead, Con-
gress turned to an approach that focused on protecting
the integrity of the entities that receive federal funds.
That approach is constitutional.
I. Section 666, As Properly Construed By The Court of
Appeals, Does Not Require Proof Of A Federal Nexus
Beyond The Statutory Terms
Relying on the text of the statute and its legislative
history, the court of appeals in this case held that
Section 666 does not require the government to prove a
federal interest in its funds or programs beyond the
fact that “the relevant agency received the requisite
amount of federal benefits ($10,000) within the defined
time period as required in § 666(b).” Pet. App. A9. The
overwhelming majority of courts of appeals that have
addressed the issue, including the Fifth, Sixth, Seventh,
Eighth, and Eleventh Circuits, have agreed, see Pet.
Br. 20 n.1, as does petitioner. Pet. Br. 17, 20-22. That
conclusion is correct.’
3 The Second and Third Circuits have held that the government
must prove some further nexus between the corruption and fed-
eral funds or programs. See United States v. Zwick, 199 F.3d 672,
682 (3d Cir. 1999); United States v. Santopietro, 166 F.3d 88, 93 (2d
Cir. 1999). No party to this case supports that construction.
18
A. The Text Of Section 666 Unambiguously Defines The
Elements Of The Offense
Section 666(a)(2) addresses corruption only when at
least two conditions are met. First, the corruption
must have concerned a transaction or series of trans-
actions of an organization or State, local, or tribal gov-
ernment or an agency thereof involving something
worth $5000 or more. 18 U.S.C. 666(a)(2). Second, “the
organization, government, or agency” must have
“receive[d], 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 first
_requirement limits Section 666’s application to signifi-
cant acts of corruption. The second limits Section 666
to cases in which, because the organization, govern-
ment, or agency receives substantial federal funds
under a federal program, the United States has a sig-
nificant interest in preventing corruption and theft.
Section 666 thus “limits its reach to entities that receive
a substantial amount of federal funds and to agents who
have the authority to effect significant transactions.”
United States v. Westmoreland, 841 F.2d 572, 578 (5th
Cir.), cert. denied, 488 U.S. 820 (1988).
As this Court has observed, Section 666 provides a
“broad definition of the ‘circumstances’ to which the
statute applies”’—those cases in which the “organiza-
tion, government, or agency” the defendant sought to
corrupt “receive[d] the statutory amount of benefits
under a federal program.” Salinas, 522 U.S. at 57
(quoting 18 U.S.C. 666(b)). The statute “provides no
textual basis for” further “limiting the reach of [its]
bribery prohibition.” Jbid. To the contrary, “[sJubject
to the $5,000 threshold for the business or transaction
in question, the statute forbids” corruption “in connec-
19
tion with any business transactions, or series of trans-
actions of” the covered “organization, government, or
agency.” Ibid. (emphasis added). “The word ‘any,’
which prefaces the business or transaction clause, un-
dercuts” the argument that “federal funds must be
affected to violate” the statute. Jd. at 56-57.
Although Salinas left open whether Section 666
“requires some other kind of connection between a
bribe and the expenditure of federal funds” than the
nexus expressly required by Section 666(b), 522 U.S. at
59, the same reasoning that supported the Court’s
conclusion in Salinas that no proof of an actual effect on
federal funds is required, id. at 56-57, applies here as
well. There is no language in the statute requiring
some other nexus to federal funds beyond the require-
ment that the relevant entity received the statutory
amount of benefits under a federal program.
B. The Purpose And Background Of Section 666 Confirm
That It Requires No Federal Nexus Beyond That Set
Forth In The Text
The conclusion drawn from Section 666’s text—that
no additional federal nexus is required beyond the
explicit requirement that the covered entity have
received the specified federal benefits—is reinforced by
the provision’s origin and purposes. Section 666 was
designed to “augment the ability of the United States
to vindicate significant acts of theft, fraud, and bribery”
to protect “the vast sums of money distributed through
Federal programs.” S. Rep. No. 225, supra, at 370; see
Salinas, 522 U.S. at 58-59. The provision was enacted
in response to the government’s previous inability to
reach significant misappropriations and corruption in
federally funded assistance programs. See pp. 2-5,
supra. Before Section 666’s enactment, federal prose-
cutions were often hindered by the fact that title to the
20
relevant funds had “passed to the recipient before” the
money was stolen, or because “the funds [wel]re so
commingled that the Federal character of the funds
[could] [Jnot be shown.” S. Rep. No. 225, supra, .t 369.
That gave “rise to a serious gap in the law, since even
though title to the monies may have passed, the Fed-
eral Government clearly retain[ed] a strong interest in
assuring the integrity of such program funds.” Ibid.
Section 666 filled that gap by eliminating any require-
ment that the misconduct be traced to specific federal
monies. Instead, Section 666(b) required that the insti-
tution, government, or agency at issue have received a
specified amount of federal funds. 18 U.S.C. 666(b).*
As the court of appeals observed, Congress “decided
that the most effective way to insure the integrity of
federal funds disbursed by subnational agencies was to
change the enforcement paradigm from one that
monitored federal funds to one that monitored the
4 Westmoreland, 841 F.2d at 577 (“Congress specifically chose”
to “preserve the integrity of federal funds” by “enacting a criminal
statute that would eliminate the need to trace the flow of federal
monies and that would avoid inconsistencies caused by the differ-
ent ways that various federal programs disburse funds”); United
States v. Wyncoop, 11 F.3d 119, 122 (9th Cir. 1993) (“[WJhen
Congress enacted section 666, it intended to ‘protect federal funds
by preserving the integrity of the entities that receive the federal
funds rather than requiring the tracing of federal funds to a
particular illegal transaction.’”) (quoting United States v. Simas,
7 F.2d 459, 463 (9th Cir. 1991)); United States v. Zwick, 199 F.3d
672, 679 (3d Cir. 1999) (“By its terms, § 666 fills” the “voids” in
prior legislation because “it imposes no title or tracing require-
ments and covers non-federal employees.”); United States v.
Paradies, 98 F.3d 1266, 1288 (11th Cir. 1996) (“the government is
not required under § 666 to trace the flow of federal funds”), cert.
denied, 521 U.S. 1106 (1997); United States v. Foley, 73 F.3d 484,
492 (2d Cir. 1996) (“the government is not required to trace the
agent’s corrupt expenditures to the federal program funds”).
21
integrity of recipient agencies.” Pet. App. Al2. “[Ble-
cause § 666 changed the focus” from the policing of
identifiable “federal funds to policing the agencies that
receive and administer those funds, the argument that
there must be a nexus between the offense conduct and
the federal funds beyond that explicitly provided for in
§ 666(b) seems inconsistent” with Congress’s goals. /d.
at Al2-A13.°
The scope of Section 666 is also illuminated by one of
the decisions that prompted it: United States v. Del
Toro, 513 F.2d 656, 661-662 (2d Cir.), cert. denied, 423
U.S. 826 (1975), which had converted the happenstance
of funding, disbursement, and accounting mechanisms
into impediments to federal prosecution. See Salinas,
522 U.S. at 58-59; S. Rep. No. 225, supra, at 369. In Del
Toro, the Second Circuit overturned the federal bribery
conviction of a city employee, “even though federal
funds would eventually cover 100% of the costs and 80%
of the salaries of the program he administered”
because, at the time of the bribe, the city “had not yet
entered a formal request for federal funding.” Salinas,
522 U.S. at 58-59. There could be no prosecution, Del
Toro held, because “(t]here were no existing committed
federal funds” when the misconduct occurred. Salinas,
522 U.S. at 59 (quoting Del Toro, 513 F.2d at 662). In
Salinas, this Court explained that construing Section
666 to require proof that a bribe is traceable to federal
5 An earlier proposal from which Section 666 was derived, see
S. Rep. No. 225, supra, at 369 & n.1, would have required the gov-
ernment to prove that “the recipient’s conduct [wa]s related to the
administration of” a federally funded “program.” See S. Rep. No.
307, 97th Cong., Ist Sess. 726, 803 (1981) (discussing S. 1630, 97th
Cong., lst Sess. § 1751(c)(1)(I) (1981)). Congress’s decision to dis-
pense with such a requirement when enacting Section 666 in 1984
supports the conclusion that Congress did not wish to demand such
proof in particular cases.
22
funds “would run contrary to the statutory expansion
that redressed the negative effects of the Second Cir-
cuit’s narrow construction of § 201 in Del Toro.” Ibid.
Requiring the government to prove a particular nexus
to federal funds or programs beyond that provided in
Section 666(b) would have the same effect here.
C. Section 666 Is Not Ambiguous
In concluding that Section 666 requires a federal
nexus not required by the statute’s operative language,
the Third Circuit reasoned principally that the statute’s
title (“Theft or bribery concerning programs receiving
Federal funds”) introduced ambiguity into the statute’s
meaning; the court then applied the canon that an
ambiguous statute should be construed to avoid serious
constitutional doubts. United States v. Zwick, 199 F.3d
672, 682-687 (3d Cir. 1999). While a statutory title
may be a “tool[] available for the resolution of a doubt
about the meaning of a statute,” Almendarez-Torres v.
United States, 523 U.S. 224, 234 (1998) (internal
quotation marks omitted), it is not a tool for creating
ambiguity. “The title of a statute,” this Court has held,
“cannot limit the plain meaning of the text”; rather, “for
interpretive purposes, it is of use only when it sheds
light on some ambiguous word or phrase.” Pennsylva-
nia Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212
(1998) (punctuation altered and brackets omitted).
Here, the relevant textual provisions are clear and
unambiguous: They reach corruption in “any” business
of a covered entity. Salinas, 522 U.S. at 57 (emphasis
added). And, absent ambiguity, there is no room for the
application of the canon of constitutional avoidance. /d.
at 60-61; Yeskey, 524 U.S. at 212. In any event, as
discussed below, there is no serious doubt that Section
666 is facially constitutional.
23
II. Section 666 Is Necessary And Proper Legislation To
Ensure The Integrity Of Federal Funds And
Programs
Congress has the power to spend federal revenues to
“provide for * * * the general Welfare of the United
States.” U.S. Const. Art. I, § 8, Cl. 1. Congress’s
authority “to authorize expenditure of public moneys
for public purposes is not limited by the direct grants of
legislative power found in the Constitution.” United
States v. Butler, 297 U.S. 1, 66 (1936); accord South
Dakota v. Dole, 483 U.S. 203, 207 (1987). Congress also
has the authority to “make all Laws which shall be nec-
essary and proper for carrying into Execution” its
powers, including the spending power. U.S. Const. Art.
I, § 8, Cl. 18.
Those grants of authority entitle Congress to enact
criminal statutes that are designed to protect federal
funds and the programs they support. Since M’Culloch
v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), it has been
settled that Congress has constitutional authority to
enact not merely legislation that is “indispensable” to
the exercise of its enumerated powers, but also such
legislation as Congress in its judgment deems “nec-
essary and proper,” U.S. Const. Art. I, § 8, Cl. 18, ze.,
“convenient, or useful” and “plainly adapted” to the
execution of federal power, so long as the means chosen
are not prohibited by the Constitution. 17 U.S. (4
Wheat.) at 413, 421. It is “an incontestable proposition
that the disbursement of federal funds to subnational
agencies to advance the general welfare is a legitimate
end within the scope of the Constitution.” Pet. App.
A21. Congress therefore also “has a legitimate right to
protect these disbursements from misappropriation
once made.” bid.
24
Section 666 is both “necessary” and “proper” to the
attainment of important federal objectives, and thus is
facially valid. Every court of appeals that has consid-
ered Section 666’s facial constitutionality has upheld the
statute. United States v. Edgar, 304 F.3d 1320, 1325
(11th Cir.) (“As a means of ensuring the efficacy of
federal appropriations to comprehensive federal assis-
tance programs, the anti-corruption enforcement mecha-
nism strikes us as bearing a sufficient relationship to
Congress’s spending power to dispel any doubt as to its
constitutionality.”), cert. denied, 537 U.S. 1078 2002);
Pet. App. A25 (“Section 666 is a legitimate exercise of
Congress’s undisputed power to make a law that is
necessary and proper for the carrying out of its enu-
merated power to provide for the general welfare of the
United States [through spending].”); United States v.
Bynum, 327 F.3d 986, 991 (9th Cir.) (“We agree with
the Eighth and Eleventh Circuits that § 666 is facially
constitutional.”), cert. denied, 124 S. Ct. 279 (2003).
This Court has repeatedly recognized that a statute
is not unconstitutional on its face merely because it
“might operate unconstitutionally under some conceiv-
able set of circumstances.” United States v. Salerno,
481 U.S. 739, 745 (1987). Rather, “the challenger must
establish that no set of circumstances exists under
which the [law] would be valid.” Jbid. (emphasis
added); see Anderson v. Edwards, 514 U.S. 148, 155-156
n.6 (1995) (parties challenging statute “on its face” can-
not “sustain their burden even if they show[] that a
possible application of the rule” is invalid); Reno v.
Flores, 507 U.S. 292, 301 (1993) (“To prevail” on “a
facial challenge,” the party “must establish that no set
of circumstances exists under which the [regulation]
would be valid”) (quoting Salerno, 481 U.S. at 745);
United States v. Raines, 362 U.S. 17, 21 (1960) (“one to
25
whom application of a statute is constitutional will not
be heard to attack the statute on the ground that im-
pliedly it might also be taken as applying to other per-
sons or other situations in which its application might
be unconstitutional”). Petitioner’s challenge falls well
short of that standard.®
A. Congress Has The Authority To Protect Federal
Spending Under The Necessary And Proper Clause
Congress’s authority to enact criminal laws to protect
federal funds and programs has long been recognized
by this Court. In United States v. Hall, 98 U.S. 343
(1878), this Court upheld a federal statute making it a
criminal offense for a guardian, agent, or attorney to
embezzle a soldier’s federal pension, rebuffing the
claims (1) that such a law would effectively “assume all
the police regulation of the States,” and (2) that, be-
cause “State law authorized the guardian to receive the
pension-money, the defendant cannot be subjected to
an indictment under an act of Congress for embezzling
it after he lawfully received it.” Jd. at 349. “Because
6 Even in those circumstances where members of this Court
have supported a different formulation than the “no set of circum-
stances” test articulated in Salerno, they have at a minimum
required that the statute’s unconstitutional sweep be so great in
relation to its constitutional applications, and so central to the
statute, as to warrant the strong medicine of facial invalidation.
See, e.g., Janklow v. Planned Parenthood, 517 U.S. 1174, 1176 n.1
(1996) (Stevens, J., respecting denial of certiorari); Chicago v.
Morales, 527 U.S. 41, 55 n.22 (1999) (Stevens, J., joined by Gins-
burg and Souter, JJ.). Even in the First Amendment context—
where concerns about chilling effects have led this Court to permit
overbreadth challenges—the Court will not apply “the ‘strong
medicine’ of overbreadth invalidation” unless the potentially un-
constitutional applications are substantial both in absolute terms
and in relationship to the law’s legitimate applications. Virginia v.
Hicks, 123 S. Ct. 2191, 2197-2198 (2003).
26
the fund proceeds from the United States, * * *
Congress may pass laws for its protection, certainly
until it passes into the hands of the beneficiary.” Jd. at
357-358. The Court observed: “[TJhroughout the entire
period since” the Constitution’s adoption, “it has been
the unchallenged practice of the legislative department
of the government, with the sanction of every Presi-
dent, including the Father of the Country, to pass laws
to prevent the diversion of [federal] pension-money
from inuring solely to the use and benefit of those to
whom the pensions are granted.” Jd. at 354. If Con-
gress may grant pensions, Congress “may by all suit-
able laws guard and protect the fund thus devoted from
being diverted from its object by either the craft or the
extortion of unscrupulous agents.” Jd. at 356 (citing
United States v. Marks, 26 F. Cas. 1162 (C.C.D. Ky.
1869) (No. 15,721)).
The same analysis applies when Congress appropri-
ates the funds for programs administered by state and
local governments pursuant to cooperative federalism
agreements. Federal “grant funds to state and local
governments ‘are as much in need of protection * * *
as any other federal money.’” Dixson, 465 U.S. at 501
(quoting United States ex rel. Marcus v. Hess, 317 U.S.
537, 544 (1943)). For that reason, the Court in Dixson
construed a federal statute barring the corruption of
“public officials” to extend to local officials administer-
ing federal block grant funds. See ibid. Similarly, in
Westfall v. United States, 274 U.S. 256 (1927), the Court
rejected the argument that Congress could not punish
frauds perpetrated against a “State bank” that par-
ticipated in the Federal Reserve System where the
statute “applie[d] indifferently whether there is a loss
to the [Federal] Reserve Banks or not.” Jd. at 258-259.
“(E]very fraud like the one before us weakens the
27
member bank and therefore weakens the System,” the
Court stated. Jd. at 259.
This Court has also upheld Congress’s interest in
ensuring the integrity of federal funds, programs, and
the institutions receiving federal funds when address-
ing Section 666 itself. In Fischer v. United States, 529
U.S. 667 (2000), the Court concluded that the “Govern-
ment has a legitimate and significant interest in pro-
hibiting financial fraud or acts of bribery being
perpetrated upon Medicare providers,” which receive
federal benefits to achieve federal policy ends. Jd. at
681. Likewise, in Salinas, 522 U.S. at 60-61. the Court
held that “there is no serious doubt about” Congress’s
constitutional authority to punish the taking of bribes
by a county official for according favorable treatment to
a federal prisoner whom the County was holding for
the United States under contract. Contrary to peti-
tioner’s suggestion (Br. 28), Salinas’s constitutional
holding was not mere “dictum.” This Court squarely
“decide([d] that, as a matter of statutory construction,
§ 666(a)(1)(B) does not require the Government to
prove the bribe in question had any particular influence
on federal funds and that under this construction the
statute is constitutional as applied in this case.” 522
U.S. at 61 (emphasis added). Just as the power “to
establish post offices and post roads” encompasses the
power to “punish those who steal letters,” M’Culloch,
17 U.S. (4 Wheat.) at 417, the power to spend for the
public welfare encompasses the power to punish those
whose theft and corruption threatens federal spending
and programs.
28
B. Section 666 Is “Necessary” Federal Legislation To
Protect Federal Benefits Programs
Enacted to protect the integrity of federal funds and
the programs they finance, Section 666 is necessary
legislation to protect the effectiveness of Congress’s
exercise of its spending power. Section 666 ensures
that federal funding is not diverted from its intended
purpose and that federal programs are not impaired by
corruption. United States v. Brunshtein, 344 F.3d 91,
97 (2d Cir. 2003) (“Congress enacted § 666 to ‘safeguard
finite federal resources from corruption and to police
those with control of federal funds.’”) (quoting United
States v. Rooney, 37 F.3d 847, 851 (2d Cir. 1994)). Sec-
tion 666 also ensures that fraudulent acts do not
threaten federal programs by depriving program par-
ticipants of necessary resources. In Fischer, the Court
explained that “financial fraud or acts of bribery * * *
perpetrated upon Medicare providers” impermissibly
“threaten the [Medicare] program’s integrity” by
“rais[ing] the risk participating organizations will lack
the resources requisite to provide the level and quality
‘of care envisioned by the program.” 529 U.S. at 681-
682. Likewise, in Salinas, the Court upheld the con-
viction of a county official for taking bribes in return for
affording preferential treatment to a federal prisoner
housed in a local facility “paid for in significant part by
federal funds.” 522 U.S. at 59. Even though the cor-
ruption did not necessarily impose any additional costs
on the United States, it represented “a threat to the
integrity and proper operation of the federal program”
at issue. /d. at 61.
Judicial review of the “necessity” of employing a par-
ticular means to achieve Congress’s purposes is defer-
ential. As this Court explained shortly after this
Nation’s founding, Congress has discretion to “employ
29
those [means] which, in its judgment, would most
advantageously effect the object to be accomplished.”
M’Culloch, 17 U.S. (4 Wheat.) at 419. “[WJhere the
means adopted by Congress are not prohibited and are
calculated to effect the object intrusted to it, this Court
may not inquire into the degree of their necessity; as
this would be to *-* * tread upon legislative ground.”
James Everard’s Breweries v. Day, 265 U.S. 545, 559
(1924). “Congress must possess the choice of means,
and must be empowered to use any means which are in
fact conducive to the exercise of a power granted by the
Constitution.” Legal Tender Case, 110 U.S. 421, 441
(1884).
Amicus Cato Institute invites this Court to recon-
sider the “received wisdom” of M’Culloch and to adopt
an intermediate scrutiny standard articulated by James
Madison in a private letter—that “laws executing fed-
eral powers must have a ‘definite connection’ to and
‘some obvious and precise affinity’ with permissible
governmental ends.” See Cato Br. 3; see id. at 18-22.
This Court, however, has employed M’Culloch’s “plainly
adapted,” “conducive,” and “appropriate” formulations
for the more than 180 years since M’Culloch was de-
cided. See, e.g., Katzenbach v. Morgan, 384 U.S. 641,
651 (1966); United States v. Butler, 297 U.S. 1, 69
(1936). Just last Term, this Court applied M’Culloch to
reject a Necessary and Proper Clause challenge to 28
U.S.C. 1367(d), which tolls the limitations period for
certain state-law claims in state court: “[I]t suffices
that § 1367(d) is ‘conducive to the due administration of
justice’ in federal court, and is ‘plainly adapted’ to that
end.” Jinks v. Richland County, 123 S. Ct. 1667, 1671
(2003). Amicus offers no compelling justification for
abandoning that longstanding constitutional formula-
tion in favor of Madison’s private critique of M’Cul-
30
loch’s reasoning and the decision itself. Cato Br. 19
(citing Letter of Sept. 2, 1819 to Spencer Roane, in 8
The Writings of James Madison 447 (Gaillard Hunt ed.
1908)).'
1. Congress selected reasonable means of achieving
its interest in the protection of federal funds and
programs
Congress enacted Section 666 to broaden the sweep
of federal law only after attempting to protect federal
7 Contrary to Amicus’s suggestion (Cato Br. 13-16), M’Culloch
(like its progeny) makes it unmistakably clear that Congress is
entitled to considerable deference in judgments about necessity.
See, e.g., 17 U.S. (4 Wheat.) at 415 (The Framers left it “in the
power of Congress to adopt any” means “which might be appro-
priate, and which were conducive to the end.”); id. at 420 (“[I]t
eannot be construed to restrain the [express] powers of Congress,
or to impair the right of the legislature to exercise its best judg-
ment in the selection of measures to carry into execution the con-
stitutional powers of the government.”) (emphasis added). Some
federal courts and commentators have equated M’Culloch’s
“plainly adapted,” or “appropriate” and “conducive,” standard with
the rational basis test. See, e.g., United States v. Plotts, 347 F.3d
873, 878 (10th Cir. 2003); Edgar, 304 F.3d at 1325-1326; Laro v.
New Hampshire, 259 F.3d 1, 6 (1st Cir. 2001); United States v. Lue,
134 F.3d 79, 84 (2d Cir. 1998); 1 Laurence H. Tribe, American
Constitutional Law § 5-3, at 805 (3d ed. 2000). This case does not
require the Court to determine whether the “plainly adapted” test
requires a closer fit than the rational basis test, because Section
666(a)(2) is more than merely a rational way to serve Congress's
legitimate interest in protecting federal funds and programs that
implement the Spending Power. Rather, it directly and substan-
tially serves that goal in a reasonabie manner, as is evidenced by
expevience that revealed that more limited means were inade-
quate. See pp. 3-5, 19-22 & n.4, supra; pp. 31-33, infra. And even
Amicus Cato Institute does not question M’Culloch’s holding that
the means chosen by Congress need not be indispensable to the
achievement of a legitimate legislative purpose in order to be
“necessary and proper.”
31
funds and programs through more limited statutes that
had proved “toothless.” Pet. App. A25. Congress’s
long experience with those earlier statutes showed that
focusing on the federal funds themselves rather than
the recipient was inadequate because of the difficulty of
tracing money, as well as the effects of commingling
and varying accounting and disbursement methodolo-
gies. See pp. 3-5, 19-22 & n.4, supra; Pet. App. A25.
Congress therefore made the sensible “determination
that the most effective way to protect the integrity of
federal funds” and federally funded programs was not
to police the funds directly but “to police the integrity
of the agencies administering those funds.” Pet. App.
A25; see Fischer, 529 U.S. at 678 (The language of
Section 666 “reveals Congress’ expansive, unambiguous
intent to ensure the integrity of organizations partici-
pating in federal assistance programs.”); United States
v. Bonito, 57 F.3d 167, 172 (2d Cir. 1995) (Section 666
“seeks to preserve the integrity of federal funds by
assuring the integrity of the organization that receives
them.”) (quoting Westmoreland, 841 F.2d at 578), cert.
denied, 516 U.S. 1049 (1996).
Congress’s decision to focus on the corruption of
institutions receiving federal funds also makes good
sense even apart from the problems that plagued ear-
lier statutes. The “federal government has an obvious
interest in the incorruptibility of the City officials who
are responsible for ensuring the transmission of federal
funds to specific City programs.” Brunshtein, 344 F.3d
at 98. The “integrity of federal funds is placed at risk
when the agency that receives those funds is cor-
rupted.” Jd. at 100. An analogy to the private sector
makes that clear:
In the private sector, what would a reasonable fund-
ing partner who has advanced $[28] million do after
32
learning that its service partner takes kickbacks,
albeit regarding matters not within the partner-
ship’s scope? The funding partner might well
dissolve the partnership rather than wait for the
service partner’s corruption to widen and infect the
partnership’s dealings.
United States v. Lipscomb, 299 F.3d 303, 332 (5th Cir.
2002) (opinion of Wiener, J.); see also Edgar, 304 F.3d at
1327 (“It is reasonable for Congress to conclude that
any corruption of such recipient organizations * ” *
endangers the comprehensive programs in which the
organizations participate, and thus the effective
exercise of the Congressional spending power as
well.”). No principle of constitutional law requires Con-
gress to wait until an official’s corruption widens and
infects a specific federal program and identifiable fed-
eral funds, when a reasonable, similarly situated pri-
vate party would not.
This case illustrates the wisdom of that approach.
The corruption at issue here (which involved an effort
to distort the allocation of federal funds) came to light
as a result of Councilman Herron’s arrest for acts of
corruption in more local matters. See Trial Br. 3, 14-15;
Gov’t C.A. Br. 5. Once corruption begins, those in-
volved rarely differentiate between the local and fed-
eral programs the agency administers or carefully
confine their activities to the former. The presence of
corrupt officials in an entity receiving federal benefits
also may indicate that the entity has broader problems,
such as inadequate controls, even if the specific corrup-
tion identified does not involve federal funds or a
federally funded activity.
In addition, “[mJoney is fungible and its effect tran-
scends program boundaries.” United States v. Grossi,
143 F.3d 348, 350 (7th Cir.) (Easterbrook, J.), cert.
33
denied, 525 U.S. 879 (1998). As a result, even where an
agency operates some programs that receive federal
funds and some that do not, corruption in non-federal
programs can impair the agency’s administration of
federal money. See Pet. App. A25 (“maladministration
of funds in one part of an agency can affect the allo-
eation of funds, whether federal or local in origin,
throughout an entire agency”). Corruption in locally
funded programs can drain commingled resources from
or place additional burdens on federally funded pro-
grams, impairing their achievement of federal program
goals. See, e.g., United States v. DeLaurentis, 230 F.3d
659, 662 (3d Cir. 2000).
Indeed, as the court of appeals explained in Grossi, a
program that (at least as an accounting matter) appears
funded by local revenues will have “more to spend
* * * (or dangle as a lure for bribes) if the federal
government meets some of the [agency]’s other ex-
penses.” 143 F.3d at 350. An agency that administers
substantial federal funds will often be strengthened by
the federal funds, increasing the opportunities for cor-
ruption and their oppressive effect. In this case, for
example, petitioner paid Councilman Herron to
threaten property owners with the MCDA’s use of its
eminent domain powers so that they would accede to
his development plan on their own. See pp. 6, 7, supra.
That threat was undoubtedly more credible because the
MCDA, backed by millions of federal dollars, had the
resources (for litigation and payment of just com-
pensation) to make good on the threat.
2. Congress is not limited to protecting against
corruption in federal instrumentalities
Petitioner argues (Br. 26-31) that the federal gov-
ernment’s authority to address corruption does not
extend beyond federal institutions and instrumentali-
34
ties. That argument fails to account for the obvious
federal interest in foreclosing the theft and corruption
of federal money held by organizations administering
federal programs. And it overlooks a century of
precedent recognizing the legitimacy of that interest—
including cases like Hall, supra, which upheld the
federal conviction of a guardian for embezzling a
soldier’s federal pension money; Salinas, supra, which
upheld the conviction of a county official for corruptly
favoring a federal prisoner in state facilities financed
with federal monies; Westfall, supra, which upheld a
conviction for defrauding a state bank participating in
the Federal Reserve System; and Fischer, supra, which
recognized the government’s strong interest in prose-
cuting fraud aimed at Medicare providers. See pp. 25-
27, supra. This Court’s decision in Dixson all but fore-
closes petitioner’s argument, interpreting the term
“public official” in the federal criminal bribery statute,
18 U.S.C. 201(a), to include local officials administering
federal funds:
[W]hen one examines the structure of the program
and sees that [it] vests in local administrators * * *
the power to allocate federal fiscal resources for the
purpose of achieving congressionally established
goals, * * * it becomes clear that these local offi-
cials hold precisely the sort of positions of national
public trust that Congress intended to cover dean
The Federal Government has a strong and legiti-
mate interest in prosecuting petitioners for their
misuse of Government funds.
465 U.S. at 500-501. a
Petitioner does not meaningfully distinguish those
cases, none of which involved “instrumentalities of the
35
United States” as that phrase is ordinarily used.* Nor
does petitioner explain why, if the individuals and
institutions at issue in those cases—the private person
in Hall, the state bank in Westfall, the local officials in
Dixson, the county prison in Salinas, and the Medicare
providers in Fischer—would qualify as federal instru-
mentalities for purposes of determining the constitu-
tionality of those statutes, the entities receiving and
administering funds under federal programs covered by
Section 666 would not.
Indeed, petitioner effectively acknowledges that his
position would draw into question “the constitutionality
of 18 U.S.C. § 201, as interpreted in Dixson,” Pet. Br. 27
n.2, and relies on the Dixson dissent, see Pet. Br. 29.
But not even the dissenters in Dixson questioned Con-
gress’s power to impose criminal liability on corrupt
officials with responsibility over federal programs and
those who corrupt them. The dissenters merely were of
the view that Congress had not exercised that power
there. See 465 U.S. at 510 (federal programs should
“not be interpreted to deputize States or their political
subdivisions to act on behalf of the United States”
within the meaning of Section 201 “unless such deputy
status is expresslv accepted or, where lawful, expressly
imposed”; contrasting 1976 amendments to the Grain
Standards Act). The Constitution does not “make the
extent” of Congress’s ability to “safeguard” federal
8 Petitioner attempts to distinguish Salinas on the ground that
the County, its prison, or the guards were “instrumentalities of the
United States.” Br. 28. Salinas certainly did not hold that to be
the case. Nor is it clear that the principles articulated in Westfall,
supra, cited in Salinas, 522 U.S. at 61, are limited to federal instru-
mentalities. Westfall itself stands for the proposition that no
actual loss to a federal institution is required to establish congres-
sional authority, so long as the conduct might threaten a federal
program. 274 U.S. at 258-259.
36
funds dependent on the Treasury’s continued posses-
sion of those funds or “the bookkeeping devices used for
their distribution.” Jd. at 501; see Hess, 317 U.S. at 544
(“Government money is as truly expended whether by
checks drawn directly against the Treasury to the
ultimate recipient or by grants in aid to states.”).
3. This Court’s decisions in Lopez and Morrison lend
no support to a claim that Section 666 reaches too
far
Petitioner invokes this Court’s Commerce Clause
decisions in United States v. Lopez, 514 U.S. 549 (1995),
and United States v. Morrison, 529 U.S. 598 (2000), in
arguing that the corruption reached by Section 666 is
too attenuated from federal interests. Pet. Br. 32-33.’
In particular, petitioner argues that Section 666, like
the statutes at issue in those cases, can de sustained
only if the Court is willing “to pile inference upon
inference in a manner that” would accord the United
States a “general police power of the sor‘ retained by
the States.” Pet. Br. 33 (quoting Lopez 514 U.S. at
567). The Commerce Clause analysis in Lopez and
Morrison is not at issue here. This case does not
involve an exercise of Congress’s power to enact crimi-
nal laws to effectuate a specific enumerited grant of
regulatory authority. Instead, it involves Congress’s
power to protect the integrity of benefits 2rograms and
federal funds established under its Spending Clause
power. Congress’s authority to prohibit criminal acts
9 Petitioner raises this issue in contending that Section 666,
viewed as a condition on federal spending, fails the “germaneness”
or “relatedness” requirements for such conditions under South
Dakota v. Dole. Pet. Br. 32. The government adcresses below the
argument that Dole provides the proper lens tarough which to
analyze Section 666. See pp. 41-45, infra.
37
that threaten its expenditures and programs is not
subject to analysis under Lopez and Morrison.
In any event, no piling of inferences is necessary to
sustain Section 666. That provision directly serves
Congress’s legitimate interest in preserving the integ-
rity of federal funds and the programs they finance. It
ensures the incorruptibility of entities to which Con-
gress entrusts its funds and programs for admini-
stration. It eliminates impediments (e.g., tracing
requirements) that impaired the effectiveness of earlier
laws. And it ensures that federal funding does not sub-
sidize corruption. To the extent that a demonstrable
adverse effect on federal interests is not present in
every case, Congress was permitted to dispense with
one. The Constitution does not demand a perfect fit
between the federal interest and every possible appli-
cation of the statute Congress enacts to serve that
interest. The standard is whether the statute is
“plainly adapted,” or “convenient” and “useful,” to a le-
gitimate federal end. See pp. 23, 28-30, supra. Conse-
quently, where Congress enacts a statute to address a
problem squarely within national competence, the
legislation may sweep somewhat more broadly than the
underlying purpose if necessary to ensure its effective-
ness. As this Court explained when rejecting an argu-
ment virtually indistinguishable from petitioner’s in
Westfall, supra, see Br. for Plaintiff in Error, No. 766,
at 15-17 (Feb. 24, 1927): “{W]hen it is necessary in
order to prevent an evil to make the law embrace more
than the precise thing to be prevented [Congress] may
do so.” 274 U.S. at 259.
The fact that Section 666 reaches conduct that tradi-
tionally falls within the scope of state criminal law does
not prevent Congress from protecting federal interests.
As the court of appeals explained, “were we to conclude
38
that Congress lacked the authority to legislate in this
area, then the protection of federal funds would be left
to the whim of state and local officials—perhaps even
the same officials who pose a threat to the integrity of
the federal funds in the first place and who therefore
possess a strong disincentive to protect them.” Pet.
App. A28. The court concluded that “[t]he proposition
that the federal government is powerless to vindicate
its own interests is clearly untenable.” Jbid. M’Culloch
makes the same point. “To impose on [the United
States] the necessity of resorting to means which it
cannot control, which another government may furnish
or withhold, would render its course precarious, the re-
sult of its measures uncertain, and create a dependence
on other governments, which might disappoint its most
important designs, and is incompatible with the lan-
guage of the constitution.” 17 U.S. (4 Wheat.) at 424.
Sustaining Section 666 would hardly accord the
United States a general police power or “obliterate the
distinction between what is national and what is local.”
Pet. Br. 32. Section 666 does not rest on putative
authority to regulate all the activities on which Con-
gress may spend federal funds, or ail activities that may
affect the success of federally funded programs. Sec-
tion 666 instead rests on the proposition that, because
the United States has an interest in ensuring the
integrity of its funds and programs, it may pursue that
interest by policing the integrity of the entities to
which its funds and programs are entrusted. Conse-
quently, the reach of Section 666, and Congress’s ability
to enact statutes like it, is limited both by the finite
nature of the federal fisc, and by the direct connection
between the prohibition on financial corruption in
agencies administering federal program funds and the
39
interest in protecting those federal funds and pro-
grams.”
C. Section 666 Is “Proper” Legislation Under The Con-
stitution
Petitioner suggests (Br. 40) that Section 666 violates
“the sovereignty of the States” under Alden v. Maine,
527 U.S. 706 (1999), and Printz v. United States, 521
U.S. 898 (1997), and therefore is not “proper” legislation
under the Necessary and Proper Clause. That argu-
ment lacks merit.
Neither Alden nor Printz is applicable here. In
Alden, the statute sought to allow private citizens
seeking damages to hale the State into its own courts,
notwithstanding the State’s claim to sovereign immu-
nity. 527 U.S. at 730. In Printz, the statute sought to
“conscript{] the States’ officers” into service “to ad-
minister [and] enforce a federal regulatory program.”
521 U.S. at 935. Section 666 does not run afoul of “the
postulate that States of the Union, still possessing
attributes of sovereignty, shall be immune from suits,
10 The contrast between Section 666’s scope and the hypotheti-
cal prohibition on the solicitation of adultery by officials of agencies
receiving federal benefits posited by the Cato Institute (at 24)
underscores that difference. It is not immediately obvious how the
solicitation of adultery would pose a threat to federal funds or
programs, since the misconduct involves the officials’ private lives
and is not financial in nature. Consequently, the link to any federal
interest would have to rest on an attenuated chain of reasoning—
that the prohibited conduct demonstrates poor moral character;
that those moral shortcomings may not be limited to the offending
official’s private life; and, that if the lack of moral rectitude
extends to the official’s public responsibilities, it might include a
willingness to engage in financial corruption affecting federal funds
and programs. Section 666, in contrast, directly addresses corrup-
tion itself, and only in connection with the business of an agency
that receives substantial funds under a federal program.
40
without their consent, save where there has been ‘a
surrender of this immunity in the plan of the conven-
tion.’” Alden, 527 U.S. at 730. Nor does it “conscript[]}”
or “commandeer” state officers into federal service.
Printz, 521 U.S. at 929, 935. Quite the opposite: the
federal obligation of public employees to refrain from
corruption results from a decision by the agency, state,
or local government to accept federal money and ad-
minister a federal program. Section 666 imposes pre-
cisely the same duties on the agents of private organi-
zations that choose to receive federal money.” Peti-
tioner offers no reason why the United States cannot
insist that the state and local government recipients of
federal funds operate with the same level of freedom
from corruption as private ones.
Petitioner also asserts (Br. 36) that Section 666 blurs
state and local accountability for prosecuting corruption
in state entities. But many statutes of unquestioned
constitutionality, including the mail and wire fraud
statutes and the federal securities laws, create over-
lapping coverage. There is certainly no federalism ob-
jection where the federal legislation is plainly adapted
to the service of legitimate federal interests and leaves
the States both free to make their own enforcement
decisions and to be held politically accountable for those
choices. As the Court explained in Westfall:
Of course an act may be criminal under the laws of
both jurisdictions. * * * [I)fa state bank chooses
to come into the System created by the United
11 It is therefore inaccurate to assert that Section 666 “applies
only to State and local institutions.” Pet. Br. 26. It applies to pri-
vate “organizations” receiving the requisite amount of federal
funds, such as the Medicare providers at issue in Fischer, and to
state, local, and tribal institutions that do likewise. See 18 U.S.C.
666(a).
41
States, the United States may punish acts injurious
to the System, although done to a corporation that
the State also is entitled to protect. The general
proposition is too plain to need more than
statement.
274 U.S. at 258.
D. Petitioner Is Not Assisted By His Reliance On The
Standards Of South Dakota v. Dole
1. The Dole test for spending conditions does not
exhaust Congress’s “necessary and proper”
authority
Petitioner argues that, in the spending area, the
“necessary and proper” test of M’Culloch has been
subsumed in and superseded by this Court’s conditional
funding cases, such as South Dakota v. Dole, 483 U.S.
203 (1987). Br. 37-40. He asserts that the Dole test
incorporates all of Congress’s necessary and proper
power to implement the Spending Clause. According to
petitioner, the United States’ interests are satisfied if
the grant recipient complies with its contractual obliga-
tions—or if, in the event of breach, the recipient
“compensates the Federal Government or a third-party
beneficiary * * * for the loss caused by that failure.”
Pet. Br. 29-30. In arguing that Dole occupies the field
and that Congress cannot reach beyond imposition of
conditions on the grant recipient, petitioner is, in effect,
arguing that the federal government could not prose-
cute a state official even if that official stole the federal
funds themselves or accepted a bribe in direct connec-
tion with a federal program. Congress, petitioner
seems to argue, is limited to the protection of its funds
by imposing some sort of anti-corruption condition and
then withdrawing the funds if the condition is not
satisfied. That position cannot be correct.
42
The present case illustrates the point. Like many
similar cases, it does not involve a breach of conditions
by the funding recipients. It involves the efforts of
individuals like petitioner and the local official he
bribed to corrupt the operations of otherwise innocent
governmental entities administering federa' program
funds. Petitioner nowhere explains why it would make
sense for those institutions, and the citizens they serve,
to be punished for his and Herron’s misconduct. See
Lipscomb, 299 F.3d at 333 (Wiener, J.) (fiscal reprisals
directed at a fund recipient would cause the local popu-
lace, which is “by definition innocent of official corrup-
tion,” to “suffer a cut in federally funded services”).
That would defeat the goal of the spending, which is to
provide federal funding to serve public needs, not to
take funds away from local government recipients to
make up for federal corruption losses. Ibid. Nor would
petitioner’s proposed remedy deter individuals who
seek to enrich themselves through the corruption of
public agents in agencies that receive federal funds and
administer federal programs, since the burdens of that
remedy fall on the funding recipient rather than the
criminally corrupt. Petitioner cites no case that prohib-
its Congress from protecting its interest in disbursed
federal funds and federal programs by imposing crimi-
nal prohibitions on the individual wrongdoers. To the
contrary, the interests in safeguarding federal benefits
and programs have been held sufficient to sustain fed-
eral criminal penalties throughout this Nation’s history,
as Hall, Westfall, Salinas, and Fischer all make clear.
2. Petitioner’s conditional funding arguments are
without merit
Petitioner also claims that Section 666 transgresses
the limits of the Dole factors in several respects.
Because Section 666 is properly understood as a valid
43
exercise of Congress’s power under the Necessary and
Proper Clause, those arguments do not justify his
position that Section 666 is facially unconstitutional.
This Court’s conditional funding decisions, including
Dole, govern where Congress encourages or requires
States to act in their sovereign capacity by conditioning
the provision of federal funding on some undertaking
by the States. In Dole, for example, the United States
conditioned a portion of federal highway funds on the
States’ enactment of legislation that increased the
drinking age to 21, a requirement that Congress could
not, because of the 21st Amendment, impose itself. 483
U.S. at 209. In this case, the United States did not
encourage or require state governments to regulate.
Instead, Congress enacted federal legislation itself to
serve the national government’s own legitimate ends in
protecting federal spending.
Even if viewed through the prism of conditional
funding decisions like Dole, petitioner’s arguments are
mistaken.” He contends (Br. 32) that Section 666 is
invalid under Dole because it is not “related to the
purpose of the federal program.” See Dole, 483 U.S. at
207 (condition may be “illegitimate” if “unrelated ‘to the
federal interest in particular national projects or
programs’”). That claim is answered above, in the
discussion of how Section 666 is plainly adapted to
serve Spending Power interests under the Necessary
2 To the extent that petitioner relies on the Tenth Amendment
as an independent theory, Br. 37, this Court recently declined to
address “whether private plaintiffs have standing to assert ‘states’
rights’ under the Tenth Amendment where their States’ legislative
and executive branches expressly approve and accept the benefits
and terms of the federal statute in question.” Pierce County v.
Guillen, 537 U.S. 129, 148 n.10 (2003); ef. Tennessee Elec. Power
Co. v. TVA, 306 U.S. 118, 144 (1939).
44
and Proper Clause. See pp. 25-33, supra. Petitioner’s
basic premise (Br. 33-34) that each and every possible
application of Section 666 must have a nexus to a fed-
eral interest misconceives Dole’s relatedness require-
ment. Dole mandates a “reasonable relationship” be-
tween the condition and the purpose of the funding, not
a perfect fit in every conceivable application. See New
York v. United States, 505 U.S. 144, 172 (1992) (spend-
ing conditions valid under Dole because they are “rea-
sonably related to the purpose of the expenditure”);
Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275,
295 (1958) (“{T]he Federal Government may establish
and impose reasonable conditions relevant to federal
interest in the project and to the over-all objectives
thereof.”)."
Petitioner’s claim that Section 666 unconstitutionally
eoerces fund recipients is likewise without merit. This
Court has suggested that “in some circumstances the
financial inducement offered by Congress might be so
coercive as to pass the point at which ‘pressure turns
into compulsion.’” Dole, 483 U.S. at 211 (quoting Ste-
ward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)).
But the law has long “been guided by a robust common
sense which assumes the freedom of the will as a
working hypothesis.” Steward Machine Co., 301 U.S. at
590. Here, no government entity claims coercion, and
petitioner offers no evidence that the United States
exerted “a power akin to undue influence” to overcome
the ordinarily “robust” presumption of free will. bid.
13 In South Dakota v. Dole, for example, the Court did not re-
quire that every proscribed sip of beer by an underage drinker
(such as one who is hiking in the mountains miles from a road)
affect the safety of funded highways. Instead, it was sufficient
that underage drinking, as a general matter, has a reasonable rela-
tionship to highway safety. 483 U.S. at 209-210.
45
A large financial inducement is not necessarily coercive.
“In this context, a difficult choice remains a choice, and
a tempting offer is still but an offer. If [the State or its
citizenry] finds the [federal] requirements so disagree-
able, [they are] ultimately free to reject both the condi-
tions and the funding, no matter how hard that choice
may be.” Kansas v. United States, 214 F.3d 1196, 1203
(10th Cir.), cert. denied, 531 U.S. 1035 (2000); see
Oklahoma v. United States Civil Service Comm’n, 330
U.S. 127, 143-144 (1947); Board of Educ. v. Mergens,
496 U.S. 226, 241 (1990).
Petitioner’s coercion theory also produces paradoxi-
cal results: the greater the federal benefits afforded to
state, local, tribal, and private entities, the lesser the
federal government’s power to protect the integrity of
its funds and programs. According to petitioner,
because the price of declining to accept federal largesse
is simply too great for a State (or, presumably, a local
entity) to bear, Congress must make the funds available
without putting in place federal means to protect the
expenditures. Nothing in the Constitution, however,
forbids Congress from affording protection commen-
surate with its legitimate expenditures.
III. Section 666 Is At Most Subject To As Applied
Challenges
At bottom, petitioner’s position is that “Section 666 is
facially invalid because the conduct it covers does not
uniformly have the requisite connection to federal
spending, and no element within the offense requires
the jury to find the necessary connection in each spe-
cific case.” Br. 33 (emphases added). Petitioner posits
the example of a Section 666 prosecution for the bribery
of a parks department agent where the only federal
benefits received by the governmental entity are for
highway programs. Pet. 32. Such an observation does
46
not come close to establishing facial invalidity. As
discussed above, Congress legitimately framed Section
666 to sweep broadly enough to eliminate barriers to
the protection of federal funds and programs that had
hampered the effectiveness of earlier statutes and
reasonably concluded that significant corruption any-
where in an entity receiving the requisite federal funds
is at least a potential threat to federal funds and pro-
grams. See pp. 30-36, supra. That justification estab-
lishes the constitutionality of Section 666 in all of its
applications, even those that might be viewed in isola-
tion as tangential or remote from the underlying pur-
pese of Section 666.
In any event, the argument that some remote
applications may be unconstitutional certainly cannot
justify total invalidation of the statute on its face. 7’
Court’s cases, including United States v. Salernc
U.S. 739 (1987), make that clear. See pp. 24-25, swpra.
Petitioner’s contrary argument parallels the claim this
Court rejected in United States v. Raines, 362 U.S. 17
(1960). In that case, the plaintiff challenged the Civil
Rights Act of 1957 as facially unconstitutional because
it purportedly reached some conduct—private discrimi-
nation—that was alleged to be beyond Congress’s
power to proscribe under the Fifteenth Amendment.
262 U.S. at 19-20. Although the Act on its face made no
distinction between state action and private conduct,
the Court held that purported defect insufficient to
invalidate the statute in all its applications:
(I]f the complaint here called for an application of
the statute clearly constitutional under the Fif-
teenth Amendment, that should have been an end to
the question of constitutionality. And as to the
application of the statute called for by the complaint,
* * * it is enough to say that the conduct charged
47
* * * is certainly * * * ‘state action’ * * *
subject to the ban of that Amendment, and that
legislation designed to deal with such discrimination
is “appropriate legislation” under it.
Id. at 24-25. The same reasoning applies here.”
This Court has suggested that facial invalidation may
also be warranted where the statute is “unconstitu-
tional in the vast majority of its intended applications,
and it can fairly be said that it was not intended to
stand as valid, on the basis of fortuitous circumstances,
only in a fraction of the cases it was originally designed
to cover.” Raines, 362 U.S. at 23; see also Butts v.
Merchants & Miners Transp. Co., 230 U.S. 126, 133
(1913) (law facially unconstitutional where Congress
would not have intended “to make a law which should
be applicable to a minor part of that jurisdiction and
inapplicable to the major part”). In Lopez and Morr-
son, the Court did not remit defendants to as-applied
challenges in order to preserve statutory applications
that, because of a factual showing unrelated to the
design of the statute, would have been constitutional.
But this Court has found Section 666 to be constitu-
tional in its core applications—the ones Congress most
clearly intended to reach—as this Court’s decisions
upholding convictions under it attest. See Salinas, 522
14 Petitioner errs in arguing (Br. 34-35) that this case is analo-
gous to the circumstances identified by Justice Scalia’s dissenting
opinion in Babbitt v. Sweet Home Chapter of Communities for a
Great Oregon, 515 U.S. 687, 731-732 (1995). Section 666 is not at all
like a regulation that fails to include an element required by the
statute. To the contrary, Section 666 has a jurisdictional element.
Petitioner merely argues that the element is not sufficient to en-
sure the statute’s constitutional application in each and every case.
As Raines demonstrates, that concern # not enough to render
Section 666 unconstitutional on its face.
48
U.S. at 60-61 (holding that “there is no serious doubt
about the constitutionality of § 666(a)(1)(B) as applied
to the facts” there, and that “the application of
$ 666(a)(1)(B) to Salinas did not extend federal power
peyond its proper bounds”); Fischer, 529 U.S. at 681-
682 (recognizing that the “Government has a legitimate
and significant interest in prohibiting financial fraud or
acts of bribery” given the threat to a federal “program’s
integrity” created there). The existence of a sub-
stantial body of such applications alone “is enough to
defeat [the] assertion that the [law] is facially uncon-
stitutional.” Webster v. Reproductive Health Servs.,
492 U.S. 490, 524 (1989) (O’Connor, J., concurring in
part and concurring in the judgment).
As a matter of prosecutorial discretion, the Depart-
ment of Justice’s policy is that “Federal prosecutors
should be prepared to demonstrate that a violation of 18
U.S.C. § 666 affects a substantial and identifiable Fed-
eral interest before bringing charges,” because “[t]his
policy ensures that Federal prosecutions will occur only
when significant Federal interests are involved.” U-S.
Attorney Manual § 9-46.110 (Sept. 1997). The adoption
of such a policy as a matter of prosecutorial discretion
suggests that there may be few cases brought to court
in which the government’s interest in applying Section
666 will not meet a federal nexus test.” Nevertheless,
if it were thought constitutionally problematic to apply
Section 666 in a particular case in which the federal
interest that supports the statute cannot be concretely
identified, even in a “highly attenuated” fashion, United
15 The government’s policy, of course, does not indicate that
Congress was constitutionally precluded from casting a wider net
to ensure adequate protection of federal interests, without entrust-
ing to a jury potentially difficult proof issues in each case about the
degree of a federal nexus.
49
States v. Zwick, 199 F.3d at 672, 687 (3d Cir. 1999), the
correct constitutional solution would be to consider
such a challenge on an as-applied basis. Any theoretical
potential for unconstitutional applications provides no
basis for facial invalidation.”
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
CHRISTOPHER A. WRAY
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JEFFREY A. LAMKEN
Assistant to the Solicitor
General
JEFFREY P. SINGDAHLSEN
Attorney
JANUARY 2004
16 Based on the concern that Section 666 might otherwise be
unconstitutional, two courts have limited Section 666’s application
to situations where the offense conduct implicates a federal inter-
est, although “a highly attenuated implication of a federal interest
will suffice.” Zwick, 199 F.3d at 687; United States v. Foley, 73
F.3d 484, 488-493 (2d Cir. 1996). That statutory-interpretation
approach may differ from considering challenges to Section 666 on
an as-applied basis, because a statutory nexus requirement would
require a jury determination of that issue in every case. See
Brunshtein, 344 F.3d at 98-99; cf. Ring v. Arizona, 536 U.S. 584,
606-607 (2002). In Salinas, this Court resolved the “constitutional
as applied” issue itself. 522 U.S. at 60-61.
APPENDIX
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
1. The Spending Clause of the United States Con-
stitution, Article I, Section 8, Clause 1, provides:
The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common De-
fence and general Welfare of the United States.
2. The Necessary and Proper Clause of the United
States Constitution, Article I, Section 8, Clause 18,
provides:
The Congress shall have Power * * * To make
all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution
in the Government of the United States, or in
any Department or Officer thereof.
3. Section 666 of Title 18, United States Code,
provides:
§ 666. Theft or bribery concerning programs re-
ceiving Federal funds
(a) Whoever, if the circumstance described in sub-
section (b) of this section exists—
(1) being an agent of an organization, or of a
State, local, or Indian tribal government, or any
agency thereof—
(A) embezzles, steals, obtains by fraud, or
otherwise without authority knowingly converts
to the use of any person other than the rightful
(la)
2a
owner or intentionally misapplies, property
that—
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, cus-
tody, or control of such organization, govern-
ment, or agency; or
(B) corruptly solicits or demands for the bene-
fit 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 in-
volving anything of value of $5,000 or more; or
(2) corruptly gives, offers, or agrees to give any-
thing of value to any person, with intent to influence
or reward an agent of an organization or of a State,
local or Indian tribal government, or any agency
thereof, in connection with any business, transac-
tion, or series of transactions of such organization,
government, or agency involving anything of value
of $5,000 or more;
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 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.
3a
(d) As used in this section—
(1) the term “agent” means a person authorized
to act on behalf of another person or a government
and, in the case of an organization or government,
includes a servant or employee, and a partner, direc-
tor, officer, manager, and representative;
(2) the term “government agency” means a sub-
division of the executive, legislative, judicial, or
other branch of government, including a depart-
ment, independent establishment, commission, ad-
ministration, authority, board, and bureau, and a
corporation or other legal entity established, and
subject to control, by a government or governments
for the execution of a governmental or inter-
governmental program;
(3) the term “local” means of or pertaining to a
political subdivision within a State;
(4) the term “State” includes a State of the
United States, the District of Columbia, and any
commonwealth, territory, or possession of the
United States; and
(5) the term “in any one-year period” means 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.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.