Opposition Brief — Pugh v. United States

Oo 2.

Nos. 10-516, 10-528 and

Jn the Supreme Court of the Anited States

BOBBY J. RAST, DANIEL B. RAST, AND

RAST CONSTRUCTION, INC., PETITIONERS

Vv.

UNITED STATES OF AMERICA

GRADY ROLAND PUGH, SR., AND

ROLAND PUGH CONSTRUCTION, INC., PETITIONERS

Vv.

UNITED STATES OF AMERICA

JEWELL C. “CHRIS” MCNAIR, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

CHRISTINE A. VARNEY

Assistant Altorney General

JOHN J. POWERS, III

JOHN P. FONTE

JAMES J. FREDRICKS

WILLIAM D. DILLON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

a

QUESTIONS PRESENTED

1. Whether the federal-funds corruption statute, 18

U.S.C. 666, requires proof that a specific payment was

solicited, received, or given in exchange for a specific

official act.

2. Whether the court of appeals correctly concluded

that petitioners faiied to establish either that any false

testimony was presented at trial or that the prosecutor

knew that any testimony was false.

TABLE OF CONTENTS

Page

A Se SO eee he Z

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SE ee aig ot) StS 51 Baar etait aera ee 2

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TABLE OF AUTHORITIES

Cases:

Sabri v. United States, 541 U.S. 600 (2004) .. 2.00.00... 14

Salinas v. United States, 522 U.S. 52 (1997) ........... 14

Skilling v. United States, 130 S. Ct. 2896 (2010) .. 0.2... 14

United States v. Abbey, 560 F.3d 513 (6th Cir.),

cert. denied, 130 8. Ct. 739 (2009) ............. 9,13, 15

United States v. Agostino, 132 F.3d 1183 (7th Cir.

1997), cert. denied, 523 U.S. 1079 (1998) .. 2.2 000000.. 8)

United States v. Ford, 435 F.3d 204 (2d Cir. 2006) ... 15, 17

United States v. Ganim, 510 F.3d 134 (2d Cir. 2007),

cert. denied, 552 U.S. 1318 (2008) ... 10, 11, 13, 14, 15, 16

United States v. Gee, 482 F.3d'713 (7th Cir. 2005),

cert. denied, 547 U.S. 1113 (2006) ................ 9,15

United States v. Griffin, 154 F.3d 762 (&th Cir. 1998) ... 16

United States v. Jennings, 160 F.3d 1006 (4th Cir.

Re pag Sire etal ge, sions ee Scere pen 10, 15, 16, 18

United States v. Kemp, 500 F.3d 257 (3d Cir. 2007),

cert. denied, 552 U.S. 1223 (2008) ............... 15, 16

United States v. Kincaid-Chauncey, 556 F.3d 923

(9th Cir.), cert. denied, 1380S. Ct. 795 (2009) ... 15, 16, 18

United States v. Lopez-EKscobar, 920 F.2d 1241

A, AR gn er ee gee 18

lV

Cases—Continued: Page

United States v. Mariano, 983 F.2d 1150 (ist Cir.

Us) Be 18

United States v. Sawyer, 85 F.3d 713 (st Cir.

1996) ..s <a Re RK so sc055.0.. 15, 16

United States v. Sun-Diamond Growers of Cal.,

526 US. Sa te ee ecco se.... 10, 12, 18

United States v. US Infrastructure, Inc., 576 U.S.

1195 (11th Cir. 2009), cert. denied, 1380S. Ct. 1918

(2ZO1O) . . . cea IE Rae ave see e eee. 9

United States v. Whitfield, 590 F.3d 325 (5th Cir.

2009), cert. denied, 131 S. Ct. 124, 1381S. Ct. 1354,

and 13] SS. (oe, eee ahs cece eee eee. 14

Statutes and rules:

18 U.S.C. 2a ww... 10

18 U.S.C. Bate ee ease ess. cae, Le

18 U.S.C. See ee seca. ........ 12

18 U.S.C. Bae ee cas s........ 10

18 U.S.C. 270 ........... 2,8

18 U.S.C, GR oie eee sans... passim

18 U.S.C. GRR acces n........ 2,7,9

18 U.S.C, GRR ees ss x. ..,.. iz, i7

18 U.S.C. GE re css. .s.... 12, 17

18 U.S.C. Tae ws .......... 8

18 U.S.C. 1G ee ws... 13

18 U.S.C. Sea ee... 5... 8

Fed. R. (rhe eee. ww... 18

Sup. Ct, Ro ae ke ee... 3

Jn the Supreme Court of the GAnited States

No. 10-516

BOBBY J. RAST, DANIEL B. RAST, AND

RAST CONSTRUCTION, INC., PETITIONERS

v.

UNITED STATES OF AMERICA

No. 10-528

GRADY ROLAND PUGH, SR., AND

ROLAND PUGH CONSTRUCTION, INC., PETITIONERS

v.

UNITED STATES OF AMERICA

No. 10-533

JEWELL C. “CHRIS” MCNAIR, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-186)

is reported at 605 F.3d 1152.'

JURISDICTION

The judgment of the court of appeals was entered on

May 12, 2010. Petitions for rehearing were denied on

July 20, 2010 (Pet. App. 196-197). The petition for a writ

of certiorari in No. 10-516 was filed on October 14, 2010,

and the petitions for a writ of certiorari in Nos. 10-528

and 10-533 were filed on October 18, 2010. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following four separate jury trials in the United

States District Court for the Northern District of Ala-

bama, petitioners were convicted on multiple counts of

bribery concerning a program receiving federal funds,

in violation of 18 U.S.C. 666(a), conspiracy to commit

bribery, in violation of 18 U.S.C. 371, and related of-

fenses. Following a guilty plea ina fifth case, petitioner

McNair was also convicted on one additional count of

conspiracy to commit bribery. Petitioner Bobby Rast

was sentenced to 51 months of imprisonment, to be fol-

lowed by three years of supervised release, and was

fined $2.5 million and ordered to pay restitution. Peti-

tioner Danny Rast was sentenced to 41 months of im-

prisonment, to be followed by three years of supervised

release, and was fined $1 million and ordered to pay res-

titution. Petitioner Rast Construction, Ine. (Rast)

was sentenced to 60 months of probation, was fined

$1,702,500, and was ordered to pay restitution. Peti-

' Unless otherwise specified, all references to “Pet.” and “Pet. App.”

are to the petition and appendix in No. 10-516.

9»

°o

tioner Grady Roland Pugh, Sr. (Roland Pugh) was sen-

tenced to 45 months imprisonment, to be followed by two

years of supervised release, and was fined $250,000.

Petitioner Roland Pugh Construction, Inc. (Pugh) was

sentenced te 60 months of probation, was fined $19.4

million, and was ordered to pay restitution. Petitioner

MeNair was sentenced to 60 months of imprisonment, to

be followed by two years of supervised release, and was

ordered to pay restitution. F.W. Dougherty Engineer-

ing & Associates, Inc. (FWDE) was sentenced to 60

months of probation, was fined $3,830,760, and was or-

dered to pay restitution; its principal Floyd “Pat”

Dougherty was sentenced to 51 months of imprisonment,

to be followed by three years of supervised release, and

was fined $750,000 and ordered to pay restitution.” The

court of appeals reversed one of Pugh’s convictions and

remanded for resentencing, but it affirmed in all other

relevant respects. Pet. App. 1-186.

1. a. In 1996, MeNair—one of five elected commis-

sioners in Jefferson County, Alabama—was responsible

for overseeing the Jefferson County Environmental Ser-

vices Department (JCESD), which at that time began a

$3 billion repair and rehabilitation of the county’s sewer

system. Pet. App. 3-4, 12-14. While most of the sewer

construction contracts were awarded through a bidding

process, MeNair had to approve the contractors’ pay

requests, any change orders or contract modifications,

and no-bid emergency work. /d. at 11-12. MeNair also

selected consulting engineers who were hired under no-

bid contracts. /d. at 14.

* Although the Dougherty defendants did not file a petition for a writ

of certiorari, they filed a letter with this Court requesting status as

persons entitled to relief under Rule 12.6 should the Court grant the pe-

titions that were filed.

4

MecNair owned a photography studio and undertook

a major renovation and expansion of it not long after the

sewer project began. During the sewer project, McNair

approved hundreds of millions of dollars in payments to

the Pugh, Rast, and Dougherty defendants, approved

millions of dollars in change orders benefitting Pugh and

Rast, and approved millions of dollars of no-bid engi-

neering contracts to FWDE, while those defendants

contributed materials, labor, and cash to his studio’s

renovation. Pet. App. 11-16. For example, FWDE pro-

vided one of its employees as a full-time “construction

superintendent” to oversee construction on the studio by

numerous contractors including Pugh and Rast. The

$74,240 that FWDE paid the employee for supervising

studio construction was recorded on FWDE’s books as

administration or JCESD sewer-project expenses. /d.

at 17. Similarly, Pugh provided the concrete and labor

to build the walls for the studio, and it paid four of its

employees over $11,000 for the work. /bid.; see id. at

19-20 (Pugh provided steei for the studio and sent a bill,

which FWDE approved, to JCESD).

At McNair’s request, Grady Pugh—Roland Pugh’s

son and, at the time, the CEO and a co-owner of Pugh—

flew MeNair’s daughter to Georgia in the company’s

airplane and paid a deposit for carpet for his studio.

Pet. App. 20. Pugh treated the payment as an expense

on one of its JCESD sewer contracts. /bid. McNair

also asked Roland Pugh to pay for the studio’s $40,000

heating and air-conditioning system, and Roland had his

son Grady Pugh deliver an envelope containing cash to

MeNair. /d. at 21 n.13. On at least one other occasion,

Grady delivered a cash-filled envelope to McNair at

Roland Pugh’s direction in response to a McNair solici-

D

tation. /b¢d. Roland explained to his son that “this [is]

how we do business.” 1/10/2007 Tr. 713.

Shortly after McNair’s retirement in 2001, Roland

Pugh told Grady that McNair had asked him to build

MeNair a retirement home in Arkansas. Pet. App. 24.

Roland explained, “surely this is the last time we’ll have

to do anything for him since he’s out of office.” J/bid.

Later that year, Pugh paid an Arkansas contractor more

than $44,000, and FWDE paid that contractor $50,000,

toward the construction of McNair’s retirement home.

Id. at 24 & n.15. The suspicious circumstances under

which Dougherty had his bookkeeper write the contrac-

tor’s check caused the bookkeeper to keep a copy of the

paperwork at home. When FWDE was later subpoe-

naed for those documents, the bookkeeper’s copy was

the only one available. /bid.

b. At about the same time that McNair decided to

renovate and expand his studio, JCESD Director Jack

Swann decided to renovate and expand his house.

Swann received hundreds of thousands of dollars in the

form of labor and materials for his renovation project

from the contractors that he oversaw. Pet. App. 33-34.

During that period, the contractors received significant

benefits from Swann. Swann recommended engineering

firms, like FWDE, to MeNair and negotiated their no-

bid contracts. /d. at 31-32. Swann also approved pay-

ments and granted extensions of time and field direc-

tives, which authorized changes or additional work. For

example, in March 2000 Pugh requested a 120-day ex-

tension on one of its contracts to avoid a $1000 per day

liquidated-damages clause. Swann denied the request.

Subsequently, nearly a month after the contract’s com-

pletion date, Pugh renewed its request, this time for a

180-day extension. Five days after Pugh hired a con-

6

tractor to landscape Swann’s property, Swann granted

the request. /d. at 32; see also zd. at 32-35 (Swann re-

lieved Rast from its peformance bond, netting Rast mil-

lions of dollars, and Rast performed over $54,000 in con-

struction work at Swann’s house).

After the government’s investigation became public,

Bobby Rast told his bookkeeper they “didn’t need” any

invoices in their files with either MeNair’s or Swann’s

address on them. The bookkeeper thereafter discarded

several such invoices. Pet. App. 19. Rast also amended

several years of tax returns to delete more than

$140,000 in payments it made for the McNair and Swann

renovations that it originally had deducted as sewer pro-

ject expenses. /d. at 18. Similarly, after hearing of the

investigation and to account for its landscaping pay-

ments, Pugh sent a $12,572 invoice to Swann’s mother-

in-law for tree removal and remolding work. /d. at 37.

e. McNair and Swann’s subordinates included

JCESD’s Chief Civil Engineer Ronald Wilson, Assistant

Director Harry Chandler and Engineer Donald Ellis.

Those officials approved the contractors’ payments and

authorized field directives and were also members of a

committee that set technical standards for the sewer

project. Pet. App. 13, 43.

The Pugh, Rast, and Dougherty defendants gave

goods, labor, and cash to Chandler and Ellis. Pet. App.

25. Pugh provided crews and paid for the materials for

extensive landscaping at Chandler’s home. /bid. Pugh’s

president also paid for a condo rental for the Chandler

family’s vacation at a Florida resort, while FWDE gave

Chandler tickets to Disney World. /d. at 25-26. And

Bobby Rast gave Chandler $5000 in cash to split with

Ellis. /d. at 26.

7

In mid-1999, Wilson told Grady Pugh that he might

not be able to afford his son’s upcoming college semes-

ter, which prompted Grady to offer a “scholarship” for

Wilson’s son. Pet. App. 45. In July 1999, Pugh submit-

ted a request for an extension of time on a contract with

a past-due completion date of May 11, 1999. That re-

quest sat on Wilson’s desk for nearly a month, until Wil-

son faxed Grady a letter explaining how Grady should

credit $4500 to Wilson’s son’s college account. Three

days later, Wilson approved Pugh’s extension request;

Pugh sent a $4500 check to the college the next day. /d.

at 43.

d. Clarence Barber, JCESD’s construction mainte-

nance supervisor, oversaw the county’s 26 inspectors

and administered “emergency” sewer work—jobs that

needed immediate attention and that were awarded on

a no-bid basis. Pet. App. 13-14, 48. In January 2000,

Barber decided to replace a set of sewer pipes on an

emergency basis instead of repairing them. Eventually,

Pugh was awarded an $857,000 no-bid contract on which

it made a 50% profit. /d. at 49. Later that spring, Bar-

ber asked Pugh’s president, Eddie Yessick, to buy him

a lot on which he could build a retirement home. Yessick

eventually put a down payment on a $47,500 lot in the

name of Roland Pugh. Before closing, however, Yessick

was told to close the transaction in Barber’s name, not

Roland’s, and to get back from the realtor all documents

referring to Pugh. Pugh thereafter gave Barber a cash-

ier’s check for $46,877 on which the “name of remitter”

line was left blank. /d. at 50.

2. A grand jury in the Northern District of Alabama

returned a 127-count indictment charging 16 defendants

with bribery concerning a program receiving federal

funds, in violation of 18 U.S.C. 666(a), conspiracy to

8

commit bribery, in violation of 18 U.S.C. 371, honest-

services mail fraud, in violation of 18 U.S.C. 1341 and

1346, and obstruction of justice, in violation of 18 U.S.C.

1503. The indictment was severed into five separate

cases for trial, and McNair entered a conditional plea of

guilty to one count of conspiracy to accept a bribe. Pet.

App. 7-9.

At the various trials, petitioners, for the most part,

did not dispute that they gave the things of value

charged in the indictment. Pet. App. 26-27. Rather,

they argued that they gave those things only out of

friendship and therefore lacked corrupt intent. /d. at

27, 38. They also argued that 18 U.S.C. 666 requires

proof of a specific quid pro quo, that is, proof that a spe-

cific payment was solicited, received, or given in ex-

change for a specific official act. They argued that the

indictment was deficient for failing to allege any specific

quid pro quo and that the courts were required to

charge the juries that the government had to prove a

specific guid pro quo. Pet. App. 27, 52; see zd. at 71 n.46.

In the first of petitioners’ cases to be tried, the dis-

trict court concluded that Section 666 does not require

a specific guid pro quo and refused to give petitioners’

proposed instructions. It did, however, instruct the jury

that the statute “does not prohibit all gifts by or to a

public official, * * * but only gifts received with the

corrupt intent to be influenced or rewarded * * * in

connection with a business or transaction or series of

transactions of that governmental entity involving

$5,000 or more.” Pet. App. 76. In the subsequent cases,

the courts gave similar instructions. /d. at 71-76 & n.52.

The juries found petitioners guilty on multiple counts.

3. Nine separate defendants in four of the trials

filed a total of 15 appeals, which the court of appeals

)

consolidated.* The court reversed one of Pugh’s conspir-

acy convictions on the basis of the statute of limitations,

and it remanded for resentencing. It also vacated the

fine imposed on Swann and remanded for reconsidera-

tion of the amount of the fine. In all other respects, the

court of appeals affirmed. Pet. App. 1-186.

The court of appeals held that the district courts had

not erred in refusing to instruct the jury that it was re-

quired to find that a specific payment was solicited, re-

ceived, or given in exchange for a specific official act.

The court noted that Section 666 contains neither the

term quid pro quo nor similar “language such as ‘in ex-

change for an official act’ or ‘in return for an official

act.’”” Pet. App. 59. Instead, the court observed, the

statute requires, for the county employees, that the de-

fendant “‘corruptly’ accepted ‘anything of value’ with

the intent ‘to be influenced or rewarded in connection

with any business, transaction, or series of transactions’

of the County,” and for the contractors, “that the defen-

dant ‘corruptly’ gave ‘anything of value’ to a County em-

ployee with the intent ‘to influence or reward’ that per-

son ‘in connection with any business, transaction, or se-

ries of transactions’ of the County.” /d. at 60-61 (quot-

ing 18 U.S.C. 666(a)).

The court of appeals noted that its interpretation of

the statute was consistent with the Sixth Circuit’s deci-

sion in United States v. Abbey, 560 F.3d 513, 520, cert.

denied, 130 S. Ct. 739 (2009), and the Seventh Circuit’s

decisions in United States v. Gee, 432 F.3d 713, 714-715

(2005), cert. denied, 547 U.S. 1113 (2006), and United

States v. Agostino, 132 F.3d 1183, 1189-1190 (1997), cert.

* The convictions from the fifth trial were separately appealed.

United States v. US Infrastructure, Inc. ,576 F.3d 1195 (11th Cir. 2009),

cert. denied, 130 S. Ct. 1918 (2010).

10

denied, 523 U.S. 1079 (1998). Pet. App. 62-63. The court

also found support in the Second Circuit’s decision in

United States v. Ganim, 510 F.3d 134, 142, 147 (2007)

(Sotomayor, J.), cert. denied, 552 U.S. 1313 (2008),

which concluded that Section 666 prohibits covered state

and local officials from corruptly accepting things of

value with the intent of performing official acts “as the

opportunities arise.” Pet. App. 63-64. The court noted

that the Fourth Circuit has construed the statute to re-

quire a “course of conduct of favors and gifts flowing to

a public official in exchange for a pattern of official ac-

tions favorable to the donor,” id. at 63 (quoting United

States v. Jennings, 160 F.3d 1006, 1014 (1998)) but it

explained that, even under that standard, “the evidence

here was sufficient, and thus any jury charge error was

harmless,” zd. at 85 n.59.

The court of appeals rejected petitioners’ suggestion

that this Court’s decision in United States v. Sun-

Diamond Growers of California, 526 U.S. 398 (1999),

requires a contrary result. In Sun-Diamond, this Court

interpreted the illegal-gratuities provision of 18 U.S.C.

201, which prohibits gratuities given or received “for or

because of any official act performed or to be per-

formed.” 18 U.S.C. 201(c). The Court held that the stat-

ute required “that some particular official act be identi-

fied and proved.” 526 U.S. at 406. The court of appeals

recognized that the Court had contrasted Section 201(c)

with 18 U.S.C. 201(b), a bribery provision that the Court

described as requiring a quid pro quo. Pet. App. 67

(quoting Sun-Diamond, 526 U.S. at 404). But it noted

that “there are significant differences in the text of”

Sections 201 and 666. /d. at 65. The court thus agreed

with the Second Circuit’s conclusion that there is no

“principled reason to extend Sun-Diamond’s holding

L1

beyond the illegal gratuity context.” /d. at 69 (quoting

Ganim, 510 F.3d at 146).

Finally, the court of appeals rejected the claim that

the prosecutor knowingly used false testimony to secure

Roland Pugh’s conviction. The court concluded that pe-

titioners had failed to show that any testimony was false,

that the prosecutor knew it was false, or that any of the

alleged falsehoods were material. Pet. App. 107-120.

ARGUMENT

Petitioners contend (Pet. 21-32; 10-533 Pet. 17;

10-528 Pet. 18-20) that the district courts erred in failing

to instruct the juries that petitioners could not be con-

victed of bribery under the federal-funds corruption

statute, 18 U.S.C. 666, unless, at the time money or

other things of value changed hands, they had already

identified the specific official action or actions they cor-

ruptly intended to influence or to be influenced in. Peti-

tioner Roland Pugh also argues (10-528 Pet. 21-24) that

the prosecutor knowingly presented false testimony at

his trial. The court of appeals correctly rejected those

claims, and further review is not warranted.

1. Petitioners argue (Pet. 21-32; 10-533 Pet. 17;

10-528 Pet. 18-20) that a conviction under Section 666

requires the government to prove a “specific” quid pro

quo—that is, that a specific thing of value was solicited,

received, or given in exchange for an identifiable official

act. That argument lacks merit.

Section 666 makes it unlawful for an agent of a local

government receiving federal funds to “corruptly so-

licitt] or demand[|] * * * or accept|| or agree[] to ac-

cept, anything of value from any person, intending to

be influenced or rewarded in connection with any busi-

ness, transaction, or series of transactions” of the

12

local government involving $5000 or more. 18 U.S.C.

666(a)(1)(B). It also makes it unlawful to “corruptly

give] ], offer[], or agree | to give anything of value to any

person, with intent to influence or reward” such an

agent “in connection with any business, transaction, or

series of transactions” of the local government involving

$5000 or more. 18 U.S.C. 666(a)(2). The court of ap-

peals correctly concluded that nothing in Section 666

“requires that a specific payment be solicited, received,

or given in exchange for a specific official act.” Pet.

App. 59. If the rule were otherwise, the court observed,

a corrupt contractor could “pay a significant sum to a

County employee intending the payment to produce a

future, as yet unidentified favor without violating” the

statute. /bid.

a. Petitioners assert (Pet. 7-8; 10-5383 Pet. 14-17;

10-528 Pet. 18-21) that the decision below is inconsistent

with United States v. Sun-Diamond Growers of Califor-

nia, 526 U.S. 398 (1999), but that is incorrect. In Sun-

Diamond, this Court interpreted the illegal-gratuity

statute, 18 U.S.C. 201(¢)(1)(A), which prohibits “giv[ing]

* * * anything of value to any public official * * * for

or because of any official act performed or to be per-

formed by such public official.” In concluding that Sec-

tion 201(c) requires an illegal gratuity to be connected to

“some particular official act,” rather than to be given

solely because of the recipient’s official position, the

Court emphasized that a contrary interpretation would

cause “peculiar results,” such as criminalizing “token

gifts to the President based on his official position and

not linked to any identifiable act.” 526 U.S. at 406.

As the Court emphasized in Sun-Diamond, however,

bribery statutes contain a mens rea different from that

of the gratuity statute, requiring a corrupt intent to in-

13

fluence or to be influenced. 526 U.S. at 404. Because

Section 666 requires proof of a “corrupt” intent, the

court of appeals correctly observed that its interpreta-

tion of that provision, unlike the interpretation of Sec-

tion 201 rejected in Sun-Diamond, would not eriminalize

“acceptable business practices.” Pet. App. 60; see zd. aft

68-69. Accordingly, no “principled reason” exists to ex-

tend Sun-Diamond “beyond the gratuity context” and

apply it to Section 666. United States v. Ganim, 510

F.3d 134, 146-147 (2d Cir. 2007) (Sotomayor, J.), cert.

denied, 552 U.S. 1313 (2008); accord United States v.

Abbey, 560 F.3d 513, 521 (6th Cir.), cert. denied, 130

S. Ct. 739 (2009).

Nor does the Sun-Diamond Court’s discussion of

quid pro quo cast doubt on the reasoning of the court

below. In Sun-Diamond, the Court noted that the brib-

ery provisions in Section 201 require an “intent ‘to influ-

ence’ an official act or ‘to be influenced’ in an official

act,” in other words, a “quid pro quo—a specific intent

to give or receive something of value in exchange for an

official act.” 526 U.S. at 404-405. Petitioners seize on

that language to argue that bribery under any statute

requires a specific quid pro quo. Pet. 12 (“Sun-

Diamond * * * expressly defined ‘bribery’ for pur-

poses of Federal criminal law.”); 10-528 Pet. 18-20;

10-533 Pet. 16-17. But Sun-Diamond did not involve,

and thus did not address, the question whether bribery

can be established by an intent to exchange something

of value for official acts, even where the official acts to

be undertaken have not yet been determined. And this

Court has not required a specific guzd pro quo, as sug-

gested by petitioners, in the context of other bribery

statutes. For example, in defining bribery for purposes

of 18 U.S.C. 1346, the Court has cited with approval de-

14

cisions upholding convictions in cases where bribes were

given in exchange for a stream of future benefits, even

though the specific official acts to be performed had not

been identified at the time the bribes were given. See

Skilling v. United States, 130 8. Ct. 2896, 2934 (2010)

(citing Ganim, 510 F.3d at 147-149, and United States v.

Whitfield, 590 F.3d 325, 352-353 (5th Cir. 2009), cert.

denied, 131 S. Ct. 124, 181 S. Ct. 1384, and 131 S. Ct. 136

(2010)).

Petitioners are therefore asking this Court to adopt

a narrowing construction of Section 666 that lacks sup-

port in Sun-Diamond or any language in the statute.

This Court has previously declined to place such non-

textual limits on Section 666. For example, in Salinas v.

United States, 522 U.S. 52 (1997), the Court concluded

that “(t]he enactment’s expansive, unqualified language,

both as to the bribes forbidden and the entities cov-

ered,” and especially “[t]he word ‘any,’ which prefaces

the business or transaction clause, undercuts the at-

tempt to impose [petitioner’s] narrowing construction”

that would have limited Section 666 bribes to only those

affecting federal funds. /d. at 56-57. Likewise, in Sabri

v. United States, 541 U.S. 600 (2004), the Court ob-

served that Congress chose to protect the funds it dis-

burses to state and local government agencies by ensur-

ing “the integrity of the state, local, and tribal recipients

of federal dollars.” /d. at 605. The Court explained that

“bribed officials are untrustworthy stewards of federal

funds,” noting that “officials are not any the less threat-

ening to the objects behind federal spending just be-

cause they may accept general retainers.” /d. at 606. If

this Court were to impose a specific-official-act require-

ment on Section 666, such “general retainers” are pre-

cisely what the statute would allow.

15

b. The courts of appeals have uniformly upheld con-

victions under Section 666 in cases involving an intent to

exchange something of value for official acts, even where

the official acts to be undertaken have not been deter-

mined with precision. See United States v. Sawyer, 85

F.3d 713, 730 (1st Cir. 1996); Ganim, 510 F.3d at 141-

142; United States v. Kemp, 500 F.3d 257, 282 (3d Cir.

2007), cert. denied, 552 U.S. 1223 (2008); United States

v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998); Abbey,

560 F.3d at 519; United States v. Gee, 432 F.3d 713, 714-

715 (7th Cir. 2005), cert. denied, 547 U.S. 1113 (2006);

United States v. Kincatid-Chauncey, 556 F.3d 923, 943

& n.l5 (9th Cir.), cert. denied, 1380 S. Ct. 795 (2009).

Like the court of appeals in this case, other courts of

appeals have concluded that the intent—or quid pro

quo—element is exactly what the express language of

the statute says: a corrupt intent to influence or reward

a government employee in connection with any business

or transaction of the government agency. See, e.g., Ab-

bey, 560 F.3d at 521; United States v. Ford, 435 F.3d

204, 213 (2d Cir. 2006). As the Seventh Circuit has ex-

plained, “[a] quzd pro quo of money for a specific legisla-

tive act is sufficient to violate [Section 666], but it is not

necessary. It is enough if someone ‘corruptly solicits

* * * anything of value from any person, intending to

be influenced or rewarded in connection with any busi-

ness.’” Gee, 432 F.3d at 714-715.

Contrary to petitioners’ assertion (Pet. 21-25; 10-533

Pet. 17-18), the decision below does not conflict with the

Second Circuit’s decision in Ganim or the Fourth Cir-

cuit’s decision in Jennings. As the court of appeals cor-

rectly noted, both cases approved a retainer, or stream-

of-benefits, theory of liability that is consistent with

both the holding and evidence in this case. Pet. App. 63-

16

65, 84-85 n.59. Thus, in Ganim, the court concluded that

in order to prevent “legaliz|ing] some of the most perva-

sive and entrenched corruption,” a jury “need not find

that the specific act to be performed was identified at

the time of the promise.” 510 F.3d at 147. Rather, it

held, Section 666 must be interpreted to reach “a

scheme involving payments at regular intervals in ex-

change for specific officials acts as the opportunities to

commit those acts arise.” /bid. The Jennings court

similarly concluded that Section 666 reaches “payments

* * * made with the intent to retain the official’s ser-

vices on an ‘as needed’ basis, so that whenever the op-

portunity presents itself the official will take specific

action on the payor’s behalf.” 160 F.3d at 1014. Accord

Kincaid-Chauncey, 556 F.3d at 943 n.15 (“It is sufficient

* * * if the evidence establishes that the government

official has been put on ‘retainer.’”); Kemp, 500 F.3d at.

281-282; Sawyer 85 F.3d at 730."

In any event, this case would be a poor vehicle for

resolving any alleged conflict over the intent element of

Section 666 because, as the court of appeals noted, the

overwhelming evidence at the trials was sufficient to

uphold the convictions under the approaches taken by

other circuits, and thus any error in the jury instruc-

tions was harmless. Pet. App. 84-85 n.59. Accordingly,

resolution of the supposed conflict would not affect the

ultimate outcome of this case.

* Petitioners err in suggesting (Pet. 25-27, 10-528 Pet. 16-17) that

the decision below conflicts with United States v. Griffin, 154 F.3d 762

(8th Cir. 1998), and United States v. Mariano, 983 F.2d 1150 (ist Cir.

1993). Those cases involved application of the Sentencing Guidelines

provisions concerning bribes and illegal gratuities; the courts had no

occasion to consider the elements of an offense under Section 666.

17

2. McNair contends (10-533 Pet. 18) that, “although

ostensibly holding only that no specifte quid pro quo

need be found for a conviction under § 666, the Eleventh

Circuit actually held that no quid pro quo need be shown

for a conviction under § 666.” That is incorrect. The

court of appeals “expressly [held] there is no require-

ment in § 666(a)(1)(B) or (a)(2) that the government al-

lege or prove an intent that a specific payment was solic-

ited, received, or given in exchange for a specific official

act.” Pet. App. 60 (emphasis added). That is the sense

in which the court rejected a quid pro quo requirement.

It instead aligned itself with courts that permit the quo

to be satisfied by “an unidentified, official act at some

point in the future.” /d. at 65.° While the Eleventh Cir-

cuit did not adopt the term quid pro quo, its holding

comports with decisions of other courts of appeals that

“use the term quid pro quo to describe an exchange

other than a particular item of value for a particular ac-

tion,” 2b7d., and that describe an intent to be influenced

as a quid pro quo. See Ford, 435 F.3d at 213 (explaining

that the requirement of “acceptling| the thing of value

while ‘intending to be influenced’” constitutes “a quid-

° As the court explained:

|N Jothing in the plain language of § 666(a)(1)(B) nor § 666(a)(2) re-

quires that a specific payment be solicited, received, or given in ex-

change for a specific official act. To accept the defendants’ argument

would permit a person to pay a significant sum to a County employee

intending the payment to produce a future, as yet unidentified favor

without violating § 666.

Pet. App. 59. The court repeatedly referred to its holding as a rejection

of any requirement of a “specific” guid pro quo, summarizing its hold

ing as “[slimply put, the government is not required to tie or directly

link a benefit or payment to a specific official act by that County em-

ployee.” Jd. at 61.

18

pro-quo”); Kincaid-Chauncey, 556 F.3d at 944-945 (con-

cluding that in the jury instruction in an honest-

services-fraud case based on bribery, the words “{iJf

* * * the official accepts something of value with an

intent to be influenced” contain “an implicit quid pro

quo”).°

Because the court of appeals merely rejected petition-

ers’ argument that Section 666 requires proof of a spe-

cific guid pro quo, McNair’s claims that Section 666 is

void for vagueness (10-533 Pet. 24-26) and that the jury

charges that were patterned on the language of Section

666 were erroneous (10-533 Pet. 26-27), are incorrect.’

No court has declared Section 666 void for vagueness or

disapproved of jury instructions that track the statute’s

* Petitioners’ complaints about the court’s definition of the term

“corruptly” (Pet. 35, 10-533 Pet. 35) overlook that the court’s definition

was virtually identical to every definition offered in defendants’ pro-

posed jury instructions. Compare, e.g., Pet. App. 73 (quoting definition

of “corruptly” given by the district court), with 10-528 Pet. 13 (quoting

Pugh’s proposed definition of “corruptly”). Petitioners cannot chal-

lenge a jury instruction that is consistent with their own proposal. Fed.

R. Crim. P. 52(b); see United States v. Lopez-E'scobar, 920 F.2d 1241,

1246 (Sth Cir. 1991) (“A party cannot complain on appeal of errors

which he himself induced the district court to commit.”). Additionally,

petitioners’ claim (10-533 Pet. 36) that “[tJhe jury charge held to be

plain error in Jennings was essentially identical to the one given by the

trial court in this case,” is incorrect. In Jennings, the jury instruction

conflated “corruptly” with “intent to influence” by charging that “the

government must prove * * * that [Jennings] did so corruptly, that

is, with the intent to influence or reward,” which erroneously “suggest-

[ed] that § 666 prohibits any payment made with a generalized desire

to influence or reward (such as a goodwill gift).” 160 F.3d at 1019-1020

(brackets in original). Here, the district courts made no such error.

" The court of appeals did not address McNair’s argument that the

Due Process Clause compels his construction of Section 666 (10-533 Pet.

24-28) because MeNair did not make that argument below.

19

language. McNair’s argument is based wholly on his er-

roneous view (10-533 Pet. 18-19, 22) that the court of ap-

peals held that Section 666 does not require proof of any

quid pro quo at all.

3. Roland Pugh argues (10-528 Pet. 21-24) that the

government knowingly introduced false testimony at his

trial by presenting the testimony of his son Grady to the

effect that certain cash payments were made before the

statute of limitations expired. The court of appeals de-

termined that Roland Pugh had failed to show that the

“testimony was actually false, much less that the govern-

ment knew it was false.” Pet. App. 116. Petitioner

makes no effort to show that the court of appeals applied

an incorrect legal standard, and his factbound challenge

to its assessment of the record does not warrant this

Court’s review. And because there was no false testi-

mony in this case, the court’s conclusions that the “un-

corrected, allegedly perjurious statements do not under-

mine confidence in the verdict” and that there was no

“reasonable likelihood that correction” of the supposed

falsehoods “could have changed the jury’s evaluation of

[the] overall credibility” of a government witness are

similarly unworthy of review. 7d. at 118, 120 (internal

quotation marks omitted).

20)

CONCLUSION

The petitions for a writ of certiorari should be de-

nied.

Respectfully submitted.

NEAL KUMAR KATYAI

Acting Solicitor General

CHRISTINE A. VARNEY

Assistant Attorney General

JOHN J. POWERS, III

JOHN P. FONTE

JAMES J. FREDRICKS

WILLIAM ID. DILLON

Attorneus

FEBRUARY 2011