87 F.4th 164
2d Cir.2023Background
- Stephen Calk was CEO and principal shareholder of The Federal Savings Bank (TFSB); Paul Manafort sought multiple loans from TFSB in 2016–2017 totaling about $16 million.
- Around the same time Calk repeatedly sought appointments in the Trump Campaign/Administration and repeatedly solicited Manafort’s assistance (resumes, position lists, interviews).
- Calk intervened to secure or expand Manafort’s loans (California, Summerbreeze, Union Street), including novel funding steps by the Holding Company to comply with lending limits.
- Manafort recommended Calk to transition officials; Calk interviewed with the Presidential Transition Team in January 2017 but was not appointed.
- Calk was indicted under 18 U.S.C. § 215(a)(2) (financial institution bribery) and § 371 (conspiracy), convicted by a jury, sentenced, and appealed raising statutory-interpretation, evidentiary, jury-instruction, and grand-jury subpoena challenges.
- The Second Circuit affirmed: it construed “corruptly” to require an improper purpose (not necessarily a duty breach), held that “anything of value” includes subjective intangibles (e.g., political assistance), found sufficient evidence the value exceeded $1,000, and upheld admission of testimony obtained after a grand-jury subpoena to a reluctant witness (Rigby).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “corruptly” under §215(a)(2) | Government: requires improper purpose (bad purpose to accomplish an unlawful end or lawful end by unlawful means). | Calk: must entail a breach of duty; conduct that benefits the bank or is partially motivated by proper purpose cannot be "corrupt." | Court: "Corruptly" means acting voluntarily and intentionally with an improper motive; no breach-of-duty required; mixed motives and actions that later benefit the bank do not preclude corruption. |
| Scope of “anything of value” | Government: broad — includes subjective/intangible benefits such as political assistance, endorsements, referrals. | Calk: must have objective market/pecuniary value; intangibles insufficient. | Court: "anything of value" is broad and covers subjective intangibles; value can be measured by value to parties, value of what it was exchanged for, or market value. |
| Proof that the “thing of value” exceeded $1,000 | Government: objective evidence of value can be inferred from parties’ conduct (e.g., loans approved, money risked, travel, willingness to trade millions of dollars of credit exposure). | Calk: travel expense and subjective benefits don’t prove monetary value > $1,000; insufficient evidence. | Court: Jury could assign monetary value using objective evidence of conduct (risking millions, novel funding, etc.); evidence was sufficient to find value > $1,000. |
| Use of grand-jury subpoena for Rigby and admissibility | Government: subpoena supported an ongoing investigation (conspiracy), legitimate use of grand jury; testimony admissible. | Calk: subpoena was dominantly trial preparation and therefore an improper use of the grand jury; Rigby’s testimony should be excluded. | Court: Government provided bona fide justifications; district court properly found subpoena not dominantly for trial prep; Rigby’s testimony admissible. |
Key Cases Cited
- United States v. Ng Lap Seng, 934 F.3d 110 (2d Cir. 2019) (interpreting “corruptly” in bribery contexts and rejecting duty‑breach requirement)
- United States v. McElroy, 910 F.2d 1016 (2d Cir. 1990) (definition of acting with a bad purpose)
- Yates v. United States, 574 U.S. 528 (2015) (words’ meanings must be drawn from statutory context)
- United States v. Williams, 705 F.2d 603 (2d Cir. 1983) ("anything of value" construed broadly to include intangibles)
- United States v. Ostrander, 999 F.2d 27 (2d Cir. 1993) (value may be subjective to recipient)
- United States v. Rosenthal, 9 F.3d 1016 (2d Cir. 1993) (critical inquiry is whether recipient believed item had value)
- United States v. Townsend, 630 F.3d 1003 (11th Cir. 2011) (establishing value of intangible by examining conduct of parties)
- United States v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996) (monetary value of intangible inferred from explicit payments/offers)
- United States v. Leung, 40 F.3d 577 (2d Cir. 1994) (grand jury may not be used predominantly for trial preparation; burden-shifting framework)
- United States v. Punn, 737 F.3d 1 (2d Cir. 2013) (application of standard limiting grand-jury subpoenas used for trial prep)
- In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26 (2d Cir. 1985) (timing and purpose factors in grand-jury subpoena review)
- Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury investigations are broad and investigative in nature)