999 F.3d 767
2d Cir.2021Background:
- Defendants Christian Dawkins and Merl Code were convicted under 18 U.S.C. § 666(a)(2) for bribing NCAA Division I assistant coaches to steer student‑athletes to particular agents/advisors.
- The scheme involved a sports‑management company (LOYD), payments by cooperating witnesses (Blazer, Sood) and an undercover FBI agent ("D’Angelo"), recordings of meetings and payments to coaches, and Las Vegas meetings where coaches were paid.
- The district court denied a pretrial motion to dismiss; a jury convicted Dawkins of conspiracy and substantive bribery and Code of conspiracy; other charges were acquittals or dismissed at trial.
- On appeal defendants argued (1) § 666(a)(2) requires a nexus between the targeted "agent" and the organization’s federal funds (agent must control or work in the federally funded program), (2) "business" must be commercial, (3) the statute is unconstitutionally vague as applied, and (4) various evidentiary and jury‑instruction errors required reversal.
- The Second Circuit affirmed: it held § 666(a)(2) does not require the agent to control or work in the particular federally funded program, "business" is not limited to commercial activity, and evidentiary/instructional rulings contained no reversible error (one erroneous false‑exculpatory instruction found harmless).
- Court emphasized statutory text and controlling Supreme Court precedent (Sabri, Salinas) rejecting an extratextual "nexus" requirement and upholding broad congressional purpose to protect integrity of federally funded entities.
Issues:
| Issue | Plaintiff's Argument (Govt) | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 666(a)(2) requires nexus between the agent and federal funds | No nexus needed; statute protects integrity of funded organizations broadly | Agent must control or be tied to the program receiving federal funds | Held: No nexus required; agent need not control federal funds or work in the specific federally funded program |
| Whether "business" in § 666(a)(2) is limited to commercial activity | "Business" is broad and includes noncommercial institutional functions | "Business" should be limited to commercial transactions for predictability | Held: "Business" includes noncommercial activities (e.g., operation/administration of athletic program) |
| Vagueness: whether § 666(a)(2) is unconstitutionally vague as applied | Statute’s text (including agent = employee) and purpose give fair notice; not vague | Statute fails to give ordinary people notice it criminalizes paying coaches to steer players; invites arbitrary enforcement | Held: Statute constitutional as applied; ordinary people would understand proscribed conduct; no undue arbitrariness |
| Evidentiary & jury‑instruction challenges (excluded witnesses/recordings; false‑exculpatory & other charges) | Most rulings legitimate; conscious avoidance instruction warranted; no reversible error | Many exclusions and some instructions (false exculpatory) were erroneous and prejudicial | Held: District court did not abuse discretion on evidentiary rulings; false‑exculpatory instruction was error but harmless; other instruction challenges fail |
Key Cases Cited
- Sabri v. United States, 541 U.S. 600 (2004) (rejects requirement that bribery directly affect federal funds; protects integrity of federally funded entities)
- Salinas v. United States, 522 U.S. 52 (1997) (held bribery adjacent provisions need not show particular influence on federal funds)
- Ng Lap Seng v. United States, 934 F.3d 110 (2d Cir. 2019) (statutory interpretation of § 666; follows Supreme Court precedent)
- United States v. Robinson, 663 F.3d 265 (7th Cir. 2011) (holds "business" need not be commercial; supports expansive reading of § 666)
- United States v. Phillips, 219 F.3d 404 (5th Cir. 2000) (earlier narrower view that agent must have authority over funds; distinguished and limited by later precedent)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)