United States v. Franco
2011 U.S. App. LEXIS 1999
| 5th Cir. | 2011Background
- Franco was convicted on two counts of aiding and abetting the bribery of a public official under 18 U.S.C. § 201 for bribing a private corrections officer at a federally contracted facility.
- The bribery occurred at the Ector County Correctional Center (ECCC) in Odessa, Texas, which houses U.S. Marshals Service inmates under contract with a private operator.
- Zehr, an entry-level correctional officer at ECCC, accepted bribes to smuggle items (cell phone, marijuana, contraband) into the jail; Franco paid $325 in total through a middleman.
- Zehr was terminated and pled guilty to a related offense; Franco was convicted by a jury and sentenced to concurrent 78-month terms.
- Franco challenged the constitutionality of § 201 as applied, the sufficiency of the indictment, and the jury instructions; the Fifth Circuit affirmed the conviction.
- The court relied on existing FΗ circuit and Supreme Court authority recognizing private-contract corrections officers as public officials under § 201 and endorsing the district court’s jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of § 201 as applied | Franco argues no federal money or spending clause basis; § 201 lacks minimum threshold. | Franco contends § 201 is unconstitutional where no federal funds are allocated to Zehr. | § 201 constitutional as applied; private contractor with federal interests qualifies. |
| Indictment sufficiency | Indictment deficient for failing to allege Zehr violated his lawful duty and an implicit monetary threshold. | Indictment adequately imports Zehr’s unlawful conduct and value given; no implicit threshold required. | Indictment sufficient; no plain error. |
| Jury instructions—monetary threshold | Monetary threshold implied in § 201 requires explicit dollar amount in instructions. | Pattern § 201 instructions are correct and do not create plain error. | Instructions not plainly erroneous; no reversible error. |
| Definition of 'public official' | Contractual private employee cannot be a public official under § 201. | Privately employed corrections officer may be a public official; supported by Thomas. | Public official inclusion upheld; contractor officer qualifies. |
Key Cases Cited
- Salinas v. United States, 522 U.S. 52 (1997) (authority on indictment and statutory construction)
- Sabri v. United States, 541 U.S. 600 (2004) (upheld § 666 under Spending and Necessary and Proper Clauses)
- Dixson v. United States, 465 U.S. 482 (1984) (definitional scope of 'public official')
- Thomas v. United States, 240 F.3d 445 (5th Cir. 2001) (private contractor as public official under § 201)
- Pankhurst v. United States, 118 F.3d 345 (5th Cir. 1997) (precedent on elements of bribery under § 201)
- Dentler v. United States, 492 F.3d 306 (5th Cir. 2007) (indictment and elements sufficiency in § 201 cases)
- Comstock v. United States, 130 S. Ct. 1949 (2010) (Necessary and Proper Clause authority to regulate federal systems)
- Ramos v. United States, 537 F.3d 439 (5th Cir. 2008) (statutory interpretation and charging standards)