*1 Before HANSEN, [1] Chief Judge, BOWMAN and BYE, Circuit Judges.
________________
HANSEN, Circuit Judge.
The government appeals from an order of the district court dismissing an indictment against Basim Omar Sabri. We reverse the judgment of the district court.
I.
The grand jury charged Sabri with three counts of bribery in violation of 18 U.S.C. § 666(a)(2). [2] The indictment alleged the following facts. The City of Minneapolis (hereinafter "City") received approximately $28.8 million in federal funds during the calendar year beginning January 1, 2001. The Minneapolis Community Development Agency (hereinafter "MCDA") is a City agency created to fund housing and economic development programs within the City. MCDA received *3 approximately $23 million in federal funds in the calendar year beginning January 1, 2001. The Minneapolis Neighborhood Revitalization Program (hereinafter "MNRP") is an agency created by the City and other local government entities which provides funding for the economic revitalization of City neighborhoods. MCDA wholly funds MNRP.
Sabri is a Minneapolis developer and landlord. During the spring and summer of 2001, Sabri was pursuing a commercial real estate project within the City's Eighth Ward. From 1993 through July 2001, Brian Herron served on the City Council, representing the Eighth Ward. He also served on the Board of Commissioners overseeing MCDA's budget. The government alleged that Sabri gave Herron $5000 in an attempt to obtain Herron's assistance in receiving regulatory approval from the City to commence the proposed real estate project; that Sabri offered Herron $10,000 to threaten the current property owners that the City would use its powers of eminent domain to take their property if they did not sell to Sabri; and that Sabri offered to give Herron $80,000 as a 10% kickback in return for his assisting Sabri to obtain $800,000 in community economic development grants for the proposed real estate project.
Sabri filed a motion to dismiss the indictment on the ground that § 666(a)(2) was facially unconstitutional because it does not require the government to prove a nexus between the offense conduct–the offering of a bribe–and the federal funds. Without such a "jurisdictional hook," that is, a clause that purports to ensure that the law applies only to activity that falls within the federal lawmaking power, Sabri argued that the statute was outside Congress's legislative power. The district court agreed with Sabri's arguments and granted his motion to dismiss the indictment. [3] We *4 agree with the district court that as a matter of statutory construction the government need not prove some nexus between the offense conduct and federal funds. We respectfully disagree that the statute as construed is beyond Congress's power to legislate.
II.
We first turn to the question of statutory construction: whether § 666 itself requires that the government prove some connection between the offense conduct and the expenditure or use of federal funds. We hold that § 666 contains no requirement that the government prove some connection between the offense conduct and federal funds beyond the express statutory requirement found in § 666(b) which requires proof that the relevant organization, government, or agency received benefits under a federal program in excess of $10,000 in any one-year period.
The Supreme Court addressed this question of statutory construction in part in
Salinas v. United States, 522 U.S. 52 (1997). Salinas, a deputy sheriff who had
accepted bribes in exchange for arranging "contact visits" between a federal prisoner
housed in the Hidalgo County jail and the prisoner's wife and girlfriend, argued that
"the Government must prove the bribe in some way affected federal funds, for
instance by diverting or misappropriating them" before the statute was violated. Id.
at 55. A unanimous Court rejected Salinas's argument, noting that the "enactment's
Lopez Court's use of the word "jurisdiction" referred to the power of the Congress to
enact legislation and not to the subject matter jurisdiction of the court. Lopez, 514
U.S. at 561. The district court had subject matter jurisdiction over this case because
Sabri was charged with an "offense[] against the laws of the United States." 18
U.S.C. § 3231 (2000). See, e.g., United States v. Ryan,
*5 expansive, unqualified language, both as to the bribes forbidden and the entities covered, does not support the interpretation that federal funds must be affected to violate" the statute. Id. at 56-57. Specifically, the Court noted that the word "'any,' which prefaces the business or transaction clause, undercuts the attempt to impose this narrowing construction," id. at 57, and "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," id. at 61.
The only issue before the Salinas Court, however, was a narrow question of
statutory construction: whether "§ 666 [is] limited to cases in which the bribe has a
demonstrated effect upon federal funds." Id. at 54 (emphasis added). The Court
explicitly left open the more sweeping question of whether § 666 requires the
government to demonstrate some other, less direct connection between the offense
conduct and federal funds. Id. at 59 ("We need not consider whether the statute
requires some other kind of connection between a bribe and the expenditure of federal
funds, for in this case the bribe was related to the housing of a prisoner in facilities
paid for in significant part by federal funds themselves."); see also United States v.
Zwick,
The Seventh Circuit has given § 666 a broad reading, ultimately concluding
that "[i]t [was] not [its] part to trim § 666 by giving its text a crabbed reading."
United States v. Grossi,
[b]y the terms of section 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct in any transaction or matter or series of transactions or matters . . . concerning the affairs of the local government agency.
Id. at 576 (internal quotation omitted). The Fifth Circuit reaffirmed its position in
United States v. Moeller, 987 F.2d 1134 (5th Cir. 1993), concluding that § 666
required only a nexus between the offense conduct and the agency receiving federal
funds and that this nexus was satisfied by § 666(b). Id. at 1137. It confirmed its
position more recently in United States v. Lipscomb,
Two circuits, the Second and the Third, conclude that § 666 requires the
government to prove at least some minimal nexus between the bribery and the federal
benefits beyond that explicitly required in § 666(b). See Zwick,
In Santopietro, the Second Circuit recognized that Salinas limited its decision
in United States v. Foley, 73 F.3d 484 (2d Cir. 1996), but concluded that it left
untouched that part of Foley holding that § 666 "requires at least some connection
between the bribe and a risk to the integrity of the federal funded program."
Santopietro,
Despite the long-standing principle of statutory construction that the title of a
statute cannot control the plain language of the statute, the Third Circuit reasoned that
the title of § 666, "Theft or bribery concerning programs receiving Federal funds,"
implied that the statute contains a minimal nexus requirement. Zwick,
As with any question of statutory construction, we look first to the text of the
statute itself. United States v. McIntosh,
The argument that § 666 is unambiguous as to the narrow question answered
in Salinas but ambiguous as to the broad question presented here is unpersuasive. “A
statute can be unambiguous without addressing every interpretive theory offered. . .
. It need only be plain to anyone reading the Act that the statute encompasses the
conduct at issue." Salinas,
The fact that the Salinas Court construed § 666(a)(1)(B) and that this case involves § 666(a)(2) makes no difference in our analysis. Section (a)(1) and section (a)(2) are complementary provisions: one section criminalizes the solicitation or acceptance of bribes while the other criminalizes the offering or giving of bribes. Both provisions, however, prohibit bribery in connection with "any business, transaction, or series of transactions" of organizations which receive the requisite amount of federal benefits required in subsection (b). Neither provision suggests that the business or transaction in question must somehow implicate a federal program. *10 For the point under consideration here, the relevant terms of the two sections are identical. Therefore, relying on the text of the statute and the Supreme Court's characterization of the operative language in the statute as broad and unqualified, we conclude that § 666 is unambiguous as to the question presented here.
Generally, where the text of a statute is unambiguous, the statute should be
enforced as written, McIntosh,
thefts from other organizations or governments receiving federal financial assistance [could have been] prosecuted under the general theft of federal property statute, 18 U.S.C. 641, only if it [could have been] shown that the property stolen [was] property of the United States. In many cases, such prosecution [was] impossible because title ha[d] passed to the recipient before the property [was] stolen, or the funds [were] so commingled that the federal character of the funds [could not] be shown. This situation [gave] rise to a serious gap in the law, since even though title to the monies may have passed, the federal government clearly retain[ed] a strong interest in assuring the integrity of such program funds.
S. Rep. No. 98-225, at 369, reprinted in 1984 U.S.C.C.A.N. at 3510; see also United
States v. Ferrara,
The legislative history reveals that § 666 was drafted and enacted to "extend
federal bribery prohibitions to bribes offered to state and local officials employed by
agencies receiving federal funds," Salinas,
While we recognize that in construing statutes courts should avoid
constitutional questions where possible, we note that even if we were to conclude that
§ 666 contained an unstated nexus requirement between the offense conduct and the
federal funds, that would not dispose of the lurking constitutional question. Simply
concluding that the statute contains an undefined nexus requirement ignores the
constitutional question of whether Congress had the power to enact this statute at all.
No amount of creative interpolation could save a statute that Congress lacked the
authority to enact. United States v. Morgan,
Given the plain and unambiguous language of the statute and the absence of any extraordinary contrary legislative history which suggests that we should deviate from the text, we are compelled to conclude that other than the threshhold showing that the agency in question received more than $10,000 in federal benefits in any one- year period, § 666 imposes no requirement that there be a connection between the offense conduct and the federal funds. See Morgan, 230 F.3d at 1073 (Bye, J., concurring) (concluding that a federal nexus requirement should not be read into § 666 on the grounds that the court should not inject elements into plain and unambiguous statutes); George D. Brown, Stealth Statute--Corruption, The Spending Power, and the Rise of 18 U.S.C. § 666, 73 Notre Dame L. Rev. 247, 280-81 (1998) *13 ("[I]t is impossible to deny that the actual statute is the antithesis of narrow. Fairly read, it gives the federal government authority to deal with a range of malfeasance anywhere within governmental . . . entities that benefit from a variety of programs, whether or not the wrongdoing is connected to the federal assistance.").
III.
Having determined that the statute does not require a nexus between the
criminal activity and the federal funds, we now turn to the question of whether
Congress had the power to enact § 666. We review this federal constitutional
question de novo. United States v. Shepherd,
It is axiomatic that "[e]very law enacted by Congress must be based on one or
more of its powers enumerated in the Constitution." United States v. Morrison, 529
U.S. 598, 607 (2000). The courts that have applied § 666 agree that Congress enacted
§ 666 pursuant to its spending powers. See, e.g., Fischer,
While traditional Spending Clause legislation is in the "nature" of a contract,
it is not a contract. Mo. Child Care Ass'n v. Cross,
Unlike typical Spending Clause enactments, § 666 imposes no affirmative
obligation on the recipient of federal funds. Cf. South Dakota v. Dole,
Nor does § 666 proscribe conduct of the recipient of the federal funds. Cf.
Barnes,
As such, § 666 has no contractual "terms" with which the recipient of federal
funds must comply. Barnes,
The fact that § 666 directly regulates the conduct of third parties and not the
recipients of the federal benefits supports our conclusion that this is not a conditions
*16
statute at all. Morgan,
B. Section 666 is a necessary and proper exercise of Congressional power.
Our conclusion that this statute is not a conditions-type statute does not
necessarily render it infirm. Indeed, the Supreme Court has intimated that § 666 is
a constitutional exercise of Congress's legislative power. See Salinas,
So that the Constitution "be not a splendid bauble," the framers of our
government inserted the Necessary and Proper Clause into the Constitution to
"remove all doubts respecting the right to legislate on that vast mass of incidental
powers which must be involved in the constitution." M'Culloch v. Maryland,
Applying the M'Culloch framework, we conclude that § 666 is a law necessary
and proper to the execution of Congress's spending power. See United States v.
Edgar,
As to the first question, we have no doubt that the creation of a general criminal law incident to a constitutional end is within the sovereign power of the federal government. M'Culloch, 17 U.S. at 418 ("The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers."). Chief Justice Marshall provided concrete examples of the scope of this power in M'Culloch:
Take, for example, the power 'to establish post-offices and post-roads.' This power is executed, by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. . . . This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offences, is certainly conducive to the due administration of justice.
Id. at 417. More recently, our court has recognized that Congress has the authority
to pass a criminal law of general application pursuant to the Necessary and Proper
authority to regulate the conduct of individuals, not States, who deal with
organizations that receive federal benefits. Because there has been no clear signal
from the Supreme Court that there are independent federalism-based limits on the
power of Congress to regulate the conduct of individuals, we conclude that this
statute is "proper" and does not contravene the letter or spirit of the Constitution.
*21
Clause. See United States v. Dittrich, 100 F.3d 84, 87 (8th Cir. 1996) ("A law
making it a crime to steal property from a Post Office is well within even the
narrowest construction of the Necessary and Proper Clause."), cert. denied, 520 U.S.
1178 (1997); see also Dropps v. United States,
As to the more specific question, we conclude that § 666 is a means plainly
adapted, i.e., rationally related, to achieving the efficacious expenditure of federal
funds and is, therefore, a law necessary and proper to the execution of the spending
power. In M'Culloch, Chief Justice Marshall determined that "necessary" had an
expansive meaning. The Clause does not restrain Congress's choice of means to only
those means that are absolutely or indispensably necessary to the exercise of its
powers. Rather, the Necessary and Proper Clause allows Congress to exercise its
discretion in choosing particular means that may not be "necessary" in the strict sense
of the word, but instead are convenient or conducive to the exercise of its powers.
The Legal Tender Cases,
As we have discussed above, § 666 was designed to protect the integrity of the
vast sums of federal monies disbursed through federal programs. Section 666 could
have been more narrowly crafted to more directly advance this goal, for example, by
criminalizing the theft of the federal funds themselves while in the hands of the
recipient, or by requiring a direct nexus between the offense conduct and a federal
program, but "[t]he Constitution has never been regarded as denying to the Congress
the necessary resources of flexibility and practicality to perform its function." Yakus
v. United States,
The Court has approved this type of indirect enforcement mechanism in
another context. In Westfall v. United States,
The argument is that Congress has no power to punish offences against the property rights of State banks. It is said that the statute is so broad that it covers such offenses when they could not result in any loss to the Federal Reserve Banks. . . . [I]f a State bank chooses to come into the System created by the United States, the United States may punish acts injurious to the System, although done to a corporation that the State also is entitled to protect. . . . That there is such a System and that the Reserve Banks are interested in the solvency and financial condition of the members also is too obvious to require a repetition of the careful analysis presented by the Solicitor General. The only suggestion that may deserve a word is that the statute applies indifferently whether there is a loss to the Reserve Banks or not. But every fraud like the one before us weakens the member bank and therefore weakens the System. Moreover, when it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so. *24 Id. at 258-59 (internal citations omitted). As in Westfall, the government here has an interest in ensuring that the system of subnational agencies that administer federal funds remains strong even where there is not a direct loss to the federal funds themselves. Congress could well have determined that an agency official who is willing to take a bribe in the disbursements of nonfederal program money is not a person who should be entrusted with federal program funds either.
Any concern that we may have had regarding the scope of this law is allayed
by the statute itself. The statute is self-limiting to ensure that "federal regulatory
power [does not] tag along after federal money like a hungry dog." Morgan, 230 F.3d
at 1074 (Bye, J., concurring) (internal quotations and emphasis omitted). Section
666(b) is a jurisdictional provision that ensures in each particular case that the federal
power will be exercised only where the federal government has a substantial interest
at stake and where substantial federal funds may be at risk. See Fischer,
More importantly, were we to conclude 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 *25 disincentive to protect them. The proposition that the federal government is powerless to vindicate its own interests is clearly untenable:
"The government of the Union, though limited in its powers, is supreme
within its sphere of action. No trace is to be found in the constitution of
an intention to create a dependence of the government of the Union on
those of the states, for the execution of the great powers assigned to it.
Its means are adequate to its ends; and on those means alone was it
expected to rely for the accomplishment of its ends. To impose on it the
necessity of resorting to means which it cannot control, which another
government may furnish or withhold, would render its course
precarious, the result of its measures uncertain, and create a dependence
on other governments, which might disappoint its most important
designs, and is incompatible with the language of the constitution."
Logan v. United States,
Accordingly, we hold that § 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 enumerated power to provide for the general welfare of the United States.
IV.
To the extent that the district court held that 18 U.S.C. § 666 requires no nexus between the offense conduct and federal funds beyond that required in subsection (b), the judgment of the district court is affirmed. We reverse that part of the district court's judgment finding § 666 is facially unconstitutional. We remand this case to the district court for reinstatement of the indictment and for such further proceedings not inconsistent with this opinion.
BYE, Circuit Judge, dissenting.
No one doubts the constitutional authority of Congress to enact criminal laws punishing behavior affecting tangible federal interests. However, when Congress seeks to punish conduct with no connection to federal interests, conduct traditionally punished only by state and local governments exercising their general police powers, Congress exceeds its constitutional authority. The statute we review today, 18 U.S.C. § 666(a)(2), punishes a broad swath of conduct bearing little relationship to any federal interest. It establishes federal criminal liability for those who bribe state and local government officials, provided only that the government receives $10,000 per year in federal program benefits. Id. § 666(a)(2), 666(b). A briber need not handle, manage, administer or supervise the receipt or disbursement of federal funds, and the purpose of the bribe need not relate to federal program benefits. It is therefore logically and legally untenable to assert a federal interest in punishing these bribers.
In my view, the majority's decision to uphold § 666(a)(2) despite this infirmity
swims against the tide of governing law. A wave of recent Supreme Court decisions
emphasizes Congress' limited ability to federalize criminal conduct, United States v.
Morrison,
I
I do agree with the majority in one important respect: section 666(a)(2) cannot
be justified solely as an exercise of Congress' Spending Clause authority. The
majority properly rests this holding upon the absence of any statutory link between
the bribe and the state or local government's receipt or use of federal benefits.
Because § 666(a)(2) does not link the bribe to federal benefits, the statute
*27
encompasses and punishes conduct well beyond Congress' ability to "provide for the
. . . general Welfare of the United States." U.S. Const. Art. I, § 8, cl. 1. Indeed, the
statute's breadth leads to absurd results: only by injecting a new element into the
statute can a court forestall the conviction of a person who bribes the city meat
inspector while the city parks department receives $10,000 in federal benefits. See
United States v. Santopietro,
Had the majority stopped at this point, I would have joined its opinion. The
majority continues onward, however, reaching beyond its Spending Clause analysis
and "resort[ing] to the last, best hope of those who defend ultra vires congressional
action, the Necessary and Proper Clause." Printz,
II
In my view, the principal defect in the majority opinion is its inattention to the
conjunctive "and" that separates the words "necessary and proper." The majority
advances several arguments suggesting § 666(a)(2) is "necessary," in the sense
envisioned in M'Culloch v. Maryland,
M'Culloch holds that Congress enjoys broad powers to select the means of enacting its objectives. Id. at 421. Thus, in determining whether a law is "necessary," courts must review Congress' law-making efforts with considerable deference. The majority describes this deference in terms of rationality: courts may not demand of Congress anything more than a rational relationship between its chosen means and ends. This reading of M'Culloch is, of course, received wisdom. Applying M'Culloch in this fashion, the majority makes a fairly convincing argument that the "fit" between § 666(a)(2) and Congress' underlying objective to preserve the integrity of federal programs is rational. However, because there is a rational relationship between Congress' aim and the law it enacted, under M'Culloch, the law is "necessary." But M'Culloch says very little, if anything, about what makes a law "proper." That specific question largely evaded the Court's attention until Printz and Alden.
Printz began bridging this doctrinal gap by drawing upon a law review article that develops a legal and historical distinction between "necessary" laws and "proper" ones. Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267 (1993). Printz rejected the argument that Congress could commandeer state officials to implement certain federal mandates by using its Necessary and Proper Clause power to effectuate its Commerce Clause authority. 521 U.S. at 923-24. Relying solely on its understanding of what constitutes a "proper" law, the Court held the Necessary and Proper Clause forbids Congress from enacting legislation that intrudes on state sovereignty.
When a "La[w] . . . for carrying into Execution" the Commerce Clause
violates the principle of state sovereignty reflected in [the Constitution,]
it is not a "La[w] . . .
proper
for carrying into Execution the Commerce
Clause," and is thus, in the words of The Federalist, "merely [an] ac[t]
of usurpation" which "deserve[s] to be treated as such."
*29
Id. (emphasis in original; internal citations omitted). Like Printz, Alden recognized
the word "proper" restricts the scope of legislative power. Alden continued the
Court's analysis of "proper" laws by rejecting the argument that the Necessary and
Proper Clause conferred authority on Congress to subject unconsenting states to suit
in state court "as a means of achieving objectives otherwise within the scope of the
enumerated powers."
The Court's analysis in Printz and Alden rested entirely upon the propriety of
a statute, not whether that statute was necessary. A law is "proper," the Court
maintained, if it respects both the Constitution's limits on federal power and its grants
of power to the states and the people. Printz,
I believe § 666(a)(2) lies outside the guideposts erected in Printz and Alden for
assessing a "proper" law. The statute intrudes upon state and local concerns by
federalizing anticorruption law, which is traditionally the domain of state and local
legislation. See United States v. Bass,
The majority suggests the federal interest in punishing bribery of state and local
government officials is at least as great as the federal interest in punishing those who
misapply funds belonging to state banks. Westfall v. United States,
Both the majority and the Eleventh Circuit in United States v. Edgar, 304 F.3d 1320, 1326 (11th Cir. 2002), sanction this federalization of anticorruption law. They all but admit that once the federal government provides $10,000 in yearly benefits to a state or local government, the federal government obtains an ongoing interest in the entire structure and operations of state and local governments, and in the credibility and integrity of their agents. Congress may, in effect, regulate (in this case, criminalize) many activities that tangentially threaten that structure, credibility or integrity. The real-world effects are truly startling. It is now a federal crime for an auto mechanic to induce a public high school principal to hire him to teach shop class by offering free car repair. This federalization of anticorruption law erodes the Constitution's limits on federal power.
The majority's sweeping view of the Necessary and Proper Clause calls to mind
Congress' unbounded deployment of its Commerce Clause authority before Lopez and
Morrison. Both Lopez and Morrison curtailed federal power, forbidding Congress
from piling "inference upon inference" to demonstrate a relationship between crimes
and federal interests. Lopez,
I recognize, of course, § 666(a)(2) does not preempt state or local power to
punish corruption. Even though § 666(a)(2) lacks preemptive effect, the sheer size
and funding of the federal government's criminal justice machinery suggests the
possibility of state and local anticorruption efforts dwindling. It blinks at reality to
believe § 666(a)(2) does no more than provide an additional weapon in the
anticorruption arsenal. By inserting itself into a domain traditionally reserved for
state and local prosecutions, the federal government treats state governments, for
example, not with the respect and dignity due them as "residuary sovereigns and joint
participants in the Nation's governance," Alden, 527 U.S. at 748-49, but as
untrustworthy organs incapable of policing their own. The development and
enforcement of sound ethical standards, and of political accountability to citizens for
failing to do so, lies at the very heart of sovereignty. See Printz,
Section 666(a)(2) upsets the delicate balance between federal and state
authority that animates our Constitution. See id. at 921; Alden,
III
I do not believe § 666(a)(2) validly "carr[ies] into [e]xecution" Congress' Spending Clause authority because the statute sweeps within its ambit a wide range of criminal activity bearing little or no relation to federal interests. I am not alone in this view. Even the government disavowed reliance on the Necessary and Proper Clause when the question first arose at oral argument. The government never urged our court to uphold § 666(a)(2) on the strength of Congress' Necessary and Proper Clause power, and, when pressed, the government expressed considerable discomfort with such a notion. For the reasons expressed above, I share the government's discomfort with this argument, and therefore respectfully dissent.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
[1] The Honorable David R. Hansen stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2003. He has been succeeded by the Honorable James B. Loken.
[2] The statute provides, in relevant part, that: (a) Whoever, if the circumstance described in subsection (b) of this section exists– . . . . (2) corruptly gives, offers, or agrees to give anything 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, transaction, 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. 18 U.S.C. § 666 (2000).
[3] To the extent that the district court, relying on United States v. Lopez, 514
U.S. 549 (1995), concluded that § 666 contained no "'express jurisdictional element'
that confer[red] federal court jurisdiction over the offenses described in § 666,"
United States v. Sabri ,
[4] Although the Sixth Circuit has applied Dakota as good law, it has questioned
its validity. See United States v. Suarez,
[5] The Fifth Circuit recently addressed the question of whether § 666 can be
sustained as a condition on the receipt of federal funds. The panel could not generate
a majority for any position. Judge Wiener opined that § 666 was similar to a cross-
cutting condition–one that applies to all grants of federal money–and applied the Dole
conditions analysis. Lipscomb,
[6] The dissent argues that this law is not "proper," that is, it contravenes the letter
and spirit of the Constitution by failing to recognize constitutional principles of
limited federal government and state sovereignty. In support of this argument, the
dissent relies on Alden v. Maine,