United States v. Brigido Marmolejo, Jr. And Mario Salinas

H85 ERISA-qualified pen- in an ticipant spouse plan.

sion Whether the en banc court would

have reached this same conclusion cannot be said, however, can be is that

said. What

magnitude importance pre- of the issue worthy it

sented this case made of review regret majority court. I that a the entire my colleagues way; did not see it this why respectfully I from dissent the deci- important

sion not to rehear this most case

en banc. America,

UNITED STATES

Plaintiff-Appellee,

Brigido MARMOLEJO, Jr. and Mario

Salinas, Defendants-Appellants.

No. 94-60812. Appeals,

United States Court of

Fifth Circuit.

July

H87 Goldstein, Orr, Cynthia Hujar Gerald H. Goldstein, Antonio, Hilley, Goldstein & San TX, Marmolejo. for Enriquez,

Francisco J. Gonzalez & Enri- McAllen, TX, quez, for Salmas. Friedman, Atty., Dept, Richard A. of Jus- tice, Div., DC, Washington, Crim. Paula C. Offenhauser, Kathlyn Snyder, At- Asst. U.S. tys., Gaynelle Jones, Houston, Atty., G. U.S. TX, Erickson, Justice, Atty., Dept, Bob Div., DC, Washington, appellee. Crim. violating Marmolejo guilty of jury found JOLLY, and EMILIO WIENER Before 1962(c), § RICO, of 18 U.S.C. in violation GARZA, Judges. Circuit M. in violation of 18 U.S.C. conspiracy, RICO GARZA, Judge: Circuit M. 1962(d), bribery EMILIO relation § two counts of $10,000 in receiving more than program Salinas, Marmolejo, Mario Jr. and Brigido funds, of 18 U.S.C. in violation Deputy and Chief Sheriff Sheriff the former 2, aiding and 18 U.S.C. convicted of County, Hidalgo Texas of 18 money laundering, in violation abetting arising from a series offenses various 1956(a)(l)(B)(i) and 18 U.S.C. received, and Salinas bribes money laundering, violation two counts abetted, exchange permit- aided 1956(a)(l)(A)(i), and travel of 18 U.S.C. prisoner a federal conjugal visits for ting bribery, in promote interstate commerce Hidalgo County Jail. Marmo- housed at the 1952(a)(3). jury § A of 18 U.S.C. violation and his sentence. lejo appeals his conviction conspiracy, in guilty of RICO found Salinas af- only his conviction. We appeals Salinas 1962(d), § and two of 18 U.S.C. violation Mar- and defendants’ convictions firm both program bribery in to a relation counts of molejo’s sentence. funds, $10,000in federal receiving more than § and 18 in of 18 U.S.C. violation I timely filed § 2. Both defendants of Hidal- Marmolejo was the Sheriff While appeal. of notices Texas, Beltran-Aguirre County, go Homero (Beltran) prisoner housed was a federal II County pursuant to an Hidalgo Jail Mar- the United States agreement between argue Marmolejo sev and Salinas County.1 Hidalgo As and shals Service concerning their convic points of error eral Marmolejo in County, Hidalgo of Sheriff bribery under 18 U.S.C. tions Hidalgo operation of the Coun- charge of the 666(a)(1)(B), and prohibits § which theft Marmolejo’s immediate ty Salinas was Jail. agencies local bribery by officials of and state for De- the Divisional Chief as subordinate ques federal funds.2 We review that receive County Of- Hidalgo Sheriffs tention of the statutory interpretation de novo. tions of fice. Westmoreland, v. 841 United States County Hidalgo was housed at Beltran 820, Cir.), 572, 488 U.S. 576 first, from separate occasions: on two Jail 62, L.Ed.2d 39 “Courts S.Ct. 1992, second, 14, 7, April 1991 to June generally must fol criminal applying in laws 26, April November from meaning unambiguous of plain low the comprising pattern of bribes The series statutory ‘[0]nly the most language. in the indictment racketeering charged contrary intentions’ extraordinary showing of Marmolejo occurred dur- against Salinas history justify depar legislative will ing periods. these language.” from that United ture 675, 680, 105 S.Ct. bribery between scheme As a result Albertini (1985) (citations omit Beltran, Marmolejo 86 L.Ed.2d 536 and Sali- States, ted) (quoting A Garcia United numerous offenses. were convicted of nas (a)(1) organization, being agent or of an of an agreement II in detail in Part 1. This is described local, State, government, or or tribal a Indian infra. any agency thereof— (B) corruptly demands for the solicits or gov- "organization, applies to an 2. Section 666 accepts agrees any person, or or benefit receives, ernment, any agency one [that] or any person, accept, anything value from $10,000 year period, under a benefits excess intending or rewarded in to be influenced contract, involving grant, program sub- a Federal transaction, business, any with connection insurance, loan, sidy, guarantee, or other form of organiza- of such or series of transactions 666(b). 18 U.S.C. assistance.” Federal tion, involving any- government, agency or $5,000 thing or more.... of value of the defendants The section under which 666(a)(1)(B). punishes anyone 18 U.S.C. who: convicted 479, 482, 666(b) plain language U.S. 83 L.Ed.2d ambigu- is (1984)). defining ous in program” “Federal and “Fed-

eral assistance.” Although it is clear that the assistance can grant, consist of a con- tract, loan, subsidy, guarantee, insurance, defining qualities other of “Federal assis- 666(b) Section restricts the statute to tance” are still unclear. legislative his- agencies any year “in period, receive one however, tory, provides that the term “Fed- benefits excess of under a Federal program involving grant, contract, eral a a a contract, program involving grant, subsidy, loan, subsidy, guarantee, insurance, loan, guarantee, insurance or other form of another form of Federal assistance” should 666(b). Federal assistance.” broadly. be construed S.Rep. No. 98th The defendants contend that the district Cong., (1984), reprinted in 2d Sess. 370 jurisdiction try court did not have U.S.C.C.A.N. S.Rep. [hereinafter bribery counts under 18 U.S.C. 666 be determine, therefore, No. We 225]. must Hidalgo County cause did not receive “bene whether under a interpretation broad fits excess of under Federal assistance,” “Federal it proper analyze program” or “other form of Federal collectively IGA and single agree- CAP as a assistance.” Id. they ment because are so interrelated. parties dispute proper, whether it is IGA and CAP were entered into in 1984 to determining Hidalgo County whether Jail re- govern establish and relations between the (1) assistance, ceived Federal to focus on a U.S. Marshals Service Hidalgo County. and (CAP), Cooperative Agreement Plan which agreement; provided CAP was the first it $850,000 provided grant a for construction at participation “Federal funding in the of local Jail, and an Hidalgo County Intergovern- governmental jail construction, renovation or (IGA), Agreement mental Service pro- which improvement programs” “predicated and was Hidalgo County vided that Jail would house upon government’s requirement the Federal prisoners costs, exchange federal for their space for detention and services and the local (2) just IGA.3 This issue is relevant not government’s provision of such services.” As only to arrangement determine whether the a receipt condition to the grant, of this Hidal- program constituted a Federal or Federal go County guarantee Jail had to that it would assistance, but also to determine whether provide space detention prisoners. for federal Hidalgo County requirement satisfies the IGA, agreement, The second established the that it year received the benefit within a one relationship formal between the U.S. Mar- period.4 agencies shals Service and other federal user 3. The contends that CAP and IGA offense or that ends no later than twelve months together program a constituted Federal under period after the commission of the offense. Such 666(b). argue § The defendants that the con- may include time both before and after the com- grant pursuant struction issued CAP is irrele- Hidalgo mission of the offense." Because Coun- what, analysis any, vant to an if Federal assis- ty grant received the construction Hidalgo County tance the Jail received while 1984, and because the offenses committed in this jail. They argue Beltran was in the that because April case occurred from June 1991 to 1992 and completed CAPwas entered into and in 1984 and July assuming from November 1992 to and bribery scheme occurred between 1991 and program CAP is a Federal under qualify CAP could not as Federal assis- 666(b), Hidalgo County would not have re- year period tance received in a one before or required ceived the amount of after the date of the benefit within the commission of the offense. 666(b) 666(d)(5). However, §§ See 18 U.S.C. and one-year period. The de- relevant if IGA and argue qualify fendants further that IGA does not collectively agree- CAP should be viewed as one program” as "Federal assistance” or a "Federal ment, agreement and the constitutes a Federal simply because it was a contract for services program, one-year requirement then the would rendered, and thus a commercial transaction ex- met, Hidalgo County ap- be because received empted 666(b) (c). by §§ from the statute and proximately per year pursuant to IGA housing prisoners per federal at cost CAP 666(d)(5) one-year period 4. Section defines a as during the time that period "a Beltran was housed at the continuous that commences no earlier jail. than twelve months before the commission of the (2d Rooney, of fed- United County for the detention Hidalgo Cir.1993), quo argument rejected quid pro a County Although Hidalgo prisoners. eral argued similar to provide that it already guaranteed, would had Rooney stated that court specific pro- Salinas. space, established the IGA such determining whether federal proper focus agreement requirements visions under assistance” constitute “Federal funds Hidalgo compensation that including the 666(b) can the funds disbursed is “whether County would receive. assistance within Federal be considered are so agreements interrelated These pro statutory scheme intended specific collectively as one they viewed must be pay objectives and not public policy mote given fact that agreement, especially government as a commercial by the ments was condi- pursuant CAP grant issued Finding Rooney, F.2d at 35. entity.” Having agreement in IGA. on the tioned with “Fed equated “benefit” that the statute purposes of CAP nature and reviewed assistance,” held that the Second Circuit eral IGA, they together we conclude Administration loan could Farmers Home a “Feder- “Federal assistance” or constituted 666(b), under assistance constitute Federal 666(b), con- program” under 18 U.S.C. al defendant obli despite the fact that the contract, CAP, IGA. sisting grant, and a interest, because plus the loan gated repay supported by broad con- holding is Our was autho money the defendant received 666(b) legisla- mandated struction spe accomplish by specific statute to rized history. S.Rep. No. 225 tive See by Congress. policy goals established cific IGA, Focusing exclusively on the defen- Id. at 34-35. arrangement argue that between dants ease, Likewise, in the funds that the County Hidalgo and the U.S. Marshals Ser- Hidalgo government provided for urg- In a commercial transaction.

vice was by specific County statute were authorized transaction, the ing that this is a commercial public policy further to and were intended the emphasize the fact that U.S. defendants Hidalgo County goals. fact that housed The something in re- received Service Marshals money it prisoners in return for the Hidalgo provided it to for the funds turn the U.S. Marshals Service received from County.5 arrangement the from be- preclude does not 666(b). § The ing program under history again Federal legislative demonstrates The authorized 18 U.S.C. argument must fail. federal funds were why defendants’ the government’s pol- § 4002 to the federal Report goal the fulfill states that The Senate quarters the icy providing “suitable for enacting protect § 666 was 18 U.S.C. to care, per- and subsistence of all by punishing safekeeping, theft integrity of federal funds authority any enactment bribery involving programs for sons held under Federal and § and as stated statutory Congress,” 18 U.S.C. specific “a scheme there is which “[fjederal CAP, participation for provide in order to authorizing the Federal assistance jail governmental con- objec- funding of local policy promote to or achieve certain struction, improvement pro- or Focusing on renovation S.Rep. No. 225 at 3511. tives.” CAP grams.” Therefore the combination of legislative history, the Circuit this Second 1995) employ- (declining appear argue to hold that use that as a "com- defendants transaction,” arrangement be would personal course of mercial benefit is in the usual ees for 666(b) (c). by §§ Grubb, from the statute and business); excluded However, United States v. F.3d 666(c), § "bona fide which excludes (4th Cir.1993) (declining salary that ob- to hold fees, paid, salary, wages, compensation or other $10,000 exchange "bona bribe was tained in reimbursed, paid expenses or in the usual or Nichols, fide”). But see United business,” alleged wrong- refers to the course of doing, 666(c) Cir.1994) (9th (applying § applied to ensure that the statute not assistance). Certainly the nature of the Federal practices,” "acceptable and commercial business arguing money that the are not the defendants Cong., H.R.Rep. Sess. re- No. 99th 2d they or the from Beltran benefit received 6138, 6153, printed not to 1986 U.S.C.C.A.N. and them was "bona Beltran from fide” received agency that the receives the nature of benefit 18 U.S.C. course of business.” "in usual program. pursuant See United to the Federal 666(c). Valentine, § Cir. States H91 qualifies program as a Federal un- girlfriend IGA his or visiting. wife were 666(b), However, regardless § fact that supervised der Salinas the visits on government something received in return for several occasions. The evidence also estab- provided Hidalgo the assistance it Coun- lished that Beltran instructed Guardado to ty.6 purchase four sets of men and women’s Rado

watches, given one set of which was to Sali- B nas and Marmolejo. one set to Both Salinas Marmolejo also received cars from Bel- argue they next defendants Marmolejo tran. was also involved in nu- “improperly prosecuted” were under 18 merous financial transactions with Beltran. 666(a)(1)(B). They § argue that in enacting § Congress 18 U.S.C. did not previously We have held Specifically, intend to reach their behavior. 666(a)(1)(B) require govern- does not they business, contend that there was not a prove ment to that federal funds were di- transaction, or series of transactions “involv rectly transaction, in a bribery involved or ing more,” anything of value of as that the federal monies corrupt funded the 666(a)(1)(B). required under Westmoreland, transaction. 841 F.2d at 578 (upholding county supervisor conviction of a 666(a)(1)(B) requires govern- Section 666(a)(1)(B) under taking bribes in prove agents govern- ment to of a local connection with granting of contracts for solicited, demanded, accepted, ment the maintenance of local bridges roads and agreed accept anything any of value from although corruptly the funds disbursed were person intending to “in be influenced connec- funds). Therefore, not federal although the business, any transaction, tion with or series government did not have to trace feder- of transactions of such ... in- al illegal funds to the transaction between volving anything of value of or more.” Salinas, Beltran and we must 666(a)(1)(B). The evidence at consider whether the “anything term of val- trial demonstrated that Beltran was housed ue” in was intended to cover Jail, Hidalgo County pursuant at the to IGA. involving intangibles, transactions such as observing After that several of the federal visits, that are difficult to value. prisoners receiving special treatment at jail, agreement Beltran entered into an We turn plain language first to the Marmolejo special with to receive treatment “anything statute. The term of value” in exchange monetary in for consideration. 666(a)(1)(B) § scope is broad in and contains Specifically, Marmolejo allowed Beltran to language restricting application no its conjugal have girl- visits with his wife and involving money, goods, transactions or ser- $6,000 exchange friend in a month and Similarly, vices. require the statute does not $1,000 per place visit. These visits took in organization, government, that the agency jail library eventually Marmolejo’s in person giving bribe, or the agent office. valued the transaction at or more. hold, therefore, The evidence also disclosed that Marmole- plain meaning We that the of jo brother-in-law, Guardado, told Beltran’s compels the statute our conclusion that the visits, 666(a)(1)(B) arranged who often if “anything § that Marmo- term of value” in available, lejo was not he could contact Sali- involving intangible includes transactions arranging items, nas about a visit. usu- such as the visits at issue in ally guarded his office door when Mongelli, Beltran this case.7 See United States v. Westmoreland, together directly Because we hold that IGA finding and CAP contradicts our in Westmoreland, program, Hidalgo County constitute a Federal rejected 841 F.2d at 576. In we one-year requirement meets the argument as defined in 18 the defendant's that "sufficient statuto- 666(d)(5), U.S.C. ry ambiguity because it received exists to invoke the rule of strict year housing prisoners during applicable federal construction to criminal statutes and period intent, in which congressional the offenses were committed. the rule that by as evidenced controls,” legislative history, because we 7. We note statutory language "plain that the dissent's belief that the rele- found the and unam- 666(a)(1)(B) language ambiguous, § vant biguous.” of Id. at 575-76.

1192 denied, 1034, (S.D.N.Y.1992) U.S. 113 (holding tangibles”), cert. 507 529, F.Supp. 531 794 (1993); 1856, L.Ed.2d 478 United in 18 U.S.C. 123 “anything of value” S.Ct. that term Cir.) (5th 54, intangibles). Picquet, v. 963 F.2d 55 includes States § “anything of value” (holding that the term squares with Con- language 'This broad 1029(a)(2) interpreted § be should 18 U.S.C. enacting 666 to 18 U.S.C. gress’s intent denied, 902, 113 broadly), S.Ct. cert. of funds integrity federal safeguard “the (1992); 290, 121 States v. L.Ed.2d 215 United organizations or integrity of the assuring the (2d Cir.) Girard, 69, (holding 71 601 Westmoreland, receive them.” agencies that value,” “thing when used term 577, Report 578. The Senate F.2d at 841 641, statutes, such as criminal stated that: amusement, sex intangibles, such as includes designed to create was] U.S.C. [18 intercourse, an promise to reinstate ual ability augment new offenses denied, information), employee, and cert. significant acts to vindicate States United 148, (1979); 871, 100 62 L.Ed.2d 96 S.Ct. U.S. fraud, theft, bribery involving Fed- Williams, 705 F.2d see also United private that are disbursed to monies eral Cir.) (2d 603, “any (holding that term 622-23 govern- local or State and organizations 201(c) and 18 thing value” in 18 U.S.C. program. pursuant to a Federal ments that, apply al 201(g) can to stock value, the defendant though it had no actual Specifically, the S.Rep. 225 at 3510. No. denied, value), expected it to have cert. gap fill in the then- intended to statute was 524, 1007, 104 78 L.Ed.2d 708 U.S. S.Ct. bribery and theft statutes current federal State, (1983); Ala.App. v. McDonald difficulty tracing federal by the caused (1975) (holding that 587-88 329 So.2d goal, Congress accomplish its monies.8 To promise or the of sexual sexual intercourse encompass officials net to local “cast a broad “thing state is a of value” under intercourse funds, regard- may who administer statute), bribery U.S. they actually do.” Id. at 577. whether less of (1976); L.Ed.2d 99 Scott v. courts have inter- also note that other We State, 141 N.E. 22-23 107 Ohio St. “anything in crimi- of value” preted the term (same). (1923) broadly intangibles. to include nal statutes in this case involves Because the conduct Nilsen, States See United bribery by agents of a local Cir.1992) acts of serious “Congress’ (stating that carrying out their government who were ‘thing frequent of value’ various use program, a Federal we conclude duties under phrase into criminal statutes has evolved scope that this case is within the conduct generally which the courts a term of art encompass Congress in- intended to with envelope tangibles both construe to gives then-existing to a serious Report shown. This situation gap rise described the 8. The Senate law, though to since even title the in the of the law: state passed, may the Federal Govern- monies have bribery type and XI covers both theft [T]itle clearly strong retains a interest in assur- ment ing deed, theft, respect to offenses. With integrity program of such funds. In- the by § makes theft or embezzlement an offi- (as recurring problem in this area well a agency receiving employee an assis- cer or of bribery of the adminis- as in the related area of Training Partnership Act a tance under the Job funds) trators of such has been that State However, there no statute offense. is Federal prosecutors unwilling are often to com- local area, applicability general in this and thefts of pursue such their limited resources to mit organizations governments or re- from other thefts, deeming principal the United States the ceiving can be Federal financial assistance party aggrieved. prosecuted general under the theft of Federal gener- respect bribery, 18 U.S.C. 201 With 641, statute, § property U.S.C. if it can payments pub- ally punishes corrupt to Federal officials, property property is be shown that the stolen but there is some doubt as to lic cases, many persons In such of the United States. or under what circumstances whether impossible by may prosecution employed because title has Government is the Federal not “public passed recipient property official” under the before the be considered as to the 201(a).... stolen, commingled that the definition in 18 U.S.C. or the funds are so S.Rep. at 3510. cannot be No. 225 character of the funds Federal

H93 § Deputy 666.9 As Sheriff and Chief We must now determine whether County, Hidalgo conjugal of the these Sheriff defendants visits had a value of or charge carrying Again, in of out the Federal more. we observe that the statute program housing safekeeping of language the fed does not contain “to indicate that Beltran, prisoners, including Hidalgo ‘any $5,000’ at involving eral ‘any transaction means County responsibilities federally $5,000’ Jail. Part of their funded involving transaction pursuant provide regulate ‘any to IGA was to or involving transaction of federal Westmoreland, prisoners’ rights. agents visitation As of funds.’” 841 F.2d at 576. Jail, County Hidalgo “[A]ny and Sali reference to federal conspicu funds is watches, money, accepted ously nas and cars in operative absent from the provisions,” tending allowing Congress to be influenced in connection with integrity ensure the of jail, namely, transactions of the by issuance federal funds protecting integrity of regulation prisoner family organizations visits with that receive them. Id. at and friends. transactions specifically involved 577-78. The statute does not something require visits that Bel- payor payee that or the of the value — willing pay $5,000.10 tran was for. bribe value the transaction at In- ” voritism,' argue 9. The defendants that even if their actions Congress the court concluded that statute, Congress meet the literal definition of the encompass did not intend such behavior under punish type did not intend to their of behavior in § persuaded 666. Id. The Cicco court was enacting Again, legislative § 18 U.S.C. 666. particular by the fact that if the conduct at issue history supports finding prosecution our that this by § § was covered 666 as well as proper. Report was The Senate stated that Con- punishment would have been ten times as severe gress § encompass intended 18 U.S.C. 666 to § any under and without mention of 601 cases, specific behavior in three each of which legislative histoiy, in the the Cicco court was not organization agency provided involved an prepared Congress to conclude that intended government the Federal with a service admin- Instead, such result. Id. the court believed istering government program, much like the "Congress intended 666 to address different Hidalgo County S.Rep. Jail did in this case. No. activity" and more involving serious criminal Hinton, (citing 225 at 3511 United States v. bribery. theft and Id. (7th Cir.1982) (involving F.2d 195 head of a nonprofit corporation organized to administer Westmoreland, Compare 10. 841 F.2d at 576-78 program federal funds from a HUD money who solicited (stating unambiguous language exchange housing for rehabilitation 666(a)(1)(B) require does not HUD), contracts funded 'd sub nom. Dix aff to establish relation between the transaction States, son v. United 465 U.S. 104 S.Ct. $5,000” involving "thing of value of and the (1984); 79 L.Ed.2d 458 United States v. receives) agency federal funds the with United (7th Cir.1981) Mosley, (involving 659 F.2d 812 (2d 1996) Foley, Cir. head of state administrator of funds from a CETA (stating per enacted program money exchange who solicited prosecution bribery mit in connection with preferential program); treatment under the Unit funds, therefore, program determining federal Toro, (2d Cir.) ed States v. Del 513 F.2d 656 "anything whether a transaction involves of val (involving bribery city administrator of funds $5,000 more,” ue of nected, the "value must be con program), from HUD only indirectly, integrity even if to the S.Ct. 46 L.Ed.2d 42 funds”). program The dissent claims Cicco, Defendants cite United States v. Foley proper holds that "the method to value (3d Cir.1991), support argu- F.2d 441 as for their perspective pro a transaction is from the Congress ment that did not intend to reach their However, entity." Foley's only tected statement enacting behavior in 18 U.S.C. 666. The facts assessing “thing’s about value” states that it Cicco, however, support argu- do not their integrity must be connected to the of the federal Cicco, ment. In soliciting political support the defendants were indicted for program Foley, Foley funds. exchange for the does intimate that if the transaction involved in municipal jobs. retention of Third Circuit that case had affected the financial interests of legislative history reasoned that the revealed that protected organization, local that then case Congress enlarge § enacted 666 to those covered might properly laws, prosecuted have been under by bribery ‘political federal not "the sort of 666(a)(1)(B). However, § Id. at 492-93. patronage alleged” harassments’ in that case. 1245, only language Foley (quoting decisive in concerns the fact S.Rep. Cong., Id. at 446 No. 94th 2, affected, program reprinted 2d 2884). that federal funds were not Sess. in 1976 U.S.C.C.A.N. by indirectly, even Because the defendants' in the transaction. Id. at behavior Cic- statute, by co was covered another 492 & We criminal 18 493. note that the defendant in West- " § protecting U.S.C. which was 'directed at moreland could not have been convicted under 666(a)(1)(B) federally-funded employment partisan holding Foley. Foley § from fa- under the in $5,000 or more.” Ac- something “of value of stead, $5,000 provision ensures triggering bribery in- Marmolejo acts of reaches that cordingly, that the statute we conclude value. Id. of substantial volving transactions properly prosecuted under 18 Salinas a transaction whether at 578. To decide 666(a)(1)(B).11 § U.S.C. $5,000 or has a value of involving intangibles more, to traditional valua- should look courts Ill Mongelli, F.Supp. tion methods. See in visits that 531. We conclude trial, government alleged that At a which exceeded have value this case did violated Tex Penal the defendants Code $5,000. estimate arrive at this We 36.02(a)(1), “predi § which constituted an ANN. appraiser would value way that an same person in looking establishing pattern much a a of racketeer by at how cate acts asset — pay willing to for them. would be the market activity” of See 18 ing in violation RICO.12 States, Id.; Herman v. United see also 1962(c). only § A can state offense U.S.C. (5th Cir.) (stating that to determine F.2d 362 establishing pat predicate act constitute a $5,000 or property is if the value of stolen activity if racketeering of the offense is tern more, § courts required in 18 U.S.C. as year prison. punishable by more than one willing buyer would price a must look at “the 1961(1)(A). § Marmo Salinas and U.S.C. place time and willing at the pay a seller lejo allege prosecution their under Tex stolen”), property was 36.02(a)(1) improper § Penal Ann. Code (1961); 7 L.Ed.2d Unit statute, specific because a more Tex Penal (3d Seagraves, ed States 36.08(b), § applies to their cond Code Ann. Cir.1959) (stating that amount defendants They rely on a well-established rule uct.13 property can form basis for paid for stolen provisions if legal “that two of construction property under 18 expert’s valuation of the specific, spe apply, general one and one 2314). bribery § to the Pursuant precedence.” United States v. cific takes transactions, willing pay Mar- Beltran was (5th Cir.1982). Tunnell, $1,000 plus molejo a month for each 36.02(a)(1) § is While Tex Penal Code Ann. Therefore, the transactions between visit. felony by year than punishable more one and Salinas involved Beltran governmental agencies employees all requires the transaction's all of a connection between 666(d)(2). § integrity 18 U.S.C. and the their subdivisions. See value or more Hidalgo County agency program government Sheriff's office is an funds that the re- Foley legislative Hidalgo County, that the and both defendants are ceives. The court stated office; therefore, they history agents § are was "not of the Sheriff’s indicated corruption designed prosecution for the covered the statute. way upon shown in some to touch feder- was not argues that there was insufficient Salinas also However, Foley, al funds.” 73 F.3d at 493. abetting aiding to convict him of evidence Marmolejo’s Westmoreland, county supervisor, defendant in violation accepting exchange was convicted of bribes 666(a)(1)(B). § record, After a careful review of the $14,482.92. effecting sales transactions worth there was sufficient evi- we conclude upheld though conviction even it was We her dence to sustain the conviction. alleged bribery undisputed con- that the acts monies, not the federal funds cerned state 36.02(a)(1) provides: § Code 12. Tex.Penal Ann. county received. To the extent that the that the Foley Westmoreland court would have reversed intentionally person commits an offense if he A 666(a)(1)(B), offers, confers, conviction under this case is knowingly agrees or to con- or precedent. Circuit another, solicits, conflict with Fifth accepts, agrees to fer on or or accept benefit as consider- from another decision, respect recipient’s opinion, rec- argument final with ation for 11. The defendants’ ommendation, vote, of discre- or other exercise U.S.C. 666 is that the Sheriff’s office to 18 servant, official, public party required or voter. agent as tion as a not an of a local 666(a)(1). every applies Section 666 State, local, 36.08(b) provides "agent organization, of a or of an or Code Ann. Tex.Penal agency having custody any agency public government, servant in an "[a] there- Indian tribal solicits, 666(a)(1). prisoners commits an offense if he “Local” is defined of." 18 U.S.C. agrees accept any political accepts, benefit from a pertaining subdivision as “of or 666(d)(3). person public to be in his § It is servant knows within a state.” 18 U.S.C. custody custody agency." encompass of his intended to or clear that this statute was 36.08(b) § prison, statute, is a 36.02(a)(1), § under the more serious Tex Penal Code Ann. by punishable prohibited misdemeanor which is not whieh the exact behavior which Therefore, year prison. they engaged more than one if bribery. 1185; See id. at in— State, (Tex. prosecuted the defendants should have been Cerda v. 750 S.W.2d 36.08(b) 36.02(a)(1), d).14 § § App. Corpus under instead of pet. Christi ref — they predicate would not have committed constituting racketeering activity in acts vio- IV lation of RICO. appeals Salinas jury the trial court’s in Having reviewed the evidence count,15 struction on the conspiracy RICO defendants, against they we hold that arguing erroneously that it jury allowed the properly charged

were under Tex Penal to convict him proof without per he 36.02(a)(1), § prohibits which ac Code Ann. agreed perform formed or personally two bribes, 36.08(b), cepting § than rather which predicate of the comprise acts which prohibits accepting gifts. appropriate pattern racketeering activity.16 “While inquiry is which statute criminalizes the de great latitude is shown the trial court Tunnell, fendants’ conduct here. See instructions, fashioning jury we will review (concluding F.2d at 1185 that defendants [the they instructions] to determine whether properly charged were under the statute accurately completely and state the law.” behavior). which criminalized their exact Capital Banc One Corp. Kneip Partners The evidence at trial demonstrated an elabo (5th Cir.1995). 1187, 1192 per, 67 F.3d system rate of bribes between Beltran, by aided and abetted Salinas. Fifth Circuit cases have obfuscated the watches, payments, The cash and other con issue of whether conspirator each RICO sideration that the defendants agree received were must personally commit two or gifts; they given payment not were as racketeering more acts or whether it is suffi- conjugal special visits and other conspirator favors. cient that the simply agree that properly Thus the defendants were co-conspirators convicted one of his will commit two or therefore, argue govern- quire custody; 14.The argument defendants also that the is also prove they “public ment failed to serv- without merit. meaning ant[s]” within the of the statute and that charged violating 15. Salinas was with a substan- they discretionary allowing acted in a manner in 1962(c), provision, § tive RICO 18 U.S.C. visits. Code Tex.Penal Ann. conspiring with to violate a substantive RICO 1.07(a)(41)(A) § public defines servant as one 1962(d). provision, acquit- "elected, He was selected, appointed, employed, who is count, ted of the substantive but convicted on the officer, designated or otherwise as ... an em- 1962(d) conspiracy provides count. Section ployee, agent government.” Marmolejo or any person conspire it is unlawful "for Hidalgo County was elected Sheriff of which is (a), provisions violate of subsection therefore, agent government; an he satisfies (b), (c) 1962(d). or of this section.” 18 U.S.C. public this broad definition of servant. Salinas 1962(c) prohibits "any person employed Section also satisfies the definition because he was either in, any enterprise engaged or associated with appointed employee Hidalgo selected or as an affect, or the activities of which interstate or County. commerce, foreign participate, to conduct or di- 36.02(a)(1) punishes Code Tex.Penal Ann. rectly indirectly, or conduct of such enter- receipt exchange recipi- of benefits in “for the prise's through pattern racketeering affairs decision, recommendation, vote, opinion, ent's activity or collection of unlawful debt.” public other exercise of discretion as servant.” 1962(c). argue jailers they The defendants that as act ain ministerial, discretionary not a manner. This 16. The trial court's instruction on the RICO con- argument Conjugal is also without merit. visits spiracy count stated: permitted Hidalgo County were not under Jail case, policy. They only you being were allowed in this as a What are asked to decide in Count discretion, Marmolejo's result of exercise of aid- Two is ... If Salinas was involved in one Salmas, none, he, nevertheless, exchange ed and abetted for mon- two or even did ey types pattern. and other of consideration. know about this Did he know that argue pattern activity going The defendants also that the this whole on prove "custody." join failed knowingly willfully that Beltran was in did he then in and 36.02(a)(1) participate does not re- and contribute in some fashion. Code Tex.Penal Ann. 1196 occur; racketeering need there di actual acts racketeering acts.17 This issue has

more circuits, majority holding conspiracy perform a the with the need exist the vided only agree conspirator necessary plus need overt action one a acts some RICO conspiracy the will violate conspirators “that members of furtherance of the con provision] through the Phillips, substantive RICO v. 664 F.2d spiracy.” [a United States acts,” Cir.1981) proscribed (5th not 971, of two (citing commission 1038 United States proscribed (5th personally commit two Sutherland, 1181, he will n. 4 656 F.2d 1187 v. Neapolitan, 791 v. denied, 949, acts.18 United States Cir.1981), 455 U.S. 102 cert. (7th denied, 489, Cir.), cert. 479 U.S. 494 1451, (1982)), F.2d de 71 L.Ed.2d 663 cert. S.Ct. (1986). 940, 422, 93 L.Ed.2d 372 nom., States, 107 S.Ct. sub Meinster v. United nied 1136, 2965, L.Ed.2d 102 S.Ct. 73 457 U.S. Elliott, v. decision United States Our (1982). Yet, still not 1354 our eases have denied, (5th Cir.), cert. 439 U.S. 571 F.2d 880 conspirators what must indi resolved RICO 349, (1978), 953, lays 58 L.Ed.2d 344 99 S.Ct. vidually agree to. present analyzing groundwork controversy. in Elliott was wheth The issue join majority view Today we together, link under a government can er the holding circuits in to be among the charge, multiple conspira conspiracy RICO conspiracy, conspirator guilty of RICO may no relation to whose crimes have cies objective simply agree “to the of a must except their affiliation with a each other RICO; agree person violation of he need not enterprise. Id. at 902-03. common criminal Neapolitan, ally to violate the statute.” 791 this, affirmatively, answering question In we at decision is mandated not F.2d 498. Our explained: only by plain language of the RICO object conspiracy a is to RICO statute, purpose also the nature and but provision— a substantive RICO violate the statute. here, af- participate to conduct or enterprise through pattern fairs of an 1962(d) specifically prohibits a con- Section activity merely racketeering not spiracy violate of the substantive —and predicate commit each of the crimes neces- 1962(d). provisions. RICO pattern of racke- sary to demonstrate language Nothing in this indicates that Con- statute, teering activity.... it Under anything gress intended to do more than to partici- defendant is irrelevant that each conspiratorial objective vi- criminalize a —the enterprise’s through pated affairs provision. olation of substantive RICO crimes, different, long even unrelated so as Sutherland, 1193; Elliott, F.2d at 571 656 may reasonably that each

we infer crime 903; Neapolitan, If F.2d 791 F.2d at 497. enterprise’s intended to further agreeing to hold that in addition to we were affairs. objective, to the overall criminal a RICO subsequent conspirator agree perform had to the actu- Id. at 902. Our cases have made crime, predicate comprising a prove conspiracy “no al two acts it clear that to RICO denied, 971, 336, Cir.), majority minority and the views on cert. 474 U.S. 106 S.Ct. 88 17. Both the Tille, (1985); ground interpretation 321 United States v. 729 issue their L.Ed.2d Elliott, 615, (9th Cir.), denied, 1962(d) v. 571 F.2d on United States F.2d 619 cert. 469 U.S. (5th Cir.), denied, 953, 156, 845, (1984); 880 cert. 439 U.S. 99 S.Ct. S.Ct. 83 L.Ed.2d 93 United 105 "However, 349, (1978). Carter, 1514, (11th Cir.), 344 a read 58 L.Ed.2d 721 F.2d 1529 States v. States, nom., ing conjunction with the later case of of Elliott cert. denied sub Morris v. United Sutherland, (5th 819, 89, (1984); United States v. Cir.1981) 656 F.2d 1181 U.S. 105 S.Ct. 83 L.Ed.2d 36 the Fifth Circuit had not reveals that Neapolitan, 791 F.2d at 497. The First Sec definitively resolved this issue.” United States v. minority, currently compose ond Circuits 489, (7th Cir.), Neapolitan, 496 n. 3 holding conspirator personally that a RICO must 422, denied, 940, 107 S.Ct. cert. 479 U.S. agree predicate two acts. See United to commit (1986). L.Ed.2d 372 913, (2d Cir.), Ruggiero, States v. 726 F.2d nom., States, denied sub Rabito v. United cert. (1984); Sixth, Third, 105 S.Ct. 83 L.Ed.2d 60 U.S. majority 18. consists of the Winter, (1st Ninth, Eleventh, 663 F.2d United Unit- and Seventh Circuits. See Cir.1981), 1986); Joseph, ed 781 F.2d States Adams, (3d 75 L.Ed.2d 479 United States v.

H97 RICO, holding substantive violation of this that the court’s instructions were an accurate departure a marked from would be tradition- statement of the law.20 conspiracy sup- al law for which there is no port language in the of the statute or the V statutory history. Neapolitan, 791 F.2d at 1963(a) provides Section anyone (“Requiring agreement personally an 497-98 who any violates RICO must forfeit interest predicate to commit two acts would establish they acquired have or maintained in conspiring in a new form of contradistinction statute, any violation of the enterprise that 1962(d)’s to section base traditional con- they have established or conducted viola law.”). spiracy RICO, any tion of property constituting Congressional purpose enacting proceeds or derived from obtained from provide remedy pun- RICO was to a new to racketeering activity in violation of RICO. 498; organized ish crime. Id. at 495 & see 1963(a). 1963(m) pro Section Barton, 224, United States v. 647 F.2d 237- by that if vides some “act or omission of the Cir.1981) (2d (“It purpose is the of this government defendant” the cannot locate the organized

Act to the seek eradication of property it is by authorized to forfeit subsec by crime in the ... United States establish- (a), tion “the court shall order the forfeiture ing penal prohibitions, new providing any of property other of the defendant up to enhanced sanctions and new remedies to deal any property” the value of that the defendant with unlawful engaged the activities of those 1963(m). has made untraceable. 18 U.S.C. crimes”) organized (quoting The State government sought the forfeiture of Findings Organized ment of of the Crime $151,000 in proceeds bribe Marmolejo from 1970, 923), Control Act of cert. de Stat. 1963(a). pursuant to 18 Marmolejo nied, 307, 454 U.S. 102 S.Ct. 70 L.Ed.2d argues that the court in authorizing erred (1981). violation, guilty To be of a RICO the forfeiture of substitute assets without way one must have violated other laws in a requiring government prove that he implicates Neapolitan, RICO. 791 F.2d made unavailable the assets that he obtained (“The at 497 statute does not create a new from his violations of RICO. We review the crime; type prerequisites it establishes findings district court’s of fact under the imposition penalties.”). of harsher clearly review, erroneous standard of and the against Therefore to be an effective tool or question of whether those facts constitute crime, ganized conspiracy RICO should not legally proper forfeiture de novo. United require anything required more than is Carrera, v. States 1977 Porsche 946 F.2d conspire any to violate other federal crime. (5th Cir.1991). Id. This conclusion is bolstered the ex specific ways One of pansive reading Supreme that the Court has 1963(m) provides government that the can given the statute.19 property forfeit substitute is if some

Having property, concluded that a RICO “as a result act or omission conspirator agree personally per need not of the defendant has been transferred or sold predicate to, form compose with, the two acts which deposited party.” third RICO, 1963(m)(2). substantive violation of we find U.S.C. At the forfeiture hear- Sedima, Co., (5th Cir.), -, S.P.R.L. v. Imrex -U.S. 115 S.Ct. 3275, 3286, (1994). L.Ed.2d 346 prove 130 L.Ed.2d 115 To a RICO conspiracy charge, government prove must conspired engage “that the defendant in a argues 20. Salinas also that there was insufficient pattern racketeering activity.” United States support evidence to his conviction for RICO con- Marcello, 876 F.2d 1152-53 Cir. spiracy. reviewing sufficiency In evi- 1989). pattern racketeering To establish a challenge, dence we view "the evidence in the activity, government prove predi must “two light jury most favorable to the verdict and af- acts, cate each of which must be a criminal ] if a firm[ that rational trier of fact could have found Having carefully offense." Id. ord, reviewed the rec government proved all essential ele- beyond we ments of the crime conclude that there was sufficient evi reasonable doubt.” Puig-Infante, United States v. conspiracy. dence to convict Salinas of RICO omitted). (footnote However, because government ing, both of law that not involve novel issues agent case does that if a stipulated law resolved to assist enforcement need to be testify that he could testify would he called future, judges in magistrate officers and govern- specific property the not locate the whether the warrant we need not decide because “some sought to forfeit ment by probable cause if we find that supported transferred, sold or de- property had been exclusionary exception to the good-faith Marmolejo’s at- parties.” third posited with Id.; Restrepo, United States v. applies. rule acknowledged that torney specifically Cir.1993). (5th 173, 187 994 F.2d any of Marmole- could not trace Furthermore, Marmolejo did not jo’s assets. by supported a warrant is “When of Forfei- court’s Order oppose the district affidavit, officers than a ‘bare bones’ more parties that the specifically stated ture which may rely good in faith on the warrant’s valid of substitute assets stipulated that forfeiture Satterwhite, conducting ity” in a search. Therefore, given that both appropriate. was However, con an affidavit that F.2d at 321. that substitution of assets parties stipulated only and the facts “laek[s] tains conclusions the court’s de- appropriate, and because was magistrate from which a and circumstances legally proper ground, was based on a cision probable independently determine cause” can 1963(m)(2), was hold that the forfeiture we and cannot be the considered “bare bones” proper. objectively good-faith of an reasonable basis de by an officer. Id. We review

reliance good-faith exception VI to the novo whether the exclusionary applies. Id. at 321. rule argue that the district Defendants conclude that the affidavit which denying sup motions to We their court erred warrants for Marmole supported the search pursuant seized to search press evidence residence, ranch, jo’s and office and Salinas’ they allege was invalid.21 In warrant from contained sufficient facts reviewing court’s denial of a motion residence a district magistrate proba pursuant to a which the could determine suppress obtained to evidence “(1) detailed cause. The affidavit contains must decide: whether ble search warrant we affiant, exclusionary by the as well exception first-hand observations good-faith to (2) provided by information infor probable cause as detailed applies; rule and whether the affiant establishes as relia States v. mants whom supported the warrant.” United (5th Cir.1992) bribery be- Satterwhite, ble.22 It describes the scheme trial, Marmolejo suppress provided BEL- has information about Homero moved 21. Before receiving special privileges and visits TRAN pursuant to three search war- evidence obtained Jail, by Trevino, Hidalgo County as corroborated affidavit of John rants. Based on the CS-2, testimony by Service, CS-3 and of a witness Special Agent the Internal Revenue McAllen, Jury Federal Grand Division, before the government obtained Criminal provided Texas. CS-1 has also information residence, Marmolejo’s warrants to search three gave that Homero BELTRAN a 1989 Pontiac ranch, sought office. warrant nine cate- and JR., Brigido MARMOLEJO which Trans-Am ranging personal gories from address of items by independently a rec- has been corroborated telephone the ad- and books that would contain Department Motor ord check with the Texas Marmolejo’s telephone numbers of dresses or by made law en- Vehicles and statements reflecting receipts or to documents associates participating officers in this investi- forcement money from Beltran to Marmo- disbursements of gation by the current owner of the vehicle that lejo. JR., Brigido MARMOLEJO was the former sought suppress evidence found Salinas also owner of the vehicle. pursuant also ob- to a search warrant example reliability of the confi- Another Special Agent Trevino's affidavit. tained based on in the affidavit is: dential sources demonstrated sought six The warrant for Salmas’ residence provided your affiant CS-3 has information personal categories ranging ad- items from past for the and other law enforcement officers telephone might contain dress and books ownership as to the of real estate three months trafficker, hers Rado Salinas' associates to a set of his and drug by TRAN, BEL- a convicted Homero given by Beltran to Salmas and his wife. Brigido watches MARMOLEJOJR. was and that proposed property, of the involved in the sale CS-1, CS-2, by example, states that confi- which has been corroborated 22. For the affidavit ("CS-1”): your independent investigation by affiant and dential source number one

H99 proceedings keep Beltran and detail ture tween intended to aiding abetting it.23 the watches as Salmas’ role evidence for trial. review We Many facts are corroborated the denial of a motion to dismiss on Double by taped Jeopardy grounds conver- observations of others de novo. United States v. Arreola-Ramos, Marmolejo which affiant sations with Cir. 1995). helped record. property facts, magistrate Based on these Salinas' was seized independently probable DEA for forfeiture under 21 U.S.C. 881 as

could determine property acquired cause; therefore, than the affidavit was more used or as the result of a drug-related rely “bare bones” which the officers could on offense.25 The DEA sent Sali nas a Notice of Seizure in November 1993. good faith. the officers acted in Since The Notice informed Salinas that he could warrants, good relying faith in on the search request mitigation we need not determine whether the warrants either remission or thirty days receipt supported by probable cause. con We forfeiture within of his notice, sup that clude the defendants’ motions to or contest the forfeiture within twenty days publication properly press were denied.24 of the first date of the notice-November 1993. On Decem 30, 1993, VII ber Salinas sent a Petition for Re mission, Mitigation or in the Alternative for argues Salinas that his criminal of the Forfeiture which was then denied prosecution prohibited by was Double DEA, however, the DEA. The never issued Jeopardy prior He contends that Clause. administratively a Declaration of Forfeiture trial, government his criminal forfeited forfeiting the watches. watches, property, his two Rado which con crime, punishment thereby argues stituted for his Salinas that the watches were ef- precluding subsequent punishment. fectively The forfeited when he failed to file a claim, rejected finding post district court Salinas’ claim contesting a bond the forfei- suspended that had forfei contesting expired ture before the time for special agents assigned argues to the DEA OC- 24. Salmas also that the search exceeded McAllen, group DETF Texas. scope of the search warrant because officers searched his car which was not authorized explains by September 23.The affidavit result, argues, search warrants. As Salinas all receiving special privileges Beltran was inside sup- evidence obtained in the should be search jail agreement because of an that he had with However, pressed. Salinas does not state what jail employee Zavala. named It recounts how vehicles, evidence from the was discovered and Marmolejo agreed then met with Beltran and at trial. admitted The items evidence frequency increase the and duration of Beltran’s government admitted at trial seized was family. Initially, visits with his Beltran was $5,000 pursuant pay Marmolejo per having to the search warrants were two Rado month for family. least one visit a week with his The affi- watches seized from Salinas’ residence and a agreement renegoti- davit describes was how telephone number list seized from Salinas' office. $5,000 per ated to allow for three doctrine, visits week for severability Under the evidence that is per per week and visit. The affidavit illegally admissibility seized has no effect on the states that "CS-1 and CS-2 observed on several legally seized evidence. United States v. Wil guarding occasions Mario Salinas the door to (5th Cir.), ley, 57 F.3d de Brigido Marmolejo’s office." nied, -, -U.S. 116 S.Ct. 133 L.Ed.2d The affidavit describes the watches that Bel- (1995); Hamilton, v. United States bought Marmolejo tran and Salinas and their (5th Cir.1991). Therefore, without explains gave wives. It also Beltran Marmo- evidence, any allegation illegally seized Sali lejo complete pavilion that Marmo- nas’ claim is without merit. lejo building daughter's was at his ranch for his that, wedding. further The affidavit states "CS-2 government's theory 25. The was that the watches present Brigido when MARMOLEJOJR. had purchased by drug pro- Beltran with had been taken Mario SALINASto his ranch and showed drug ceeds. Beltran was a well-known dealer pavilion. Brigido him MARMOLEJO JR. profits $4 $5 from who had made to million BELTRAN, stated that 'if it was not for Homero I ” marijuana smuggling. pavilion.' wouldn't have the many The affidavit also details the financial transactions that entered into with Beltran. Circuit, in factual- Ninth a case argues that 1993. Salinas on December one, rejected recently ly similar to this occurred because of forfeiture this automatic 1316.77(a) 1316.77(a). argument makes. exact that Salinas See Section C.F.R. Sanchez-Cobarruvias, United States provides - Cir.), cert. U.S. F.3d 781 by officers of the property seized For -, 133 L.Ed.2d 745 Administration, if ... a Drug Enforcement Sanchez-Cobarruvias, Bor In United States within the 20 are not filed claim and bond guns Agents Patrol seized several from der mentioned, the DEA days hereinbefore car at which time the defen the defendant’s DEA Agent-in-Charge or Asset Special dant filled out a Petition Remission prop- shall declare the Forfeiture Section Mitigation of Forfeiture form. The defen Special Agent-in- DEA erty forfeited. vio dant was thereafter indicted for firearms Charge DEA Asset Forfeiture Section officials then initiated civil lations. Customs prepare the Declaration of Forfeiture shall against proceedings forfeiture administrative it to the Administrator of [sic] and fovard car and sent him a Notice of the defendant’s as notification of the the Administration could explaining how the defendant Seizure action he has taken. twenty day the forfeiture. After the contest 1316.77(a). If cor- Salinas were period expired, C.F.R. the defendant moved claims arguing that automatic forfeiture oc- charges rect in to dismiss his criminal on double twenty days expire, the then there jeopardy grounds. curs once The district court denied require motion, no need for the statute to holding disposition would be that no final the Agent-in-Charge Special that the DEA place proceedings; either taken in the forfeiture had therefore, DEA Forfeiture Section “declare property Asset had not forfeit the been prepare ed, property forfeited” and then a jeopardy the could not have attached. “Declaration of Forfeiture.” The statute at The Ninth Circuit affirmed the Id. simply provide property the is would court’s denial of the defendant’s mo district days automatically twenty once the jeopardy grounds forfeited tion to dismiss on double expired. find that instead of autho- interpretation had We based on its forfeiture, rizing 1609(a), automatic the statute autho- procedures which contains similar stated, property the DEA to -forfeited rizes declare The court as C.F.R. 1316.77.26 person a claim within the re- when no files 1609(a) that section uses manda- The fact Baird, quired period. See United States v. tory hortatory language rather than means (3d Cir.1995) (“Where no only that will declare person property claim to seized files a property proceed forfeited and to seized statutory period, agency within the is off, auction it if there has been no chal- property forfeit authorized declare the proceedings; it lenge to the forfeiture does ed.”) 1609(b) (citing complete not mean that forfeiture is as a 1316.77) added), (emphasis C.F.R. cert. de simply twenty matter of law because the - nied, -, U.S. S.Ct. passed. way, days have Put another a (1996); Arreola-Ramos, L.Ed.2d 841 cf. Disposi- Declaration of Forfeiture or final (stating F.3d at 190 that once the time for empty gesture; an it is tion Order is not posting making a claim and a bond has ex whereby government legally the means seizing agency automatically pired, the issues property in order to obtains title seized forfeiture). However, if the a declaration of dispose of it. agency a “Declaration of For does not issue feiture,” property not Id. at Because there had been nei- forfeited. 783-84. Cf. Arreola-Ramos, a final (stating 60 F.3d at 190 ther a Declaration of Forfeiture nor Order, seizing Disposition a the Ninth Circuit held the declaration of forfeiture finality agency has “the effect as a final decree that there had been no to the forfei- same judicial proceeding. and order of forfeiture entered ture Id. 784. Therefore forfeited, property had not proceeding”). defendant’s been 1609(a) (b). §§ 26. See 19 U.S.C. 1608 and IX to his jeopardy bar no double there was prosecution.

criminal reasons, we AFFIRM foregoing For the Marmolejo’s and both defendants’ sentence a Declaration issued DEA has never convictions. watches. Conse- for Salinas’ of Forfeiture no there has been hold that

quently, we JOLLY, Judge, E. Circuit proceedings and GRADY forfeiture finality to the result, dissenting part: jeopar- concurring part and As no forfeiture. therefore proceeding first in the dy attached has not II B respectfully I dissent from Part subsequent to Salinas’ potential bar erect majority majority’s opinion. The holds prosecution. criminal jail crime for local officials it is conjugal con-

accept visits because bribes “transac- jugal “business” or visits constitute VIII County It Hidalgo Jail. reaches tions” of Marmo court enhanced The district though even the conduct this conclusion justice for obstruction lejo’s sentence directly question affect federal funds did not Marmolejo perjured its belief based on objective indirectly, only congressional Marmolejo argues that this trial. himself at Moreover, ma- of this criminal statute. give court failed because the was error jority these visits have holds that to enhance of its intent him notice adequate solely on the value of at based least ground. on his sentence received the local amount of the bribes majority enlarges jail thus officials. The op an given notice and Parties must be by effectively holding scope statute of this relating to on matters portunity to comment a bribe is violated whenever that the statute 32(a)(1); Burns sentencing. Fed.R.CRIM.P. prescribed amount satisfies transactional States, 129, 137 & v. United 501 U.S. when the transaction has by the even statute 2182, 2187, 115 L.Ed.2d 111 S.Ct. jail and thus could no no value to the have (1991). However, Fifth has re the Circuit respect on federal interests. With due effect has actual cently that “if the defendant held majority, agree with the I am unable which district knowledge of the facts on the virtually expansion of 18 unlimited or a of a an enhancement denial court bases 666(a)(1)(B). reduction, Sentencing them the Guidelines grounds rele provide notice of the selves (1) satisfy sufficient to proceeding to the vant majority opinion, the stat- the As noted in Rule 32 U.S.S.G. requirements of the government prove that Knight, requires the v. F.3d ute that United States 6A1.3.” Hidalgo Cir.1996). agents the Marmolejo of 86, (5th the defendants Because received, Jail, jail any County that the upon knowledge the of facts had actual encompassing the one-year period defen- enhance court based which the district its $10,000 conduct, -Marmolejo more than “bene- dants’ testimony at ment —his trial' — involving program” fits” from “Federal of the intent adequate notice court’s had (b) 666(a)(1), just grant or contract. obstruction of his sentence for enhance prove further must government The ice.27 impeachment lowing evidence." points "critical Marmolejo argues of er- other several other First, ror, Marmolejo not its the district court did abuse We find that of which have merit. none Coleman, 997 argues insufficient United that there was evidence discretion. See (5th Cir.1993) limiting ("Rulings laundering. Viewing money the of convict him jury light the are scope most favorable to of cross-examination in the the or extent evidence verdict, we find trial Puig-Infante, 19 F.3d at discretion of the see the sound committed to discretion."), found that of fact could have abuse of that a trier reviewed rational court and are denied, proved beyond a reasonable the 510 U.S. t. cer (1994); guilty money Marmolejo of laun- United States doubt 127 L.Ed.2d 1982) Vela, (stating dering. Cir. busi decision to admit a trial court's we review the court also contends that district discretion). abuse of hearsay ness records for by admitting and disal- evidence erred defendants, agents jail, the as of the under the statute. The text of the statute someone, accepted “anything of value” from acceptance makes clear that the “anything of value,” i.e., bribe, acceptance did so with the intent to be influenced or of of the business, “any separate rewarded connection with element of the crime from the transaction, transaction; or series of of transactions” amount of the consequently, the jail “involving anything $5,000 of value of amount of statutory or the bribe has no rele 666(a)(1)(B). more.” vance to the value of the transaction. Stated differently, the value the transaction can majority The concludes that the statute automatically not extrapolated be from the clearly encompasses the conduct of the de- bribe, amount of the but instead must be fendants. I clearly conclude the statute grounds independent, established on at least does not reach the conduct at issue. These way, in some of the bribe. Our decision in contrary positions, supported by two each its Westmoreland, United States v. 841 F.2d 572 rationale, own would lead one to conclude (5th Cir.), ambiguous. that the statute is (1988), S.Ct. 102 L.Ed.2d 39 illustrates illogie majority’s of the analysis using majority parses The language of the satisfy the bribe to both “anything where, clarity statute to find fully when con value” element of the crime and the “value of sidered, only ambiguity. there is Isolating There, the transaction” county element. statute, words from the context of the it supervisor accepted $2,202 totaling bribes “anything focuses on of value” instead of purchase $14,482.92 connection with the considering the phrase “any whole of the goods county. worth of for the Id. at 575. business, transaction, or series of transac purchases by county made supervi organization, government, tions of such sor constituted the series of transactions of agency involving anything of value of county “involving anything of value of or more” so as to conclude that the statute is more”;. the bribes satisfied the plain and clear that valuations can be from “anything of value” element of the crime. In perspective parties involved. short, applied case, as in this language persuasively Second Circuit demonstrat is at ambiguous best insofar as ambiguity ed the point involved in this when it concerns the method valuing a transac recently rejected it “clarity” proclaimed tion. here, majority stating: 666(a)(1)(B) “§ is identity silent as to the of person the entity to ‘[Jthing’ whom the (2) must have at a least value.” United ambiguity, Given this necessary it is to (2d Foley, 73 F.3d 490 Cir. legislative turn to history the guidance 1996).28 interpreting applying and High the statute. In its effort to fulfill the require- Association, elemental Hospital tower v. Texas 65 F.3d statute, ments of the specifically that the legislative Faced with histo $5,000,” “transactions” had a “value of ry the that support does not reading its of the

majority statute, however, confuses and then fuses the value of majority grap evades the transactions with the amount pling directly of the legislative with history.29 Yet, bribe. completely Instead, the two are majority distinct general- falls back on majority The cites support terpretation Westmoreland 28. to its attempting of 666 without to ex- plain statutory language unambigu- claim that the contradiction: Maj. Op., designed [18 U.S.C. 666 was] ous. at 1191 n. 7. The fact to create new that we augment ability offenses to of the United statutory language "plain found the and unam- theft, significant States to vindicate acts of issue, biguous" namely, on one whether fraud, bribery involving Federal monies 666(a)(1)(B) imposes tracing requirement, private organizations are disbursed to "plain does not mean unambigu- that it is governments State pursuant and local to a ous” on all issues. program. Federal Maj. Op., (quoting S.Rep. at 1192 No. 98th majority quote passage The Sess., does 29. from the Cong., reprinted 2d in 1984 U.S.C.C.A.N. legislative history directly 3510) added). (emphasis contradicts in- its bribery involving non-federal entities receiv- history legislative of that descriptions ized funds, only acts ing but those The in Westmoreland. decision from our of traced, somehow be di- bribery that could reading of the that its broad majority states integrity indirectly, to the rectly or “squares with Con- of the statute language of feder- majority’s The program al use § 666 to enacting 18 gress’s intent funds. descriptions of generalized funds Westmoreland’s integrity of federal ‘the safeguard overly- history support legislative to its organizations or of the assuring integrity ” not of the statute thus does Maj.Op., reading at broad receive them.’ agencies that 578). recognition square with own majority Westmoreland’s F.2d at The (quoting reasoning congressional purpose or the broad net “Congress ‘east a also states holding. behind its may adminis- officials who encompass to local they funds, regardless of whether ter federal legislative history, I Turning precise to the ” F.2d (quoting at 1192 actually do.’ Id. clearly Congress did that it reveals that find 577). majority quotes Unfortunately, the at applied to not intend for to be reviewing the without from Westmoreland acceptance conduct such as the of bribes history in which legislative of the context Instead, Congress was allow visits. a review arose. Such descriptions those protecting the federal only with concerned majority’s inappropriate demonstrates to non-federal monies disbursed entities. support its over- descriptions to use of these part designed XI is “This of title create statute. reading of the reach ly-broad ability augment the of the new offenses to significant acts of States to vindicate United Westmoreland, county supervisor was In theft, fraud, bribery involving Federal pur- receiving kickbacks convicted private organi- monies that disbursed are county materials involved chases of governments pur- zations or and local State county. funds of the non-federal program.” suant to a Federal that “the statute argued defendant added). (emphasis at 3510 U.S.C.C.A.N. federal, not requires the involvement purpose of Congress stated that “the also state, corrupt allegedly in the merely funds integrity protect the [is] this section at 575. After re- transactions.” through money distributed vast sums of legis- statutory language and the viewing the theft, fraud, un- programs from Federal history, we said: lative by bribery.” Id. at 3511. due influence history legislative [WJhile manifests majority’s attempt support to find integ- preserve the congressional intent legislative cases cited the circuit court Congress specifically rity funds, of federal 9; Maj. op., n. history, at 1193 see stat- by enacting a criminal to do so chose 2-3, not nn. will at 3511 & U.S.C.C.A.N. to trace eliminate the need ute that would a careful look. None cases withstand that would monies and the flow of federal history by the ma legislative cited from the by the differ- caused avoid inconsistencies majority’s reading of jority supports the programs ways various federal ent 666(a)(1)(B) in conduct at issue because the adminis- funds and control their disburse mo directly implicated federal those cases added). (emphasis Id. tration.” Hinton, 683 F.2d 195 States v. nies. United (7th Cir.1982) exchange (soliciting money in recognized in thus Westmoreland court housing contracts of rehabilitation history a clear for award legislative exhibited that the nom., HUD), by sub Dixson to funded funds protect intent to federal distributed affd States, 482, 104 S.Ct. 465 U.S. the diffi- United Recognizing entities. non-federal (1984); funds, States v. Mos L.Ed.2d United 458 culty tracing involved federal Cir.1981) (receiving ley, con- 659 F.2d 812 faithful remained to Westmoreland exchange giving preferential money holding that objective by gressional jobs seeking funded to individuals involving non-fed- treatment encompassed transactions and Train Employment Comprehensive entity receiving federal of an eral funds Act); v. Del States ing Programs United hold that did not funds. Westmoreland Cir.) (2d city Toro, (bribing any act of criminalize Congress meant to program standing administrator to insure that receiv congressional objective of the ing funding from building), HUD would lease enacting § the Second Circuit deter- denied, cert. 423 U.S. S.Ct. proper mined that method to value a case, allowing L.Ed.2d 42 In this transaction perspective is from the of the prisoner, visits to federal in no protected entity, not from perspective of see, way my eyes implicates can federal “any willing buyer,” majority as the would monies. accept. Maj. op., have us at 1193-94. The

Furthermore, I nothing have found in the Foley court stated: legislative history Congress indicate thing value of a purposes [T]he bribery meant to reach acts of the ma- —as 666(a)(1)(B) is not to be assessed jority involving any all official acts does— every perspective reference to agents of non-federal entities the same value, subjective measure of no matter how way that 18 reaches acts of Instead, or arbitrary. the assessment of bribery involving all official acts of federal thing’s connected, value must be even Instead, agents.30 Congress was focused on only indirectly, if integrity providing of federal precisely criminal sanctions of, to, program for abuse or threat federal funds. monies that are disbursed to these non-federal enti- 73 F.3d at 490. logically ties. Westmoreland extends the reach of the recognition statute —based on a In an distinguish effort Foley from fungibility money non-federal —to law, these facts and from Fifth Circuit entity. funds of that majority contends that the defendant in the Fifth Circuit’s Westmoreland decision would (3) not have been Foley convicted under because majority’s today decision also creates the transaction in that case did not involve split with the well-reasoned and care more Maj. federal op., funds. at 1193-94 n. 10. fully crafted decision of the Second Circuit in quoted Based on passages two Foley from Foley.31 Foley, United States v. In a Con funds, mentioning majority legislator necticut receiving was convicted of strains to Foley conclude that the Court held help passage legisla bribe secure the that federal funds must be involved in the given tion that would recently-merged have that, therefore, transaction and the decision one-year exemption bank a from a divestiture conflicts with Westmoreland. Id. A casual requirement. 73 F.3d at Although 486-87. reading Foley majority’s will reveal the $25,000 the defendant received a bribe and interpretation erroneous of that decision. exemption was worth more than First, Foley cites approval with our decision bank, the Second Circuit held that the Second, Westmoreland. 73 F.3d at 491. “$5,000 transaction did not meet Foley Court noted that the Second Cir requirement more” because already cuit has government held that the had not shown that the ex required not corrupt to trace the transaction emption was worth at least to the to federal program funds. Id. at 490-91 State of Connecticut. exemption “[T]he af (citing United Coyne, fected neither the financial interests of the (2d protected Cir.1993), organization 108-10 nor federal funds di rectly.” Id. at 493. Based on a clear under- 127 L.Ed.2d 221 “Whoever, part: 30. Section 201 being reads in Surprisingly, 31. majority supports holding its public accepts official ... anything ... of value Mongelli, citation to United States v. being ... performance influenced in the F.Supp. (S.D.N.Y.1992), Maj. op., imprisoned....” official act ... shall be ... 1191, 1193, a decision overruled the Second 201(b) (1994). Congress was well (Lumbard, Foley. Circuit in See 73 F.3d at 496 provision passed aware of this when it J., dissenting). split concerning § because a appli- circuit 201's cation to congres- non-federal entities motivated sional action on 666. See 1984 U.S.C.C.A.N. at 3510-11. (1994)).32 Third, Foley recognized Court ROLLINS, violated corrupt transaction and Ervin O. Willie J. Grice, finan- Plaintiffs-Appellants, it affected either “the if organization” protected

cial interests directly.” Id. at 493. The funds or “federal is, Foley I distinguish majority’s attempt to League of Latin American United submit, superficial. respectfully # Citizens Movant- Appellant, (4) v. that when a crimi- Finally, I would observe INDEPENDENT BEND SCHOOL FORT applies to the only ambiguously nal statute DISTRICT, al., et Defendants- surely lenity question, the rule conduct Appellees. in favor the statute that we construe counsels States, Liparota United of the defendant. No. 94-20570. 2084, 2089, 419, 427, 471 U.S. Appeals,

L.Ed.2d 434 States Court of United

Fifth Circuit. (5) July summarize, interpreting To 666(a)(1)(B), spe- to the first must look we light and in the statutory language, cific history, legislative to de- ambiguity, the

its provision intends to

termine whether Dowling v. United

reach this conduct.

States, 207, 213, 105 S.Ct. (1985) (“[Wjhen assess- 87 L.Ed.2d statute, we a federal criminal

ing the reach of language, legislative pay

must close heed strictly to de-

history, purpose in order scope of the conduct enact-

termine the forbids”). language plain

ment Neither history that Con- legislative indicates

nor the accep- provision to reach the

gress wrote this visits, conduct of bribes for

tance un- and state fiscs left both federal to reach Congress intended

touched. indirectly— involving directly or conduct — re- integrity of non-federal entities

the fiscal the defen-

ceiving federal monies. Because way impli- conduct in no discernable

dant’s Hidalgo integrity of the the fiscal

cated Jail, majority’s

County read- and because the clear ex- contradicts

ing of the statute legis- intent in the

pression congressional history, respectfully I dissent.

lative including question,” Westmoreland. Coyne recognized it sidered 32. The court itself 4 F.3d at 110. "agreefs] circuits who have con- with the other

Case Details

Case Name: United States v. Brigido Marmolejo, Jr. And Mario Salinas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 17, 1996

Citation: 89 F.3d 1185

Docket Number: 94-60812

Court Abbreviation: 5th Cir.