United States v. Lipscomb

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 12, 2002
• Docket: 00-10461
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 00-10461 __________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Cross-Appellant,

versus

ALBERT LOUIS LIPSCOMB,

Defendant-Appellant, Cross-Appellee.

___________________________________________________

Appeals from the United States District Court for the Northern District of Texas

___________________________________________________ July 12, 2002 Before SMITH, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Albert Lipscomb, a former member of the Dallas City Council,

appeals his convictions for conspiracy and program bribery, in

violation of 18 U.S.C. § 666 (“§ 666”). Whether he raises a

constitutional challenge to his convictions, and, if so, how we

should rule on that challenge, are questions that have divided our

panel three ways, as will become clear from our separate writings.

Despite this tripartite fractionation, however, different

majorities of the panel conclude that (1) the question of § 666’s

as-applied constitutionality is properly before the panel and

should be addressed; (2) the district court had subject-matter jurisdiction of this criminal bribery case against Lipscomb; and

(3) the court abused its discretion in transferring the trial sua

sponte over Lipscomb’s objections. We therefore reverse his

conviction, vacate his sentence, and remand for a new trial.

I. FACTS

Both Lipscomb’s conduct and particular jurisdictional facts

are important to the varying views of the members of this panel.

We therefore recount them in considerable detail.

A. Lipscomb’s Offense Conduct

Lipscomb served on the Dallas City Council (the “Council”)

from 1984 to 1993 and again from 1995 until 2000. During his first

period of service, Lipscomb vigorously opposed any measure

favorable to taxicab companies, including Yellow Cab and Checker

Cab (together, “Yellow Cab”), both owned by his co-conspirator,

Floyd Richards. Lipscomb’s animus against cab companies apparently

was grounded in a belief that cab companies perennially failed to

serve the minority community adequately.

During his second period of service on the Council, however,

Lipscomb demonstrated a considerably kinder disposition toward cab

companies, especially Yellow Cab. In 1994, during Lipscomb’s

hiatus from the Council, Richards asked Lipscomb to help improve

Yellow Cab’s reputation in the minority community and offered to

pay Lipscomb $1,000 a month in cash for that help. Lipscomb

assented to this proposal. Richards and Lipscomb agreed to

continue this arrangement as long as it was mutually agreeable.

2 All this transpired orally.

Richards continued to make the monthly payments to Lipscomb

after he was re-elected to the Council. At times, Richards would

receive phone calls from Lipscomb indicating that he needed a

payment, after which Lipscomb would visit Yellow Cab’s office and

receive cash that Richards took from the company safe. Sometimes

during these meetings, Richards and Lipscomb would discuss taxicab

issues then pending before the Council. The government alleged

that in addition to making these monthly payments to Lipscomb,

Richards gave Lipscomb free use of cars, free cellular telephone

service, and free cab rides worth more than $3,300.

When Lipscomb ran again, his advisers heard Richards declare

that he was willing to spend up to $30,000 to get Lipscomb elected.

When Richards learned that corporations could not contribute to

campaigns and that individuals could contribute no more than

$1,000, however, he decided to “lend” $20,500 to a business owned

by Lipscomb’s daughter and son-in-law. That money was intended by

all concerned to help fund Lipscomb’s campaign, and it did so; but

Lipscomb did not report the campaign “loan” or any of the payments

in his campaign finance reports or his personal financial

statements.

Richards testified that although he never made the quid pro

quo explicit, he expected that, in return for the monthly payments

and the campaign funding, Lipscomb would cast votes favorable to

Yellow Cab. Richards testified further that he and Lipscomb had an

3 understanding, and that Richards was satisfied that Lipscomb knew

that the payments would stop if he voted the wrong way.

Lipscomb’s support of Yellow Cab went far beyond the casting

of favorable votes at meetings of the Council. Over time, he and

Richards discussed each of the taxicab issues on which Lipscomb

allegedly was influenced by this bribery: (1) operating authority

and fleet increases, (2) location of dispatch offices, (3) age

limits and inspections, and (4) insurance ratings. Lipscomb had

opposed Yellow Cab on these issues before 1994, but when he

returned to the Council, he supported that company vigorously and

often.

For example, in 1994 Lipscomb, as a private citizen, had

spoken out against authority for Yellow Cab and two other cab

companies to operate in Dallas. Once he returned to the council,

though, he supported Yellow Cab’s requests for increases in the

size of its cab fleets. Yet when cab companies unaffiliated with

Richards sought authority to operate in Dallas, Lipscomb urged that

their applications be removed from the council’s agenda. When

another cab company’s request for operating authority was taken up

by the council, Lipscomb tried to require a voice vote on the

matter.

Yellow Cab also needed relief from a city ordinance requiring

cab companies to maintain their dispatch offices inside the Dallas

city limits. After a city staffer learned that Yellow Cab was

violating this policy, she sought to enforce it, but the Council

4 referred the matter to its Transportation Committee. Even though

Lipscomb did not serve on that committee, he attended its meeting

and browbeat the staffer, going so far as to ask her when she would

retire. Eventually, with Lipscomb’s encouragement, the Council

permitted cab companies to operate dispatch offices in the Dallas

suburbs, thus legitimating Yellow Cab’s office, the only one in

violation, in which Yellow Cab had invested $15,000.

Because Yellow Cab had the newest fleet among the cab

companies serving Dallas, the City was encouraged by Yellow Cab

energetically to enforce against its competitors the City’s age

limit on vehicles for hire and its requirement that they be

inspected. In 1992, Lipscomb had favored relaxing both rules, but

in 1996, after he was told by Richards that he wanted stricter

enforcement, Lipscomb began to support age limits on sedan-style

limousines similar to the limits that applied to taxicabs. He also

sought to remove older shuttles and limousines from service more

quickly, and he opposed the Council’s effort to revisit its earlier

vote —— favorable to Yellow Cab —— to approve stricter age limits.

Lipscomb also acted on Yellow Cab’s behalf with respect to

insurance issues. Yellow Cab lobbied the Council to require that

the insurance coverage mandated for taxis be written by insurers

with favorable financial ratings. This proposal proved to be

controversial: The City’s Director of Human Services, whose

department handled insurance matters, was concerned that a rating

requirement might favor large firms and exclude small businesses

5 owned by minorities or women. Lipscomb nevertheless sought to put

the rating requirement on the Council’s agenda, and both seconded

and voted for a motion to increase the minimum rating.

In sum, Lipscomb energetically used many of the tools at the

disposal of a Council member —— his vote, his oversight authority,

his agenda-setting power, and his other parliamentary privileges ——

to support policies favorable to Yellow Cab, even though these

policies conflicted with his previous positions.

B. Jurisdictional Facts

During Lipscomb’s second period of council service, the City,

through many of its agencies and departments, received substantial

federal funds. In the year ending in September 1996, Dallas

received $44.3 million and spent $48.1 million in federal financial

assistance which funded a wide range of joint priorities: community

development, farmer’s market infrastructure, emergency shelter,

housing, community policing, airport and freeway improvements, arts

development, pollution control, emergency management, interlibrary

cooperation, child immunization, homeless health care, and

substance abuse control, among others. Federal support in 1996

dwarfed state support, which totaled only $3.7 million received and

$3.1 million spent. Other years were similar: in 1997, the city

received $54.3 million and spent $53.3 million in federal funds,

but received only $3.0 million and spent $3.8 million in state

funds.

Testimony of the city’s chief financial officer showed that in

6 Dallas’s efforts to obtain and then allocate federal funds, the

Council played an integral role:

Q. And once the City gets the Department of Housing money or grant funds, does the City then disburse those funds? A. Yes, we do. Q. And is the disbursement by approval of a City Councilmember or the City Council at large? A. If the individual expenditure is greater than $50,000, or $15,000 in the case of professional services, it would come back to the Council for approval of that specific contract. Q. And does that frequently happen? A. Yes, uh-huh. Q. All right. And, in fact, does the Council have to approve, vote for and approve the application to HUD and the other agencies of the federal government to get federal money? A. Yes. They vote for the application and the acceptance of the money.

The Council as a whole thus controlled —— and individual council

members influenced —— the City’s applications for, and receipt and

expenditure of, at least forty million federal dollars each year.

II. PROCEEDINGS

The government secured a lengthy indictment against Lipscomb.

Counts 2 through 33 charged him with specific substantive bribery

violations of § 666(a)(1)(B) and charged Richards with aiding and

abetting those offenses. Conversely, counts 34 through 65 charged

Richards with bribery violations of § 666(a)(2) and charged

Lipscomb with aiding and abetting. Count 1 charged Lipscomb with

conspiring to violate § 666. Notably, the government did not

charge Lipscomb with the misuse of state or federal funds.

Three weeks before the long-scheduled trial date, the district

court, acting sua sponte, without giving notice to the parties or

holding a hearing, and over Lipscomb’s strenuous objections,

7 transferred the trial from the Dallas Division of the Northern Dis-

trict of Texas to the Amarillo Division. Thereafter, Richards

entered into a plea agreement which, among other things, required

him to testify at trial. The jury convicted Lipscomb on all

counts. The district court sentenced him to 41 months’

imprisonment, imposed a $7,500 fine, and ordered him to pay a

$6,500 special assessment. The court also directed that the

sentence be served under home confinement because of Lipscomb’s

failing health and advanced age.

Lipscomb appeals his conviction on several grounds. The

government cross-appeals the home-confinement aspect of his

sentence.

III. STATUTORY INTERPRETATION

A. Lipscomb’s Challenge to the Jurisdictional Reach of § 666

As it stood at the time and now stands, § 666 contains two

monetary thresholds. Section 666 reads, in principal part:

§ 666. Theft or bribery concerning programs receiving Federal funds (a) Whoever, if the circumstance described in subsection (b) of this section exists—— (1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—— ... (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded 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;

8 ... 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.1

Lipscomb insists that we should narrowly construe § 666 to avoid

the constitutional question that arises if we interpret the statute

to prohibit activity not directly related to federal spending or

federally funded programs. He proposes that we construe the

statute to require a nexus between his offense conduct and federal

funds —— or, put differently, that his conduct implicate a tangible

federal interest. He also contends that, when so construed, the

statute does not reach his conduct. Neither contention succeeds.

The phylogeny of § 666 jurisprudence does reflect a growing

tension between two possible focuses of the statute. One, which

another court has dubbed the “funds focus,” would concentrate on

deterring direct depletion of federal funds; the other, the so-

called “corruption focus,” would combat “the corrupting, public-

trust eroding effects of bribery” and would not require that

federal funds be depleted or misallocated as a direct result of the

bribe.2 Lipscomb’s proposal that we adopt the narrower, funds

focus, however, would require us to ignore our consistently broad

1 18 U.S.C. § 666 (2000) (emphasis added). 2 United States v. Apple, 927 F. Supp. 1119, 1124 (N.D. Ind. 1996).

9 interpretation of § 666 as targeting corruption qua corruption.

Furthermore, even if we were to read § 666 and our cases to

construe it narrowly, to superimpose a nexus element, we would

still conclude that there is a sufficient linkage between

Lipscomb’s conduct and federal funds to support jurisdiction of

Lipscomb’s case.

B. Westmoreland and Its Progeny: The Corruption Focus —— No Further Nexus Required

We first interpreted § 666 in United States v. Westmoreland.3

The defendant, Westmoreland, was a county supervisor who was

convicted of accepting bribes and kickbacks in connection with the

purchasing of supplies for the county’s highway construction

projects.4 The county received slightly more than $200,000 in

total federal revenue-sharing funds, of which roughly 15% was

allocated to Westmoreland’s district.5

Westmoreland contended that “the federal revenue sharing funds

received [by her district]...were segregated and not expended for

the types of purchases she made.”6 She therefore argued that the

bribery “concerned only state monies and did not fall within the

purview of the statute.”7 We rejected such a construction as

3 841 F.2d 572 (5th Cir. 1988). 4 Id. at 573–75. 5 Id. at 575. 6 Id. 7 Westmoreland, 841 F.2d at 575.

10 contrary to the statute’s text:

Despite Westmoreland’s protestations, we find the relevant statutory language plain and unambiguous. By 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 involving $5,000 or more concerning the affairs of” the local government agency. 18 U.S.C. § 666(b) (Supp. 1984) (emphasis added). Subsection (b) contains nothing to indicate that “any transaction involving $5,000” means “any federally funded transaction involving $5,000” or “any transaction involving $5,000 of federal funds[.]”8

Westmoreland also made the argument that Lipscomb makes here:

“[A]n expansive interpretation [of § 666]...extends federal power

in a manner that, in many instances, the federal interest at stake

does not warrant.”9 The Westmoreland panel responded:

Once Congress has spoken, however, we do not sit to judge the wisdom of its action. It is sufficient that Congress seeks to preserve the integrity of federal funds by assuring the integrity of the organizations or agencies that receive them.... [T]he direct involvement of federal funds in a transaction is not an essential element of bribery under section 666(b); the government need not prove that federal monies funded a corrupt transaction.10

Westmoreland thus held that no connection was required between the

federal funds allocated to the county and the supervisor’s illegal

8 Id. at 576. 9 Id. at 577–78. 10 Id. at 578. We noted that “any reference to federal funds is conspicuously absent from the operative provisions [of § 666], and it is clear that Congress has cast a broad net to encompass local officials who may administer federal funds, regardless of whether they actually do.” Id. at 577.

11 conduct. Instead, the only requisite involvement of federal funds

was the county’s receipt of more than $10,000 per year.11

Since Westmoreland, we have sometimes applied its broad

reading of § 666 unconditionally. For example, in United States v.

Moeller,12 the government appealed the dismissal of § 666 counts

against employees of the Texas Federal Inspection Service (“TFIS”),

a cooperative venture of the agriculture departments of Texas and

the United States, in which state workers were empowered to conduct

federal inspections.13 Although we said that “there must be some

nexus between the criminal conduct and the agency receiving federal

assistance,” that nexus was purely textual: It was present when

the Texas Department of Agriculture, a government agency for

purposes of § 666, received more than $10,000 a year in federal

funds, and the defendants, TFIS employees, were agents of that

federally-funded agency.14 Thus Moeller cannot be read to have

imposed the extratextual nexus that Lipscomb urges us to engraft on

§ 666.

Some uncertainty seeped into our § 666 jurisprudence as a

11 Westmoreland, 841 F.2d at 575–76. The Supreme Court has agreed, referring to the $5,000 figure as “the $5,000 threshold for the business or transaction in question.” Salinas v. United States, 522 U.S. 52, 57 (1997). 12 987 F.2d 1134 (5th Cir. 1993). 13 Id. at 1135. 14 Id. at 1137–38 (emphasis added).

12 result of United States v. Marmolejo.15 There, we upheld the

conviction of a county sheriff in Texas who had accepted bribes in

return for permitting conjugal visits to a federal prisoner whom

the State of Texas, in return for a federal per diem fee, housed in

a state prison renovated with federal funds.16 In addressing wheth-

er § 666 gave jurisdiction to prosecute, we noted that “[w]e have

previously held that § 666(a)(1)(B) does not require the government

to prove that federal funds were directly involved in a bribery

transaction, or that the federal monies funded the corrupt

transaction.”17 Nevertheless, when discussing whether conjugal

visits were “anything of value” under § 666, we stated that

[b]ecause the conduct in this case involves serious acts of bribery by agents of a local government who were carrying out their duties under a Federal program, we conclude that this case is within the scope of conduct Congress intended to encompass with 18 U.S.C. § 666.18

We did not identify whence we derived any limits on the “scope of

conduct Congress intended to encompass.” The dissent argued that

Westmoreland interpreted § 666 to reach “only those acts of bribery

that could somehow be traced, directly or indirectly, to the

15 89 F.3d 1185 (5th Cir. 1996), aff’d sub nom. Salinas v. United States, 522 U.S. 52 (1997). 16 Marmolejo, 89 F.3d at 1188–89. 17 Id. at 1191 (citing Westmoreland, 841 F.2d at 578). 18 Marmolejo, 89 F.3d at 1192–93 (emphasis added). See also id. at 1193 n.9 (examining legislative history and precedent to determine whether defendants’ conduct was behavior that “Congress . . . intend[ed] to reach”).

13 integrity of federal program funds.”19 The Supreme Court granted

certiorari to address this argument and affirmed the panel

majority’s holding, but beclouded our § 666 jurisprudence in the

process.

C. The Salinas Speculation and Its Sequellae: The Funds Focus, Requiring a Further Nexus

In reviewing Marmolejo, under the caption Salinas v. United

States,20 the Supreme Court asked whether § 666 is “limited to cases

in which the bribe has a demonstrated effect upon federal funds.”21

The Court stated that “[t]he statute’s plain language fails to

provide any basis” for such a limitation and that the legislative

history forecloses it.22 The Court thus agreed with our Marmolejo

holding that federal funds need not be directly involved in a

violation of § 666.23 The Court nonetheless obliquely suggested

19 Id. at 1203 (Jolly, J., dissenting) (emphasis in original). “Turning to the precise legislative history, I find that it clearly reveals that Congress did not intend for § 666(a)(1)(B) to be applied to conduct such as the acceptance of bribes to allow conjugal visits. Instead, Congress was only concerned with protecting the federal monies disbursed to non-federal entities.” Id. 20 522 U.S. 52 (1997). 21 Id. at 54. 22 Id. at 57, 59. 23 Id. at 56–57 (citation omitted and brackets original): The enactment’s 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 § 666(a)(1)(B).... [T]he statute forbids acceptance of a bribe by a covered official who intends “to be influenced or rewarded in connection with

14 that there might be obstacles to applying § 666 to different facts:

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. And that relationship is close enough to satisfy whatever connection the statute might require.24

Even so, the Court disposed of any constitutional question:

[T]here is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case. [The briber] was without question a prisoner held in a jail managed pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(1)(B)’s application in other cases, the application of § 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds.25

Since Salinas, the Supreme Court has decided only one more

§ 666 case: United States v. Fischer,26 which also sent mixed

messages. Echoing Salinas, the Fischer Court described § 666 as

“expansive, both as to the conduct forbidden and the entities

covered”27 and read the statute to reveal Congress’s “expansive,

any business, transaction, or series of transactions of [the defined] organization, government or agency.” The prohibition is not confined to a business or transaction which affects federal funds. The word “any,” which prefaces the business or transaction clause, undercuts the attempt to impose this narrowing construction. 24 Salinas, 522 U.S. at 59. 25 Id. at 60–61 (emphases added). 26 Fischer v. United States, 529 U.S. 667 (2000). 27 Id. at 678 (internal quotations and brackets omitted) (citing Salinas, 522 U.S. at 56).

15 unambiguous intent to ensure the integrity of organizations

participating in federal assistance programs”28 —— clearly embracing

the “corruption focus.” The Court therefore affirmed the

conviction of a defendant who had defrauded a municipal hospital

authority that participated in the federal Medicare program.29 In

so doing, however, the Court once again mentioned in passing a

conceivable constitutional problem: To read the statutory term

“benefits” too broadly, the Court cautioned, so as to mean “[a]ny

receipt of federal funds,” could “turn almost every act of fraud or

bribery into a federal offense, upsetting the proper federal

balance.”30 Justice Thomas, joined in dissent by Justice Scalia,

likewise warned that “[w]ithout a jurisdictional provision that

would ensure that in each case the exercise of federal power is

related to the federal interest in a federal program, § 666 would

criminalize routine acts of fraud or bribery” and threaten

principles of federalism.31

Although Salinas and Fischer did not unconditionally validate

our view that once a local government accepts more than $10,000 per

year from the federal government, no further federal interest is

needed to justify prosecution under § 666, neither did either of

28 Fischer, 529 U.S. at 678 (emphasis added). 29 Id. at 669–70, 681–82. 30 Id. at 681. 31 Fischer, 529 U.S. at 690 n.3 (Thomas, J., dissenting) (emphasis in original).

16 those cases condemn our broad approach. The Salinas Court merely

observed in passing that, even if a federal interest were required,

such an interest clearly existed in preventing federal prisoners

from bribing local jail officials participating in a federal

incarceration program. Similarly, the Fischer Court construed a

term in § 666 broadly, simply musing that federalism principles

might somehow limit the statute’s sweep. As either a statutory or

constitutional matter, then, the Court might be seen as harboring

inchoate qualms about whether, for § 666 to apply, there might be

some need for a direct interest in the funds involved in the

prohibited conduct (or, alternatively, a need for either a nexus

between the federal dollars and the offense conduct or an extra-

textual jurisdictional element to § 666). Lipscomb argues this

inference forcefully, noting that Salinas left open the question

whether § 666 “requires some other kind of connection between a

bribe and the expenditure of federal funds.”32 He urges us to

overlook Westmoreland and answer this question in the affirmative.

This, of course, we could not do even if we were so inclined.

Mere ruminations in Supreme Court opinions do not empower a

subsequent panel of our court to disregard, much less overrule, the

holding of a prior panel. And, as we noted just last year, “[w]e

are not convinced that Salinas wrought a change upon our earlier

32 Salinas, 522 U.S. at 59.

17 precedents.”33 Because Salinas and Fischer went no further than to

advert in dicta to the mere possibility that the argument now

advanced by Lipscomb might someday be favored, we are bound to

adhere to Westmoreland’s statutory holding.34

Likewise, our post-Salinas decisions interpreting § 666 must

be read as adhering to this rule. Nevertheless, the cautionary

words in Salinas and Fischer, combined with our prior opinions’

silence on the constitutional question, divided the next panel of

this court to interpret § 666. The panel majority in United States

v. Phillips35 reiterated Moeller’s requirement of a nexus between

the misconduct and the agency (as distinct from a nexus between the

misconduct and the federal funds themselves),36 but added some

extra-textual teeth in holding that defendant Phillips, a tax

assessor, was not an “agent” of Louisiana’s St. Helena Parish,

which received over $10,000 in federal funds, so as to be liable

himself under § 666 for putting on his payroll a political ally who

33 United States v. Reyes, 239 F.3d 722, 735 (5th Cir. 2001), cert. denied, 121 S. Ct. 156 (2001) and 122 S.Ct. 2618 (2001). 34 Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (“It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a prior panel’s decision.”). 35 219 F.3d 404 (5th Cir. 2000). 36 Id. at 413–14 (“[T]here must be some nexus between the criminal conduct and the agency receiving federal assistance.”) (quoting Moeller, 987 F.2d at 1137) (emphasis original to Phillips).

18 then did no work.37 The panel instead viewed Phillips as an agent

of the Louisiana Tax Commission, which received no federal funds,

and concluded that the statute did not reach his activity.

Underlying this definitional question about “agent,” however,

lurked the majority’s concern that the defendant was too

functionally distant from the flow of federal funds to the parish:

We know from the Supreme Court’s decision in Salinas that the funds in question need not be purely federal, nor must the conduct in question have a direct effect on federal funds. The statute possibly can reach misuse of virtually all funds of an agency that administers the federal program in question. It is a different matter altogether, however, to suggest that the statute can reach any government employee who misappropriates purely local funds, without regard to how organizationally removed the employee is from the particular agency that administers the federal program.38

We acknowledge that it is at least arguable, albeit tenuously, that

this “organizationally removed” language conflicts with

Westmoreland and Moeller, even though the Phillips majority

purported to distinguish those two cases factually, and the

Phillips panel may be perceived as having favored the “funds focus”

37 Phillips, 219 F.3d at 407–08, 411–15. 38 Id. at 411 (citations omitted and emphasis added). To the panel majority, the legislative history of § 666 revealed “Congress’ concern with a defendant’s ability to administer or control the federal funds provided to a particular agency,” id. at 411 n.7, and Fischer counseled that “the fraud must have the potential to affect the identified federal funds or program,” id. at 412 n.13. But in the “absence of evidence that connects the assessor’s office to control or expenditure of any funds of the parish,” id. at 411 n.9, prosecuting under § 666 “advances no federal interest in safeguarding a particular federal program,” id. at 414.

19 for § 666. To the extent that there is a conflict, however, the

older case controls, as the Phillips dissenter correctly noted.39

Only by interpreting “agent” narrowly was the Phillips

majority able to avoid the constitutional question.40 The Phillips

dissent read our own precedents as rejecting any nexus requirement

whatsoever and took issue with the panel majority’s narrow

definition of “agent.”41 The dissent asserted that a “specific

nexus —— between Phillips and the federal funds inside Parish

coffers —— is not required” and furthermore that “it is sufficient

that the criminal conduct affect the agency receiving federal

assistance: in essence, we have determined that there is an

inherent federal interest in insuring that agencies receiving

significant amounts of federal funding are not corrupt.”42 In a

nutshell, this is precisely the “corruption focus” that we had

firmly adopted in Westmoreland, a focus that has never been

overruled either by this court en banc or by the Supreme Court.

D. Reyes and Williams: Either Way, § 666 Covers Lipscomb

Two cases decided last year demonstrate our continued

commitment to applying § 666 to members of municipal and parochial

governing bodies. These cases provide additional support for the

39 Id. at 423 n.4 (E. Garza, J., dissenting). 40 Phillips, 219 F.3d at 414 (majority). 41 Id. at 422–23 (E. Garza, J., dissenting). 42 Id. at 422–23.

20 proposition that § 666 easily reaches Lipscomb’s conduct. In

United States v. Reyes,43 we affirmed the § 666 conviction of city

council members who had been bribed to vote in favor of awarding a

municipal construction project to a particular contractor.44 The

government noted that a federal loan would have supported the

project had it gone forward, but we explicitly declined to rely on

that fact, stating instead that federal support of the three city

departments involved in the project —— the finance, housing, and

legal departments —— justified prosecuting under § 66645:

Applying Westmoreland and Moeller..., we conclude that the connection between federal benefits and the charged conduct is sufficient to uphold Reyes’s convictions under § 666.... Like the county supervisor in Westmoreland and the senior agency officials in Moeller, here the charged criminal conduct related to city council members, who, by voting up or down on bids, ultimately decide how federal money will be spent.46

Such an analysis firmly supports Lipscomb’s susceptibility to

conviction under § 666: In Dallas, federal money supports the

City’s transportation and human services departments —— the very

agencies of city government that Lipscomb sought corruptly to

influence. Reyes reaffirms, as a statutory matter, that whatever

nexus § 666 requires —— if any —— is present in this case.

43 United States v. Reyes, 239 F.2d 722 (5th Cir. 2001). 44 Id. at 726–32. 45 Id. at 734 & n.5. 46 Id. at 734 (emphasis added).

21 More recently, we decided United States v. Williams47 without

discussing any jurisdictional element or nexus requirement at all

—— despite the fact that if there had been a jurisdictional flaw,

it would have been incumbent on the Williams panel to address that

problem, even sua sponte. Williams involved facts virtually

identical to those present in Reyes, in Westmoreland, and here.

Williams, a former member of the Jackson, Mississippi City Council,

was convicted under § 666 of aiding and abetting the solicitation

and acceptance of bribes —— specifically, $150,000 in exchange for

a re-vote on a cable television license contract.48 The Williams

court did not describe any direct federal fiscal interest at stake

in that re-vote. Such questions, however, may not have been

briefed or argued in Williams, as the opinion in that case

expressly rejected only other challenges —— those grounded in equal

protection, due process, and sufficiency and admissibility of the

evidence —— to Williams’s conviction.49 Taken in isolation,

Williams has little if any precedential value on the nexus issue,

one way or the other.

But of course Williams does not stand alone. It is merely the

most recent in a series of our opinions —— Westmoreland, Moeller,

Marmolejo, Reyes, and Williams —— that have consistently applied

47 United States v. Williams, 264 F.3d 561 (5th Cir. 2001). 48 Id. at 566–67. 49 Id. at 567–78.

22 the broad “corruption focus” of § 666. The Phillips panel did

construe the term “agent” to avoid the constitutional question, but

we cannot do that here: As a textual matter, the term “agent”

plainly includes city council members. Westmoreland applied § 666

to a county supervisor; Reyes and Williams both applied it to city

council members. Hence Westmoreland’s view of § 666 continues to

be the law in this circuit and to preclude a more narrow

construction of the statute. Even though we get to the question

from different jurisdictional perspectives, Judge Duhé and I are in

complete accord on the result for Lipscomb of the foregoing

analysis of § 666: He was subject to being tried in federal

district court for violating that statute, and he was subject to

being convicted by a jury.

IV. DID LIPSCOMB RAISE THE CONSTITUTIONAL ISSUE?

Before addressing the constitutional problem that Lipscomb’s

statutory-construction argument presages (and writing for myself

alone, although supplementing Judge Smith’s analysis), I must make

three observations on our intrapanel disagreement over whether the

constitutional issue is properly before us. To me, this debate:

(1) is more semantical than substantive, (2) is in tension with

controlling Supreme Court precedent, and (3) overlooks the real

nature of the constitutional question at issue.

Semantics first: As the Supreme Court recently said,

23 “jurisdiction...is a word of many, too many, meanings.”50 This

imprecision is one source of our panel’s split here. Judge Duhé

reads “jurisdiction” in the pleadings, briefs, and record to mean

adjudicative jurisdiction only —— the authority of federal courts

to hear only those categories of cases (subject-matter

jurisdiction) authorized by Congress, between those categories of

persons (personal jurisdiction) permitted by the Constitution. But

in the context of the expressly constitutional arguments that

Lipscomb sometimes makes, Judge Smith and I read his use of

“jurisdiction” —— at least on those occasions —— to mean

legislative jurisdiction, the “authority” of Congress “to make its

law applicable to particular persons or activities.”51

Lipscomb also uses the ambiguous phrase “federal

jurisdiction,” which could be either adjudicative or legislative.

That ambiguity is not only terminological, but also conceptual. To

state the obvious, legislative jurisdiction flows from the

Constitution to the Congress and limits, in today’s context, the

subject matter and the classes of persons that Congress may

regulate by statute. In contrast, adjudicative jurisdiction

generally flows from Congress to the courts as grants of subject-

matter jurisdiction, grants made by Congress in enacting laws

50 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90 (1998). 51 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813 (1993) (Scalia, J., dissenting). Legislative jurisdiction “is quite a separate matter from jurisdiction to adjudicate.” Id.

24 pursuant to its power to constitute inferior federal courts.52 In

the instant context, the judicial power extends constitutionally to

cases arising under federal criminal laws. Consequently, a court’s

adjudicative jurisdiction to convict a defendant of a federal crime

cannot exist in the absence of Congress’s legislative jurisdiction

to criminalize the particular conduct of which the particular

defendant is accused.

The reach of Congress’s legislative jurisdiction, of course,

is sometimes bounded by structural constitutional provisions. For

example, grants of jurisdiction are limited by the Necessary and

Proper Clause, which covers laws that “carry into Execution...all

other powers vested by this Constitution in the Government of the

United States or in any Department or Officer thereof.”53 I cannot

even imagine how it could be “necessary and proper” to the exercise

of either the judicial power or the power to constitute inferior

courts for us to have adjudicative jurisdiction over a case

implicating a statute that Congress lacked the legislative

jurisdiction to enact. It should go without saying, therefore,

that our subject-matter jurisdiction has constitutional as well as

statutory limits54: It involves “the courts’ statutory or

52 U.S. CONST. art. I, § 8, cl. 9. 53 U.S. CONST. art. I, § 8, cl. 18. 54 Edelman v. Jordan, 415 U.S. 651, 678 (1974) (“The Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.”).

25 constitutional power to adjudicate the case.”55

To repeat, then: A federal forum simply must lack adjudicative

jurisdiction to hear a case based on a federal statute that

Congress lacked the legislative jurisdiction (translation:

constitutional power or authority) to apply to the situation in

question. If I am correct in my position that this case implicates

our constitutional duty, at every level and at every stage of the

proceedings, to ensure the existence of our adjudicative

jurisdiction, then that duty trumps the canon of constitutional

avoidance that Justice Brandeis discussed in Ashwander v. TVA,56 a

canon that on other occasions I have dutifully obeyed.57 At the

risk of exposing my own intellectual shortcomings, then, I confess

that neither semantically nor substantively can I understand the

distinction, which Judge Duhé detects in Lipscomb’s pleadings and

briefs, between adjudicative, subject-matter jurisdiction and

legislative jurisdiction (structural constitutionality) —— a

distinction that is clear to Judge Duhé but in this case remains

blurred to me. If a successful as-applied challenge to the

constitutionality of § 666 would limit Congress’s legislative

jurisdiction, i.e., would identify someone or some act beyond

55 Steel Co., 523 U.S. at 89 (original emphasis removed, emphasis added). 56 Ashwander v. TVA, 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring). 57 See, e.g., U.S. v. Fox, 248 F.3d 394, 405 (2001), vacated on other grounds, Fox v. United States, 122 S.Ct. 1602 (2002).

26 Congress’s authority, it cannot help but limit our adjudicative

jurisdiction to the same degree. In this sense, because Lipscomb

appears to raise a structural jurisdictional challenge, I question

whether his is the kind of constitutional argument that may be

waived through delay or disuse; if it “involves a court’s power to

hear a case, [it] can never be forfeited or waived.”58

As I read them, Lipscomb’s pleadings and briefs do raise ——

and thus do not waive —— the constitutional issue. Rather, they

question both Congress’s legislative jurisdiction (constitutional

authority) to enact § 666 and our adjudicative power to apply § 666

here. Lipscomb has raised a classic challenge to subject-matter

jurisdiction: He “argues that the extension of federal jurisdiction

over acts such as [his] would exceed the power of Congress.”59

My belief that we should consider this argument finds support

in Salinas itself. There the Supreme Court easily undertook to

determine whether § 666 was constitutional, and squarely held that

it was, as applied,60 despite the fact that neither we nor the

district court had addressed the statute’s constitutionality.61 In

58 United States v. Cotton, __ U.S. __, __; 122 S.Ct. 1781, 1785 (2002). 59 United States v. Suarez, 263 F.3d 468, 484 (6th Cir. 2001) (Boggs, J., dissenting in part). 60 Salinas, 522 U.S. at 61. 61 Compare Salinas, 522 U.S. at 60–61, with Marmolejo, 89 F.3d at 1188–94 (omitting constitutional analysis). Even the dissent in Marmolejo did not make constitutional arguments. See Marmolejo, 89 F.3d at 1201–05. See also Salinas v. United States, 1997 U.S.

27 support of its “holding,”62 the Court explained:

[s]tatutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature. Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress.... These principles apply to the rules of statutory construction we have followed to give proper respect to the federal-state balance.... [W]e cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question.63

This is why, with all due respect, I find it odd, as we labor to

interpret 18 U.S.C. § 666, for Judge Duhé to urge obeisance to the

Ashwander canon, which the Supreme Court itself in Salinas first

acknowledged and then declined to observe or apply.

To the extent that the real question is whether Lipscomb

adequately raised constitutionality, I trust Judge Duhé would

concede two premises: first, that Lipscomb urged the district court

(and this one) so to construe § 666 as to avoid a serious and

identified constitutional flaw; and second, that this panel has

unanimously concluded that we cannot so construe the statute.

Starting with these two premises, I cannot avoid the conclusion

Trans. Lexis 48, at *49–50: QUESTION: But the Tenth Amendment argument that you're presenting to us now-- MR. ENRIQUEZ: Yes, ma'am. QUESTION: --did you make that in the lower courts? MR. ENRIQUEZ: We didn't specifically come out and say Tenth Amendment, Your Honor. 62 Salinas, 522 U.S. at 61. 63 Id. at 59–60 (citations and quotation marks omitted).

28 that Lipscomb did raise the constitutional flaw. By construing the

statute as all three of us do, we are sailing into the very waters

that Lipscomb warned us were constitutionally uncharted. I

knowingly and willfully proceed to endeavor to chart them.

V.

AS-APPLIED CONSTITUTIONALITY UNDER DOLE

We review the constitutionality of a federal statute de novo.64

My solo review here will focus on whether § 666 is necessary and

proper to the spending power, but the proper foundation for that

analysis is a review of the Supreme Court’s spending-clause

jurisprudence. That jurisprudence has focused on whether Congress

may condition grants of federal funds. Even if § 666 is not a

conditional-grant statute —— a conclusion of which I am less

certain than is Judge Smith —— the conditional-grant cases

establish both that “internal limits on congressional spending

power are difficult to discern”65 and that, to whatever extent the

Tenth Amendment is an external limit on the spending power, that

Amendment does not function as “a prohibition on the indirect

achievement of objectives which Congress is not empowered to

achieve directly.”66 The Tenth Amendment thus is not as great an

64 See United States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997). 65 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-6, at 839 (3d ed. 2000). 66 South Dakota v. Dole, 483 U.S. 203, 210 (1987).

29 obstacle to the necessity and propriety of § 666 as Judge Smith

believes it to be.

A. Conditional-Grant Precedents

Congress likely enacted § 666 pursuant to the Spending Clause

of the Constitution.67 Under that clause, it is settled, Congress

may regulate the states by conditioning grants.68 Cases on such

conditions have established that the structural limits on federal

power that often arise in the commerce-clause context do not

operate with the same force against conditional-grant provisions.

United States v. Butler,69 for example, is still good law for

its announcement that Congress’s spending power, like its power to

tax, is “to provide for the general welfare,”70 and is therefore

untrammeled by the specific grants of legislative power found

elsewhere in Article I, Section 8:

While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public

67 Fischer, 529 U.S. at 689 n.3 (Thomas, J., dissenting) (“Section 666 was adopted pursuant to Congress’ spending power.”); Phillips, 219 F.3d at 414 (“Congress’ authority to enact § 666 rests on the Spending Clause of the Constitution.”). The spending power is not granted in such terms but is an outgrowth of the “Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the Common Defence and general Welfare of the United States.” U.S. CONST. art. I, § 8, cl. 1. 68 TRIBE, supra note 65, § 5-6, at 833. 69 297 U.S. 1 (1936). 70 U.S. CONST. Art. I, § 8, cl. 1.

30 moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.71

Although the Butler Court did hold that the Tenth Amendment

cabined Congress’s spending power,72 the Court quickly abandoned

this view, in Oklahoma v. United States Civil Service Commission,73

which rejected a constitutional challenge to the Hatch Act. That

Act then forbade political activities by any “officer or employee

of any State or local agency whose principal employment is in

connection with any activity which is financed in whole or in part

by loans or grants made by the United States.”74 Oklahoma and its

State Highway Commissioner challenged the Civil Service

Commission’s attempt to force on the State the choice between

dismissing the Commissioner, who had engaged in political

activities, or forgoing highway funds in the amount of twice the

commissioner’s salary.75 The Court responded:

While the United States is not concerned with and has no power to regulate local political activities as such of state officials, it does have power to fix the terms upon

71 Butler, 297 U.S. at 66. 72 Id. at 66–78. 73 330 U.S. 127 (1947). 74 Id. at 129 n.1, citing 18 U.S.C.A. § 61l. The Hatch Act, although recently reformed, remains on the statute books; today it criminalizes the extortion of political contributions under threat of withholding employment, payments, or benefits that are “provided for or made possible in whole or in part by an Act of Congress.” This language shows that Congress knows how to link criminal sanctions tightly to federal spending, should it so desire. 75 Oklahoma, 330 U.S. at 129–34.

31 which its money allotments to states shall be disbursed. The Tenth Amendment does not forbid the exercise of this power in the way that Congress has proceeded in this case.... [T]he Tenth Amendment has been consistently construed “as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”.... The offer of benefits to a state...dependent upon cooperation by the state with federal plans, assumedly for the general welfare, is not unusual.76

Oklahoma, the Court said, could evade the condition by the “simple

expedient” of not yielding to the enticement of federal funds.77

The apex of the Court’s conditional-grant jurisprudence is

South Dakota v. Dole,78 which involved a statute conditioning a

small portion of each state’s federal highway aid on the state’s

establishing a minimum drinking age.79 The Court upheld the

drinking-age requirement as an exercise of Congress’s Spending-

Clause authority to condition federal grants.80 The Court also

announced that when Congress chooses to go beyond its enumerated

powers, and to use its spending power “to further broad policy

objectives by conditioning receipt of federal monies upon

compliance with federal statutory...directives,” the statutory

condition must itself meet four conditions, the failure to meet any

76 Id. at 143–44. 77 Id. at 143. 78 483 U.S. 203 (1987). 79 Id. at 205. 80 Id. at 206.

32 one of which might render a statute unconstitutionally broad.81

B. The Dole Test Is Instructive Here

Given Dole’s context, applying its test to § 666 could be

trebly problematic. First, like Judge Smith, two district courts

have concluded that § 666 is not a conditional-grant statute at

all, because it does not require the state (here, Texas) or its

political subdivision (here, Dallas) to do anything.82 As the court

in United States v. Cantor noted, § 666 “does not impose a

condition on the receipt of federal funds. The statute neither

requires a state’s compliance with federal...directives nor

prevents state action.”83 Like the Cantor court, however, I believe

that this lack of direct effect on states and localities actually

supports the statute’s constitutionality.84 Furthermore, the

81 Id. at 207-08. At least one court has concluded that use of § 666 to prosecute crimes with no federal nexus violates the Dole test’s third condition. See United States v. McCormack, 31 F. Supp. 2d 176 (D. Mass. 1998) (finding the statute unconstitutional as applied to a defendant who had bribed a local police officer to prevent that officer’s further investigation into a state crime, and the entity that received federal funds was the police department that employed the bribed officer). 82 United States v. Sabri, 183 F. Supp. 2d 1145, 1156 (D. Minn. 2002) (“[T]he statute does not apply to the recipient government.”). 83 United States v. Cantor, 897 F. Supp. 110, 113 (S.D.N.Y. 1995). A condition statute generally requires a state’s compliance with federal regulatory or administrative directives in exchange for receipt of federal funds. Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 570-72 (4th Cir. 1997) (en banc) (plurality opinion). 84 Id. (“All Congress has done in Section 666 is to pass a law making the conduct of individuals, not the state, criminal. Hence, I do not believe that a Tenth Amendment argument is appropriate in

33 Supreme Court has not held that, for a statute to be a conditional-

grant provision and stand or fall under a Dole analysis, the

statute must require states or localities either to take or to

refrain from taking any action.85 Dole may describe Congress’s

spending power generally, not just its power to condition grants.

Second, § 666 is a freestanding ban: It neither grants any

funds nor takes part in a broader funding statute. This fact has

prompted the objection that its criminal sanction cannot be a

condition.86 Although superficially appealing, this argument

elevates form too highly over substance. The anticorruption

principle in § 666 applies equally to every federal dollar granted,

and § 666 logically cuts across all federal grants to states and

localities.87 To require Congress to insert a mini-§ 666 into every

chapter of the United States Code that authorizes intergovernmental

financial assistance would constitute excessive scrupulosity.

this case.”) (citation omitted). 85 See New York v. United States, 505 U.S. 144, 167 (1992) (stating that conditional-grant statutes “may influence a State’s legislative choices” without clarifying that this is the only thing such statutes may do). 86 See Sabri, 183 F. Supp. 2d at 1156 (distinguishing § 666 from the conditions attached specifically to highway funding). 87 George D. Brown, Stealth Statute —— Corruption, the Spending Power, and the Rise of 18 U.S.C. § 666, 73 NOTRE DAME L. REV. 247, 292–93 (stating that “§ 666 is not a grant condition,” but that it “operates in a similar way to grant conditions” and is analogous to a “crosscutting requirement” —— a “generally applicable requirement imposed on grants across the board to further various national, social and economic policies”) (internal quotation marks omitted).

34 Third, several judges have objected that Congress’s spending

power cannot include the power to criminalize conduct by third

parties, and that Dole therefore cannot apply.88 (This argument

begs the broader question, which I address below, whether § 666 is

necessary and proper to the spending power.) Many courts,

including this one in Phillips, have nevertheless interpreted § 666

using Dole’s factors.89 Therefore, although we may debate whether

88 See United States v. Morgan, 230 F.3d 1067, 1074 (8th Cir. 2000) (Bye, J., dissenting): In enacting § 666, [ ] Congress did not contract with states or local governments. Neither did Congress bestow gifts of funds upon those governments. Rather, Congress passed a federal criminal statute designed to punish conduct that falls within the domain of traditional state concerns (bribery, embezzlement, fraud, etc.). Section 666 reaches beyond punishment of the state and local governments who receive those funds to proscribe the conduct of third persons who aren’t parties to the funding contract. Spending Clause power is not that broad. See also Sabri, 183 F. Supp. 2d at 1157 (finding Judge Bye’s observations in Morgan to be “germane and persuasive”). For a scholarly argument to the same effect, see David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 92 (1994). 89 See, e.g., Fischer, 529 U.S. at 689 n.3 (Thomas, J., dissenting) (“Section 666 was adopted pursuant to Congress’ spending power, Art. I, § 8, cl. 1. We have held that the spending power requires, at least, that the exercise of federal power be related ‘to the federal interest in particular national projects or programs.’”) (citing Dole); Phillips, 219 F.3d 404, 414 (“[T]he power of Congress to impose duties on non-federal entities under the Spending Clause is not without limits.”) (citing Dole); Zwick, 199 F.3d at 687 (“To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct.”) (citing Dole); McCormack, 31 F. Supp. 2d 176, 188 (“Of the four limits established in Dole, limit (3) —— requiring that the conditions be related to the federal interest in particular national projects or programs —— provides the most plausible attack on § 666(a).”).

35 the § 666 peg fits the conditional-grant hole, I shall test it

under the four prongs of Dole.

C. The Dole Analysis

Dole first requires that “exercise of the spending power must

be in pursuit of the general welfare.”90 In assessing whether this

is so, Dole cautions, “courts should defer substantially to the

judgment of Congress.”91 Congress has stated that the purpose of

§ 666 is to “protect the integrity of the vast sums of money

distributed through Federal programs from theft, fraud, and undue

influence by bribery.”92 Mindful of the deference due this

judgment, I accept that Congress easily could have thought that

§ 666 advanced the general welfare by protecting the federal fisc

and by ensuring that state and local decisions regarding federal

programs are not made by corrupt officials. I do not doubt, then,

that Congress enacted § 666 “in pursuit of the general welfare.”

Second, Dole warns that “if Congress desires to condition the

States’ receipt of federal funds, it must do so unambiguously...,

enabl[ing] the States to exercise their choice knowingly, cognizant

90 Dole, 483 U.S. at 207 (citing Helvering v. Davis, 301 U.S. 619, 640–41 (1937)). 91 Dole, 483 U.S. at 207 (citing Helvering, 301 U.S. at 640, 645). “[T]he concept of welfare or the opposite is shaped by Congress.” Helvering, 301 U.S. at 645. 92 S. REP. NO. 98-225, at 370 (1983).

36 of the consequences of their participation.”93 Even though § 666

does not require the states to act, it does make state and local

government officers criminally liable for specific misdeeds. Thus

the states arguably have a dignity interest at stake, and if so,

they have a right to know the threat to that interest that § 666

would pose —— and the language of § 666, which is anything but

ambiguous, surely lets them know. To the extent that § 666 is a

conditional-grant statute, both the grant (of $10,000 or more in

federal funds) and the condition (criminalizing official bribery

and theft) are pellucid.94 I see little danger that a state or

locality that receives federal funds could mistake the potential of

§ 666 to criminalize conduct by its officials.

Third, Dole mandates that conditions on federal spending be

related “to the federal interest in particular national projects or

programs,”95 or that conditions “bear some relationship to the

federal spending.”96 “The required degree of this relationship is

one of reasonableness or minimum rationality.”97 It suffices here

93 Dole, 483 U.S. at 207 (citing Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)). 94 Even a critic of the broad reading of § 666 concedes that its text is “unambiguously broad.” Brown, supra note 74, at 277. 95 Dole, 483 U.S. at 207 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). 96 New York v. United States, 505 U.S. 144, 167 (1992). 97 Kansas v. United States, 214 F.3d 1196, 1199 (10th Cir. 2000); see also New York v. United States, 505 U.S. at 172 (stating that conditions were valid under Dole because they were “reasonably

37 to observe that many courts have held that § 666 is reasonably

related to the federal interest in safeguarding federal dollars

from control of dishonest administrators, and that § 666 therefore

passes spending-power muster. At least one court has so concluded

when the offense conduct did not involve federal funds.98 Some of

the other decisions arriving at this conclusion, however, may have

dismissed facial, rather than as-applied, challenges to the

statute99; and other cases have affirmed convictions for conduct

that implicated federal funds more directly than did Lipscomb’s

related to the purpose of the expenditure”). 98 United States v. Ferrara, 990 F. Supp. 146, 152 (E.D.N.Y. 1998) (“Federalism has not been compromised here. The federal government has a right to attach reasonable conditions to the disbursement of its funds. State and local governments are free to accept or reject federal monies so encumbered.”). There was nothing federal about the Ferrara defendants’ conduct: they bribed members of a town board to secure a change in zoning that would have permitted the construction of a radio tower. Id. at 148. 99 United States v. Russo, 111 F.3d 124 (2d Cir. 1997) (table) (unpublished), 1997 WL 168276 at *2 (“Because the conduct prohibited by § 666 furthers the legitimate federal interest in protecting federal funds from local bribery schemes, the statute falls well within the scope of Congress’ spending power.”) (omitting any discussion of a connection to federal funds); United States v. Cantor, 897 F. Supp. 110, 113 (1995) (“Nor is the conduct prohibited by § 666 so remote from the federal interest in protecting federal funds from the effects of local bribery schemes as to exceed the scope of [the] Congressional spending power or to run afoul of the Tenth Amendment.”) (applying § 666 to a defendant who had helped bribe an attorney for the New York City Board of Education, without detailing any connection to federal funds); United States v. Bigler, 907 F. Supp. 401, 402 (S.D. Fla. 1995) (rejecting a facial challenge to § 666).

38 actions here.100 Because Dole’s relatedness inquiry merges with my

analysis of whether applying § 666 is necessary and proper to the

spending power, I discuss both questions together in detail below.

Fourth, in Dole’s final prong, the Court cautioned that “other

constitutional provisions may provide an independent bar to the

conditional grant of federal funds.”101 Yet the Court then

reiterated its Oklahoma holding that “a perceived Tenth Amendment

limitation on congressional regulation of state affairs did not

concomitantly limit the range of conditions legitimately placed on

federal grants.”102 Rather, the “independent bar” simply means that

Congress may not use its spending power “to induce the States to

engage in activities that would themselves be unconstitutional.”103

In this case, no action by Texas or Dallas is alleged to be

unconstitutional, so the fourth Dole prong is plainly not at issue.

In sum, to the extent that Dole controls whether § 666 can

apply here, the only problem lies in the third part of the Dole

test: reasonable relationship to a federal interest. Because this

reasonably-related prong of Dole is a specific application of the

100 See, e.g., United States v. Rooney, 37 F.3d 847, 851 (2d Cir. 1994) (“[Section] 666's manifest purpose is to safeguard finite federal resources from corruption and to police those with control of federal funds.”); id. at 849 (stating that the defendant was developing a federally-funded housing project). 101 Dole, 483 U.S. at 208 (collecting cases). 102 Id. at 210 (emphasis added). 103 Id.

39 more general test for whether an act of Congress is necessary and

proper to an enumerated power,104 I treat these questions together.

VI.

AS-APPLIED CONSTITUTIONALITY UNDER McCULLOCH

In addition to assigning Congress the spending power, which

brings with it the power to condition grants, the Constitution also

gives Congress the power “[t]o make all Laws which shall be

necessary and proper for carrying into Execution” the powers

expressly delegated to the federal government.105 Prosecuting

Lipscomb under § 666 is therefore constitutional if § 666 is “nec-

essary and proper” to Congress’s spending power.

A. McCulloch and the Necessary and Proper Clause

In testing for necessity and propriety, courts should remain

mindful of Justice John Marshall’s prescient explanation, in McCul-

loch v. Maryland,106 of what “necessary and proper” means:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not pro- hibited, but consist with the letter and spirit of the

104 See United States v. Ardoin, 19 F.3d 177, 188 & n.37 (5th Cir. 1994) (Wiener, J., concurring in part, dissenting in part and in the result) (“[T]he enumerated-power test of a federal statute’s validity is whether ‘the Congress might reasonably find that the act relates to one of the federal powers.’”) (quoting John E. Nowak & Ronald D. Rotunda, Constitutional Law § 3.3 (West Publishing 1991)). 105 U.S. CONST. art. I, § 8. cl. 18 (emphasis added). 106 17 U.S. 316 (1819).

40 constitution, are constitutional.107

Importantly for the instant case, Marshall derived an expansive

meaning of “necessary” from the principle that Congress can derive

from its enumerated powers the power to impose criminal

sanctions.108 From the enumerated power to “establish Post Offices

and post Roads,”109 Congress had “inferred the right to punish those

who steal letters from the post-office, or rob the mail.”110 In

other words, Congress’s postal power carried with it the ability to

impose criminal penalties to protect federal interests advanced by

that power. To the McCulloch Court, this example demonstrated that

“necessary” has a range of meanings, including “needful, requisite,

essential, or conducive to.”111 It was through the lens of this

broad construction of the Necessary and Proper Clause that Marshall

saw justification for Congress’s creation of the national bank, the

power to create which is nowhere enumerated in Article I. Whether

that broad construction justifies applying § 666 here depends on

Congress’s intent in enacting the statute, as well as on the nature

107 Id. at 421. 108 Id. at 416–17 (“So, with respect to the whole penal code of the United States: whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress.”). 109 U.S. CONST. art. I, § 8, cl. 7. 110 McCulloch, 17 U.S. at 417. 111 Id. at 418.

41 of the federal interest embodied in this case and the relationship

between that interest and Lipscomb’s conduct.

B. Legislative History

History often tells us why Congress deemed a statute necessary

and proper. Not so for § 666, however, because it was enacted as

part of an omnibus spending bill of the type that makes the search

for legislative history Sisyphean. What history exists is

multilayered, sparse, equivocal, and even mysterious. By no means,

I respectfully submit, is it capable of supporting Judge Smith’s

contention that “Congress did not find it necessary that § 666 be

applied in cases not involving federal funds or programs.”112

1. The 1986 Technical Amendment

We owe the current language of § 666 to the Criminal Law and

Procedure Technical Amendments Act of 1986.113 As that Act’s title

suggests, and as we recognized in Westmoreland,114 Congress did not

intend the Act to change § 666 substantively in ways that would

affect our reading of it here.115 This is important, because the

112 Infra at __. 113 P.L. 99-646, § 59, 100 Stat. 3592, 3612–13 (1986). 114 Westmoreland, 841 F.2d at 577 (“[T]he amended version of section 666 reinforces our interpretation. . . . [I]ts legislative history indicates that the relevant changes were ‘technical’ ones.”). 115 H.R. REP. NO. 99-797 at 30 (1986), reprinted in 1986 U.S.C.C.A.N. 6138, 6153: [S]ection 42 of the [House’s version of the technical corrections] bill amends 18 U.S.C. § 666, which deals with theft or bribery concerning programs receiving

42 1986 amendment rewrote language that reveals how Congress would

have answered our constitutional question in 1984.

2. The 1984 Enactment

As first enacted, § 666(b) read:

Whoever, being an agent of an organization, or of a State or local government agency...[that receives more than $10,000 a year in federal funds], solicits, demands, accepts, or agrees to accept anything of value from a person or organization other than his employer or principal for or because of the recipient’s conduct in any transaction or matter or a series of transactions or matters involving $5,000 or more concerning the affairs of such organization or State or local government agency, shall be imprisoned....116

The emphasized phrase strongly suggests that in 1984 Congress

believed it necessary and proper for § 666 to reach bribery that

had no relation to federal funds.

3. The 1983 Report

To counter the broad original and current language of § 666,

federal funds.... [S]ection 42 amends 18 U.S.C. 666 to avoid its possible application to acceptable commercial and business practices. Section 42 also makes technical amendments in 18 U.S.C. 666 to conform that section to the drafting style and format used generally in title 18 of the United States Code. A footnote in the report, id. at 30 n.9, reprinted in 1986 U.S.C.C.A.N. at 6153 n.9, also stated: 18 U.S.C. 666 prohibits bribery of certain public officials, but does not seek to constrain lawful commercial business transactions. Thus, 18 U.S.C. 666 prohibits corruptly giving or receiving anything of value for the purpose of influencing or being influenced in connection with any business, transaction, or series of transactions. 116 Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1104(a), 98 Stat. 1837, 2143—44 (1984).

43 Judge Smith relies heavily on a Senate Judiciary Committee report,

but this report described a different bill that never became law.

As eventually enacted, § 666 was a small part of a large crime bill

which was engrafted on a huge omnibus spending bill that funded

many departments and agencies.117 None of this bill’s reports,

written as they were by the Appropriations Committees, gives

context for § 666, a criminal statute which, of course,

appropriated no funds.118

Section 666 as enacted was identical to a provision in the

Comprehensive Crime Control Act of 1984, which passed the Senate

but never made it out of the House Judiciary Committee on its own

and evidently had to piggyback on the omnibus spending bill to gain

legislative momentum.119 The Senate report on the crime bill,

117 See Pub L. No. 98-473, 98 Stat. at 1837–2199. Entering “98 P.L. 473” on Lexis retrieves a list of the omnibus bill’s twenty- eight short titles and a sense of its massive scope; it included five of the thirteen appropriations bills for fiscal year 1985. A summary of the bill, H.J. Res. 648 (98th Cong.), is available at http://thomas.loc.gov (visited Oct. 13, 2001). 118 See H.R. REP. NO. 98-1159 (1984) (conference report), reprinted in 130 Cong. Rec. 31445 (Oct. 10, 1984); S. REP. NO. 98- 634 (1984) (Senate Appropriations, accompanying S.J. Res. 356); and H.R. REP. NO. 98-1030 (1984) (House Appropriations). Parts of the conference report are reprinted at 1984 U.S.C.C.A.N. 3710–17; for the conference report’s entire discussion of the crime bill, see 130 Cong. Rec. at 31565–67. The absence of language interpreting § 666 from the reports on this bill is understandable also as a result of the omnibus bill’s timing. Congress enacted it and the President signed it during October 10–12, 1984, less than a month before an election. See 98 Stat. at 2199. 119 See 1984 U.S.C.C.A.N. at 3182.

44 printed in 1983, can be taken as an authoritative statement of the

Senate Judiciary Committee’s intent for what became § 666. It is

tenuous at best, however, to rely, as does Judge Smith, solely on

one committee report —— on a wholly separate bill —— as stating the

views of the entire Congress.

The questionable probative weight of the Senate report aside,

that report is still not determinative here, for the evidence goes

both ways. The relevant passage is titled “Part C—Program Fraud

and Bribery,” and states that § 666

is designed to create new offenses to augment the ability of the United States to vindicate significant acts of theft, fraud, and bribery involving Federal monies that are disbursed to private organizations or State and local governments pursuant to a Federal program.120

The report notes, however, that under the prior law banning theft

of federal property, prosecuting was often impossible

because title has passed to the recipient [government] before the property is stolen, or the funds are so commingled that the Federal character of the funds cannot be shown. This gives rise to a serious gap in the law, since even though title to the monies may have passed, the Federal Government clearly retains a strong interest in assuring the integrity of such program funds.121

Even though the report’s emphasis on program funds would support a

narrow reading of the necessity and propriety of § 666, its

emphasis on commingling supports a broad one. In fact, the Senate

Judiciary Committee’s most explicit direction actually suggests

120 S. REP NO. 98-225, at 369 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510 (emphases added). 121 Id.

45 that the Committee intended to limit the scope of § 666, but in a

way that still would cover Lipscomb-like conduct:

The Committee intends that the term “Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance, or another form of Federal assistance” be construed broadly, consistent with the purpose of this section to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery. However, the concept is not unlimited. The term “Federal program” means that there must exist a specific statutory scheme authorizing the Federal assistance in order to promote and achieve certain policy objectives. Thus, not every Federal contract or disbursement of funds would be covered. For example, if a government agency lawfully purchases more than $10,000 in equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from the supplier a Federal crime.122

Thus one of the two lines that the Senate Judiciary Committee

expressly drew —— to exclude theft from a supplier from the

coverage of § 666 —— would not exclude Lipscomb’s conduct,

quintessentially “undue influence by bribery.”

4. The Specified Cases

The immediate next sentence in the report, subject to much

exegesis by Judge Smith, states: “It is, however, the intent [‘of

this section’] to reach thefts and bribery in situations of the

types involved in the Del Toro, Hinton, and Mosley cases.”123 With

continued due respect to Judge Smith, I do not discern in this

sentence any clear direction to us. Both Hinton and Mosley

122 S. REP NO. 98-225, at 370, reprinted in 1984 U.S.C.C.A.N. at 3511 (emphasis added). 123 Id.

46 sustained convictions of bribed local officials whom courts

considered to be federal officials under the prior bribery statute

because they exerted federal authority and controlled the

disbursement of federal funds.124 Simple logic dictates that just

because the Committee intended § 666 in part to codify these cases

does not meant that it sought to limit § 666 to these cases

exclusively.

In Del Toro, the federal interest was more attenuated. The

defendants were convicted of bribing a New York City official to

ensure that they would supply office space to a city program that

was eligible for federal funds.125 The Del Toro court reversed

these bribery convictions, noting that even if the official had

succeeded in provisionally securing the lease as desired, three

local agencies would have had to approve the lease before the city

could apply to the federal government for funds, so that “[t]here

were no existing committed federal funds for the purpose.”126 The

Senate Committee’s intent to overrule Del Toro thus reflects that

the Committee thought it necessary and proper for § 666 to reach

124 United States v. Hinton, 683 F.2d 195, 198–200 (7th Cir. 1982); United States v. Mosley, 659 F.2d 812, 815–16 (7th Cir. 1981). 125 United States v. Del Toro, 513 F.2d 656, 658–61 (2d Cir. 1975). 126 Id. at 662.

47 bribery even before the federal government had committed funds.127

The most that can be concluded from the report, then, is that

the Senate Judiciary Committee delimited the scope of § 666 in part

by seeking to exclude theft from suppliers but to include bribery

of officials running programs that might receive federal funds. I

do not see the report as shedding much light on our question.

Lipscomb’s conduct falls into a middle ground that the report

simply does not address.

5. The 1981 Bill

The plot thickens still further when an effort is made to

verify the assertion in the 1983 report that the language of § 666

was derived from a 1981 bill that never became law.128 The 1981

bill and its report emerged from Senate Judiciary —— the same

committee that later wrote the 1983 bill and report. The Committee

omitted from both the 1983 bill and the 1984 act, however, the very

language in the 1981 bill that would have answered our question:

(c) Jurisdiction.——There is federal jurisdiction over an offense described in this section if—— ... (6) the public servant is an agent of a State or local government charged by a federal

127 “Arguably [ ] Congress did not intend the involvement of federal funds in a corrupt transaction to be a factual certainty.” Westmoreland, 841 F.2d at 577 (interpreting Del Toro). 128 S. REP. NO. 98-225, at 369 (“The proposal is derived from S. 1630, the Criminal Code Reform Act of 1981[,] approved by the Committee in the 97th Congress.”) & n.1 (“See, e.g., sections 1731 (Theft) and 1751 (Commercial Bribery) of S. 1630 and the discussion at pages 726 and 803 of S. Rept. No. 97-307 (97th Cong., 1st Sess.”)), reprinted in 1984 U.S.C.C.A.N. at 3510.

48 statute, or by a regulation issued pursuant thereto, with administering monies or property derived from a federal program, and the official action or legal duty [with respect to which the bribe is taken] is related to the administration of such program.129

Thus, in 1983, the Senate Judiciary Committee had in hand —— and

even mentioned —— a two-year-old bill that would have required a

federal interest or nexus as a jurisdictional predicate. Yet the

1983 bill and 1984 enactment contained none of that language or

anything similar.130 The reason for that absence is unclear. In

1981, when the Committee clearly sought to require a federal nexus,

it had sufficient command of the English language to do so. To

suppose that the Committee lost that faculty over either two or

four years is ludicrous. Section 666 as enacted and amended,

therefore, might have reflected a change in the Senate Judiciary

Committee’s view on whether to require a federal nexus, but we

129 S. 1630, 97th Cong. § 101 (1981) (recodifying all of Title 18). This jurisdictional language in the proposed bribery section would have been the new 18 U.S.C. § 1351(c)(6). See S. 1630, 97th Cong. § 101, at 76–77 (codifying program bribery offense). The commercial bribery section in the 1981 bill contained a similar nexus requirement for the existence of federal jurisdiction. See S. 1630, 97th Cong. § 101, at 134 (1981) (proposing a new 18 U.S.C. § 1751(c)(1)(I)). 130 Any attempt to rely on the legislative history of the 1981 bill is therefore misguided. Unfortunately, a panel of this court has done so, quoting the 1981 report as if it were the 1983 report that shed light on the enacted text. See Phillips, 219 F.3d at 413 n.14 (citing United States v. Coyne, 4 F.3d 100, 110 n.1 (2d Cir. 1993) for its description of the “Committee Report,” but failing to note that the quote was from the 1981 report, not the 1983 report). Both Phillips and Coyne erred in relying on a report interpreting a jurisdictional requisite that never became law.

49 cannot say this with certainty: For all we know, the Committee

might well have sought to exercise federal criminal jurisdiction up

to its constitutional limits, leaving the issue to the courts to

decide.

C. The Views of Other Courts

Whatever the reason for § 666’s silence on this question, the

courts have struggled to produce the answer. Some district courts

have tested § 666 against the Tenth Amendment, treating the statute

as an emanation of the spending power, and have come to varying

conclusions.131 Additionally, four of our fellow appellate courts

have examined the sweep of § 666, either as a statutory matter or

a constitutional one, and are also divided.

131 Compare United States v. Sabri, 183 F. Supp. 2d 1145, 1154–58 (D. Minn. 2002) (seemingly holding, contra Salinas, § 666 to be a facially unconstitutional exercise of the spending power) and United States v. McCormack, 31 F. Supp. 2d 176, 178, 183–89 (D. Mass. 1998) (finding § 666 unconstitutional, because exceeding Congress’s spending power, as applied to indict defendant who bribed a local police officer to prevent investigation and prosecution of state crimes, despite the fact that the police department received federal funds) with United States v. Ferrara, 990 F. Supp. 146, 152 (E.D.N.Y. 1998) (rejecting federalism challenge to indictment of defendant who attempted to bribe members of a town board so that they would vote to approve zoning changes necessary to the construction of a radio tower completely unconnected to federal funds) and United States v. Bigler, 907 F. Supp. 401, 402 (S.D. Fla. 1995) (sustaining indictment against federalism and Tenth-Amendment attack, and finding § 666 a constitutional exercise of, because necessary and proper to, the spending and general-welfare powers, without detailing any connection to federal funds). See also United States v. Cantor, 897 F. Supp. 110, 112–13 (S.D.N.Y. 1995) (affirming the constitutionality of § 666 under the spending power and against Tenth-Amendment attack, and thus sustaining indictment of defendant who had facilitated bribery of official of Board of Education, without detailing any connection to federal funds).

50 Lipscomb relies on United States v. Zwick,132 in which the

Third Circuit declined to apply § 666 to conduct such as his:

Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F. Supp. 2d at 187–89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause.133

To avoid this supposed constitutional problem, the Zwick court

believed that to read § 666 literally is to err, and held that

Ҥ 666 requires that the government prove a federal interest is

implicated by the defendant’s offense conduct.”134 Not to require

a nexus, reasoned the Third Circuit, would erase significant

federal-state boundaries by turning § 666 into a general anti-

corruption law, which, in the Third Circuit’s view, Congress had

not intended.135

What then, under Zwick, would constitute a federal interest?

“The amount of federal funds” alone, reasoned the Zwick court,

could constitute the interest if the federal funds provided “the

greater part of a township’s budget”; if not, the offense conduct

132 199 F.3d 672 (3d Cir. 1999). 133 Id. at 687 (parallel citations omitted). 134 Id. 135 Id. at 686.

51 would have to implicate a substantive or programmatic interest,

even though “a highly attenuated implication of a federal interest

will suffice.”136 Since deciding Zwick, the Third Circuit has

clarified that the federal interest can reach very deep into the

ranks of local government.137

In diametric opposition to the Third Circuit, two other

circuits have declined to read an extra-textual nexus into § 666.

The Sixth Circuit has rejected a constitutional attack on its pre-

Salinas position that except for the textual $10,000 threshold,

§ 666 does not require a nexus between federal funds and the

offense conduct.138 The Supreme Court recently declined to review

136 Id. Evidence in Zwick showed that federal funds supported erosion control and emergency snow removal. Id. at 688. The defendant, a township commissioner, had taken bribes in exchange for action on “sewer access, use permits and landscaping performance bonds.” Id. Finding “no obvious connection” between the two, the court remanded for a new trial. Id. 137 United States v. DeLaurentis, 230 F.3d 659, 662 (3d Cir. 2000) (vacating dismissal of § 666 counts against former supervisor of police detectives for Hammonton, New Jersey, when a jury might conclude that (1) Hammonton received $25,000 a year under the federal Community Oriented Policing Services Program, (2) the defendant was bribed to intercede to protect a local bar, and (3) a federally-funded police officer was dispatched to the bar). 138 See United States v. Suarez, 263 F.3d 468, 472–73, 489–91 (6th Cir. 2001) (affirming conviction of police officer for converting victim restitution funds and police evidence). The Suarez majority does not clearly state that Suarez is a constitutional holding, but Suarez “clarifie[d] that this claim is a constitutional one.” Id. at 484 (Boggs, J., dissenting as to Part VI). See also United States v. Dakota, 188 F.3d 663, 666–68 (6th Cir. 1999) (affirming conviction of an agent of a tribal organization that received federal funds, although the agent’s offense conduct bore no relation to federal funds).

52 this result.139 The Seventh Circuit likewise has held that the

broad text of § 666 controls: “It is not our part to trim § 666 by

giving its text a crabbed reading.”140 Noting that the fungibility

of money militates against a narrow reading of § 666, the Seventh

Circuit concluded as a statutory matter that the district court

properly convicted a township supervisor, even though his bribe-

taking related only to his control of the town’s general-assistance

program, which did not receive any federal funds.141

In addition to his reliance on Zwick, Lipscomb would rely on

a precedent from the Second Circuit, but close inspection of that

case reveals that it actually supports his conviction here. In

United States v. Santopietro,142 that court stood by its earlier

139 Suarez v. United States, 122 S. Ct. 1547 (2002) (mem.). 140 United States v. Grossi, 143 F.3d 348, 350 (7th Cir. 1998); id.: Grossi wants us to say that, unless the program or activity that was touched by bribery itself received $10,000 in federal funds, the “circumstance described in subsection (b)” does not obtain. Yet money is fungible and its effect transcends program boundaries. The general assistance program has more to spend on welfare (or dangle as a lure for bribes) if the federal government meets some of the Township’s other expenses. Congress has on occasion limited regulation to the specific activity that receives the federal money. [Giving examples of statutory language] . . . Section 666(b), by contrast, refers not to a “program or activity” but to the “organization, government, or agency.” The difference is palpable. 141 Id. at 350. The court also stated that “the district court’s subject-matter jurisdiction is supplied by 18 U.S.C. § 3231 and is secure.” Id. at 351. 142 United States v. Santopietro, 166 F.3d 88 (2d Cir. 1999).

53 requirement of “at least some connection between the bribe and a

risk to the integrity of the federal [sic] funded program.”143 ——

obviously a “corruption focus.” Nevertheless, the example that the

Second Circuit gave of bribery that § 666 would not reach —— a

bribe paid to the hypothetical meat inspector of a city that

received a federal grant only for its parks department —— involves

a federal interest that is much more attenuated from the

perpetrator than does this case.144 Furthermore, the Santopietro

court affirmed the convictions of former officials of Waterbury,

Connecticut, who had accepted bribes from real estate developers.145

Linkage between the officials’ offense conduct and federal funds

was actually more remote than the connection in the instant case:

[C]orrupt payments were made by real estate developers to secure the use of the appellants’ influence with city agencies including the City Plan Commission, the Zoning Commission, the Water Department, and the Fire Marshal, and the use of their influence to further the interests of the developers in the appointments of members and chairpersons of land use boards and relevant committees and agencies in the City of Waterbury. During the relevant periods, substantial federal funds were received by Waterbury for housing, urban development, and other programs within the purview of these agencies and officials. Since federal funds were received by Waterbury for housing and urban development programs and the corrupt payments concerned real estate transactions within the purview of the agencies administering federal funds, the requisite connection between the bribes and the integrity of federally funded programs is satisfied. Thus, this is not a case where the transactions sought to

143 Id. at 93. 144 Id. 145 Id. at 91.

54 be influenced concerned one department of a city and the requisite $10,000 of federal funds were received by a totally unrelated department.146

Santopietro thus stands indisputably for a purview test: To be

prosecuted under § 666, a bribed official must at least influence

other officials who have within their purview federally funded

programs, but the corruption need not touch those programs. In

other words, Santopietro asks whether a defendant could have

influenced the use of federal funds by controlling the same

agencies or staffers whom he actually corruptly influenced with

respect to purely local matters.

Such a purview test, applied to the case at bar, supports

convicting Lipscomb, who took bribes in return for influencing

matters within the purviews of two Dallas departments, human

services and transportation, which both received federal funds.

The connection between federal funds and corrupt conduct is closer

here than in Santopietro, where the court did not explain how the

“City Plan Commission, the Zoning Commission, the Water Department,

and the Fire Marshal” administered federal funds, but rather

suggested that these agencies and officials made decisions ——

presumably determining whether proposed developments complied with

zoning, fire, and other codes147 —— with respect to housing and

146 Id. at 93–94 (emphasis added; citations and internal quotation marks omitted). 147 See United States v. Santopietro, 996 F.2d 17, 18 (2d Cir. 1993) (prior merits appeal) (“Benefits to certain bankers and land developers included zoning changes, subdivision approvals,

55 urban development programs, likely administered by other agencies,

that did receive federal funds.148 In other words, the federal

interest in Santopietro was more remote than it is here, as

Lipscomb himself cast votes to approve requests for federal funds,

and himself both lobbied and pressured officials who ran federally-

funded programs.

A less cumbersome and more direct purview rule would apply

§ 666 to defendants who themselves influence or control federal

funds.149 Such a rule also would support convicting Lipscomb here.

The Santopietro court, however, did not affirmatively adopt this

rule, explicitly leaving open the question whether the former mayor

could be prosecuted under § 666 for any transaction involving the

city if the federal funds were entirely unrelated to that

transaction.150 Santopietro, therefore, although confirming a nexus

confidential appraisal information for use in bidding on city-owned property, expedited treatment from city agencies, and input into appointments.”). 148 Santopietro, 166 F.3d at 93. 149 This may be the rule in the Fourth Circuit, which has summarized § 666 as banning “payoffs to state and local officials who influence the distribution of federal funds.” United States v. Jennings, 160 F.3d 1006, 1012 (4th Cir. 1998). However, the offense conduct in Jennings clearly involved federally funded programs: the bribed official gave federally funded housing- construction contracts to the briber. Id. at 1010–12. 150 Santopietro, 166 F.3d at 94 n.3: We need not consider whether Santopietro’s role as mayor——the chief executive officer of the city and hence the officer ultimately responsible for all city departments——would render the statute applicable to corrupt payments received by him for any transaction

56 rule, also could be read as supporting Lipscomb’s conviction under

such a rule or (just possibly) as skirting the relevant question

entirely. Thus, of the two cases from other circuits —— Zwick and

Santopietro —— that Lipscomb relies on heavily, only Zwick could

support finding § 666 unconstitutional as applied here.

D. Federal Interests at Stake

My own review is guided by the traditional, rational-

relationship test for whether a statute is necessary and proper to

an enumerated federal power.151 In this case, two federal interests

support the view that Congress reasonably could have thought it

necessary and proper to apply § 666 to agents and officials like

Lipscomb.

1. Absolute Amount of Federal Dollars

The government argues that the total federal funding received

by Dallas —— $56 million in 1998 —— justified federal jurisdiction

over Lipscomb’s conduct. Lipscomb focuses on the fact that $56

million was only 3.5% of Dallas’s city budget in that year. In

part, this is a dispute over the meaning of one passage in Zwick:

We can conceive of several ways in which the government could prove a federal interest in a § 666 [case].... The amount of federal funds could provide the requisite federal implication, even if the purpose of those funds has no explicit relationship to the subject of the bribe. If, for example, in a given year, the greater part of a

involving the city, even though the federal funds were received for a program entirely unrelated to the program in connection with which the corrupt payments were made. 151 See TRIBE, supra note 65, § 5–3, at 798–802, 805.

57 township’s budget came from federal funds, bribery of a township agent for any purpose might be said to implicate federal interests.152

In the abstract, this “greater part” yardstick may have an

appealing ring, but it is utterly divorced from reality. In

actuality, no state government and, I suspect, only a rare county

or city government (not even the District of Columbia), is so

wholly a creature of the United States as to rely on Washington for

“the greater part” of its revenue.153 In the rare case that federal

funding is a majority of total revenue, federal power to

criminalize local corruption would undoubtedly exist; but surely

the absolute level of federal grants, as well as their relative

importance to the city’s budget, would provide a federal interest,

to the protection of which § 666 is necessary and proper.

To determine whether this is so —— to judge if § 666 is indeed

reasonably related to the federal interest in safeguarding $56

million —— I would analogize the federal government and Dallas to

partners in spending federal dollars to advance shared goals. In

the private sector, what would a reasonable funding partner who has

advanced $56 million do after learning that its service partner

takes kickbacks, albeit regarding matters not within the

152 Zwick, 199 F.3d at 687. 153 See U.S. BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 2001, tables 435, 437, 439, 445, 447 (121st ed. 2001) (showing total revenue and federal revenue of the states and the largest cities and counties by population). None of the states, and none of the cities and counties listed, relies on the federal government for a majority of its revenue.

58 partnership’s scope? The funding partner might well dissolve the

partnership rather than wait for the service partner’s corruption

to widen and infect partnership dealings.

The partnership analogy does not bear close inspection, but

its failure, instead of undermining the constitutionality of § 666,

actually supports it. The analogy founders on the fact that in the

public sector, states, counties, and municipalities hold monopolies

on delivering many governmental services to their citizens. Thus,

when Congress seeks to benefit the citizenry of a particular state

and locality, it can turn to very few potential public partners.

This scarcity suggests that if the federal-Dallas partnership were

dissolved when corruption among Dallas officials is discovered ——

or if the federal government were to withhold funds in such a case

—— the purpose of the federally funded programs would be defeated,

and Congress would be prevented from using the spending power to

promote the welfare of citizens of Dallas. The populace of Dallas,

however, is by definition innocent of official corruption, and

should not suffer a cut in federally funded services on account of

it. The prospective specter of criminal sanctions against corrupt

officials themselves, rather than post-hoc, fiscally punitive

measures against Dallas, is therefore a logical and appropriate

solution for local corruption that threatens —— even indirectly, as

here —— $56 million in federal funds.

The Council votes to apply for federal funds, to accept

federal funds, and to approve all large contracts, including those

59 involving federal funds. Congress could rationally believe that

the integrity of $56 million of federal funds applied for by the

Council —— particularly when the federal treasury is funding not

just one or two projects but many —— suffices as a federal interest

weighty enough to justify federal criminal jurisdiction over

Council members who are bribed with respect to local issues.

2. The Integrity of State and Local Officials with Authority over Federal Funds

A second federal interest at stake here is the integrity vel

non of federal programs and funds, regardless of the quantum or

budget percentage of funds at issue. A corrupt state or city

official who has real responsibility for, or often participates in,

the allocation of federal funds is a “threat to the integrity”154 of

those funds, even if they are not actually or directly infected by

his corruption. Congress may legitimately view as necessary and

proper the imposition of federal criminal liability for bribery, so

as to ensure the honesty of state and local officials who have

federal funds in their purview or federal programs under their

authority.

Judge Smith advances two explicit arguments against such

liability (neither of which, with respect, I find persuasive) and

one implicit argument that is defeated by the text of the statute

and the facts of this case. The implicit contention is that

bribery of Lipscomb alone, apart from any of his fourteen council

154 Salinas, 522 U.S. at 61.

60 colleagues, cannot create a sufficient federal interest or nexus,

because Lipscomb cannot act for the Council. This argument might

also be grounded in the fact that, alone, one legislator does not

administer program funds. The text of § 666 disposes of this

argument, as a statutory matter, because Congress clearly sought to

apply § 666 to legislative-branch officials.155 As a constitutional

matter, there is little or no basis for holding that federal

jurisdiction over bribery of Council members depends on whether the

briber can command a majority. One Council member’s vote, after

all, can tip the balance on a close question; and, as Lipscomb’s

conduct here demonstrates, a member has a number of arrows in his

parliamentary quiver besides the final vote.

Judge Smith also speculates that the State of Texas would have

prosecuted Lipscomb had it known of the evidence against him. This

is not a constitutional argument; it merely begs the constitutional

question regarding the limits of the spending power.156 And, as

155 Lipscomb is an “agent” under the statute because he is an “officer” of Dallas. 18 U.S.C. § 666(d)(1) (2000). Even if he were merely an agent of a “subdivision of the [ ] legislative... branch of government,” the statute’s text would still cover him. 18 U.S.C. § 666(d)(2) (2000). 156 See United States v. Bailey, 990 F.2d 119, 126 (4th Cir. 1993) (citations omitted): We find no merit to this claim.... [T]he Tenth Amendment does not prohibit the federal government from enforcing its laws, even when there are state laws addressing the same criminal act. . . . Although South Carolina could have brought state criminal charges against Bailey based upon the same facts, this does not prevent the United States from

61 either a positive or a normative statement —— that the federal

government either does or should leave such prosecutions to the

states —— it fails. There are at least three reasons why federal

rather than state bribery prosecutions might be necessary and

proper in cases like Lipscomb’s. First, the federal government

might have a greater incentive to prosecute than does the state

government, either because the offense conduct directly or

potentially affects federal funds or because the federal government

provides more money to the locality than does the state

government.157 The latter proposition is true in this case: In

terms of dollars provided to Dallas, the federal government has a

stake in the city’s fiscal integrity that is between fifteen and

twenty times greater than the state’s stake.158

Second, federal officials might be less corruptible than state

enforcing its criminal statutes. 157 Both reasons were part of the Senate Judiciary Committee’s thinking in recommending that the Senate enact § 666. See S. REP. NO. 98-225 at 369, reprinted in 1984 U.S.C.C.A.N. at 3510: In many cases, such prosecution is impossible because title has passed to the recipient before the property is stolen, or the funds are so commingled that the Federal character of the funds cannot be shown. This situation gives rise to a serious gap in the law, since even though title to the monies may have passed, the Federal Government clearly retains a strong interest in assuring the integrity of such program funds. Indeed, a recurring problem in this area (as well as in the related area of bribery of the administrators of such funds) has been that State and local prosecutors are often unwilling to commit their limited resources to pursue such thefts, deeming the United States the principal party aggrieved. 158 See Part I.B., supra (discussing jurisdictional facts).

62 and local officials,159 and an informant with evidence of misconduct

by a state or local official might feel safer in taking his

information to federal authorities; indeed, he could even prefer

that it not be shared with state or local authorities. Third,

federal prosecutors are less likely to be linked to state and local

politicians and are generally more independent of local political

forces that might try to protect high officials from aggressive

state enforcement.

Judge Smith’s second contention against high-official

liability is a law-and-economics argument that, in my opinion, does

not hold water and affords courts little basis, if any, on which to

pronounce a statute unconstitutional, whether facially or as

applied. As I understand his argument, it is that if courts permit

the United States as well as states to prosecute high local

officials for bribery involving local funds and programs, corrupt

officials will change their behavior and, on the margin, take more

bribes directly related to federal funds and programs than they

otherwise would.160 With respect, I perceive at least three flaws

159 See RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW 698 (5th ed. 1998) (emphasis added): Some federal criminal jurisdiction can be explained by reference to the point...that monopolies of political power are more easily achieved at the state than at the federal level. Federal criminal prosecutions of corrupt local government officials exploit the relative incorruptibility of federal officials —— stemming from the greater costs of corrupting a federal agency... —— in order to reduce corruption at the local level. 160 See infra at ___.

63 of logic in this argument.

First, social science has not yet proven that the rational-

actor model adequately explains the real-world behavior of white-

collar criminals: As behavioral law and economics warns us,

inadequate information, biases, and heuristics often prevent

individuals from acting rationally. For example, unless a local

official is well integrated into a culture of white-collar

criminality (which would itself suggest that federal prosecution

may be necessary), he will lack even anecdotal data on the

probability that either the state or the federal government will

detect and prosecute bribery. (Anecdotal data would, of course, be

the only data available.) Therefore, an official considering

whether to take a bribe would not be likely to calculate the odds

of detection or prosecution in the dispassionately mathematical way

that the rational-actor model might suggest.

Furthermore, standard law-and-economics analysis actually

justifies federal criminal jurisdiction on the basis of interstate

externalities, an argument eminently applicable here.161 If bribery

in Dallas threatens federally-provided funds, that corruption

threatens the federal Treasury, which is funded by taxes collected

not just from Texas but from all across the Nation.

Lastly and most importantly, even if Judge Smith’s law-and-

economics objection to federal jurisdiction here were an accurate

161 See POSNER, supra note 120, at 697.

64 predictor, it has little force. The most that his prediction might

prove is that Congress has deluded itself into passing a law that

may be self-defeating, because it increases the vulnerability of

federal funds to corruption and thus disregards economic facts.

“But a law can be both economic folly and constitutional.”162 A

means-ends tradeoff, weighing costs against benefits, is precisely

the sort of political judgment that members of Congress are

entitled —— and better equipped than judges —— to make, and that

courts should generally defer to. As judges, we do not experience

the perils attendant on taxing one’s own constituents, do not enjoy

the political significance of bringing home the fiscal bacon, and

do not share the frustration of seeing hard-won federal dollars

bleed off through the hands of corrupt local officials. Lacking

the power to tax and spend, federal judges should defer to a

plausible risk-reward construct that Congress has enacted to

protect the federal fisc.

E. Constitutional Limits to § 666?

Lipscomb strongly argues that if § 666 constitutionally

criminalizes conduct like his by state and local agents, then there

are no limits to its sweep, and federal criminal law extends to

briberies totally removed from federal funds. As I have analyzed

Lipscomb’s constitutional challenge to the statute as it applies to

him, I need not determine here whether there is a constitutional

162 CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 96–97 (1987) (Scalia, J., concurring).

65 limit on § 666’s reach. A brief comment is nonetheless in order.

As a statutory matter, even Westmoreland —— our broadest (and

controlling) reading of § 666 —— did not address whether § 666 can

reach the lowest levels of state and local bureaucracies.

Westmoreland did, however, advert to the limits in the statute’s

text:

[T]he statute does not encompass every local bribery as Westmoreland suggests. Although the extent of the federal government’s assistance programs will bring many organizations and agencies within the statute’s scope, the statute limits its reach to entities that receive a substantial amount of federal funds and to agents who have the authority to effect significant transactions.163

As a constitutional matter, under the Necessary and Proper

Clause, the test is whether prosecution would be rationally related

to a federal interest —— that is, to effecting Congress’s spending

power. In this case, two already-noted federal interests justify

applying § 666 to Lipscomb’s conduct: (1) the total amount of

federal funds extended to Dallas and (2) Lipscomb’s purview —— his

high rank and his broad influence over many programs that receive

federal funds. Of these two interests, his purview would easily

accommodate, in another case, the Second Circuit’s hypothetical

implication in Santopietro that it could not be necessary and

proper to the spending power for federal criminal liability to

extend to a corrupt city meat inspector when the city receives

163 Westmoreland, 841 F.2d at 578.

66 federal funds only for its parks.164 That case is not before us

today, however, so I need not predict, in double dicta, whether

there might be categories of prosecutions under § 666 that are not

necessary and proper to the spending power. For today’s purposes

it is sufficient to note that if there are such categories,

Lipscomb is far removed from them.

F. Conclusion

The constitutional argument in this case boils down to how

direct must local corruption’s threat to federal funds be for § 666

to apply. Lipscomb insists that, although federal funds need not

be directly involved in the offense conduct, the state or local

official’s conduct still must threaten the integrity of federal

funds more directly than did his. Not so. The foregoing analysis

has shown that (1) the text of § 666 reads otherwise; (2) the

legislative history does not clearly contradict it (as it must to

override a clear criminal statute165); and (3) our controlling

precedents on point reject such a limit. Reduced to the bare

164 Santopietro, 166 F.3d at 93. Meat inspection is very much a federal responsibility, however, and the Second Circuit may have overlooked the Federal Meat Inspection Act, 21 U.S.C. § 601 et seq., especially 21 U.S.C. § 622 (banning bribery of meat inspectors employed by the United States). 165 Salinas, 522 U.S. at 57 (“Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language.”) (quoting United States v. Albertini, 472 U.S. 675, 680 (1985)) (further citations, internal quotation marks, and brackets omitted).

67 essentials, application of § 666 to Lipscomb’s conduct is indeed

reasonably related to a federal interest, and thus is necessary and

proper to Congress’s exercise of its spending power. Congress

could have believed, quite legitimately, that preventing federal

funds from passing through state and local legislative bodies whose

members are corrupt, and to do so with the deterrent of

criminalizing the legislators’ corruption, even with respect to

purely state or local issues, was necessary and proper to the

federal spending power. As courts can require of Congress nothing

more than such a rational relationship to the spending power, § 666

is constitutional as applied here.

VII. VENUE

Having established that the federal courts have jurisdiction

of this case, we turn to Lipscomb’s assignments of reversible error

by the district court. Chief among these is his contention that

the court abused its discretion in transferring the trial from

Dallas to Amarillo sua sponte, shortly before trial, and over

Lipscomb’s objection.

A. The Transfer Order

The district court read its unexpected transfer order into the

record at the end of a hearing on December 20, 1999. The order

reads, nearly in its entirety:

As everyone knows this case will involve the trial of one of the best[-]known sitting elected officials in the Dallas/Fort Worth metroplex for allegations of public corruption. This Court cannot recall such a trial of a sitting elected official in Dallas for allegations of

68 public corruption. This case has already received significant media attention and undoubtedly will receive more. The Court notes that both sides have requested or not opposed requests for individual voir dire examination of the prospective jury panel and both sides have requested use of a jury questionnaire. Both motions, unusual and rare motions in federal criminal cases in Dallas, are made precisely because of the high profile of Defendant Lipscomb, a Dallas City Councilman of twelve years[’] experience and one of the most influential and well[-]known political leaders in the Dallas African[- ]American community for the last three decades. Councilman Lipscomb has been an effective representative of his constituency and locally has strong supporters and detractors. These facts will obviously make selection of a jury of twelve with no preconceived opinions about Al Lipscomb no easy task. As stated this case has thus far generated substantial publicity in the local media and will generate more throughout the trial. Such coverage has resulted in the Court reading in the newspapers certain information that has been filed under seal. The Court is also concerned about the ability to select a fair and impartial jury. In considering the various motions regarding jury selection that both sides have filed[,] the Court is not convinced that such measures would be sufficient to assure Councilman Lipscomb, the other defendants, and the Government a fair trial. It is this Court’s fervent desire and absolute obligation to see to it that a fair trial is conducted —— fair to both the defendants and the Government. This Court will do all in its power under the law to make sure the verdict in this case is based on the evidence presented in the courtroom, and absolutely nothing else. There is no “divisional” venue in criminal cases under Federal Criminal Rule [sic] of Procedure 18. Since the 1966 amendment of this rule[,] providing for prosecution to be had in the district in which the offense was committed, a division of a federal judicial district is no longer a unit of venue in criminal cases. United States vs. Burns, 662 F.2d 1378 (11th Cir., 1981); Zicarelli vs. Gray, 543 F.2d 466 (3rd Cir., 1976). Within[-]district transfers of criminal cases are allowed under the law in this circuit. See United States vs.[ ]Bridges, 551 F.2d 651 (5th Cir. 1977) and United States vs. James, 528 F.2d 999 (5th Cir. 1976), cert. denied, 97 S.Ct. 382, 770. Indeed, this Court disposed

69 of all criminal cases filed in the Wichita Falls Division of the Northern District of Texas (about 100 cases) over a 4 ½ year period (1994 to 1999) in the Dallas Division of the Northern District of Texas. The law is clear that in the Court’s sound discretion, after considering the statutory elements, which this Court has done, this case may be tried anywhere within the Northern District of Texas. Amarillo is a good[-]size[d] city[,] serviced by several airlines and is only a five[-]hour drive from Dallas. No defendant is indigent and all have retained, as opposed to appointed, council [sic]. The Court has made a careful analysis and given due consideration of the convenience of the witnesses and the parties, and considered the prompt administration of justice. These considerations, coupled with the concerns for selection of an impartial jury as expressed by the parties in their pretrial motions, as well as all the concerns the Court has expressed above, causes [sic] the Court to find that the prompt administration of justice would best be effectuated by having the trial of this case in the Amarillo Division of the Northern District of Texas. ... The Court is absolutely convinced that the prompt administration of justice will best be served by conducting this trial in Amarillo, where it is unlikely [sic] that few, if any on the jury panel will have ever heard of Al Lipscomb or Floyd Richards, and fewer still, if any[,] will have any preconceived ideas or opinions about them. This will help assure that the jury verdict is based on the merits of the evidence presented in the courtroom, and nothing else.

Before the issuance of this order, no party had presented evidence

regarding prejudice from pretrial publicity or regarding any other

issue relative to venue. On hearing the order read, lawyers for

Lipscomb and his co-defendant, Richards, objected. Lipscomb filed

written objections nine days later —— objections on which the court

did not rule before the trial began, as long scheduled, on January

11, 2000, in Amarillo, some three hundred miles from Dallas.

In a motion for a new trial following his conviction, Lipscomb

70 renewed his objections to the venue transfer, which motion the

district court later denied. Also after trial, the government

filed thirty-seven newspaper articles about Lipscomb’s case that

had appeared from March through December 19, 1999, as well as other

articles that appeared after the transfer order —— none of which

had been in the record when the transfer order issued and none of

which were so much as mentioned by the district court.

B. Standard of Review: Abuse of Discretion

We review all questions concerning venue under the abuse of

discretion standard.166 In general, “[a] district court by

definition abuses its discretion when it makes an error of law.”167

A district court also abuses its discretion if it “bases its

decision ... on a clearly erroneous assessment of the evidence.”168

As a leading treatise on standards of review suggests, a trial

court abuses its discretion “when the judge has considered the

wrong factors in applying his discretion (the judgment call was

made as to issues or factors not within the scope of his

discretionary powers).”169

166 United States v. Asibor, 109 F.3d 1023, 1037 (5th Cir. 1997); United States v. Alvarado, 647 F.2d 537, 539 (5th Cir. Unit A June 1981). 167 Koon v. United States, 518 U.S. 81, 100 (1996). 168 Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th Cir. 1994). 169 1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW § 4.01(A) (3d ed. 1999).

71 Reversal of an intradistrict transfer is proper only if a

party demonstrates a “substantial ground for overturning the

district court’s decision.”170 In the typical case, the defendant

appeals the trial court’s denial of a Rule 18 motion to transfer

venue. And, in the typical case, the defendant’s appeal is

unsuccessful because the district court is “not [ ] required to

move the trial absent a strong showing of prejudice”171 to the

defendant. Some of our cases suggest that this same strong-

showing-of-prejudice standard applies when, as here, the defendant

seeks to block a transfer.172 When the government is the party

seeking a transfer, however, at least one case appears to require

that the government have a “legitimate reason” for doing so.173

170 United States v. Dickie, 775 F.2d 607, 609 (5th Cir. 1985), abrogated in part on other grounds, 37 F.3d 160 (5th Cir.1994), (brackets omitted) (citing United States v. Malmay, 671 F.2d 869, 876 (5th Cir. 1982)). 171 United States v. Duncan, 919 F.2d 981, 985 (5th Cir. 1990) (“An intradistrict transfer is not required absent a strong showing of prejudice.”); Malmay, 671 F.2d at 876. See also Dickie, 775 F.2d at 609. 172 See United States v. Osum, 943 F.2d 1394, 1399 (5th Cir. 1991) (“[T]he transfer [requested by the government] may be granted within the trial court’s discretion unless the defendant shows that a transfer would be prejudicial.”). Osum cited only Duncan for this proposition, but Duncan actually involved a transfer motion made by the defendant. Duncan, 919 F.2d at 985. Osum also stated that “[W]e cannot in this case, given the existence of a valid reason supporting transfer and no showing of prejudice by the defendant, say that the district court abused its discretion.” Osum, 943 F.2d at 1400. 173 Osum, 943 F.2d at 1400 (finding that the transferee judge’s familiarity with the conspiracy alleged in the case was a “legitimate reason”).

72 Here, however, neither the government nor the defense sought

transfer.

C. Analysis

We must begin our analysis by recognizing an important

distinction between intradistrict and interdistrict transfers: Only

an interdistrict transfer implicates the Constitution.174 There is

no basis for inferring the existence of a constitutional right to

trial within the division where a criminal defendant lives or where

a crime was committed.175 In one intradistrict transfer case,

however, we interpreted the Sixth Amendment to mean that “it is the

public policy of this Country that one must not arbitrarily be

sent, without his consent, into a strange locality to defend

himself against the powerful prosecutorial resources of the

Government.”176

The Federal Rules of Criminal Procedure also distinguish

between interdistrict and intradistrict transfers. Rule 21 governs

transfers to another district and provides that this may be done

174 See U.S. CONST. art. 3, § 2, cl. 3; U.S. CONST. amend. VI. 175 United States v. James, 528 F.2d 999, 1021 (5th Cir. 1976) (noting that the Sixth Amendment makes “no reference to a division within a judicial district”); Lafoon v. United States, 250 F.2d 958, 959 (5th Cir. 1958). 176 Dupoint v. United States, 388 F.2d 39, 44 (5th Cir. 1967) (interpreting a prior version of Rule 18 that did not allow for an intradistrict transfer for the prompt administration of justice).

73 only on motion of the defendant.177 Rule 18, in contrast, governs

intradistrict transfers:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.178

Although the text of Rule 18 refers only to convenience and prompt

administration, the district court may consider other factors.179

177 FED. R. CRIM. P. 21(a): For Prejudice in the District. The court upon motion of the defendant shall transfer the proceeding ... to another district ... if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial ... in that district. See also FED. R. CRIM. P. 21(b) (“For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding ... to another district.”). 178 FED. R. CRIM. P. 18. 179 See 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE Crim § 305, at 339–40 & n.11 (3d ed. 2000 & supp. 2002) (collecting cases) (“There is now substantial authority for the proposition that the court . . . may take into account numerous factors appearing in the particular case.”). Compare FED. R. CRIM. P. 18 advisory committee’s notes to 1979 amendments: The amendment to rule 18 does not eliminate either of the existing considerations which bear upon fixing the place of trial within a district, but simply adds yet another consideration in the interest of ensuring compliance with the Speedy Trial Act of 1974. The amendment does not authorize the fixing of the place of trial for yet other reasons. Cf. United States v. Fernandez, 480 F.2d 726 (2d Cir. 1973) (court in the exercise of its supervisory power held improper the fixing of the place of trial “for no apparent reason other than the convenience of the judge”).

74 In this case, the court mentioned several, which we shall evaluate

in turn, and we shall rule out others that are not relevant here.

1. Convenience

Rule 18’s “due regard to the convenience of the defendant and

the witnesses” militates strongly against transfer in this case.

The record shows that the defendant and all witnesses resided in

Dallas. In addition, every defense attorney practiced there, and

the judge was based in Dallas. Not a single relevant event

occurred outside Dallas.180 As “convenience of the prosecution...is

not a factor to consider in changing venue,”181 the convenience

facts rarely cut as totally against transfer as they did here.

The district court did not mention these contra-transfer facts

in its order. It merely noted that Amarillo was served by several

airlines, that it was a five hours’ drive from Dallas, and ——

perhaps inaccurately and irrelevantly —— that the defendants were

represented by “retained” counsel.182 These facts, of course, did

180 This case is thus readily distinguishable from United States v. Gourley, 168 F.3d 165 (5th Cir. 1999), where we found no abuse of discretion when the Southern District of Texas transferred a trial from the Houston division to the Laredo division. Some of the defendant’s witnesses were in Houston, id. at 171, suggesting that convenience in that case may have cut in favor of Houston; but an element of the offense conduct —— conspiracy to import cocaine —— took place “at the border near Laredo,” and the crime in progress was detected in both Laredo and Houston. Id. at 167. 181 Dickie, 775 F.2d at 610. 182 Although Lipscomb was not represented by court-appointed lawyers, the trial court’s use of “retained” connotes that Lipscomb was paying his lawyers’ fees. The record clearly shows, however, that Lipscomb faced large legal bills, lacked the means of his own

75 not diminish the basic truth that trial in Amarillo was

inconvenient for Lipscomb, his counsel, and all witnesses. This

case is, therefore, easily distinguishable from the two cases on

which the district court relied, because convenience did not

militate against transfer in either of them.183 Those cases do not

support the court’s sua sponte transfer here, and the trial court

erred as a matter of law in relying on them.

2. Court Policy

The trial court also referred to its prior transfers of “about

100 [criminal] cases” from Wichita Falls to Dallas (less than half

the distance, we note, as Dallas to Amarillo). This historical

fact, however, does not support the transfer at issue. Nothing in

the record shows why those transfers took place. Such reference to

the court’s prior venue practice verges on circularity and runs the

risk of creating a per se rule that violates Rule 18’s focus on the

to pay them (partly because Dallas city council members are not paid a salary), and resorted to fundraising. One article also stated that Lipscomb’s lead defense lawyer had placed himself last in line for whatever money Lipscomb might manage to raise. 183 See James, 528 F.2d at 1003, 1021–22 (showing that convenience did not militate against transfer because six of the seven defendants did not even live in state, much less in the transferring division, and four of the witnesses were in jail). In the other case relied on by the district court, the defendants never objected to the place of trial, which was only forty miles further from the place of the crime than the alternative courthouse; inconvenience, if any, was slight. United States v. Bridges, 551 F.2d 651, 652 & n.5 (5th Cir. 1977).

76 facts of each case.184 To whatever extent the district court

perceived from past transfers a generalized but informal policy

regarding transfers as a matter of course, without reference to the

permissible considerations under Rule 18 that may have supported

those transfers, it committed legal error by including an

impermissible consideration in its Rule 18 balancing.

As local court policy is irrelevant, and permissible

convenience considerations militated strongly against transfer to

Amarillo, the issue becomes whether any other legitimate factors,

discernible from the record as it stood when the order was made,

sufficiently supported transfer to bring this one within the range

of discretionary choices to which we must defer on appeal.

3. Speedy Trial

The rule’s second textual factor —— “due regard to...the

prompt administration of justice” —— is in part a literal command

that trials comply with the Speedy Trial Act.185 This factor,

however, did not support trial transfer in this case, as a review

of the record shows. Lipscomb was indicted on March 4, 1999, and

he appeared in court the next day. Trial was initially set for May

17, but Lipscomb moved for continuance. The court refused to

continue the trial date indefinitely, instead setting a hearing for

May at which counsel had to submit their schedules for the coming

184 See United States v. Burns, 662 F.2d 1378, 1382–83 (11th Cir. Dec. 1981). 185 18 U.S.C. § 3161 (2000).

77 months. Counsel for Lipscomb had court engagements scheduled in

each month from August through November of 1999, so at the hearing,

all parties agreed on January 10, 2000, as the trial date.186

Later, in November, the trial court extended the trial date one

day, to January 11. Early in December, 1999, Lipscomb filed

another motion to continue the trial, which motion the district

court promptly denied. When, on December 20, the district court

unexpectedly ordered the transfer, the parties already knew that

(1) trial was firmly set for January 11 and (2) there was no reason

to expect that voir dire would not begin on that day. Nothing in

the record suggests that facilities appropriate for the trial were

unavailable in Dallas at that time. There were thus no speedy-

trial issues in this case.

The district court did characterize the possibility of a

difficult voir dire as an obstacle to “prompt administration.” We

do not understand the term “prompt administration” to have been

promulgated in the Rules with the intention of permitting courts to

avoid even attempting arduous voir dire proceedings. Rather, the

triggering purpose of the “prompt administration” amendment to Rule

18 was to clarify that district courts are authorized to fix the

place of trial so as to comply with the Speedy Trial Act.187 That

186 The scheduling order determined, pursuant to 18 U.S.C. § 3161(h)(8)(A) and (B)(iv), that the ends of justice would be best served by the new trial date. 187 See note 137.

78 Act concerns itself solely with the timeliness of when trial

begins, not with when either voir dire or the entire trial will

conclude,188 and in this circuit, trial is deemed to begin with voir

dire.189 Because the transfer to Amarillo did not change, much less

hasten, the already-scheduled start of the trial, the transfer did

not accomplish the “prompt administration” of this case in the

textual, speedy-trial sense.

Nevertheless, we have held that a trial court, in its

discretion, may fix the place of trial with regard to factors other

than convenience and prompt administration: such factors commonly

include, but are not necessarily limited to, docket management,

courthouse space and security, and —— most importantly for this

case —— pretrial publicity.

4. Docket Management

In the context of docket management, we have construed the

term “prompt administration of justice” to refer not just to the

particular case that may be transferred, but also to other trials

on the court’s docket.190 A district court may consider docket

management in its Rule 18 balancing, and docket issues may even

188 See 18 U.S.C. § 3161. 189 United States v. Howell, 719 F.2d 1258, 1262 (5th Cir. 1983). 190 In re Chesson, 897 F.2d 156, 159 (5th Cir. 1990).

79 outweigh convenience factors that point entirely the other way.191

But nothing in the court’s remarks or in the record of this case

suggests that docket management was implicated here.

5. Logistics

Another factor that a court may consider in fixing the place

of trial within its district is whether a particular courthouse

meets a particular trial’s security requirements or other

facilities needs. Courtroom availability, unsurprisingly, is a

permissible consideration.192 So too are the amount of jail space

available there for defendants or witnesses193 and the adequacy of

security arrangements in a particular criminal trial.194 Even so,

191 Thus, when the Western District of Louisiana was at two- thirds its authorized strength, and the trial judge not only resided in Monroe, Louisiana, but also had other civil and criminal matters on his docket there, he did not abuse his discretion by transferring an anticipated three-week trial there from Lake Charles, Louisiana, 150 miles away, over the defendants’ objections that they, their witnesses, and their counsel lived and worked in the Lake Charles area. Chesson, 897 F.2d at 157–59. In another case, even though the offense was committed in Greenville, Mississippi, and all the witnesses, counsel, and defendants were located there, the district court did not abuse its discretion by fixing the place of trial at Oxford, Mississippi, where the district court had other cases scheduled. United States v. Harris, 25 F.3d 1275, 1277–78 (5th Cir. 1994). 192 United States v. Faulkner, 17 F.3d 745, 757 & n.13 (5th Cir. 1994) (listing courtroom availability as one of the considerations that prevented an intradistrict transfer from rising to the level of plain error, which was the applicable standard of review because defendants had failed to preserve error). 193 United States v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995). 194 Harris, 25 F.3d at 1278 (“Rule 18 allows a court to consider ‘the prompt administration of justice’ in fixing the place of trial, and ‘matters of security clearly fall within that

80 the record and transfer order here are devoid of any indication

that such logistical considerations played any role in the transfer

from Dallas to Amarillo, and no party argues to us that they did.

6. Pretrial Publicity

Pretrial publicity, then, is the only factor that might

counterbalance convenience and render the transfer to Amarillo a

proper exercise of discretion. We have not delineated the quality

or quantity of prejudicial publicity that will support a trial

court’s sua sponte transfer in the face of countervailing

convenience factors. We have, however, defined the opposite end of

the zone of deference for interdistrict transfers: When pretrial

publicity is the basis for a defendant’s motion to transfer to

another district under Rule 21, a trial court errs as a matter of

law in denying such a motion only if the defendant can show that

pretrial publicity inflamed the jury pool, pervasively prejudiced

the community against the defendant, probatively incriminated the

defendant, or exceeded “the sensationalism inherent in the

crime.”195

Here, the district court neither identified nor analyzed the

publicity that it conclusionally relied on as sufficiently

prejudicial to require a highly inconvenient transfer over the

consideration.’”) (quoting FED. R. CRIM. P. 18 and United States v. Afflerbach, 754 F.2d 866, 869 (10th Cir. 1985)). 195 United States v. Parker, 877 F.2d 327, 331 (5th Cir. 1989).

81 defendant’s objections.196 Indeed, until after the trial, the

record did not even contain copies of the publicity at issue.

(Notably, we have not found one criminal case in which the trial

court inferred prejudice justifying a transfer from publicity of

which it merely took judicial notice.197) The court did nothing

more than globally label the unspecified publicity as “significant”

and “substantial” and state that voir dire in Dallas would be “no

easy task.”198 But surely, this is not the standard for determining

whether pretrial publicity renders a trial unfair. The court’s

lack of record documentation or analysis on this point is

particularly troubling in light of our acknowledgment that “[e]very

claim of potential jury prejudice due to publicity must turn upon

its own facts.”199

Despite the trial court’s statement to the contrary, it was

not that court’s duty, in ensuring a fair trial, to select “a jury

196 Although the court did state that the media had reported material filed under seal, the only sealed material in the record on appeal is Lipscomb’s pre-sentencing report. We therefore have no way of evaluating the prejudice of the reports to which the court referred and reviewing the court’s reasoning on this point. 197 The government points us to In re Agent Orange Product Liability Litigation, 818 F.2d 145, 169 (2d Cir. 1987), but that was not a criminal case, and the court there took notice of the publicity to evaluate not prejudice among the venire pool but the sufficiency of notice to potential class members. 198 We are somewhat troubled by the implication in this remark that, foreseeing a lengthy jury-selection process in Dallas, the court may have become concerned for its own convenience. 199 United States v. Aragon, 962 F.2d 439, 444 (5th Cir. 1992).

82 of twelve with no preconceived opinions about Al Lipscomb.” This

simply is not the applicable standard. The law is actually much

more realistic:

Qualified jurors need not [ ] be totally ignorant of the facts and issues involved. “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”200

A defendant’s right to a fair trial is violated only if he shows

that “the trial atmosphere was ‘utterly corrupted by press

coverage.’”201 Therefore, even if inflammatory pretrial publicity

did saturate the community, raising a presumption of prejudice to

the defendant, the government can usually rebut this presumption

through voir dire that ferrets out such prejudice.202 In this case,

to the extent that the district court focused on prejudice to the

government, it failed to give Lipscomb any opportunity to rebut

that presumption through voir dire.

The exception to this rebuttable-presumption rule regarding

prejudicial publicity was announced by the Supreme Court in Rideau

200 Murphy v. Florida, 421 U.S. 794, 799–800 (1975) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). See also Dobbert v. Florida, 432 U.S. 282, 302 (1977) (same). 201 Black v. Collins, 962 F.2d 394, 409 (5th Cir. 1992) (quoting Dobbert, 432 U.S. at 303). 202 Parker, 877 F.2d at 331 (quoting United States v. Harrelson, 754 F.2d 1153, 1159 (5th Cir. 1985)).

83 v. Louisiana,203 in which a defendant’s uncounselled, taped

confession had been broadcast three times to two-thirds of a small

community, rendering the venire pool presumptively prejudiced

against him, so that confirmation of this prejudice through voir

dire was not necessary.204 From Rideau we derived the following

rules for habeas cases:

where petitioner adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, jury prejudice is presumed and there is no further duty to establish bias. ... Given that virtually every case of any consequence will be the subject of some press attention, however, the Rideau principle of presumptive prejudice is only rarely applicable, and is confined to those instances where the petitioner can demonstrate an extreme situation of inflammatory pretrial publicity that literally saturated the community in which his trial was held.205

Despite this standing caution against presuming prejudice, the

trial court in this case essentially created out of whole cloth a

Rideau exception for cases in which publicity is unfavorable to the

government and (we infer) jury nullification is possible. Even if

such a rule were proper, however, the record of this case would not

support its application.

Lipscomb contends that such a rule would not be proper, urging

203 373 U.S. 723 (1963). 204 Id. at 724. 205 Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980) (citations, brackets, and internal quotation marks omitted).

84 that in fixing the quantum of prejudicial publicity that renders a

highly inconvenient transfer discretionary, we should distinguish

between publicity prejudicing the defendant and publicity

prejudicing the government. Essentially, he proposes that

publicity prejudicial to him may justify transfer, but publicity

prejudicial to the government cannot. To support this contention,

he points to the Advisory Committee Notes to Rule 18, which state:

If the court is satisfied that there exists in the place fixed for trial prejudice against the defendant so great as to render the trial unfair, the court may, of course, fix another place of trial within the district (if there be such) where such prejudice does not exist. Cf. Rule 21 dealing with transfers between districts.206

Rule 21 —— which some courts find illuminative of Rule 18207 ——

requires an interdistrict transfer for prejudice if the defendant

requests it and the court determines that “there exists in the

district where the prosecution is pending so great a prejudice

against the defendant that the defendant cannot obtain a fair and

impartial trial at any place fixed by law for holding court in that

district.”208

We cannot entirely accept Lipscomb’s suggested distinction,

because we have in fact upheld a sua sponte intradistrict transfer

—— to a division unrelated to the offense conduct, as here, and

206 FED. R. CRIM. P. 18 advisory committee’s notes to 1966 amendments (emphasis added). 207 See United States v. Walker, 890 F. Supp. 954, 958 n.5 (D. Kan. 1995) (collecting authorities). 208 FED. R. CRIM. P. 21(a) (emphasis added).

85 over the objection of the defendant —— to cleanse the trial of the

effects of publicity prejudicing the government. Yet, as Lipscomb

correctly notes, whenever we have upheld a sua sponte transfer over

the defendant’s objection (whether the prejudice from publicity was

to the government or to the defendant), a mistrial had already

demonstrated that the venire pool had been badly tainted by

publicity and that retrial within the transferring division would

pose virtually insuperable difficulties.

Our most recent ruling to this effect, in United States v.

Gonzalez,209 exemplifies this pattern: The defendant’s first trial

was interrupted by two bomb threats and ended in a hung jury, and

his second trial ended in a mistrial after three jurors reported

that they received anonymous phone calls urging them to convict.210

“[C]onsiderable publicity...from the first two trials” resulted.211

Under such easily distinguishable circumstances, the trial court

did not abuse its discretion in ordering an intradistrict transfer

sua sponte.212 To the same effect are our decisions in United

States v. Weddell213 and United States v. Dickie.214

209 163 F.3d 255 (5th Cir. 1998). 210 Id. at 259. 211 Id. 212 Id. at 260. 213 800 F.2d 1404, 1406 (5th Cir. 1986). 214 775 F.2d 607 (5th Cir. 1985).

86 United States v. Faulkner215 involved prosecution of

businessmen who developed condominium projects and in the process

exhausted the funds of several savings and loan associations in the

Dallas area.216 The “I-30 scandal” generated 1,100 newspaper

articles, an ad in a gubernatorial campaign mentioning a defendant

in a negative light, and such a public awareness of the case that

60% of Dallas residents had formed an opinion that one defendant

was guilty.217 After the first trial —— held in the Lubbock

division of the Northern District —— ended in a mistrial, the trial

court attempted voir dire in Dallas itself, but dismissed the panel

after several days because of the effect of pretrial publicity.218

The court then granted the defendants’ motions to transfer venue,

moving the case to the El Paso division of the Western District,

where the trial court sua sponte transferred the case yet again, to

the Midland division of the same district.219 On appeal, given the

unproblematical interdistrict transfer, we held that the second,

sua sponte transfer did not amount to plain error.220

No case of ours, therefore, stands squarely for the

215 17 F.3d 745 (5th Cir. 1994). 216 Id. at 751–54, 756. 217 Id. at 756 & n.9. 218 Id. at 754. 219 United States v. Faulkner, 17 F.3d at 754–55. 220 Id. at 757–58.

87 proposition that the government urges us to accept, i.e., that for

purposes of the venue of a defendant’s initial trial, pretrial

publicity alone would permit the trial court, sua sponte and

without a supporting record, to order an intradistrict transfer to

a division entirely unrelated to the offense conduct, and in the

process overrule the defendant’s objection, giving no regard to

convenience, making no attempt at voir dire, and expressing only a

generalized desire to ensure that the government, as well as the

defendant, receive a fair trial.

In his dissent, Judge Smith urges that the government’s

proposed rule is embodied in United States v. Alvarado.221 Even a

cursory reading of Alvarado, however, shows that our terse

discussion of the transfer issue there is entirely silent on

several key questions: (1) Did the district court in that case

transfer the case sua sponte; (2) if the transfer was sua sponte,

did the district court create a record that showed prejudice by

analyzing publicity or by attempting voir dire; (3) by what

standard did the district court determine the publicity to be

prejudicial; and (4) what was the nature of the publicity itself?222

From the opinion, none of these issues appears to have been

contested. As far as the Alvarado opinion goes, the defendants’

argument was founded entirely on a mis-citation and

221 647 F.2d 537 (5th Cir. Unit A June 1981). 222 Id. at 539–40.

88 misunderstanding of the criminal venue statutes.223 Research into

the district court case confirms not only that the Alvarado

defendants actually moved to transfer, but also that they asked

(unsuccessfully) that a newspaper reporter be instructed not to

print anything concerning the rejection of a plea agreement, lest

such publicity prejudice the case.224 The Alvarado district court

held an evidentiary hearing on the defendants’ motion to transfer

“due to publicity in the area” and took the motion under advisement

until after voir dire on publicity was concluded.225 At that point,

the district court denied the motion226; but the court later

reconsidered that denial and granted the motion after a witness

caused a mistrial by testifying that defendants had pled guilty.227

All these facts provide context for, and render entirely

understandable, the silence of our Alvarado opinion. These facts

also completely distinguish Alvarado from this case: The Alvarado

223 Id. at n.4. 224 See proceedings in United States v. Martinez, No. Cr. B-78- 29 (S.D. Tex., Brownsville Div.), particularly the docket sheet entries for 8/17/79 (motion regarding newspaper reporter made and rejected); 8/24/79 and 8/27/79 (motions to transfer made). Martinez was the caption of Alvarado in the district court until the transfer of proceedings against fourteen defendants, at which point the case became United States v. Alvarado, No. Cr. V-79-4 (S.D. Tex., Victoria Div.) —— the case appealed to us. 225 Martinez, docket sheet at entry for 8/28/79. 226 Id. at entry for 8/30/79. The court also denied a motion for mistrial based on some jurors having been seen with a newspaper. Id. at entry for 9/17/79. 227 Id. at entry for 9/21/79.

89 trial court did not transfer the case sua sponte as did the

Lipscomb court; and the Alvarado defendants advocated transfer,

unlike Lipscomb, who vigorously opposed it. Rather than undermine

our conclusion here, the Alvarado facts confirm our impression that

the transfer in the instant case was quite unusual. Any court that

views Alvarado as trumping today’s holding under our rule of

orderliness will have been led into serious error.228

We have found only one case (from another circuit) that comes

close to supporting the proposition for which the government

contends, but that case ultimately is unpersuasive. In United

States v. Mabry,229 a defendant moved for individual voir dire

regarding pretrial publicity.230 The trial court interpreted this

motion as raising a concern about whether trial in the Albuquerque

division of the district of New Mexico would be fair —— seemingly

228 The dissent’s reliance on two other cases is similarly misplaced. United States v. Kaufman, 858 F.2d 994, 1006 (5th Cir. 1988) is entirely irrelevant here, because docket management is, as we have noted, a permissible factor in the Rule 18 balancing, but one that is entirely absent from this record. The reasoning of the other Fifth Circuit case that the dissent relies on is also easily understood: [T]the Southern District of Texas was the only district in which (at least absent further evidence) venue was initially proper as to all counts. While this does not prevent a Rule 21(b) transfer of all counts to another district, it is at least an indication that the government's selection of the forum was not arbitrary. We conclude that the district court did not abuse its discretion in denying Fagan's Rule 21(b) motion. United States v. Fagan, 821 F.2d 1002, 1008 (5th Cir. 1987). 229 809 F.2d 671 (10th Cir. 1987). 230 Id. at 683.

90 to the defendants, not to the government —— and transferred the

case, over the defendants’ objections, to Roswell,231 which we

estimate to be some two hundred miles from Albuquerque. On appeal,

the Tenth Circuit found no abuse of discretion: “There was no

substantial inconvenience to the defendants or the witnesses as a

result of the transfer and no real prejudice has been

demonstrated.”232

We discern several reasons not to follow the Mabry result

here. First, the Mabry district court did not appear to transfer

the case out of concern that the government receive a fair trial.

To this extent, Mabry actually supports Lipscomb’s contention on

that point. Second, the cases on which the Tenth Circuit relied

buttress Mabry’s result only weakly, if at all.233 Third, Mabry’s

transfer holding has been largely ignored by other courts, perhaps

because the Supreme Court later abrogated Mabry’s entrapment-

instruction holding.234 Mabry is thus hardly persuasive authority

231 Id. 232 Id. 233 See United States v. Raineri, 670 F.2d 702, 706 (7th Cir. 1982) (finding no abuse of discretion where trial court refused to transfer case to towns that lacked federal courthouses); Burns, 662 F.2d at 1383 (reversing the trial court’s transfer order that was based conclusionally on the district’s court’s policy of consolidating criminal trials in one courthouse); United States v. Young, 618 F.2d 1281, 1288 (8th Cir. 1980) (restating the general rule that a defendant has no constitutional right to be tried in a particular district). 234 See United States v. Whalen, 976 F.2d 1346, 1348 n.1 (10th Cir. 1992) (“Mabry has since been indirectly overruled by Mathews

91 here.

The district court here did not learn through hard experience

that voir dire would be challenging. It developed no facts to

suggest that the pretrial publicity presumptively or actually

tainted the jury pool; it failed to analyze the publicity itself

for prejudice; it applied a wrong and unrealistically high standard

to determine whether the putative jury would be prejudiced; and it

relied on cases of ours that are not on point. There is a plethora

of support for holding that the district court abused its

discretion in transferring Lipscomb’s case to Amarillo.

7. Summary

Both our precedents and persuasive authorities from other

courts suggest, even if only by negative implication, that this

case’s facts and proceedings make it a true outlier in the Rule 18

jurisprudence. In concluding that there was no abuse of discretion

in the aforementioned cases, neither we nor the other courts have

purported to fix any bright-line boundary of that discretion. We

are constrained to set one such limit by example, however,

believing that the district court’s doctrinal mistakes and clear

factual errors make this case an appropriate vehicle with which to

circumscribe at least one boundary of the use of Rule 18

discretion. When as here, facts of convenience militate

exclusively against transfer, and no factor other than pretrial

v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988).”).

92 publicity —— some favorable and some unfavorable to both the

prosecution and the defense —— might, if properly developed and

analyzed, militate in favor of transfer, the trial court abuses its

discretion under Rule 18 by ordering a far-distant intradistrict

transfer, sua sponte and over the defendant’s objections, without

(1) attempting voir dire or otherwise creating a record,

(2) providing an analysis of the publicity for the record to show

how it prejudiced the jury pool, or (3) conducting a Rideau-style

presumptive analysis. In this instance, we as an appellate court

can detect virtually nothing on the Rule 18 scale to counterbalance

the defendant’s established inconvenience; and something outweighs

nothing every time.

Given the district court’s abuse of discretion, we must

reverse Lipscomb’s conviction, vacate his sentence, and remand for

a new trial in a venue determined consistently with this opinion.

VIII. CONCLUSION

The trial court had jurisdiction to try Lipscomb for violating

18 U.S.C. § 666, which is facially constitutional and —— in my own

sole opinion —— is constitutional as applied to him. As we

conclude that the trial court abused its discretion in transferring

Lipscomb’s trial, however, we must reverse and remand for a new

trial. The other issues Lipscomb raises on appeal are either moot,

meritless, or irrelevant to a new trial.

CONVICTION REVERSED, SENTENCE VACATED, AND CASE REMANDED for a new

trial.

93 94 DUHÉ, Circuit Judge, CONCURRING IN PART, DISSENTING IN PART:

I write separately because, although I concur in the

conclusion reached by Judge Wiener that we must reverse Lipscomb’s

conviction, vacate his sentence, and remand for a new trial, I

cannot join his method of getting there. I adopt Judge Wiener’s

factual and procedural background sections; concur in the result

but not the reasoning of Part III; dissent from Parts IV, V, and

VI; and concur in Part VII. I begin with an overview of the

appropriate analytical framework.

I. ANALYTICAL FRAMEWORK

Judge Wiener’s opinion merges analysis of jurisdiction with

analysis of the constitutionality of § 666. In Part IV of his

opinion, Judge Wiener writes that the term “federal jurisdiction”

is ambiguous, and defines it for purposes of this case as

encompassing (a) the question whether we have subject matter

jurisdiction under § 666 over Lipscomb’s conduct (which Judge

Wiener calls “adjudicative jurisdiction”), and (b) the question

whether Congress had the authority to enact § 666 (which Judge

Wiener terms “legislative jurisdiction”, and we term

constitutionality). In this manner, Judge Wiener reaches the

constitutionality of § 666, by calling it a jurisdictional

question. With all due respect, this is a categorization with no

support.

Jurisdiction is discussed in terms of “legislative” and

“adjudicative” in only one context in American law – native American law.235 This case does not arise in that context, so we

must follow the generally applied definition of “federal

jurisdiction”.

Black’s Law Dictionary defines “federal jurisdiction” as

“powers of federal courts founded on United States Constitution

(Article III) and Acts of Congress (e.g. Title 28 of United States

Code)”.236 Federal jurisdiction is not defined as the power of

Congress to enact a statute. Professor Erwin Chemerinsky’s treatise

on the subject, widely regarded as comprehensive, not once mentions

legislative jurisdiction or the power of Congress to enact

statutes.237 The only discussion of congressional authority is

Congress’ authority to control federal jurisdiction, and

235 See Strate v. A-1 Contractors, 520 U.S. 438, 440, 117 S.Ct. 1404, 1406, 137 L.Ed. 2d 661 (1997); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 12, 107 S.Ct. 971, 974, 94 L.Ed. 2d 10 (1987); Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1507 n.6 (10th Cir. 1997); Louis v. United States, 967 F. Supp. 456, 459 (D. N.M. 1997). Judge Wiener cites Justice Scalia’s dissenting opinion in Hartford Fire Ins. Co. v. California, 509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed. 2d 612 (1993) as support for his contention that the term “jurisdiction” can mean both legislative and adjudicative jurisdiction. However, Justice Scalia’s words do not support Judge Wiener’s application. In Hartford Fire, Justice Scalia was faced with determining the extraterritorial reach of a statute – a constitutional issue placed by the parties before the Court – and to do so he had to consider whether Congress had the power to enact the statute with application outside our borders. This, he termed “legislative jurisdiction”. Hartford Fire, 509 U.S. at 813-14, 113 S.Ct. at 2918-19. He did not term it “jurisdiction” as a means of raising extraterritoriality sua sponte, in an end-run around our requirement that parties argue those issues they wish before us. 236 Black’s Law Dictionary 612 (1990). 237 See Erwin Chemerinsky, Federal Jurisdiction (1994).

96 congressional power to create courts.238 Neither of these questions

is before us.

Moreover, Lipscomb explicitly asked that we find no subject

matter jurisdiction. “The alleged bribery here had no connection to

a federally funded program and, thus, the court below was without

subject matter jurisdiction to proceed.”239 Even if Judge Wiener’s

categorization can find support in the law, Lipscomb explicitly

seeks a determination of adjudicative, not legislative

jurisdiction.

Judge Wiener’s categorization fails when extended to its

logical conclusion, which he affirmatively does in his opinion. He

writes: “[A] federal forum must lack adjudicative jurisdiction to

hear a case based on a federal statute that Congress lacked the

legislative jurisdiction (translation: constitutional power or

authority) to apply to the situation in question.” This implies

that federal courts must always consider constitutionality, even

raising it sua sponte, when interpreting a statute. This elevates

constitutionality to a category of claims over which we always have

jurisdiction, and this is unsupported by our jurisprudence.

For the foregoing reasons, I respectfully submit that Judge

Wiener’s is an erroneous analytical framework, and leads to

inappropriate consideration of the constitutionality of § 666. For

238 See id. at 167-246. 239 See App. Brief at 28.

97 this reason, I believe it necessary to outline the appropriate

analytical framework.

As a threshold matter in all cases, we are faced with the

question whether we have personal and subject matter

jurisdiction.240 If we find that we do, we then address whatever

substantive issues are before us. This is an abstract description

of our task – what it means here is that we must first determine

whether Lipscomb’s actions fall within the jurisdiction of § 666,

and if our answer is “yes,” then address the merits of his appeal.

It is at this second step that, were constitutionality at issue, it

would arise. Constitutionality is an issue on the merits, not a

jurisdictional one.

Our governing precedent interpreting § 666 does exactly this.

We have first answered the jurisdictional question, and have not

taken it upon ourselves to consider the constitutionality of § 666

if it was not appropriately before us on the merits.241

240 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012, 140 L.Ed. 2d 210 (1998) (“On every writ of error or appeal, the first and fundamental question is that of jurisdiction...”) (qtg. Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 691-92, 44 L.Ed. 842 (1900)). See also United States v. Texas Tech Univ., 171 F.3d 279, 287 (5th Cir. 1999). 241 See, for example, United States v. Reyes, 239 F.3d 722 (5th Cir. 2001) (affirming a conviction under § 666 and making no constitutional ruling), cert. denied, Maldonado v. United States, 533 U.S. 961, 121 S.Ct. 2618, 150 L.Ed. 2d 772 (2001); and cert. denied, Reyes v. United States, 122 S.Ct. 156, 151 L.Ed. 2d 106 (2001); United States v. Phillips, 219 F.3d 404 (5th Cir. 2000) (reversing a conviction under § 666 but making no constitutional ruling); United States v. Westmoreland, 841 F.2d 572 (5th Cir.

98 In United States v. Westmoreland,242 a county supervisor

appealed her conviction under § 666 for accepting kickbacks in

purchases of county materials. A panel of this court affirmed her

conviction. Judge King’s carefully crafted opinion first considers

the jurisdictional scope of § 666. After finding that § 666 did

apply to Westmoreland’s conduct, and thereby answering the

jurisdictional question in the affirmative, the opinion addresses

the substantive issues of the case.

Nine years later, the Supreme Court decided Salinas v. United

States,243 an appeal of the conviction of a Texas county sheriff for

accepting bribes in exchange for allowing a federal prisoner housed

in the county jail to receive conjugal visits. There, the Court

affirmed the sheriff’s conviction, holding that federal

jurisdiction under § 666 is not limited to cases in which the bribe

has a demonstrated effect upon federal funds. The Court later

asserted the constitutionality of § 666 as applied to that case.

The Salinas decision followed the two-step approach – first

determine jurisdiction, and then address whatever substantive

issues are before the court. The Court decided Salinas on

jurisdictional grounds, and then went on to mention that § 666 was

constitutional as applied.

1988) (affirming a conviction under § 666 and making no constitutional ruling). 242 841 F.2d 572 (5th Cir. 1988). 243 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed. 2d 352 (1997).

99 Since Salinas, this circuit has been faced with questions of

the jurisdictional reach of § 666 twice before the case at bar.

Both times we followed the “jurisdiction-merits” two-step.

In United States v. Phillips,244 we reversed the conviction

under § 666 of a parish tax assessor, holding that he was not an

agent of the parish for purposes of the statute. Thus, the

statute’s jurisdiction did not extend to his actions. No discussion

of the merits was required; and the ensuing discussion on potential

constitutional issues is entirely dicta, because this court was

without jurisdiction to hear the case.

Our most recent holding on the applicability of § 666 was in

United States v. Reyes,245 where we affirmed the § 666 conviction of

a city councilman for accepting kickbacks on city contracts. We

held that whatever nexus is statutorily required for jurisdiction

under § 666, existed in that situation. We then went on to address

the evidentiary and sentencing issues before us.

Our analytical approach here should be exactly like that in

the above-cited line of cases. We must satisfy ourselves of our

jurisdiction, and then go on to address whatever issues are before

us on the merits. For the foregoing reasons, the constitutionality

of § 666 is a question on the merits that we will only address if

244 219 F.3d 404 (5th Cir. 2000). 245 239 F.3d 722 (5th Cir. 2001), cert. denied, Maldonado v. United States, 533 U.S. 961, 121 S.Ct. 2618, 150 L.Ed. 2d 772 (2001); and cert. denied, Reyes v. United States, 122 S.Ct. 156, 151 L.Ed. 2d 106 (2001).

100 (a) we find we have jurisdiction over this case, and (b) we find it

appropriately before us.

II. STEP ONE – JURISDICTION

Our first step in the analytical two-step is to satisfy

ourselves of our jurisdiction over this case. Lipscomb argues that

we do not have subject matter jurisdiction, because his actions do

not fall within those governed by § 666. He argues that

jurisdiction under § 666 does not extend to cases of local bribery

such as his, where the underlying conduct does not directly involve

federal funds. A detailed review of Fifth Circuit and Supreme Court

precedent demonstrates that his argument fails as a matter of

statutory construction.246

(A) Early Fifth Circuit Precedent

We first interpreted § 666 in United States v. Westmoreland.247

There, the defendant was a county supervisor convicted of accepting

bribes in purchases of materials for the county’s highway

construction projects.248 The district court found that the federal

funds received by the county were not spent by Westmoreland,249 and

246 Because Article III of the United States Constitution authorizes federal courts to hear matters arising under all federal laws, and § 666 is a federal law, we may turn directly to whether there is statutory jurisdiction. U.S. CONST., Art. III. The question whether § 666 is a valid exercise of congressional authority is not before us when we determine our jurisdiction. 247 841 F.2d 572 (5th Cir. 1988). 248 See id. at 574-75. 249 See id.

101 nonetheless convicted her under § 666.

Westmoreland argued on appeal that her bribery did not fall

under the jurisdiction of § 666, because it did not concern federal

funds.250 We rejected this argument, concluding through statutory

interpretation that federal funds need not be traceable to the

“tainted transactions” in order for those transactions to be

punishable under the statute:

[W]e find the relevant statutory language plain and unambiguous. By 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 involving $5,000 or more concerning the affairs of” the local government agency. 18 U.S.C. § 666(b) (Supp. 1984) [emphasis added]. Subsection (b) contains nothing to indicate that “any transaction involving $5,000" means “any federally funded transaction involving $5,000" or “any transaction involving $5,000 of federal funds,” and other subsections of the statute contain no inconsistent provisions that might suggest such a qualification.251

We next reviewed the jurisdictional reach of § 666 in United

States v. Moeller.252 There, the government appealed the dismissal

of § 666 claims against employees of the Texas Federal Inspection

Service, state workers empowered to conduct federal inspections.253

We held that jurisdiction under § 666 extended to the employees’

250 See Westmoreland, 841 F.2d at 575. 251 Id. at 576. 252 987 F.2d 1134 (5th Cir. 1993). 253 See id.

102 actions, because the Texas Department of Agriculture, a “government

agency” within § 666, received more than $10,000 a year in federal

funds; and the defendants were “agents” of that federally-funded

agency for purposes of § 666.254

In United States v. Marmolejo,255 we upheld the conviction of

a sheriff who accepted bribes in return for permitting conjugal

visits to a federal prisoner whom Texas, in return for a fee from

the federal government, housed in a facility constructed with

federal funds.256 In holding that these actions came under the

jurisdiction of § 666, we referenced our earlier statutory

decisions: “[w]e have previously held that § 666(a)(1)(B) does not

require the government to prove that federal funds were directly

involved in a bribery transaction, or that the federal monies

funded the corrupt transaction.”257 We went on to conclude that

conjugal visits are “anything of value” under the statute.

The dissent in Marmolejo argued that Westmoreland interpreted

§ 666 to reach “only those acts of bribery that could somehow be

traced, directly or indirectly, to the integrity of federal program

254 See id. at 1137-38. 255 89 F.3d 1185 (5th Cir. 1996), aff’d sub nom. Salinas v. United States, 522 U.S. 52 (1997). 256 See Marmolejo, 89 F.3d at 1188-89, 1201. 257 Id. at 1191 (citing Westmoreland, 841 F.2d at 578).

103 funds.”258

(B) The Supreme Court Weighs In

The Supreme Court granted certiorari in Marmolejo on whether

§ 666 is “limited to cases in which the bribe has a demonstrated

effect upon federal funds.”259 Under the caption Salinas v. United

States, the Court stated that “[t]he statute’s plain language fails

to provide any basis for limiting § 666(a)(1)(B) to bribes

affecting federal funds” and that the legislative history

“forecloses this type of limitation.”260 The Court therefore decided

that as a statutory matter, federal funds need not be directly

involved in a violation of § 666.261 The Court then in passing

asserted the constitutionality of § 666 as applied to the case at

bar.262

258 Id. at 1203. “Turning to the precise legislative history, I find that it clearly reveals that Congress did not intend for § 666(a)(1)(B) to be applied to conduct such as the acceptance of bribes to allow conjugal visits. Instead, Congress was only concerned with protecting the federal monies disbursed to non- federal entities.” Id. 259 Salinas v. United States, 522 U.S. 52, 54, 118 S.Ct. 469, 471-72 (1997). 260 Id. at 57, 59. 261 See id. at 56-57. 262 See Salinas, 522 U.S. at 61. Judge Wiener cites this as evidence that we too should consider the constitutionality of § 666 here. However, the Supreme Court’s assertion in passing that § 666 was constitutional as applied does not bind us to rule on the constitutionality of § 666 as applied to Lipscomb here. First, we are not the Supreme Court and have different limitations on our jurisdiction. The Supreme Court, unlike us, is the definitive voice in interpreting federal statutes. See Erwin Chemerinsky, Federal

104 Since Salinas, the Supreme Court has decided only one other

case involving § 666 – United States v. Fischer.263 There the Court

affirmed the conviction of a defendant who defrauded a city

hospital authority that participated in the federal Medicare

program.264 The Fischer analysis, however, is not relevant to this

case.

(C) Recent Fifth Circuit Cases

The first Fifth Circuit panel to interpret § 666 post-Salinas

decided United States v. Phillips.265 There, we reversed the

conviction of a parish tax assessor, holding that he was not an

“agent” of St. Helena Parish for purposes of the statute. Thus, the

statute’s jurisdiction did not reach his activity. This has little

bearing on our case, as city councilmen are clearly “agents” under

the statute.266

Jurisdiction 571 (1994). Second, the Supreme Court in Salinas declined to avoid the constitutional question because it considered it a greater disservice to “rewrite language enacted by the legislature” than to fail to avoid the issue. Salinas, 522 U.S. at 59. This reasoning does not compel us to reach the constitutionality of § 666 here; if anything, it counsels against that. We are not rewriting § 666 – we are faithfully reading the language of the statute, and recognizing that in order to question the congressionally-enacted language, the issue of constitutionality must be explicitly before us. 263 529 U.S. 667, 120 S.Ct. 1780, 146 L.Ed. 2d 707 (2000). 264 See id., 529 U.S. at 669-70, 681, 120 S.Ct. at 1782-83, 1788-89. 265 219 F.3d 404 (5th Cir. 2000). 266 See United States v. Reyes, 239 F.3d 722 (5th Cir. 2001), cert. denied, Maldonado v. United States, 533 U.S. 961, 121 S.Ct.

105 The two most recent Fifth Circuit § 666 cases demonstrate our

continued commitment to applying § 666 to members of city councils,

like Lipscomb, and support our finding of jurisdiction here.

In United States v. Reyes267 we affirmed the § 666 conviction

of a city councilman for accepting kickbacks on city contracts. We

held that whatever nexus is statutorily required for jurisdiction

under § 666, existed in that case.268

More recently, we decided United States v. Williams269 without

discussing jurisdiction at all. Williams, a former city councilman,

was convicted under § 666 of “aiding and abetting others in the

corrupt solicitation and acceptance of bribery payments”.270 We

affirmed his conviction.

(D) The Bottom Line

Fifth Circuit and Supreme Court precedent alike construe the

jurisdictional reach of § 666 broadly. Federal funds need not be

directly involved in a violation of § 666. The Phillips panel

construed the term “agent” narrowly, and reversed the conviction,

2618, 150 L.Ed. 2d 772 (2001); and cert. denied, Reyes v. United States, 122 S.Ct. 156, 151 L.Ed. 2d 106 (2001); United States v. Williams, 264 F.3d 561 (5th Cir. 2001). 267 239 F.3d 722 (5th Cir. 2001), cert. denied, Maldonado v. United States, 533 U.S. 961, 121 S.Ct. 2618, 150 L.Ed. 2d 772 (2001); and cert. denied, Reyes v. United States, 122 S.Ct. 156, 151 L.Ed. 2d 106 (2001). 268 See id. at 734. 269 264 F.3d 561 (5th Cir. 2001). 270 Id. at 567.

106 but that is irrelevant to our case, because the term “agent”

plainly includes city council members. The Westmoreland view of §

666 therefore continues to be the law in this circuit, and

precludes us from more narrowly construing the statute here.

Because Lipscomb’s actions satisfy the jurisdictional requirements

found in the language of § 666, we conclude that the district court

had jurisdiction to try Lipscomb under § 666, and turn to the

issues which the parties put before us on the merits.

III. STEP TWO – MERITS

Before reaching the issues raised by Lipscomb, I must address

the issue of the constitutionality of § 666 – an issue raised not

by the Appellant, but by the opinions of my colleagues on this

panel. This issue is not properly before us, but because my

colleagues have raised it, I respond.

(A) Constitutionality of § 666

There do exist troubling constitutional issues under the

surface of this case. Whether Congress had the authority it claimed

to enact § 666 under the Spending Clause of the Constitution, U.S.

CONST., art. I, § 8, is a close question. However, although my

colleagues hold otherwise, it is not our question today. We may

only decide those issues properly before us, and the constitutional

question is not such an issue. It was argued neither at trial nor

on appeal, and there is no legal justification for us to raise it

sua sponte.

(1) Not Argued at Trial

107 The record shows that despite mention of potential

constitutional issues, Lipscomb never argued at trial that § 666

was unconstitutional as applied to him. Following is discussion of

the four motions by which he made the jurisdictional argument, and

where any constitutional discussion at all (not sufficient to raise

the issue of constitutionality) exists.

(a) Motion to Dismiss the Indictment or, Alternatively, for an Evidentiary Hearing Requiring the Government to Establish Federal Jurisdiction

On September 3, 1999, Lipscomb filed a Motion to Dismiss the

Indictment or, Alternatively, for an Evidentiary Hearing Requiring

the Government to Establish Federal Jurisdiction.271 It is worth

noting that the title of the Motion shows that it seeks proof of

federal jurisdiction, and does not challenge the constitutionality

of § 666. Moreover, Lipscomb crafts his arguments in support of the

Motion in terms of challenging federal jurisdiction. “In this

case... no sufficient jurisdictional basis is evident.”272 “On its

face, this indictment fails even to allege an appropriate basis for

the exercise of federal jurisdiction....”273

Lipscomb does mention the potential constitutional problems

that could arise if § 666 is applied to his conduct. He goes so far

as to say “[s]ection 666 is being unconstitutionally applied in

271 See R. at 60. 272 R. at 62. 273 R. at 63.

108 this case,” and mentions possible Tenth Amendment consequences of

applying § 666 to Lipscomb’s conduct.274 Moreover, one of Lipscomb’s

attorneys signed the Motion as “Special Counsel for Tenth Amendment

purposes only”.275 However, this discussion arises in the context of

a challenge to jurisdiction, not as a challenge to the

constitutionality of the statute as applied (which would arise

under the Spending Clause, not the Tenth Amendment). Even the

statement “[s]ection 666 is being unconstitutionally applied in

this case”276 stands alone, and is not supported by any argument.

The District Court denied Lipscomb’s motion:

Came to be considered the motion of the defendants to dismiss the indictment for lack of federal jurisdiction, and after due consideration thereof, as well as a plain reading of the statute, and the briefs and arguments of counsel, this court is of the opinion that the motion should be DENIED.277

Judge Kendall declined to dismiss the indictment because he found

that federal jurisdiction did exist. He neither mentioned nor

considered the constitutionality of § 666. His Order includes the

hand-written addition of the phrase “as well as a plain reading of

the statute,” further supporting the conclusion that his analysis

was a statutory and not a constitutional one.

(b) Motion for Judgment of Acquittal Pursuant to Rule

274 Id. 275 R. at 66. 276 R. at 63. 277 Id.

109 29(A), Following the Government’s Case in Chief

Following the government’s case, Lipscomb moved the District

Court for Judgment of Acquittal.278 Lipscomb argued that some nexus

between the bribe and the federally-funded program must exist in

order for there to be jurisdiction, and that here, no such

connection exists.279 He couched his argument in terms of “get[ting]

this case in federal court properly,” which is clearly a

jurisdictional concern.280 Later in the colloquy Lipscomb’s attorney

told Judge Kendall that “666 doesn’t cover this”,281 another

argument about the scope of jurisdiction under § 666.

The Government’s response follows the same approach, citing

cases that analyze the jurisdictional reach of § 666, not its

constitutionality.282 The District Court denied the Motion.

(c) Motion for Judgment of Acquittal Pursuant to Rule 29(A), Following the Jury Verdict

On February 8, 2000, following the jury verdict, Lipscomb

again moved the District Court for Judgment of Acquittal.283

He argued that the Government failed to present evidence of a

connection between the alleged bribes and a federally-funded

278 See R. Vol. 13 at 32. 279 See id. at 36-9. 280 Id. at 37. 281 Id. at 40. 282 See id. at 41-2. 283 See R. at 556.

110 program.284 Lipscomb asks the court again to find a failure of

jurisdiction due to the lack of nexus.

The Government’s response cites case law analyzing the

jurisdictional reach of § 666.285 The Government makes no argument

that § 666 is constitutional as applied, suggesting that it did not

consider a constitutional argument raised. Further, the District

Court’s denial of Lipscomb’s Motion makes no mention of a

constitutional issue.286

(d) Conditional Motion for Voluntary Surrender Date and Bond Pending Appeal

Lipscomb filed a Conditional Motion for Voluntary Surrender

Date and Bond Pending Appeal on April 26, 2000.287 He sought bond

pending appeal because:

it is legitimately predictable that the Fifth Circuit in light of the Salinas [sic] opinion and its subsequent interpretation by the other federal circuits will revisit its past positions regarding the necessary connection between the federal funds and the alleged bribes.288

Lipscomb seeks bond because he thinks the Fifth Circuit on appeal

will find a nexus requirement for jurisdiction under § 666. This is

a pure question of statutory interpretation. Nowhere does Lipscomb

seek bond pending appeal because he thinks the Fifth Circuit might

284 See R. at 560. 285 See R. at 600, 617-19. 286 See R. at 644. 287 See R. at 898. 288 R. at 901.

111 find § 666 as applied to his conduct unconstitutional. That is

because he never made such an argument.

(2) Not Argued on Appeal

Even assuming arguendo that constitutionality was argued at

trial, it was certainly not preserved on appeal, which is required

if we are to consider it. The record shows that despite mention of

potential constitutional issues, Lipscomb did not argue on appeal

that § 666 was unconstitutional as applied to him.

Lipscomb’s Appellate Brief repeatedly uses the vocabulary of

jurisdiction, not constitutionality, to define his claim. In his

request for oral argument, Lipscomb writes that “[t]his appeal

involves a substantial jurisdictional question,” and never mentions

a constitutional question.289 Moreover, Lipscomb defined the issue

as follows:

The fact that the City of Dallas received federal funds in excess of $10,000 in a given year does not, without more, establish federal jurisdiction to prosecute a City Councilman for bribery under 18 U.S.C. 666 [sic].290

Constitutionality is not mentioned.

Lipscomb writes that “it is incumbent upon federal courts –

trial and appellate – to constantly examine the basis for

jurisdiction....”291 “A nexus between the expenditure of federal

289 App. Brief at ii. 290 Id. at iii, 2, 19 (emphasis added). 291 Id. at 19, qtg. Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir. 1981).

112 funds and the illicit conduct, bribery, is inherent in the

statutory scheme and consistent with the legislative history.”292 He

goes on to say:

Federal jurisdiction was entirely contrived here. The alleged bribery was unrelated to any expenditure of federal monies. Accordingly, Federal [sic] jurisdiction did not and does not exist.293

Lipscomb’s argument is it is a jurisdictional requirement of § 666

that there be some connection between the bribe and the federal

funds.294

Lipscomb concludes his argument on this issue with the words

“[t]he alleged bribery here had no connection to a federally funded

program and, thus, the court below was without subject matter

jurisdiction to proceed.”295 I can imagine no clearer statement that

his claim is jurisdictional, unless you consider Lipscomb’s

conclusion and plea for relief:

For the foregoing reasons, the defendant-appellant, ALBERT LOUIS LIPSCOMB, respectfully requests that this Court reverse these convictions and remand the case to the district court with instructions to dismiss the indictment for lack of federal jurisdiction.296

Lipscomb’s Appellate Brief also sheds light on his District

Court arguments, and exposes them as purely jurisdictional, not

292 App. Brief at 14. 293 Id. 294 See id. at 20. 295 App. Brief at 28. 296 Id. at 59 (emphasis added).

113 constitutional. He writes that he “objected to the absence of

federal jurisdiction before, during and after trial.”297 Not once

does he claim to have objected at trial on the basis that the

statute was unconstitutional. Moreover, had he thought that he had

argued constitutionality at trial, we would expect him on appeal to

challenge the District Court’s failure to decide that issue.

Lipscomb makes no such challenge, further showing that he never

made an argument regarding the constitutionality of § 666.

Lipscomb does mention that contrary statutory interpretation

could raise constitutional concerns.298 However, as before the

District Court, this is mere mention of potential constitutional

concerns in the context of a jurisdictional challenge; it is not a

challenge to the constitutionality of § 666. Moreover, Lipscomb

mentions the potential constitutional issue in order to exhort us

to avoid it.299

The Government’s Brief continues the dialogue in

jurisdictional terms.300 It does not defend the constitutionality of

§ 666, strongly suggesting the Government did not consider that

issue raised. Appellant’s Reply Brief follows suit.301

297 Id.; see also id. at 19. 298 See App. Brief at 14, 20, 22-5, 27. 299 See id. at 27-8. 300 See U.S. Brief at ii, 2, 31, 33-40. 301 See App. Reply Brief at i, 1-5, 16-21.

114 (3) No Legal Basis to Reach Constitutional Issue

Despite the urgings of my colleagues to the contrary, no facts

exist to support the contention that Lipscomb ever argued the

constitutionality of § 666, or preserved that issue on appeal.

However, assuming for sake of argument only the allusions to a

potential constitutional issue found in the record are sufficient

to raise the issue and preserve it for appeal, we still may not

decide the issue. There exists no legal support for the

constitutional determinations made by my colleagues today.

(a) Court of Error

Our jurisdiction is exclusively appellate,302 and we are not

endowed with any original jurisdiction except in aid of our

appellate jurisdiction.303 These rules embody the policy that legal

issues should be developed initially before the district courts. As

a panel of this circuit put it, “[g]enerally speaking, we are a

court of errors and appeals.”304 The trial court cannot have erred

as to matters which were not presented to it, nor decided by it.305

This is black letter law.

302 See Roche v. Evaporated Milk Assn., 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914). See also Charles Alan Wright, Law of Federal Courts 10 (1983). 303 See Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 938, 50 L.Ed. 963 (1906); Travis County v. Kind Iron Bridge & Mfg. Co., 92 F. 690 (5th Cir. 1899). 304 Gavel v. Lynaugh, 835 F.2d 124, 125 (5th Cir. 1988). 305 See id.

115 Here, the district court did not consider the

constitutionality of § 666. Thus, we have no decision on

constitutionality to review.306 Moreover, it was not error for the

district court not to consider the constitutional issue, because

that issue was never presented to it.

Of course, there are some situations in which appellate courts

have jurisdiction to raise issues on their own.307 For example, if

parties do not raise the issue of jurisdiction, or even if they

contend that the Court of Appeals has jurisdiction, we still must

determine, sua sponte, whether we have jurisdiction in a particular

case.308 However, constitutional questions are not among those which

we can raise sua sponte.

(b) Issue Not Briefed

Appellant’s brief must contain the “appellant’s contentions

and the reasons for them”.309 Issues that are not clearly designated

in the appellant’s brief are normally deemed abandoned.310 This is

306 Therefore, even assuming, arguendo, that the parties adequately raised the issue of the constitutionality of § 666 before us on appeal, we are without authority to decide that question. Were this question appropriately before us, we would not have the power to rule on constitutionality, as both Judge Wiener and Judge Smith are so eager to do; we would rather be bound to remand the issue to the district court for determination. 307 See Charles Alan Wright, Law of Federal Courts 10 (1983). 308 See United States v. Garner, 749 F.2d 281 (5th Cir. 1985). 309 Fed. R. App. P. 28(a)(9)(A). 310 See United States v. Miranda, 248 F.3d 434, 444 (5th Cir. 2001), cert. denied, Miranda v. United States, 122 S.Ct. 410, 151

116 especially true in the context of constitutional issues. We

generally do not anticipate constitutional questions, but wait

until a case is presented that requires a decision of a

constitutional issue.311 There is also established Supreme Court

precedent declining to address constitutional questions not put in

issue by the parties.312

This Circuit held last year that “[c]iting cases that may

contain a useful argument is simply inadequate to preserve that

argument for appeal,”313 in Clyde Bergemann, Inc. v. The Babcock &

Wilcox Co., 250 F.3d 955 (5th Cir. 2001). Bergemann was a creditor

who objected to a financing arrangement between the debtors and a

bank which would let the debtors continue operating. On appeal he

argued, inter alia, that the financing arrangement was a fraudulent

conveyance of assets. However, his brief to the bankruptcy court

referred to that issue only in passing. Although he quoted two

L.Ed. 2d 312 (2001); and cert. denied, Espinoza v. United States, 122 S.Ct. 823, 151 L.Ed. 2d 705 (2002); Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030 (5th Cir. 1982). 311 See Texas v. Grundstrom, 404 F.2d 644, 648 (5th Cir. 1968). 312 See, for example, Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 324-5, 92 S.Ct. 1562, 1565, 32 L.Ed. 2d 95 (1972) (“The constitutional issue discussed in the dissent was not set forth as a ‘question presented for review’ in the petition for certiorari, and therefore our [rule] precludes our consideration of it.”); Mazer v. Stein, 347 U.S. 201, 206 n.5, 74 S.Ct. 460, 464 n.5, 98 L.Ed. 630 (1954) (“We do not reach for constitutional questions not raised by the parties.”). 313 In re Babcock & Wilcox Co., 250 F.3d 955, 961 (5th Cir. 2001).

117 cases in that brief, neither quotation identified the issue of

fraudulent conveyance sufficiently for the bankruptcy court to rule

on it, nor was there any discussion of how the theory applied. We

held the issue waived.

Here neither party raised the constitutionality of § 666 in

its briefs or arguments before us. Thus, it is beyond the scope of

our review.

(c) Avoidance of Constitutional Questions

Even assuming everything else away, and considering the

constitutional issue adequately raised, we still have the duty to

decline to decide that issue unnecessarily. It is a well-

established canon of construction that federal courts avoid

addressing constitutional questions when possible, even those that

are raised by the parties.314 As stated by Justice Brandeis in his

well-known and oft-cited concurring opinion (dissenting in part) in

Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S. Ct. 466, 483, 80 L.

Ed. 688 (1936):

The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. ... The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. ... Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the

314 See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 88 L.Ed. 688 (1936) (Brandeis, J., concurring).

118 Court will decide only the latter.315

The Fifth Circuit has agreed that we will not take a constitutional

question for decision if there is some other legitimate ground on

which the case can be decided.316

Because this case can legitimately be decided on

jurisdictional grounds (in fact, that is the issue briefed and

argued), we must avoid any constitutional decision.

(4) Conclusion

It is quite likely that a case will someday arise that

squarely challenges the constitutionality of § 666, but this is not

that case. Until that day, we must answer only those questions

before us. Because the constitutionality of § 666 was not argued at

trial or on appeal, and there is no legal justification for our

reaching it, I must respectfully dissent from the entire discussion

of constitutionality found in the opinions of both Judge Wiener and

Judge Smith.317

315 Id. (internal citations omitted, emphasis added). 316 See Grundstrom, 404 F.2d at 648. 317 Judge Smith challenges my analysis of whether the constitutional issue was raised as “hyper-technical,” and “elevat[ing] semantics over substance. While I appreciate the value he places on avoiding hyper-technicality, I cannot agree with elevating that goal over our requirement that parties raise the issues they wish us to decide. I seek no magic words; I wish only that the parties would clearly raise those issues they wish us and the district court to decide (as our precedent requires). The parties here did not meet even this most-light burden on the issue of the constitutionality of § 666.

In the same vein, Judge Smith accuses me of invoking the

119 (B) Transfer

I concur in Judge Wiener’s discussion and conclusions on the

transfer issue.

CONCLUSION

For the foregoing reasons, I concur in part and dissent in

part, but share Judge Wiener’s conclusion that we must reverse

Lipscomb’s conviction, vacate his sentence, and remand for a new

“rigid form pleading” that was eliminated by the Federal Rules of Civil Procedure. This misunderstands my analysis. To the contrary, I am not concerned with what the parties raise in the complaints and answers that set out in broad brushstrokes the case they intend to bring. However, we must (and our precedent shows we do) require parties to specifically argue before us and the district court, at some point during the adjudication of their dispute, what issues they wish decided. The courts are not required to divine what issues are before them, nor do they have the power to choose what issues they would like to be before them – that is the responsibility of the parties.

The conclusions of Judge Wiener and Judge Smith place a burden on the trial court to read between the lines of the parties’ arguments and ascertain what the parties “should have” or “could have” argued. That is just not the way our judicial system works. The burden lies with the parties to place a case or controversy before the court. On the issue of constitutionality, that burden was not met here. Requiring judges to act as mindreaders, as Judge Wiener and Judge Smith do here, cannot be an acceptable part of our judicial system.

120 JERRY E. SMITH, Circuit Judge, dissenting:

I would reverse the conviction and render a judgment of dis-

missal with prejudice, thereby precluding a retrial of defendant

Albert Lipscomb. Accordingly, I respectfully dissent from the con-

trary result reached by Judge Wiener’s opinion and Judge Duhé’s

partial concurrence, which is to subject this seventy-seven-year-

old defendantSSwho has already served more than half of his ap-

proximately three and one-half-year sentence of incarceration wait-

ing for his appeal to be decidedSSto a new trial under a statute

that has no application to him.

Two of the three judges on this panel are of the view that

Lipscomb properly raised the issue of whether 18 U.S.C. § 666 is

unconstitutional as applied to him. Nonetheless, we fail to decide

that issue because one of the judges declines to address it, leav-

ing the other two judges evenly split on the question. If we were

to address it, we should easily conclude that Congress has no au-

thority to criminalize Lipscomb’s conduct, and the government had

no authority to subject him to a first trial, let alone a second

one.

I.

Judge Duhé is correct that “[c]onstitutionality is an issue on

the merits, not a jurisdictional one.” He also accurately states

that a criminal defendant may waive constitutional challenges to a statute by failing to argue them. Although Judge Duhé follows the

proper methodology by looking to Lipscomb’s four trial motions and

his appellate brief for the answer, Judge Duhé errs in applying a

hyper-technical test in reviewing Lipscomb’s arguments, a test

that elevates semantics over substance.

Our inquiry is a relatively easy one: Has Lipscomb argued

that Congress cannot reach his conduct under the United States

Constitution? When we focus on the text of Lipscomb’s motions and

briefs, we can have no doubt that the answer is yes.

A.

Judge Duhé argues that Lipscomb’s September 3, 1999, “Motion

To Dismiss the Indictment or, Alternatively, for an Evidentiary

Hearing Requiring the Government To Establish Federal Jurisdiction”

is a motion that “seeks proof of federal jurisdiction, and does not

challenge the constitutionality of § 666.” But the full text shows

that Lipscomb is making a constitutional argument; he just uses the

words “jurisdiction” and “power” interchangeably:

However, in Salinas, the Court squarely left open the question whether Section 666 “requires some other kind of connection between a bribe and the expenditure of federal funds” lest it be applied in some manner which would alter or fail to “give proper respect to the federal-state balance” of powers [quoting Salinas]. The Court found “no serious doubt about the constitutionality of Section 666(a)(1)(B) as applied to the facts of this case” [quoting Salinas].

In this case, however, no sufficient jurisdictional basis is evident . . . . Any exercise of federal

122 jurisdiction must demonstrate a proper respect for con- cepts of dual sovereignty and federalism. On its face, this indictment fails even to allege an appropriate basis for the exercise of federal jurisdiction and accordingly Section 666 is being unconstitutionally applied in this case . . . .

The Tenth Amendment . . . provides: [quoting] . . . [T]he 'double security' embodied in the concept of fed- eralism requires 'a proper balance between the States and the Federal Government” [citing Gregory v. Ashcroft, 501 U.S. 452, 459 (1991)]. The States' constitutional pre- rogatives plainly include their “constitutional re- sponsibility for the establishment and operation of its own government . . . .” Under our federal system, states possess the primary authority to define and enforce crim- minal law [citing United States v. Lopez, 514 U.S. 549, 561 n.3 (1995)].

Thus, the application of Section 666 in circumstanc- es with no evident assertion of a federal interest of- fends two state prerogatives: (1) the States' constitu- tional responsibility for regulation of electoral govern- ment and for the establishment and operation of its own government and the qualifications of its officials; and (2) the definition and enforcement of criminal law. As a constitutional principle, it simply cannot be that $10,000.00 in federal funds provided to a major city trumps the Tenth Amendment and the prerogatives and re- sponsibilities reserved to the States therein. The Tenth Amendment, after all, 'was enacted to allay lingering concerns about the extent of national power” [citing Alden v. Maine, 527 U.S. 706, 713-14 (1999)]. “When the Federal Government asserts authority over a States' [sic] most fundamental political processes, its [sic] strikes at the heart of the political accountability so essential to our liberty and republican form of government” [citing Alden; Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992)].

The proper state-federal balance is disturbed when there is an intrusion upon State prerogatives in important areas reserved to the States. This indictment fails to identify the federal interest served by this exercise of federal jurisdiction and therefore constitutes an unconstitutional application of Section 666 . . . . [F]ederal jurisdiction is being exercised in

123 a manner that plainly intrudes upon the prerogative of the States to define, apply and enforce criminal law, and to monitor and oversee the operation of its government.

(Emphasis added.)

If Lipscomb were merely arguing jurisdiction, why would he

five times cite SalinasSSwhich does not even mention

jurisdictionSSfor the proposition that § 666 has been

unconstitutionally applied to him? Why would he employ a “Special

Counsel for Tenth Amendment purposes only,” and have that counsel

sign the motion? Why would he twice invoke the Tenth Amendment and

cite the Tenth Amendment cases of Gregory, Printz, and New York v.

United States, as well as Alden’s Tenth Amendment discussion? Why

would he six times argue that § 666 abridges the states’

constitutional responsibilities and prerogatives? Why would he

three times argue that § 666 upsets the constitution’s federal-

state balance of powers? Why would he three times state that § 666

is being unconstitutionally applied to him?

Judge Duhé sidesteps all of this and, instead, notes that the

motion’s title mentions federal jurisdiction, not

constitutionality, and Lipscomb uses the word “jurisdiction”

throughout his argument. Since when do we accord one word such

talismanic power that its mere presence or absence in a motion or

brief can negate all remaining arguments? Since when do we forbid

a defendant from raising two pointsSSboth constitutionality and

jurisdictionSSin one motion? The Federal Rules of Procedure

124 eliminated just the type of rigid form pleading that Judge Duhé

invokes today.

Lipscomb’s motion is less than polished, and his interchange

of “jurisdiction” and “power” is clumsy. As Judge Wiener explains,

sometimes Lipscomb uses “jurisdiction” to refer to a federal

court’s subject matter jurisdiction, and sometimes he uses “juris-

diction” to refer to the persons and acts over which Congress may

legislate. But any confusion is easily eliminated: Substitute

“federal power” or “congressional power” every time Lipscomb says

“jurisdiction” in his motion, and the motion’s meaning remains the

same. But substitute “subject matter jurisdiction” or “federal

court jurisdiction,” and parts of the motion become nonsensical.

For example, the final paragraph makes no sense when “federal

court jurisdiction” is used:

The proper state-federal balance is disturbed when there is an intrusion upon State prerogatives in important areas reserved to the States. This indictment fails to identify the federal interest served by this exercise of [federal court jurisdiction] and therefore constitutes an unconstitutional application of Section 666 . . . . [Federal court jurisdiction] is being exercised in a manner that plainly intrudes upon the prerogative of the States to define, apply and enforce criminal law, and to monitor and oversee the operation of its government.

But this paragraph reads perfectly well when “congressional power”

is filled in.

Lipscomb’s lack of artfulness should not doom his appeal, es-

pecially given that the Supreme Court and our circuit often have

125 been guilty of the same offense of conflating “jurisdiction” and

“power.” In United States v. Cotton, 122 S. Ct. 1781 (2002), the

Court acknowledged that it has sometimes employed a “somewhat ex-

pansive notion of jurisdiction” that covered both general

constitutional questions and the concept of subject matter

jurisdiction. Id. at 1784-85 (internal quotations omitted).

Recently, the en banc court of this circuit reheard United States

v. Longoria, 259 F.3d 363 (5th Cir.), vacated for rehearing en

banc, 262 F.3d 455 (5th Cir. 2001), to undo the confusion generated

by our loose use of the term “jurisdiction.” Lipscomb should not

be held to a higher standard of legal diction than are the judges

and Justices of this court and the Supreme Court.

Judge Duhé and I also read Lipscomb’s February 8, 2000, motion

for judgment of acquittal quite differently. Lipscomb made, inter

alia, the following arguments:

As applied to Lipscomb, 18 U.S.C. § 666 is unconstitutional. No evidence was introduced that any of the funds given to Lipscomb can be connected to “a threat to the integrity and proper function of a federal pro- gram.” None of the federal funds was shown to relate to the taxicab industry. At no time did any of the votes alleged in the indictment impinge upon the use, distribu- tion, diversion or application of any federal funds. Congress intended to protect federal and the integrity of those funds.

Lipscomb flatly states that § 666 is unconstitutional as ap-

plied to him, and he follows with a constitutional argument from

Salinas. The Salinas Court explained that because the crime “was

126 a threat to the integrity and proper operation of the federal

program[, w]hatever might be said about § 666(a)(1)(B)’s

application in other cases, the application of § 666(a)(1)(B) to

Salinas did not extend federal power beyond its proper bounds.”

Salinas v. United States, 522 U.S. 52, 61 (1997). Lipscomb argues

the inverseSSbecause his crime did not threaten the integrity and

proper operation of a federal program, the application of § 666 to

him is not constitutional.

Judge Duhé recharacterizes this argument as a challenge to the

jurisdictional reach of § 666; Lipscomb, he concludes, actually is

asserting that § 666 requires a nexus between federal funds and the

bribery. Judge Duhé does not explain why, if this is so, Lipscomb

failed to place this argument under heading B of his motionSS“The

Government has failed to establish the jurisdictional prerequisite

for each substantive count.”

Nor does Judge Duhé explain why Lipscomb would support this

argument by quoting from the same passage in Salinas that held,

“The text of § 666(a)(1)(B) is unambiguous . . . [and] does not

require the Government to prove federal funds were involved in the

bribery transaction.” Salinas, 522 U.S. at 60. Instead, Judge

Duhé notes that neither the government nor the district court

mentioned the constitutional issue. Just because the district

court and the government may have misunderstood Lipscomb’s claim,

however, does not mean he failed to present it.

127 B.

Lipscomb devotes ten pages of his appellate brief to the

constitutional issue. Even though Lipscomb admits that “[i]t is

not a jurisdictional requirement of [§] 666 that the alleged bribe

actually affect federal funds,” Judge Duhé insists that Lipscomb is

making only a jurisdictional argument. More incredibly, Judge Duhé

claims Lipscomb “never mentions a constitutional question,” even

though Lipscomb states, “there must be some connection between the

bribe and the expenditure of federal funds. Otherwise, the reach

of § 666 intrudes well beyond the scope of federal authority into

areas of state responsibility, and serious constitutional questions

are presented.” (Emphasis added.)

Lipscomb further notes that the Salinas Court

left open the question whether Section 666 “requires some other kind of connection between a bribe and the expenditure of federal funds” lest it be applied in some manner which would alter or fail to “give respect to the federal-state balance” of powers [citation]. “Whatever might be said about [§] 666(a)(1)(B)'s application in other cases, the application of Section 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds.” [citation].

Lipscomb follows with the observation that “[a]ny exercise of

federal jurisdiction must demonstrate a proper respect for concepts

of dual sovereignty and federalism (citing the Tenth Amendment).

The States' constitutional prerogatives plainly include

'constitutional responsibility for the establishment and operation

of its own government . . . . [citing Gregory, 501 U.S. at 462].”

128 He adds, “As a constitutional principle, it simply cannot be that

$10,000.00 in federal funds provided to a major city trumps the

Tenth Amendment and the prerogatives and responsibilities reserved

to the States” (referring also to our “republican form of

government”) (emphasis added).

Lipscomb further argues that § 666 is enacted under the

Spending Clause, which has limits. Beyond those limits, the

“delicate balance of federalism” is obliterated, he argues.

Finally, Lipscomb notes that a prosecution under § 666 must be

“undergirded by some adequate federal jurisdictional base” to avoid

serious constitutional problems.”

Again, Lipscomb uses the term “jurisdiction” loosely, and he

sometimes makes two arguments under one heading in his brief.

Nonetheless, he easily has raised adequately the requisite

constitutional arguments.

II.

Despite the caption of this opinion as a dissent, this part II

is not a dissent, because there is no majority decision, on this

issue, from which to dissent. Judge Wiener opines that § 666 is

constitutional as applied, and I conclude, to the contrary, that

the statute is unconstitutional as applied. But Judge Duhé de-

clines to address this issue, even in the alternative, despite that

it is law of the case, under the majority holding of two judges,

129 that the issue is properly raised and preserved.

So, although a majority of this court holds that Lipscomb pro-

perly raised and preserved this constitutional challenge, and al-

though this challenge, if decided, could lead to Lipscomb’s im-

mediate release with no possibility of retrial, we do not rule on

it. The government had no authority to try Lipscomb the first time

around; instead of announcing that fact and ending these

proceedings, we compound the error by forcing Lipscomb to undergo

a second illegitimate trial.

The full absurdity of today’s decision comes to light when we

imagine the future of this case. If Lipscomb is convicted a second

time, he presumably will appeal (if he lives that long; he is

elderly and too ill to be incarcerated in prison). In his second

appeal, Lipscomb could argue the same constitutional claim before

this same courtSSperhaps even before this same panelSSand this time,

because he was careful to omit the word “jurisdiction” from his

brief, he could be acquitted and told that the government never had

the power to try or detain him in the first case. As I explain

below, this should be our decision today.

As Judge Wiener explains, Westmoreland’s broad construction of

§ 666 continues to be the law in this circuit, so we are precluded

from construing the statute to avoid a constitutional question. We

130 must, perforce, examine Lipscomb’s constitutional challenge to the

statute as applied.

Congress enacted § 666 under the Spending Clause.318 Phillips,

219 F.3d at 414. It is well recognized that Congress may use its

spending power to regulate the states indirectly through the use of

conditional grants. E.g., 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW

§ 5-6, at 833 (3d ed. 2000). The power to regulate indirectly is

nevertheless a limited one, as explained in South Dakota v. Dole,

483 U.S. 203, 207-08 (1987).

Dole involved a statute conditioning a small portion of each

state’s federal highway aid on the state’s establishing a minimum

drinking age. Id. at 205. The Court upheld the condition based on

Congress’s authority under the Spending Clause to “condition”

states’ access to federal funds. Id. at 206. The Court held that

when Congress chooses to go beyond specific enumerated powers and

to use its spending power “to further broad policy objectives by

conditioning receipt of federal monies upon compliance with federal

statutory and administrative directives,” it must meet four condi-

tions, the failure to meet any of which might render a statute un-

constitutionally broad: (1) The power must be used in pursuit of

the general welfare; (2) Congress must state any conditions unam-

biguously; (3) conditions must be related to the federal interest

318 U.S. CONST. Art. I, § 8 (“Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defense and general Welfare of the United States . . . .”).

131 in particular national projects or programs; and (4) conditions

must not violate other independent constitutional restrictions on

government activity. Id. at 207-08.319

The Dole test is inappropriate to analyze the

constitutionality of § 666, however, because the section does not

qualify as a conditional-grant statute. First, § 666 does not un-

ambiguously state that certain conditions attach to the receipt of

any particular federal grants. Second, a condition statute

generally requires a state’s compliance with federal regulatory or

administrative directives in exchange for receipt of federal funds.

Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 570-72 (4th Cir. 1997)

(en banc) (plurality opinion).

Section 666, however, neither requires an act of compliance

nor applies directly to the recipient governments, as did the stat-

ute in Oklahoma v. United States Civil Serv. Comm’n, 330 U.S. 127

(1947).320 Instead, § 666 applies directly to individuals; as the

319 At least one court has concluded that use of § 666 to prosecute crimes with no federal nexus violates the Dole test’s third condition. See United States v. McCormack, 31 F. Supp. 2d 176 (D. Mass. 1998) (finding the statute unconstitutional as applied where a defendant had bribed a local police officer to prevent that officer’s further investigation into a state crime, where the entity that received federal funds was the officer’s employing police department). 320 In Oklahoma, the statute at issue placed “Hatch Act” limitations on any officer or employee of any state or local agency whose principal employment was in connection with any activity that was financed in whole or in part by loans or grants made by the federal government. The condition on the state appears to have been that either it would agree to fire any individual who, after an inves- tigation by the federal civil service commission, was found to have violated the statute, or the commission in the future would be authorized to withhold, from the state, an amount equal to twice that employee’s salary. The Dole Court cited (continued...)

132 court in United States v. Cantor, 897 F. Supp. 110, 113 (S.D.N.Y.

1995), stated persuasively, § 666 does not impose any conditions at

all, much less conditions related to federal interests, on particu-

lar national projects or programs: “18 U.S.C. § 666 does not im-

pose a condition on the receipt of federal funds. The statute

neither requires a state’s compliance with federal regulatory or

administrative directives, nor prevents state action.” Id. There-

fore, § 666 cannot be classified as a conditional grant to the

states,321 and, correspondingly, Dole cannot be applied to analyze

its constitutionality.322

320 (...continued) Oklahoma as an example of the federal government’s conditioning receipt of fed- eral funds on compliance by the recipient with federal statutory and adminis- trative objectives. Dole, 483 U.S. at 206-07. 321 But see United States v. McCormack, 31 F. Supp. 2d 176 (D. Mass. 1998), which suggests that § 666 is a “condition” statute because the recipient can avoid the statute’s application to its officials by not accepting federal funds of $10,000 or more. The McCormack court argued further that § 666 sets out fed- eral requirements for recipient governments and prescribes negative consequences if those requirements are not followed. I disagree. A mere grant of money can- not be called a condition, and Dole requires not just a condition, but an explicitly stated condition. Section 666 fails this requirement.

322 If the Dole test were applicable, it would require a holding that § 666 is unconstitutional as applied, because the third requirement of the Dole testSSthat “conditions must (among other requirements) bear some relationship to the federal spending,” New York v. United States, 505 U.S. 144, 167 (1992)SSis not met. The only relationship the government can manage to muster between Lips- comb’s violation of state criminal law and federal spending is that Yellow Cab’s taxis sometimes go to a city airport that receives federal dollars for improvements. This connection is so tenuous as to be no connection at all; were it enough to satisfy the Dole test, then “the spending power could render academic the Constitution’s other grants and limits of federal authority.” Id.

133 B.

Recognizing that Dole does not answer the question, we turn

elsewhere for constitutional grounding. In Salinas, the Court held

§ 666 constitutional as applied, addressing constitutionality only

briefly:

[T]here is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jail managed pursuant to a series of agreements with the Fed- eral Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(1)(B)’s application in other cases, the application of § 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds. See Westfall v. United States, 274 U.S. 256, 259 (1927).

Salinas, 522 U.S. at 60-61. Unfortunately, the Court did not re-

veal the framework it used in concluding that § 666 was

constitutionally applied in Salinas, nor did it say what test

should be used in determining whether other applications of the

statute are constitutional. We conduct our own inquiry, because

this case, unlike Salinas, does not involve any readily apparent

connection to federal funds or programs.

As I have said, the fact that § 666 is not a direct exercise

of the spending power does not doom its constitutionality. The

Constitution gives Congress the power “To make all Laws which shall

be necessary and proper for carrying into Execution the foregoing

powers, and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer

134 thereof.” U.S. CONST. art. I, § 8. Thus, to determine whether the

application of § 666 to Lipscomb’s acceptance of bribes by a local

taxi company is constitutional, we must decide whether prosecuting

such behavior is “necessary and proper” to carrying out Congress’s

spending power.323

1.

We examine the relevant legislative history to discover why

Congress thought that § 666 was necessary and for what purposes it

deemed the statute proper, for although Congress is not the final

judge of what is necessary and proper to carry out its powers, it

is likely to have an informed opinion on the matter. Such opinion

is particularly persuasive to the extent that it finds legislation

is necessary and proper only in limited circumstances, because, in

such cases, we need not worry that Congress’s interpretation is

motivated by a desire to expand its power beyond proper bounds.

Thus, when Congress states that legislation passed as necessary and

proper to carry out one of its enumerated powers is actually neces-

sary only in certain circumstances, we should be hesitant to con-

323 Since the early days of the Republic, the Necessary and Proper Clause has provided justification for laws necessary for the execution of Congressional powers. For example, in McCulloch v. Maryland, 17 U.S. 316 (1819), the Court held that the enactment of a law establishing a national bank was necessary and proper to carrying into execution the spending power, the commerce power, the taxing power, the power to coin money, and the war power. Chief Justice Marshall described the reach of the clause as follows: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Id.

135 clude that the Necessary and Proper Clause permits the legislation

to reach further than Congress felt necessary or proper to carry

out its delegated powers.

Courts have recognized the particular relevance of the legis-

lative history of § 666 in casesSSlike thisSSin which that history

shows Congress’s limited goals in drafting a broadly worded stat-

ute. The legislative history of the act shows that Congress passed

§ 666 because it was concerned with its inability to protect fed-

eral funds once they are transferred from the federal government to

states, local governments, and agencies. Section 666 “is designed

to create new offenses to augment the ability of the United States

to vindicate significant acts of theft, fraud, and bribery involv-

ing Federal monies that are disbursed to private organizations or

State and local governments pursuant to a Federal program.” 1984

U.S.C.C.A.N. at 3510 (emphasis added). Congress also stated that

“the purpose of this section [is] to protect the integrity of the

vast sums of money distributed through Federal programs from theft,

fraud, and undue influence by bribery.” Id. at 3511.

In Salinas, the Court noted that § 666 was enacted in response

to specific difficulties the federal government had encountered un-

der preceding statutes in prosecuting the theft of federal funds by

non-federal employees. The Court explained:

Before § 666 was enacted, the federal criminal code con- tained a single, general bribery provision codified at 18 U.S.C. § 201. Section 201 by its terms applied only to “public official[s],” which the statute defined as “offi-

136 cer[s] or employee[s] or person[s] acting for or on be- half of the United States . . . .” § 201(a). The Courts of Appeals divided over whether state and local employees could be considered “public officials” under § 201(a) . . . . § 666(a)(1)(B) was designed to extend federal bribery prohibitions to bribes offered to state and local officials employed by agencies receiving federal funds. The facts and reasoning of [United States v.] Del Toro, [513 F.2d 656, 661-62 (2d Cir. 1975)], give particular instruction in this respect. In that case, the Second Circuit held that a city employee was not a “public offi- cial” under § 201(a) even though federal funds would eventually cover 100% of the costs and 80% of the sala- ries of the program he administered. 513 F.2d, at 662. Because the program had not yet entered a formal request for federal funding, the Second Circuit reasoned, “[t]here were no existing committed federal funds for the purpose.” Ibid. The enactment of § 666 forecloses this type of limitation.

Salinas, 522 U.S. at 58-59. Moreover, in United States v. Zwick,

199 F.3d 672, 684 (3d Cir. 1999), the court explained that under a

separate statute criminalizing the theft of federal property, 18

U.S.C. § 641,

the federal government could prosecute only when it could establish that the stolen property was property of the United States, which often was impossible if title had passed before the property was stolen or when federal funds were so commingled with non-federal funds that the federal character of those funds could not be shown.[324]

Furthermore, the Senate Report states that the intent of § 666 is

“to reach thefts and bribery in situations of the types involved in

the Del Toro, Hinton, and Mosley cases cited herein[.]” S. REP. NO.

98-225, 369-370, 1984 U.S.C.C.A.N. at 3511. The court in Zwick

324 Based on this legislative history, the Zwick court concluded that “[t]he goal [of § 666] was to overcome impediments to reaching actions in which there was a federal interest, not to federalize crimes in which a federal interest was lacking.” Zwick, 199 F.3d at 684.

137 noted that the corrupt transactions in these three cases all plain-

ly implicated federal interests. Zwick, 199 F.3d at 684.

In Del Toro, the defendants conspired to bribe Pedro Morales,

the Assistant Administrator of the Harlem-East Harlem Model Cities

Program, for which the United States Department of Housing and Ur-

ban Development (“HUD”) paid 100% of the cost of the program and

80% of its salaries. Because Morales was a city employee, however,

the court concluded that, notwithstanding that he was administering

a HUD program, he was not a “public official” for purposes of § 201

and therefore could not be prosecuted. Id.

Similarly, in United States v. Hinton, 683 F.2d 195, 198-200

(7th Cir. 1982), aff’d sub nom. Dixson v. United States, 465 U.S.

482 (1984), the defendants were officials of a non-profit corpora-

tion that administered a HUD program and had discretion in the dis-

tribution of HUD funds. The court found that they were “public of-

ficials for purposes of § 201 because they exercised considerable

discretion in the distribution of federal funds. Id. at 198-200.

The Supreme Court affirmed but noted that, to be a “public offi-

cial” under § 201(a), “an individual must possess some degree of

responsibility for carrying out a federal program or policy . . . .

Individuals who work for block grant recipients and business people

who provide recipients with goods and services cannot be said to be

public officials under section 201(a) unless they assume some du-

ties of an official nature.” Dixson v. United States, 465 U.S.

138 482, 499-500 (1984).

In United States v. Mosley, 659 F.2d 812, 816 (7th Cir. 1981),

the defendant, an Illinois state employee, was convicted of receiv-

ing bribes while evaluating applicants for jobs under a federally-

funded program. Here again, the defendant was covered by § 201,

because he exercised discretion in the administration of federal

funds. In Zwick, the court concluded that the inclusion of these

cases as examples of conduct that would be covered by § 666 showed

that Congress intended that the statute would be applied only in

corruption cases impacting federal interests.325

Although I do not agree that the plain language of § 666 al-

lows prosecution only where the charged corrupt activity has impact

on a federal interest, the fact that Congress did not find it ne-

cessary that § 666 be applied in cases not involving federal funds

or programs is highly relevant to the issue of whether the stat-

ute’s application to local corruption not involving federal funds

is “necessary and proper” to execute the spending power. Armed

with knowledge of Congress’s purpose in enacting § 666, I examine

whether the statute’s employment hereSSto prosecute a city coun-

325 See Zwick, 199 F.3d at 685 (holding that “nothing in the legislative history suggests that Congress intended to go well beyond the examples in Del Toro, Hinton, and Mosley to make § 666 applicable when no federal interest is im- plicated by certain offense conduct.”). The Zwick court also noted that “[a]nother comment in the Senate Report illustrates that an entity’s receipt of federal funds does not automatically establish a federal interest in corrupt activity of employees of that entity.” Id. The court quoted the Senate Report: “For example, if a government agency lawfully purchases more than $10,000 in equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from the supplier a Federal crime.” Id. (quoting S. REP. NO. 98-225, at 370, 1984 U.S.C.C.A.N. at 3511).

139 cilmember for accepting bribes in return for pursuing local taxi

regulations beneficial to a local taxi companySSis “necessary and

proper for carrying into execution” the spending power. In other

words, what are the minimum factors that must be present to make a

prosecution under § 666 “necessary and proper” under the spending

power?

I am aware of no court that has dealt with the issue of what

uses of § 666 are necessary and proper to effect the spending pow-

er. Of no help is United States v. Suarez, 263 F.3d 468 (6th Cir.

2001).326 The Second and Third Circuits have narrowly interpreted

§ 666, however, for the express purpose of avoiding a

constitutional question. Their views on what limitations are

necessary to keep § 666 within the realm of constitutionality are

therefore useful. In Zwick, the court interpreted § 666 to require

326 Suarez advances the position of neither side in the instant case. There, the panel majority reluctantly upheld the conviction:

Were we writing on a clean slate, I like [the dissent], might well agree that proper application of 18 U.S.C. § 666 requires a minimal nexus between the alleged criminal activity and the federal funding received pursuant to that statute. We are not, however[;] the well established law of this Circuit [binds us].

Suarez, 263 F.3d at 489. In Suarez, only the dissent analyzed the constitutional issue and Supreme Court precedent, and the dissent concluded that the statute was unconstitutional as applied:

To sustain Suarez’s conviction would make § 666 a generalized anti-corruption statute under the spending power. The best reading of the Fischer and Salinas cases seems to be that the Supreme Court does not want this interpretation to take hold.

Id. The dissenting judge voted to remand for development of the record on whether there was a nexus between the crime and the federal program.

140 a relationship between the prohibited conduct and a federal

interest, because doing otherwise would raise constitutional

problems:

Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F. Supp. 2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause.

Zwick, 199 F.3d at 687 (footnote omitted). The court thus rejected

the government’s position that no connection between the bribery

and the federal funds was necessary beyond proof that the agency in

question had received federal funds in excess of $10,000. To do

otherwise, the court reasoned, would eviscerate significant fed-

eral-state boundaries by turning § 666 into a general anti-corrup-

tion statute, an intention not expressed by Congress. Id. at

686.327

In the pre-Salinas case of United States v. Foley, 73 F.3d

484, 493 (2d Cir. 1996), the court held that the conduct prosecuted

under § 666 must be “shown in some way to touch upon federal

327 Although the court in Zwick seems to have applied a Dole analysis to the issue, the court’s reasoning that a federal interest must be present to avoid a constitutional question is persuasive, as well, in analyzing § 666’s constitu- tionality under the Necessary and Proper Clause.

141 funds.” The court also held that the local government or agency

whose transaction involves $5,000 or more and at which the cor-

ruption is aimed must itself receive at least $10,000 in federal

funds. Id.

The court re-evaluated Foley post-Salinas in United States v.

Santopietro, 166 F.3d 88 (2d Cir. 1999), recognizing that Salinas

had made plain that the corruption need not have a value of $5,000

to the local government on which the corruption is practiced. In-

stead, there only must be the receipt of at least $10,000 of feder-

al funds and a corrupt transaction valued at $5,000 or more by any

of the partiesSSthe local government, the party paying the bribe,

or the bribe recipient. Thus, the Santopietro court reversed and

held that the defendants could be convicted under § 666. Even

though the bribery at issue did not result in a loss of $5,000 or

more to the town, the statutory requirement that a transaction of

at least $5,000 be involved was plainly satisfied by the fact that

the total bribe was $25,000. Id. at 92-93.

Santopietro, however, did not retreat from Foley’s requirement

of “at least some connection between the bribe and a risk to the

integrity of the federal funded [sic] program,” because “nothing in

Salinas disturbs such a requirement.” Id. at 93. The court held

that a federal connection sufficient to satisfy § 666 existed where

real estate developers had made corrupt payments to the mayor, the

Republican town chairman, and the president of the board of alder-

142 men to secure their influence in landing city development contracts

that were substantially funded by HUD dollars. Id. The court held

that the evidence

satisfies the requirements of Foley, undisturbed by Sali- nas, that the transaction sought to be influenced had some connection with a federal program. Indeed, Salinas may be read to indicate that the “threat to the integrity and proper operation of [a] federal program” created by the corrupt activity is necessary to assure that the statute is not unconstitutionally applied.

Id. (quoting Salinas 522 U.S. at 60-61) (citation omitted) (alter-

ation in original).

The court made plain that there was a direct connection be-

tween the bribery and the federally-funded programs and that “this

is not a case where the transactions sought to be influenced con-

cerned one department of a city and the requisite $10,000 of fed-

eral funds were received by a totally unrelated department.” Id.

at 93-94. The court stated that “even after Salinas, [the undis-

turbed requirements of] Foley would not permit the Government to

use § 666(a)(1)(B) to prosecute a bribe paid to a city’s meat

inspector in connection with a substantial transaction just because

the city’s parks department had received a federal grant of

$10,000.” Id.328

The reasoning of the Second and Third Circuits is persuasive.

328 But see United States v. Jennings, 160 F.3d 1006, 1012 (4th Cir. 1998) (interpreting § 666, without examining its constitutionality, to require no nexus between bribes and federal funding); United States v. Dakota, 197 F.3d 821 (6th Cir. 1999) (same).

143 It is a tautology to say that for legislation to be necessary and

proper for effecting the spending power, it must be related to that

power in some way. In other words, prohibiting activity that is

unrelated to federal spending or programs cannot be necessary to

execute the spending power.

This is not to say that only activity that directly affects

federal funds may be prohibited. Salinas made evident that the

spending power can be rendered ineffectual not only where the in-

tegrity of federal funds is compromised, but also where the in-

tegrity of programs funded by those federal dollars is assaulted.

Thus, in Salinas the Court found that § 666 did not “extend federal

power beyond its proper bounds,” id. at 61, where the statute was

used to prosecute a state officer who had allowed himself to be

bribed to influence his management of a federally funded program,

even though no federal funds actually were diverted. In Zwick, the

court held that “a highly attenuated implication of a federal in-

terest will suffice for purposes of § 666.”329

329 The court provided examples of attenuated connections that would be sufficient to allow prosecution under § 666:

We can conceive of several ways in which the government could prove a federal interest in a § 666 [sic] in light of this threshold. The amount of federal funds could provide the requisite federal implication, even if the purpose of those funds has no explicit relationship to the subject of the bribe. If, for example, in a given year, the greater part of a township's budget came from federal funds, bribery of a township agent for any purpose might be said to implicate federal interests. Absent that situation, the offense conduct would have to somehow implicate a particular substantive federal (continued...)

144 2.

The government goes far beyond the holding of Salinas and ar-

gues that for a prosecution to be proper under § 666, no rela-

tionship at all is required between federal funds or programs and

local corruption. The government argues that because funds are

fungible, and the receipt of federal funds for any project frees a

state to spend more funds on other projects, no more is required

for a prosecution under § 666 than that a local government receive

at least $10,000 in federal funds annually.

Although this is, strictly speaking, a correct textual inter-

pretation of § 666, the statute obviously does not satisfy consti-

tutional requirements when used in this manner; it cannot be neces-

sary and proper to executing the spending power for the government

to prosecute local crimes that have no relationship whatsoever to

federal funds and programs.

Any argument that it is “necessary” to protect the spending

power by passing legislation that regulates conduct totally unre-

lated to federal spending is meritless on its face. Accepting this

proposition would allow § 666 to become a general federal police

power statute that criminalizes corruption in all local governments

and private agencies receiving federal funds.

329 (...continued) interest, as the Supreme Court found it did in Salinas, where federal funds were being provided to house federal prisoners in local prisons.

Zwick, 199 F.3d at 687.

145 Such a general police power is denied the federal government

by constitutional design, for it is among those powers, reserved to

the states, that constitute the heart of state sovereignty.330 Fur-

thermore, states have the primary authority to define and enforce

criminal law,331 United States v. Lopez, 514 U.S. 549, 561 n.3

(1995), and the “double security” embodied in the concept of feder-

alism requires “a proper balance between the States and the Federal

Government,” Gregory, 501 U.S. at 459. Central to that balance,

and to state sovereignty, is each state’s prerogative over the

“constitutional responsibility for the establishment and operation

of its own government . . . .” Id. at 462.

Congress may pass laws criminalizing conduct that is already

proscribed by the states, but this “change in the sensitive rela-

tion between federal and state criminal jurisdiction”332 must be

330 See, e.g., United States v. Morrison, 529 U.S. 598, 618 n.8 (2000); New York v. United States, 505 U.S. 144, 155 (1992); Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). 331 As the Court said in United States v. Lopez, 514 U.S. 549, 561 n.3 (1995):

Under our federal system, the “‘states possess primary authority for defining and enforcing the criminal law.’” Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982)); see also Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion) (“Our national government is one of delegated powers alone. Under our federal system, the administration of criminal justice rests with the states except as Congress, acting within the scope of those delegated powers, has created offenses against the United States.”). 332 United States v. Enmons, 410 U.S. 396, 411-12 (1973) (quoting United States v. Bass, 404 U.S. 336, 349 (1971)).

146 made under the powers delegated to the federal government by the

Constitution. If adopted, the government’s argument that it is

necessary and proper, under the Spending Clause, for the federal

government to root out all local corruption whenever more than

$10,000 of federal funds is received by a local government would

cause a massive shift in the “balance between the States and the

Federal Government” that is contrary to basic concepts of

federalism and the Tenth Amendment.333

This power cannot be said to be necessary and proper to

carrying into execution the spending power, because the means are

not appropriate, are well beyond “the scope of the constitution,”

are inconsistent “with the letter and spirit of the constitution,”

and thus are unconstitutional. McCulloch v. Maryland, 17 U.S. 316,

421 (1819).334 Moreover, the government’s argument that no connec-

tion need be shown between federal funds or programs and the local

corruption prosecuted under § 666 confuses a connection to a fed-

333 See U.S. CONST. amend. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). 334 See also Zwick, 199 F.3d at 686:

If we adopted the government’s interpretation that § 666 requires no connection between the offense conduct and federal funds or programming, § 666 would criminalize a host of corrupt acts committed by state agents, among others, by virtue of the fact that all states receive at least $10,000 in federal funds per year. See McCormack, 31 F. Supp. 2d at 186. This result raises significant federalism concerns, turning traditionally local conduct into a matter for federal enforcement involving a substantial extension of federal law enforcement resources.

147 eral interest in federally-funded programs with the federal gov-

ernment’s generalized interest in everything that occurs within its

borders.

The government argues that the United States has an interest

in the honesty of all officials, local and federal, and this is as-

suredly so. The government has a similar interest in a great many

things that are, however, beyond its power to regulate directly.

For example, members of Congress profess sincere interest in a

variety of problemsSSfrom reducing crime to encouraging the sta-

bility of marriageSSyet Congress has no more power directly to

criminalize local burglaries than it does to regulate marriage di-

rectly. In both cases, if the government wishes to pursue its in-

terest, it must do so through targeted spending and conditional

grants of federal funds.335

It is this conflation of generalized federal interests with a

federal interest in a program (i.e., a connection to federal fund-

ing) that prompts the government to argue that any generalized in-

terest of the United States suffices to allow federal criminaliza-

tion of local matters, so long as some insignificant amount of fed-

eral funds are given to the locality. Such an analysis turns the

accepted understanding of the Necessary and Proper Clause on its

head and, in effect, asserts that because Congress may pursue the

335 For instance, the government may provide funds to put more local police officers on the streets or may reform federal welfare spending in an effort to create incentives for families to stay together.

148 general welfare through the Spending Clause, all laws that are ne-

cessary and proper to the general welfare must be considered con-

stitutional under the Spending Clause.336 This argument, if fol-

lowed, would overturn the accepted meaning of the Spending and the

General Welfare Clauses that has existed for nearly two centuries.

See generally 1 TRIBE, supra, § 5-6, at 831-34 (3d ed. 2000).

3.

The government argues, alternatively, that if a connection is

required between federal funding or programs and the charged cor-

ruption, such connection is present in this case. The federal con-

nection that the government asserts, however, is exceedingly tenu-

ous. The government avers that a federal connection existed be-

tween Lipscomb’s acts of corruption and federal funds because

Lipscomb voted to seek and disburse federal money on im- provements to Love Field airport. Thus, the federal gov- ernment had an interest in the success of the airport, a center of interstate travel. It is common sense that an airport depends in part for its success on the taxicab service provided for passengers. On the flip side, taxi- cabs depend in part for their success on the viability of airports, which provide fertile ground for fares.

If merely the airportSSrather than the city as a wholeSSis seen as the analog of the jail in Salinas, that case’s holding must extend to this one. Lipscomb, like the jailer, was partly responsible for managing a feder- ally-funded entity, the airport. The airport in turn

336 Using this reasoning, the government could as easily argue that under the Commerce Clause, conduct may be criminalized wherever it is committed by one who participates in interstate commerce, rather than only where there is some link between the conduct and interstate commerce. In fact, this reasoning would allow federal police power under numerous clauses of the Constitution.

149 provided business to, and needed the business of, taxi- cabs (including Richards’ taxicabs) for its successSSjust as the jail had a direct relationship with the welfare of the prisoner who paid the bribes. And just as the pre- ferential treatment given to the prisoner was “a threat to the integrity and proper operation of the federal pro- gram,” Salinas, 522 U.S. at 61, so the preferential treatment of Richards was a threat to the integrity of the airport-funding program.

The government’s “cabs go to the airport” theory is feeble at

best. The government may as well argue that because the United

States funds medical research at Dallas hospitals, and researchers

sometimes take taxis, especially to airports to fly to conferences,

there is a sufficient nexus between taxis and federal funds. Or,

the government could aver that federal funds go to pay welfare ben-

efits and, because welfare recipients often cannot afford cars,

they may take taxis to the grocery store to use their food stamps,

and thus federal prosecution of cases of local bribery affecting

taxi regulations is necessary to protect the spending power. In

sum, if the government’s posited connection between the federal

funds and the corruption is sufficient to provide nexus, any con-

nection at all will do.

The facts of this case reveal no substantial relationship to

federal funds or programs, whereas in Salinas there were three

direct connections between federal funds and the corrupt activity.

First, the prisoner paying the bribes was a federal prisoner. Sec-

ond, the county jail in which the prisoner was housed had been con-

structed substantially with federal funds. Third, the prisoner was

150 in the jail as part of a federal program in which the county was

paid per diem for each federal prisoner it housed.

Here, to the contrary, Richards, who was the person paying the

bribes, had no federal status or connection. Neither the taxis nor

the city regulation of the taxi industry was funded by federal

funds in any way. Finally, there was no federal program relating

to taxi regulation, nor was the integrity of any federally funded

program affected by the payment of Lipscomb to vote for certain

taxi regulations.

Thus, the connection between federal funds and the prosecuted

activity here is nothing like the direct connections between feder-

ally funded programs and corrupt activity in Salinas. It is far

less substantial than even the most attenuated connections that the

Third Circuit imagined might suffice to avoid constitutional ques-

tions in Zwick.337 Under the specific facts of this case, the con

337 The “highly attenuated implication of a federal interest” that Zwick imagined would provide a “sufficient federal connection” to satisfy the requirements of § 666 was a far less attenuated federal interest than is the one the government asserts here. The Zwick court

conceive[d] of several ways in which the government could prove a federal interest in § 666 . . . . If, for example, in a given year, the greater part of a township’s budget came from federal funds, bribery of a township agent for any purpose might be said to impli- cate federal interests. Absent that situation, the offense conduct would have to somehow implicate a par- ticular substantive federal interest, as the Supreme Court found it did in Salinas, where federal funds were being provided to house federal prisoners in local prisons.

Zwick, 199 F.3d at 687. The court cited further examples, including Santopietro, holding that bribes paid by real estate developers in search of development con- (continued...)

151 nection to federal funds is insufficient, as a matter of law, to

support a conclusion that the § 666 prosecution was necessary and

proper to protect federal funding of Love Field or the city

generally.338

4.

The government alternatively posits that, because the City of

Dallas received a sizeable amount of federal funds in real dollars,

it was proper for Lipscomb’s bribery to be federally prosecuted.

The government points out that in 1998, the city accepted over $56

million in federal funds. This, it argues, is a significant amount

that warrants the federal prosecution of a local official even for

337 (...continued) tracts with city agencies that were overseeing HUD programs met the federal nexus requirement of § 666. Zwick also cited Frega, in which a district court con- cluded that bribery of state judges did not meet the requisite federal interest, but hypothesized that a sufficient federal connection could exist in different circumstances, such as if the state courts received federal funds for the purpose of appointing habeas counsel and the bribes paid affected the appointment of par- ticular habeas counsel. Id. at 687-88.

Although these indeed are examples of federal connections that are somewhat attenuated, nevertheless the federal interest in each example is plain, as is the necessity of protecting it against corruption so that Congress may properly execute its spending power, free of the danger that federally funded programs will be corrupted and perverted. The same cannot be said of Lipscomb’s prosecution, for no federal program was, in any way, affected by his corruption. 338 Moreover, this post hoc argumentSSthat the integrity of federal funding at the airport was endangered by Lipscomb’s taxicab corruptionSSwas never charged in the indictment or argued to the jury. Instead, the jury instructions merely stated:

It is also not necessary that the $10,000 in federal assistance be directly involved in or traced to the allegedly corrupt acts charged in the Indictment. All that is necessary is that the City of Dallas received in excess of $10,000 from the federal government during a one-year period.

152 mere local corruption.

The government contends that the receipt of this large amount

of federal money would make the prosecution of Lipscomb pass muster

even under Zwick. This is plainly incorrect. Zwick stated that if

“the greater part of a township’s budget came from federal funds,

bribery of a township agent for any purpose might be said to

implicate federal interests.” Zwick, 199 F.3d at 687 (emphasis

added). The city received over $56 million in 1998SSadmittedly a

significant amount. Because its 1988 budget was $1.6 billion,

however, federal funds made up only 3.5% of the City’s budget.

This is nowhere near the example given in Zwick, where a fed-

eral interest could arise if the “greater part of a township’s bud-

get” came from federal funds. Indeed, if federal funding of as

little as 3.5% of a city’s budget allows prosecution of a city of-

ficial, then the fact that every state and most cities receive more

than $10,000 in federal funds each year is alone enough to allow

the federalization of local corruption cases. This cannot be

necessary and proper for executing the spending power.

5.

The government further contends that Lipscomb was not just any

city employee and that as a city councilman he “was one of fifteen

people responsible for running the City of Dallas.” The government

then argues that high officials, such as Lipscomb, always should be

153 liable for prosecution under § 666, because high officials make de-

cisions on the disposition of both local and federal funds, and

therefore dishonesty in the disposition of local funds is a proper

cause of worry to the United States.339

The government contends that such prosecution is

necessary, because otherwise corrupt officials would be left in

place to administer federal funds in the same corrupt fashion that

they administer local matters. While this argument has some

initial appeal, it ultimately has no merit.

First, it seems unlikely that, had the state prosecutor

been given the fruits of the Lipscomb investigation, he would have

declined to prosecute. The charges against Lipscomb were serious,

the evidence was compelling, and Lipscomb was a high-profile public

servantSSall factors that strongly argue for state prosecution.

Second, even if one thinks that states sometimes do not

prosecute local crimes where federal prosecutors might do so, it

does not follow that allowing double prosecution of local crimes

would deter corruption involving federal funds and programs. In-

stead, allowing the double prosecution of local, but not federal,

339 Santopietro, 166 F.3d at 94 n.3, also raised this question, but did not answer it:

We need not consider whether Santopietro’s role as mayorSSthe chief executive officer of the city and hence the officer ultimately responsible for all city depart- mentsSSwould render the statute applicable to corrupt payments received by him for any transaction involving the city, even though the federal funds were received for a program entirely unrelated to the program in connection with which the corrupt payments were made.

154 corruption might tend to cause dishonest local officials to abuse

federal dollars rather than local funds.

Before § 666 was enacted, local embezzlement was covered

by local penalties, and federal embezzlement was covered by federal

penalties, with only small overlap. Thus, before the advent of

§ 666, a rational local official would simply weigh the rewards of

embezzling local or federal funds against the risk of getting

caught and the probable penalty carried by each crime. He then

would commit those acts of embezzlement with the best ratio of

payoff-to-punishment. Because of the severity of federal

penalties, the most rational acts of embezzlement often would be

local.

If § 666 is used to prosecute purely local acts of

corruption, however, this calculus changes substantially. Federal

acts of corruption still carry the same ratios of reward-to-

punishment, but local crimes of corruption now qualify as both

federal and local crimes. Thus, federal embezzlement would be more

rewarding at the margins than would be local embezzlement. As a

result, rather than protecting federal funds and programs, § 666,

if applied to purely local crimes, should actually cause an

increase in the criminal misuse of federal funds; accordingly, it

cannot be said that prosecution of local crimes under § 666 is

necessary and proper to carry into execution the spending power,

and the application of § 666 to Lipscomb on the facts of this case

is, accordingly, unconstitutional.

155 III.

The panel majority errs in deciding the question of

venue. The majority teaches that it is better to force the

government and defendant to have a biased trial than to

inconvenience them with a five-hour drive or a one-hour flight.

Because this directly contradicts the plain text of our past

precedents, and all common sense, I respectfully dissent.

“The trial court has broad discretion in determining

whether a transfer is warranted.”340 “[A]bsent a showing of illicit

motivation, the transfer may be granted within the trial court’s

discretion unless the defendant shows that a transfer would be

prejudicial.” Osum, 943 F.2d at 1399. Lipscomb makes two attempts

to show prejudice; both are meritless. First, Lipscomb asserts

that if he had been tried in Dallas, he would have had more blacks

in his jury pool, and black jurors would have been more likely to

acquit him, a black defendant. Besides the fact that a criminal

defendant has no right to jury or venire of “any particular

composition,” Taylor v. Louisiana, 419 U.S. 522, 538 (1975); United

States v. Sanchez, 508 F.2d 388, 395 (5th Cir. 1995), there is a

not a hint of an indication that the district court transferred the

case to alter the jury pool’s racial composition, see United States

v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995).

340 United States v. Osum, 943 F.2d 1394 (5th Cir. 1991); accord United States v. Kaufman, 858 F.2d 994, 1006 (5th Cir. 1988); United States v. Weddell, 800 F.2d 1404, 1406 (5th Cir. 1986).

156 Lipscomb next argues that Amarillo was inconvenient

because it “is 300 miles from Dallas,” and the “defendant and all

of the witnesses resided in Dallas and every defense attorney

practiced there.” This cannot rise to the necessary level of

prejudice. We repeatedly have held that so long as the district

court has some “valid reason for changing venue,” “travel and

lodging expenses for lawyers and witnesses do not constitute

prejudice sufficient to overcome a district court’s determination

regarding the place of trial.” United States v. Kaufman, 858 F.2d

994, 1006 (5th Cir. 1988). In Kaufmann, we held that a district

court’s concern “that if it held trial in Austin, then [its] docket

in Waco would have to be completely ignored” constituted such a

valid reason and outweighed the “only minor inconvenience” of a 102

mile transfer. Kaufmann, 858 F.2d at 1006. If docket management

constitutes a valid reason for transfer, then surely a court’s

conviction that it cannot provide a fair trial does.

Directly on point is United States v. Alvarado, 647 F.2d

537 (5th Cir. Unit A June 1981). We affirmed a sua sponte decision

to transfer a case to a venue 231 miles away based on pretrial pub-

licity. We held that the alleged prejudicial effects of

“additional travel and lodging expenses [for the defendants] and

their attorneys in addition to the expenses that became necessary

in order to subpoena crucial witnesses . . . do not rise to the

level necessary to prove the trial judge abused his discretion by

157 transferring venue so as to avoid an unfair trial from a great deal

of publicity.” Id. at 539.

The majority seems to argue that Lipscomb’s case is

different because 300 miles is really far. But Kaufmann makes no

allowance for distance within a district. What’s more, Kaufmann

relies on United States v. Fagan, 821 F.2d 1002, 1008 (5th Cir.

1987), for its holding. In Fagan, a FED. R. CRIM. P. 21 case, we

affirmed the refusal to transfer from the Southern District of

Texas to the Eastern District of Louisiana. We noted “that holding

trial in Houston, rather than Louisiana, made it more disruptive to

[the defendant], his witnesses, and his attorney” and may have cost

him the representation of a second attorney, but this was not

enough to mandate transfer. Id. at 1008. If the 348-mile distance

in Fagan was not prejudicial as a matter of law, then the 300 mile

distance in this case certainly is not.

Today’s holding has the potential to inject great

uncertainty into the trial process and actually to increase the

number of unfair trials. Luckily, future district courts will not

be bound by it. The majority’s venue ruling plainly contradicts

Alvarado, and it is well established that “[w]hen two panel

opinions appear in conflict, it is the earlier which controls.”

Harvey v. Blake, 913 F.2d 226, 228 (5th Cir. 1990). But, the fact

that today’s holding will not be binding does not make it any less

in error.

158 I respectfully dissent.