U.S. v. Sabri

Decision Date28 January 2002
Docket NumberNo. CRIM. NO. 01-246 (RHK/JMM).,CRIM. NO. 01-246 (RHK/JMM).
Citation183 F.Supp.2d 1145
PartiesUNITED STATES of America, Plaintiff, v. Basim Omar SABRI, Defendant.
CourtU.S. District Court — District of Minnesota

Michael W. Ward, Assistant United States Attorney, Minneapolis, MN, for Plaintiff.

Andrew S. Birrell and R. Travis Snider, Birrell & Newmark, Ltd., Minneapolis, MN, for Defendant.

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Defendant Basim Omar Sabri is charged in a three-count Indictment1 with corruptly giving, offering, and agreeing to give things of value to Minneapolis City Councilmember Brian Herron with the intent of rewarding or influencing Herron in connection with various transactions of the City Council and the Minneapolis Community Development Agency ("MCDA"), all in violation of 18 U.S.C. § 666(a)(2). Before the Court is Sabri's Motion to Dismiss the Indictment on the grounds that 18 U.S.C. § 666 is unconstitutional on its face. For the reasons set forth below, the Court will grant the Motion.

Background

The following facts are alleged in the Indictment. Defendant Sabri is a property developer and landlord in the City of Minneapolis. (Indictment, ¶ 1.d.) During 2001, Sabri was pursuing a real estate development project within the Eighth Ward of the City of Minneapolis which involved a hotel and several commercial retail businesses. (Id.) The project contemplated zoning, eminent domain/condemnation, licensing and funding actions by the City of Minneapolis ("the City"), the MCDA and the Minneapolis Neighborhood Revitalization Program (NRP).2 (Id.) Through July 17, 2001, Herron was a member of the Minneapolis City Council representing the Eighth Ward.3 (Id. ¶ 1.e.) His committee assignments included the Ways and Means/ Budget, Public Safety and Regulatory Services, and Health and Human Services committees. (Id.) As a member of the City Council, Herron also served as a member of the Board of Commissioners of the MCDA, overseeing the actions and budget of that agency.4 (Id.)

Count I of the Indictment alleges that, from July 2 through July 17, 2001, Sabri corruptly sought Herron's assistance in obtaining regulatory approvals from the City of Minneapolis for the above-described commercial real estate development project. (Id. ¶ 3.) Sabri allegedly gave or offered Herron $5,000 with the intent to influence or reward him in connection with such transactions. (Id.)

Count II of the Indictment alleges that, from July 2 through July 17, 2001, Sabri corruptly sought Herron's attendance at a meeting with private business owners who owned property necessary for Sabri's commercial development project. (Id. ¶ 5.) Count II also alleges that Sabri corruptly sought Herron's threat at that meeting to use the City's power of eminent domain to take the business owners' property unless they sold to Sabri. (Id.) Sabri allegedly offered or agreed to give Herron $10,000 with the intent of influencing or rewarding Herron for his actions. (Id.)

Count III of the Indictment alleges that from July 7 through July 17, 2001, Sabri corruptly sought Herron's assistance in obtaining $800,000 in community economic development grants from the City, the MCDA, and other entities for his commercial real estate development project. (Id. ¶ 7.) Sabri allegedly offered or agreed to give Herron $80,000 (a 10% commission) with the intent of influencing or rewarding Herron in connection with his assistance. (Id.)

During the one-year period beginning January 1, 2001, the City of Minneapolis was expected to receive (and the City Council was expected to administer) approximately $28.8 million in federal assistance. (Id. ¶ 1.a.) During that same one-year period, the MCDA was expected to receive and administer federal assistance in the form of Community Development Block Grants and other federal programs of approximately $23 million. (Id. ¶ 1.b.)

Analysis

As noted above, all three counts of the Indictment charge Sabri with violating 18 U.S.C. § 666(a)(2). That section provides, in relevant part, that if a local government, or any agency thereof, "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," see 18 U.S.C. § 666(b), then it is a crime against the United States for any person to

corruptly give[], offer[], or agree[] to give anything of value to any person, with intent to influence or reward an agent of ... a ... local ... government, or any agency thereof, in connection with any business, transaction, or series of transactions of such ... government, or agency involving anything of value of $5,000 or more.

18 U.S.C. § 666(a)(2).

Sabri argues that the federal statute is unconstitutional on its face because it does not require a connection between the alleged criminal conduct—the giving or offering of a bribe—and the federal funds distributed by Congress. Without the requirement of such a connection, Sabri contends, the statute lies outside the scope of Congress's authority to enact laws under the Spending Clause of Article I of the United States Constitution. This Court begins its analysis by construing § 666(a)(2) to determine whether it does or does not require a connection between the bribe and the expenditure of federal funds. If the statute does not require such a connection, the Court will then consider whether Congress validly exercised its legislative authority in enacting § 666(a)(2).

I. The Essential Elements of Giving, Offering or Agreeing to Give A Bribe in Violation of § 666(a)(2)

In Salinas v. United States, 522 U.S. 52, 56-57, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), the United States Supreme Court construed the complementary provision of § 666 which makes it a federal offense for an agent of an organization or a state, local, or tribal governmental body or agency that receives more than $10,000 in federal funds in a year to solicit, demand, accept, or agree to accept anything of value with the intent to be influenced or rewarded in connection with any business, transaction, or series of transactions of the entity valued at $5000 or more. 18 U.S.C. § 666(a)(1). Given the parallel wording in the provision criminalizing the taking of a bribe (18 U.S.C. § 666(a)(1)(B)) and in the provision criminalizing the giving or offering of a bribe (18 U.S.C. § 666(a)(2)), this Court first looks to Salinas for guidance in construing § 666(a)(2).

Salinas, a deputy sheriff in Hidalgo County, Texas, was responsible for managing the county jail and supervising the custody of prisoners. 522 U.S. at 55, 118 S.Ct. 469. He accepted bribes from a federal prisoner housed at the jail pursuant to an arrangement negotiated between the United States Marshals' Service and the county; in exchange for the bribes, the prisoner was permitted "contact visits" with his wife and a girlfriend. Id. Salinas argued to the Supreme Court that, under § 666(a)(1)(B) the government must prove, as an element of the crime of taking a bribe, that "the bribe in some way affected federal funds, for instance by diverting or misappropriating them." Id.

In evaluating Salinas' argument, the Supreme Court focused on the clause "[a]ny business, transaction, or series of transactions," which is found both in § 666(a)(1)(B) and in § 666(a)(2). Reasoning that the word "any" means "any," without qualification, and that "[t]he statute applies to all cases in which an `organization, government, or agency' receives [$10,000 or more] of benefits under a federal program," id. at 57, 118 S.Ct. 469 (emphasis added) (citing 18 U.S.C. § 666(b)), the Court rejected Salinas' proposed statutory construction. The statute's prohibition against accepting a bribe with the intent of being influenced or rewarded in connection with any business, transaction, or series of transactions "is not confined to a business or transaction that affects federal funds." Id. Indeed, the Supreme Court observed that § 666(a)(1)(B)'s language was "expansive" and "unqualified ... both as to the bribes forbidden and the entities covered." Id. at 56, 118 S.Ct. 469 (emphasis added).

Also rejected was Salinas' contention that the Supreme Court could not construe § 666(a)(1)(B) to apply to bribes having no affect on federal funds without "a plain statement of congressional intent," as required by Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), and McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). The Supreme Court distinguished Gregory and McNally on the grounds that, "[i]n each of those cases, we confronted a statute susceptible of two plausible interpretations, one of which would have altered the existing balance of federal and state power." 522 U.S. at 59, 118 S.Ct. 469. Here, however, "[t]he text of § 666(a)(1)(B) is unambiguous on the point under consideration here, and it does not require the Government to prove federal funds were involved in the bribery transaction." Id. at 60, 118 S.Ct. 469 (emphasis added). Accordingly, the Supreme Court held that "as a matter of statutory construction, § 666(a)(1)(B) does not require the Government to prove the bribe in question had any particular influence on federal funds." Id. at 61, 118 S.Ct. 469 (emphasis added).

It appears that Salinas did not ask the Supreme Court to address whether § 666(a), as construed, was a proper exercise of the legislative powers vested in Congress by Article I of the Constitution. The Supreme Court did decide, however, that the statute was constitutional as applied to the facts of the case. In reaching that conclusion, it observed that the "preferential treatment accorded to [a federal prisoner in the county jail] was a threat to the integrity and proper operation of the federal program." Id. at 60-61, 118 S.Ct. 469.

While the Salinas Court held that § 666(a)(1)(B) did not "require the Government to prove that the bribe in question had any particular...

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4 cases
  • U.S. v. Lipscomb
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 12, 2002
    ...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 83. United States v. Cantor, 897 F.Supp. 110, 113 (S.D.N.Y.1995). A cond......
  • U.S. v. Ganim
    • United States
    • U.S. District Court — District of Connecticut
    • September 12, 2002
    ...He relies on United States v. Morgan, 230 F.3d 1067 (8th Cir.2000) (Bye, J., specially concurring), and United States v. Sabri, 183 F.Supp.2d 1145 (D.Minn.2002), both of which determined that § 666 was not a constitutional exercise of Congressional authority. Alternatively, he argues these ......
  • U.S. v. Sabri
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 7, 2003
    ...jurisdictional element' that confer[red] federal court jurisdiction over the offenses described in § 666," United States v. Sabri, 183 F.Supp.2d 1145, 1154 (D.Minn.2002), it erred. The Lopez Court's use of the word "jurisdiction" referred to the power of the Congress to enact legislation an......
  • United States v. Atias
    • United States
    • U.S. District Court — Eastern District of New York
    • September 20, 2022
    ... ... the United States. Petitioners also cite United States v ... Sabri , 183 F.Supp.2d 1145 (D. Minn. 2002), which held ... that Congress lacked authority to prohibit bribery intended ... to influence an ... ...

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