U.S. v. Sabri

• Citation: 326 F.3d 937
• Decision Date: 07 April 2003
• Docket Number: No. 02-1561.,02-1561.
• Parties: UNITED STATES of America, Appellant, v. Basim Omar SABRI, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.3d 937

UNITED STATES of America, Appellant, v. Basim Omar SABRI, Appellee.

No. 02-1561.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2002.

Filed: April 7, 2003.

Counsel who presented argument on behalf of the appellant was Michael William Ward, Assistant U.S. Attorney, of Minneapolis, Minnesota. Also appearing on the brief was Thomas B. Heffelfinger.

Counsel who presented argument on behalf of the appellee was Andrew S. Birrell of Minneapolis, Minnesota. Also appearing on the brief was R. Travis Snider.

Before HANSEN,¹ Chief Judge, BOWMAN and BYE, Circuit Judges.

HANSEN, Circuit Judge.

The government appeals from an order of the district court dismissing an indictment against Basim Omar Sabri. We reverse the judgment of the district court.

I.

The grand jury charged Sabri with three counts of bribery in violation of 18 U.S.C § 666(a)(2).² The indictment alleged the following facts. The City of Minneapolis (hereinafter "City") received approximately $28.8 million in federal funds during the calendar year beginning January 1, 2001. The Minneapolis Community Development Agency (hereinafter "MCDA") is a City agency created to fund housing and economic development programs within the City. MCDA received approximately $23 million in federal funds in the calendar year beginning January 1, 2001. The Minneapolis Neighborhood Revitalization Program (hereinafter "MNRP") is an agency created by the City and other local government entities which provides funding for the economic revitalization of City neighborhoods. MCDA wholly funds MNRP.

Sabri is a Minneapolis developer and landlord. During the spring and summer of 2001, Sabri was pursuing a commercial real estate project within the City's Eighth Ward. From 1993 through July 2001, Brian Herron served on the City Council, representing the Eighth Ward. He also served on the Board of Commissioners overseeing MCDA's budget. The government alleged that Sabri gave Herron $5000 in an attempt to obtain Herron's assistance in receiving regulatory approval from the City to commence the proposed real estate project; that Sabri offered Herron $10,000 to threaten the current property owners that the City would use its powers of eminent domain to take their property if they did not sell to Sabri; and that Sabri offered to give Herron $80,000 as a 10% kickback in return for his assisting Sabri to obtain $800,000 in community economic development grants for the proposed real estate project.

Sabri filed a motion to dismiss the indictment on the ground that § 666(a)(2) was facially unconstitutional because it does not require the government to prove a nexus between the offense conduct-the offering of a bribe-and the federal funds. Without such a "jurisdictional hook," that is, a clause that purports to ensure that the law applies only to activity that falls within the federal lawmaking power, Sabri argued that the statute was outside Congress's legislative power. The district court agreed with Sabri's arguments and granted his motion to dismiss the indictment.³ We agreed with the district court that as a matter of statutory construction the government need not prove some nexus between the offense conduct and federal funds. We respectfully disagree that the statute as construed is beyond Congress's power to legislate.

II.

We first turn to the question of statutory construction: whether § 666 itself requires that the government prove some connection between the offense conduct and the expenditure or use of federal funds. We hold that § 666 contains no requirement that the government prove some connection between the offense conduct and federal funds beyond the express statutory requirement found in § 666(b) which requires proof that the relevant organization, government, or agency received benefits under a federal program in excess of $10,000 in any one-year period.

The Supreme Court addressed this question of statutory construction in part in Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). Salinas, a deputy sheriff who had accepted bribes in exchange for arranging "contact visits" between a federal prisoner housed in the Hidalgo County jail and the prisoner's wife and girlfriend, argued that "the Government must prove the bribe in some way affected federal funds, for instance by diverting or misappropriating them" before the statute was violated. Id. at 55, 118 S.Ct. 469. A unanimous Court rejected Salinas's argument, noting that 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" the statute. Id. at 56-57, 118 S.Ct. 469. Specifically, the Court noted that the word "`any,' which prefaces the business or transaction clause, undercuts the attempt to impose this narrowing construction," id. at 57, 118 S.Ct. 469, and "that, as a matter of statutory construction, § 666(a)(1)(B) does not require the Government to prove the bribe in question had any particular influence on federal funds," id. at 61, 118 S.Ct. 469.

The only issue before the Salinas Court, however, was a narrow question of statutory construction: whether "§ 666[is] limited to cases in which the bribe has a demonstrated effect upon federal funds." Id. at 54, 118 S.Ct. 469 (emphasis added). The Court explicitly left open the more sweeping question of whether § 666 requires the government to demonstrate some other, less direct connection between the offense conduct and federal funds. Id. at 59, 118 S.Ct. 469 ("We need not consider whether the statute requires some other kind of connection between a bribe and the expenditure of federal funds, for in this case the bribe was related to the housing of a prisoner in facilities paid for in significant part by federal funds themselves."); see also United States v. Zwick, 199 F.3d 672, 679 (3d Cir.1999) (stating that the Salinas Court resolved the question of whether the government must show that the offense conduct actually affected or involved federal funds but left open the question of whether § 666 requires some other connection between the offense conduct and the expenditure of federal funds). Several of our sister circuits have addressed this more broad question.

The Seventh Circuit has given § 666 a broad reading, ultimately concluding that "[i]t [was] not [its] part to trim § 666 by giving its text a crabbed reading." United States v. Grossi, 143 F.3d 348, 350 (7th Cir.), cert. denied, 525 U.S. 879, 119 S.Ct. 185, 142 L.Ed.2d 151 (1998). Likewise, the Sixth Circuit has concluded that "18 U.S.C. § 666 does not require a nexus between the alleged bribes and the federal funding." United States v. Dakota, 197 F.3d 821, 826 (6th Cir.1999).⁴ The Fifth Circuit also has eschewed any nexus requirement. In United States v. Westmoreland, 841 F.2d 572 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988), a county supervisor was convicted of accepting bribes and kickbacks in connection with her duty to purchase supplies for the county's highway construction projects. Id. at 573-74. The county received $222,949 in federal funds, but those funds were segregated and the alleged criminal activity did not affect or implicate federal monies. Id. 575. Nonetheless, the Fifth Circuit concluded that:

[b]y the terms of section 666, when a local government agency receives an annual benefit of more than $10,000 under a federal assistance program, its agents are governed by the statute, and an agent violates subsection (b) when he engages in the prohibited conduct in any transaction or matter or series of transactions or matters ... concerning the affairs of the local government agency.

Id. at 576 (internal quotation omitted). The Fifth Circuit reaffirmed its position in United States v. Moeller, 987 F.2d 1134 (5th Cir.1993), concluding that § 666 required only a nexus between the offense conduct and the agency receiving federal funds and that this nexus was satisfied by § 666(b). Id. at 1137. It confirmed its position more recently in United States v. Lipscomb, 299 F.3d 303 (5th Cir.2002), in an opinion the court itself described as suffering from "tripartite fractionation." Id. at 305 (Wiener, J.). Despite their differences on other issues, see infra Part III. A., n. 5, all members of the Lipscomb panel agreed that Westmoreland is still the law of the Fifth Circuit. See id. at 313 (Wiener, J.), 354 (Duhé, J., concurring in part, dissenting in part), 365 (Smith, J., dissenting).

Two circuits, the Second and the Third, conclude that § 666 requires the government to prove at least some minimal nexus between the bribery and the federal benefits beyond that explicitly required in § 666(b). See Zwick, 199 F.3d at 682 n. 7; United States v. Santopietro, 166 F.3d 88, 93 (2d Cir.1999).

In Santopietro, the Second Circuit recognized that Salinas limited its decision in United States v. Foley, 73 F.3d 484 (2d Cir.1996), but concluded that it left untouched that part of Foley holding that § 666 "requires at least some connection between the bribe and a risk to the integrity of the federal funded program." Santopietro, 166 F.3d at 93. The Foley Court reached the conclusion that § 666 required the government to prove a connection between the bribe and the federal funds only after finding the statute to be ambiguous and then turning to the legislative history to resolve that ambiguity. Foley, 73 F.3d at 489.

Despite the long-standing principle of statutory construction that the title of a statute cannot control the plain language of the statute, the Third Circuit reasoned that the title of § 666, "Theft or bribery concerning programs receiving Federal funds," implied that the statute contains a minimal nexus requirement. Zwick, 199 F.3d at 682. It avoided the "literal interpretation" of the statute and instead relied upon legislative history to construct a "plausible, albeit more...