UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-21044
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHANNON THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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January 24, 2001
Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA*, District
Judge.
RHESA HAWKINS BARKSDALE, Circuit Judge:
At issue is whether a guard employed by a private entity
operating a detention center under contract with the Immigration &
Naturalization Service is a “public official” for purposes of the
federal bribery statute under which Shannon Thomas was convicted,
18 U.S.C. § 201(a)(1), (b)(2). We AFFIRM.
I.
Thomas was employed as a guard at a private prison facility in
Texas, owned and operated by Corrections Corporation of America
*
United States District Judge for the Southern District of
Texas, sitting by designation.
(CCA), and at which CCA contracted exclusively with the INS to
house INS detainees. CCA’s authority to house the detainees was
derived from the contract, which required CCA to prepare, and
submit to the INS for approval, personnel policies complying with
United States Department of Labor regulations. The contract also
required CCA to develop standards for employee conduct and
disciplinary actions emulating federal standards, and to hold
employees accountable based on such standards, including employees
not, inter alia: accepting from, or giving to, a detainee a gift
or service; or entering into any business relationship with
detainees or their families, such as selling, buying or trading
personal property. The contract also required CCA to: advise its
employees of the standards of conduct; require them to certify in
writing they had read and understood the rules; and report all
violations, or attempted violations, of the standards of conduct or
any criminal activity. Under the contract, rules violations could
“result in employee dismissal by [CCA] or at the discretion of
INS”.
Thomas performed the same duties, and had the same
responsibilities, as a federal guard employed at a federal prison
facility; obviously, his duties included enforcing the established
rules. One rule prohibited guards from bringing contraband,
including tobacco products, into the prison. Thomas had been
trained regarding the contraband prohibition, and knew that
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bringing cigarettes into the facility was in violation of his
official duty.
Charged with bringing cigarettes to detainees in exchange for
money, Thomas was indicted for accepting a bribe, in violation of
18 U.S.C. § 201(b)(2), which proscribes a “public official”
accepting anything of value in return for violating his official
duty. Thomas’ motion to dismiss the indictment, on the basis he
was not a § 201(b)(2) “public official”, was denied, the district
court holding Thomas “occupied a position of trust with official
federal responsibilities”. Thomas entered a conditional guilty
plea, reserving his right to appeal the “public official” issue.
He was sentenced to 60 months probation and fined $2,000.
II.
Thomas contends he was not a § 201(b)(2) “public official”
because: he did not have any responsibility or authority to
allocate federal resources or implement federal policy, but merely
was employed by CCA; and he did not occupy a position of public
trust with official federal responsibilities. We review de novo
the district court’s § 201(b)(2) “public official” interpretation.
E.g., United States v. Fitch, 137 F.3d 277, 281 (5th Cir. 1998).
Among other things, it is unlawful for a “public official ...
to ... receive ... anything of value ... in return for ... being
induced to do ... any act in violation of the official duty of such
official”. 18 U.S.C. § 201(b)(2)(C) (emphasis added). For §
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201(b)(2)(C) purposes, a “public official” includes, inter alia, an
“employee or person acting for or on behalf of the United States
... in any official function....” 18 U.S.C. § 201(a)(1) (emphasis
added).
Dixson v. United States, 465 U.S. 482, 496-97 (1984), held
that officers of a private, non-profit corporation which
administered federal community development block grants from HUD
were such “public officials”. “[T]he proper inquiry is not simply
whether the person had signed a contract with the United States or
agreed to serve as the Government’s agent, but rather whether the
person occupies a position of public trust with official federal
responsibilities.” Dixson, 465 U.S. at 496 (emphasis added). “To
be a public official ..., an individual must possess some degree of
official responsibility for carrying out a federal program or
policy.” Id. at 499.
The Court rejected the contention that the officers could not
have been acting “for or on behalf of the United States” because
neither they, nor their employer, had entered into any agreement
with the Government. Id. at 490. Because the officers were
charged with abiding by federal guidelines in allocating the
grants, they “assumed the quintessentially official role of
administering a social service program established by ...
Congress”. Id. at 497.
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Although our court has not addressed directly the scope of §
201(b)(2) “public officials”, several others have. Persons with
duties similar to Thomas’ were held to be “public officials”.
In United States v. Velazquez, 847 F.2d 140 (4th Cir. 1988),
a federal inmate housed at a county jail was convicted for bribing
a deputy sheriff to help the inmate and other federal inmates
escape. The jail had contracted with the Government for the
housing, care, and supervision of federal prisoners. Id. at 142.
The deputy sheriff was held to be a “public official” because,
pursuant to that contract, the deputy supervised the federal
prisoners in the same manner as a federal jailer would; the jail
was subject to periodic inspections by federal employees; and the
deputy could not have supervised federal inmates absent some
federal authority. Id.
United States v. Neville, 82 F.3d 1101 (D.C. Cir. 1996),
involved the bribery conviction of a corrections officer at the
District of Columbia jail. The officer contended he was not a §
201(b)(2) “public official” because he exercised no discretion over
government policy or spending, and merely followed regulations and
orders. Id. at 1103-04. The court, however, had “no doubt” the
officer performed an “official function”: “Protecting the public
from incarcerated criminals is a quintessentially sovereign
function, carrying with it a significant measure of public trust,
which the Supreme Court unanimously recognizes as the touchstone
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for determining whether an individual is a public official.” Id.
at 1106 (citing Dixson, 465 U.S. at 496).
United States v. Ricketts, 651 F. Supp. 283, 283-84
(S.D.N.Y.), aff’d, 838 F.2d 1204 (2d Cir. 1987) (Table, No. 87-
1337), held a “halfway house” manager, charged with accepting “a
bribe to ‘fix’ a ‘dirty’ urine sample for a federal inmate residing
at [the] halfway house”, id. at 283, was a “public official”,
because he “occupied a supervisory role in an organization that
contracted with the Bureau of Prisons, pursuant to a federal
statute, to house and supervise federal convicts”. Id. at 284.
The court stated it “need not go nearly as far as ... in Dixson.
We need only rely on the more modest proposition ... that a formal,
contractual bond with the Federal Government is sufficient to bring
a defendant within the ambit of Section 201(a) as a ‘public
official’”. Id. (emphasis added). The manager’s “position [was]
closely analogous to that of a prison guard, who is unquestionably
a public official”. Id. (emphasis added).
Thomas compares himself to the baggage porter in Krichman v.
United States, 256 U.S. 363 (1921), which involved the statutory
predecessor to § 201. The defendant in Krichman was charged with
bribing the porter during World War I to transport trunks
containing expensive furs. Id. at 364. The Court concluded that
the porter, although employed by a railroad seized by the
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Government during the war, was not acting “for or on behalf of the
United States”, because he was not “performing duties of an
official character”. Id. at 365-66.
It goes without saying that Krichman is distinguishable. The
porter did not have any “official responsibility for carrying out
a federal program or policy”. See Dixson, 465 U.S. at 499. Unlike
the porter in Krichman, but like the corrections officer in
Neville, Thomas “occupied a position involving a far greater degree
of public responsibility than a baggage porter”. Neville, 82 F.3d
at 1106.
Thomas was a “public official”, as defined by § 201(a)(1). As
a corrections officer for CCA, which contracted with the INS to
house federal detainees, Thomas performed the same duties, and had
the same responsibilities, as a federal corrections officer
employed at a federal prison facility. Although he did not have
any authority to allocate federal resources, cf. Dixson, 465 U.S.
at 447, Thomas nevertheless occupied a position of public trust
with official federal responsibilities, because he acted on behalf
of the United States under the authority of a federal agency which
had contracted with his employer. See Neville, 82 F.3d at 1106
(“[p]rotecting the public from incarcerated criminals ... [carried]
with it a significant measure of public trust”). Pursuant to CCA’s
contract with the INS, CCA correctional officers had to abide by
federal regulations; the rules and regulations regarding the
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standards of conduct for CCA correctional officers, including not
bringing contraband into the prison, were subject to INS approval;
and any employee who violated those standards could be dismissed by
either CCA or the INS.
Also misplaced is Thomas’ reliance on Richardson v. McKnight,
521 U.S. 399 (1997), in which CCA corrections officers were held
not entitled to claim qualified immunity from 42 U.S.C. § 1983
civil rights actions. That doctrine serves to “protect[]
government’s ability to perform its traditional functions by
providing immunity where necessary to preserve the ability of
government officials to serve the public good or to ensure that
talented candidates were not deterred by the threat of damages
suits from entering public service”. Id. at 408 (emphasis added;
internal quotation marks and citation omitted). Those purposes did
not support qualified immunity being accorded private prison guards
because, inter alia, “marketplace pressures provide the private
firm with strong incentives to avoid overly timid, insufficiently
vigorous, unduly fearful, or ‘non-arduous’ employee job
performance”. Id. at 410. Along this line, the Court noted CCA
was required to have insurance sufficient to compensate victims of
civil rights torts. Id.
It goes without saying that the policy considerations
supporting private corrections officers’ not being entitled to
qualified immunity are quite different from those concerning
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whether they are “public officials” for purposes of the federal
bribery statute. Obviously, the Government has just as strong an
interest in the integrity of private corrections officers charged
with guarding federal detainees as it has in the integrity of
federal corrections officers employed in federal facilities. Under
such circumstances, and for purposes of the federal bribery
statute, there is simply no basis for differentiating between such
private and public officers.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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