In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3863
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY R OBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 850—John W. Darrah, Judge.
A RGUED S EPTEMBER 28, 2010—D ECIDED N OVEMBER 3, 2011
Before E ASTERBROOK, Chief Judge, and S YKES and
T INDER, Circuit Judges.
S YKES, Circuit Judge. Anthony Robinson ran a cocaine-
trafficking operation in the Washington Park Homes
housing complex on Chicago’s south side. During a
traffic stop by Chicago police, he was found in posses-
sion of a large amount of cash and unsuccessfully tried
to bribe one of the officers. The officer, James Weyforth,
reported the attempt to his supervisor, and they devised
2 No. 09-3863
a sting in which Weyforth reapproached Robinson about
the bribe. Robinson offered to pay Weyforth $1,000 a
week to “get the heat off” his drug-selling operation.
For the next several weeks, Robinson gave Weyforth
money, though in much smaller amounts than the two
had discussed. So Weyforth upped the ante and offered
to sell Robinson two kilos of seized cocaine at a
drastically discounted price. They agreed on a time, place,
and price for the deal. Robinson showed up with the
money and was promptly arrested. A jury convicted
him on two counts: federal-funds bribery in violation of
18 U.S.C. § 666(a)(2) and attempted possession of
500 grams of cocaine with intent to distribute in viola-
tion of 21 U.S.C. § 846.
Robinson’s primary argument on appeal is a challenge
to the sufficiency of the evidence on two of the elements
of the § 666(a) bribery offense—the “federal funds” ele-
ment and the “transactional” element. The federal-funds
element requires proof that the bribe was offered to
influence an agent of an “organization, government, or
agency” that received “[federal] benefits in excess of
$10,000” in the year in which the bribe was offered.
18 U.S.C. § 666(b). The evidence is easily sufficient on
this element; a city official testified that during the
relevant year, the Chicago Police Department received
more than $4 million in federal grant money.
The transactional element is analytically more difficult.
As relevant here, it required the government to prove
that Robinson offered the bribe “with intent to influence
or reward” Weyforth “in connection with any business,
No. 09-3863 3
transaction, or series of transactions [of the Chicago
Police Department] involving anything of value of $5,000
or more.” Id. § 666(a)(2). The government’s theory was
that Robinson intended to influence Weyforth in connec-
tion with the Chicago Police Department’s “business”
of investigating drug trafficking at the Washington Park
Homes and the value of this law-enforcement business
exceeded the $5,000 threshold based on any of three
possible measures: (1) the officers’ salaries (well over
$5,000); (2) the amount of the bribe (an open-ended offer
of $1,000 per week); or (3) the estimated value of an
illicit “license” to sell cocaine (well over $5,000 in ill-
gotten gains).
This unusual conceptualization of the transactional
element requires us to decide whether the federal-
funds bribery statute covers bribes offered to influence
intangible and hard-to-quantify “business” like law-
enforcement. We conclude that whatever its outer limits,
the statutory phrase “any business . . . involving anything
of value of $5,000 or more” is broad enough to cover
the law-enforcement activities of a police department
that receives federal aid. Bribing a police officer to
refrain from enforcing the law falls within the scope of
§ 666(a). We also conclude that the evidence was suf-
ficient to satisfy the $5,000 minimum.
I. Background
Chicago police suspected that Robinson was part of a
cocaine-trafficking ring at the Washington Park Homes
housing project. On March 23, 2006, Officer Weyforth
4 No. 09-3863
spotted Robinson driving in the area and conducted a
pretextual traffic stop. Robinson’s cousin Darryl Bennett
was in the car with him. The stop did not bear much
fruit; the two had $3,800 in cash in their possession but
no drugs. During the booking process, Robinson
suggested that Weyforth keep half of the cash for
himself, return the other half to Robinson, and every-
thing would “be all good.” Weyforth declined the
bribe and inventoried the money. He then reported
the incident to his supervisor. After Robinson was
released, the police devised a sting in which Weyforth
would pose as a corrupt officer and reestablish contact
with Robinson.
Weyforth arranged to meet with Robinson and Bennett
on March 29. At the meeting Robinson offered to pay
Weyforth $1,000 a week to “get the heat off” his drug-
selling activity at the Washington Park Homes. Weyforth
agreed. They also discussed whether Weyforth could
sell Robinson quantities of cocaine seized by Chicago
police, although no agreement on this subject was
reached at that time.
Over the next several weeks, Bennett paid Weyworth
on Robinson’s behalf, but far less than the agreed-
upon amount. Robinson met with Weyforth again on
April 29. By this time Robinson had paid Weyforth only
about $1,000. Weyforth told Robinson he would soon be
able to supply him with one or two kilograms of seized
cocaine at $5,000 per kilo, a dramatically discounted
price. In several taped telephone conversations, Robinson
confirmed that he wanted to buy the discounted cocaine.
No. 09-3863 5
Weyforth said he needed some cash up front. They
agreed that on May 3 Weyforth would deliver two kilos
of cocaine to Robinson in a hotel parking lot; Robinson
would pay $5,000 at the time of delivery and another
$5,000 later. The transaction took place as planned on
May 3. Robinson gave Weyforth $5,000 in exchange for
two bricks of “prop” cocaine. Officers moved in and
made the arrest.
Robinson was indicted on two counts: federal-funds
bribery in violation of 18 U.S.C. § 666(a)(2) and attempt to
possess 500 grams of cocaine with intent to distribute
in violation of 21 U.S.C. § 846. Robinson testified at
trial and admitted the conduct described above. He
claimed, however, that he participated in the scheme out
of fear that Weyforth would “put a slab on” him; in
other words, that Weyforth would plant drugs on
him and then arrest him. Robinson asked for a jury in-
struction on the coercion theory of defense. The judge
agreed that Robinson’s testimony was enough to sup-
port giving a coercion instruction.
The jury convicted Robinson on both counts. Six days
after the trial, the district court posted a copy of the jury
instructions on its electronic docket, but the uploaded
copy omitted the coercion instruction. The judge sen-
tenced Robinson to 30 years in prison on the drug-posses-
sion count and 10 years on the bribery count, to run
concurrently.
6 No. 09-3863
II. Discussion
Robinson’s first argument pertains to the district
court’s handling of the jury instructions—specifically, the
omission of the coercion instruction from the copy of
the instructions posted on the court’s electronic docket.
He also challenges the sufficiency of the evidence on
his bribery conviction on two elements of the § 666(a)
offense: the “federal funds” element and the “trans-
actional” element.
A. Coercion Instruction
Robinson’s complaint about the district court’s
handling of the coercion instruction is new on appeal, so
our review is for plain error. FED. R. C RIM. P. 51(b). Robin-
son “must establish that the court plainly erred and that
the error affected his substantial rights.” United States
v. Sykes, 614 F.3d 303, 312 (7th Cir. 2010). Even if he
makes this showing, the decision whether to correct the
error is discretionary; we will do so only if it seriously
affected the fairness or integrity of the proceedings.1 Id.
1
Robinson unpersuasively argues that the forfeiture rule
does not apply in this situation. Rule 51(b) of the Federal Rules
of Criminal Procedure contains an exception “[i]f a party does
not have an opportunity to object to a ruling or order,” but
this exception does not apply when a defendant could have
objected in enough time “to enable the district court to
correct its error in a timely manner.” See United States v. Castillo,
430 F.3d 230, 242 (5th Cir. 2005). Here, Robinson could have
(continued...)
No. 09-3863 7
Over the government’s objection, the district court
granted Robinson’s request to instruct the jury on the
defense of coercion, and the court’s oral instructions
included the pattern instruction on the defense. Six days
after trial, however, the court posted a copy of the jury
instructions onto its electronic docket, and the uploaded
copy did not include the coercion instruction. Robinson
maintains that the omission of the coercion instruc-
tion from the electronic docket means that the jury
must not have received it in written form. This inferen-
tial leap is unwarranted.
We note first that there are a number of facts casting
doubt on Robinson’s claim that the uploaded copy of
the instructions was the same copy that was given to
the jury. The uploaded set is missing page 19, which is
where the coercion instruction should have been, but the
jury never asked the judge about a missing page, as
would be expected if a page was indeed missing from
the copy that went to the jury room. In addition, the
verdict form at the end of the uploaded set contains a
handwritten “x” on the line regarding the amount of
cocaine involved in Count II; the verdict form actually
returned by the jury contained a check mark, not an “x.”
These discrepancies suggest that the copy of the instruc-
1
(...continued)
objected and timely preserved his claim of error once the
clerk uploaded the instructions to the electronic docket. See
F ED . R. C RIM . P. 33(b)(2) (motion for new trial timely if filed
within 14 days of the verdict).
8 No. 09-3863
tions and verdict form posted to the court’s electronic
docket might have been separate copies.
The most we can say on this point is that the record
is inconclusive. We cannot tell whether the written copy
of the instructions that was sent to the jury actually
omitted the coercion instruction. Accordingly, there is
no basis to infer that any mistake occurred, let alone
a mistake on the level of plain error.
Even if there was an error, it would not support rever-
sal. The judge read the coercion instruction to the jury.
And the government persuasively argues that the evi-
dence did not justify giving the instruction in the first
place. A defendant is entitled to a coercion instruc-
tion only if he establishes an evidentiary foundation for
the defense: (1) a fear of immediate death or serious
bodily harm unless he committed the offense; and (2) no
reasonable opportunity to refuse to commit the offense
and avoid the injury threatened. United States v. Sawyer,
558 F.3d 705, 711 (7th Cir. 2009). Robinson did not
establish a foundation for either element. His coercion
theory of defense was premised entirely on his testimony
that he feared Weyforth would “put a slab on” him by
planting drugs and then arresting him. This is hardly a
present, immediate, or impending threat of injury or
death, and Robinson had a reasonable opportunity to
refuse to commit the crimes at any time during the six-
week duration of his contact with Weyforth. See id. at
712 (defendant failed to establish a foundation for a
coercion-defense instruction where she “did not present
evidence that she never had the chance to contact the
No. 09-3863 9
police in order to report [the] threats”). Accordingly, even
if the district court failed to give the jury a written copy
of the coercion instruction, the omission cannot have
affected Robinson’s substantial rights.
B. Federal-Funds Bribery
Robinson was convicted of bribery concerning a
program receiving federal funds, a violation of 18 U.S.C.
§ 666, which provides, in relevant part:
(a) Whoever, if the circumstance described in subsec-
tion (b) of this section exists—
....
(2) corruptly gives, offers, or agrees to give any-
thing of value to any person, with intent to influence
or reward an agent of an organization or of a State,
local or Indian tribal government, or any agency
thereof, in connection with any business, transaction,
or series of transactions of such organization, gov-
ernment, or agency involving anything of value of
$5,000 or more;
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 in-
volving a grant, contract, subsidy, loan, guarantee,
insurance, or other form of Federal assistance.
10 No. 09-3863
Robinson challenges his conviction on two grounds.
First, he claims that the evidence was insufficient evi-
dence to establish the “federal funds” element under
subsection (b), which requires the government to prove
that the “organization, government, or agency” whose
agent was bribed received federal assistance in excess
of $10,000 during the year in which the bribe was of-
fered. Second, he challenges the sufficiency of the evi-
dence on the “transactional element” in subsection (a)(2)—
the statutory requirement that the bribe must be made
with intent to influence the agent “in connection with
any business, transaction, or series of transactions of such
organization, government, or agency involving any-
thing of value of $5,000 or more.” In a challenge to
the sufficiency of the evidence, we view the evidence in
the light most favorable to the verdict and reverse only
if no rational juror could have found the elements of the
offense beyond a reasonable doubt. United States v.
Smith, 576 F.3d 681, 686 (7th Cir. 2009).
1. Federal-Funds Element
Congress enacted § 666 under its Spending Power, U.S.
C ONST. art. I, § 8, cl. 1, and the Necessary and Proper
Clause, id. art. I, § 8, cl. 18; the federal-funds element
supplies the federal interest necessary to support con-
gressional authority to enact the statute. See Sabri v. United
States, 541 U.S. 600, 605 (2004). This element requires
the government to prove that the bribe was solicited or
offered with intent to influence an agent of a state, local,
or tribal “organization, government, or agency” that
No. 09-3863 11
received more than $10,000 in federal aid in the year in
which the bribe was offered. 18 U.S.C. § 666(b). Robinson
claims that the evidence was insufficient to establish
that the Chicago Police Department received more than
$10,000 in federal funds between June 1, 2005, and May 31,
2006, as required by § 666(b).
The government relied on testimony from Larry Sachs,
the Director of Grants for the Chicago Police Depart-
ment. Sachs testified that on August 19, 2005, the City of
Chicago and neighboring municipalities received a law-
enforcement grant from the U.S. Department of Justice
(“DOJ”) in the amount of $6.2 million. He explained that
Chicago was the lead applicant on the grant, which was
“supposed to be used by the Chicago Police Depart-
ment.” Although some of the money went to the other
municipalities, the City of Chicago received $4.2 million
of the total. This testimony was easily sufficient to prove
that the Chicago Police Department received $4.2 million
in federal funds during the year in question.2
2
The parties assume (and the jury was instructed) that the
“organization, government, or agency” in question is the
Chicago Police Department. The Police Department qualifies
as an “agency” of city government under the statute’s defini-
tions. See 18 U.S.C. § 666(d)(2) (including within the definition
of “government agency” a “department” of the government).
In United States v. Grossi, 143 F.3d 348, 350 (7th Cir. 1998), we
held that it did not matter whether a township’s general-
assistance program, which was targeted by the bribe in ques-
tion, had itself received more than $10,000 in federal funds.
(continued...)
12 No. 09-3863
If more were needed, the jury also had evidence re-
garding how the grant money was used. The government
introduced a DOJ document explaining that the grant
money would be used for, among other things, the “pur-
chase [of] marked cars, canine vehicles and other vehi-
cles,” and to fund an outreach program of the Chicago
Police Department. The jury reasonably could have in-
ferred that these items totaled more than $10,000.
2. Transactional Element
As relevant here, § 666 prohibits offering or giving
“anything of value” to a person with intent to “influence
or reward” an agent of a federally funded organization,
government, or agency “in connection with any busi-
ness, transaction, or series of transactions of such organ-
ization, government, or agency involving anything of
2
(...continued)
What was important in Grossi was that the township—
“a ‘government’ subject to the statute”—received the minimum
statutory amount. Id. (“[M]oney is fungible and its effect
transcends program boundaries.”). Here, there is no question
that the City of Chicago received in excess of $10,000 in
federal funding during the relevant period. As we have ex-
plained, Chicago and neighboring municipalities received a
$6.2 million law-enforcement grant from the U.S. Depart-
ment of Justice; Chicago directed its $4 million share to
the Police Department. So whether the City of Chicago or its
Police Department is the relevant “government” or “agency,”
the threshold was met.
No. 09-3863 13
value of $5,000 or more.” 18 U.S.C. § 666(a)(2). This sub-
section captures bribe-givers. Another subsection of § 666
contains the parallel offense of soliciting or accepting a
bribe; § 666(a)(1)(B) prohibits agents of federally funded
entities from soliciting or accepting “anything of value . . .
intending to be influenced . . . in connection with any
business, transaction, or series of transactions . . . involving
anything of value of $5,000 or more.” Id. § 666 (a)(1)(B).
Together, these two subsections cover anyone who gives
or takes a bribe with the prohibited intent—that is, with
the intent to influence an agent of a federally funded
organization in connection with the organization’s “busi-
ness, transaction, or series of transactions.” But there is
a qualifier: The “business” or “transaction” sought to
be influenced must have a value of $5,000 or more. In
other words, the subject matter of the bribe must be
valued at $5,000 or more; the bribe itself need only be
“anything of value.” 3 See United States v. Duvall, 846 F.2d
966, 976 (5th Cir. 1988) (“[I]t is clear that the $5000 figure
qualifies the transactions or series of transactions that
3
There is a passage in United States v. Spano, 401 F.3d 837, 839
(7th Cir. 2005), erroneously suggesting that the § 666 offense
requires the government to prove that an agent of a federally
funded entity “was offered or accepted a bribe worth $5000
or more.” This mistake is understandable; the statute uses
the phrase “anything of value” to describe both the bribe and
its subject matter. As we have explained, however, only
the transactional element of the offense carries the $5,000-
minimum-value qualifier; the bribe itself can be “anything
of value.”
14 No. 09-3863
the recipient of the bribe carries out in exchange for
receiving ‘anything of value.’ The wording of the section
does not place a value on the bribe . . . .”).
As applied here, the government had to prove that
Robinson offered the bribe “with intent to influence or
reward” Weyforth “in connection with any business,
transaction, or series of transactions” of the Chicago
Police Department “involving anything of value of
$5,000 or more.” The government’s theory was that Robin-
son paid Weyforth with intent to induce him to divert
police attention away from his drug-trafficking opera-
tion at the Washington Park Homes. This Police Depart-
ment “business,” the government argued, was worth
more than $5,000 based on (1) the officers’ salaries; (2) the
ongoing value of the bribe; or (3) the profit Robinson
stood to gain if the police looked the other way.
On the first measure of value, the government called
a Chicago Police Department payroll specialist who
testified that the wages paid to the officers involved in
the Robinson investigation exceeded the $5,000 threshold.
Alternatively, the prosecutor argued to the jury that
Robinson was willing to pay as much as $1,000 a week
on an ongoing basis in order to “get the heat off” his drug-
selling operation. Although he ended up paying only
about $1,000, the offer itself was for more than $5,000
and that was enough to satisfy the statutory require-
ment. Finally, the government argued that the profit
Robinson could have realized from uninterrupted
cocaine sales was more than $5,000.
Robinson did not object to the introduction of any of
this evidence. In his motion for judgment of acquittal,
No. 09-3863 15
however, he did challenge the sufficiency of the evidence
on the transactional element. The district court denied
the motion, relying on the salary evidence and the
profit Robinson could have expected from the May 3
transaction as sufficient to establish the $5,000-minimum
requirement for the transactional element of the offense.
On appeal Robinson initially focused his argument on
the evidence of the officers’ salaries, claiming that under
§ 666(c) evidence of bona fide salaries or wages is inad-
missible to meet the $5,000 threshold. Subsection 666(c)
provides: “This section does not apply to bona fide salary,
wages, fees, or other compensation paid . . . in the usual
course of business.” We disagree that this provision
precludes the government’s use of salary evidence to
establish the transactional element of the offense. Sub-
section 666(c) creates an exception to the federal-funds
bribery statute for “bona fide” salary and other compensa-
tion paid “in the usual course of business.” The phrase
“[t]his section does not apply” suggests only that legiti-
mate salary, wages, and other compensation may not be
considered a bribe, not that salary evidence may not be
admitted to prove the value of the “business” or “transac-
tion” the bribe-giver or bribe-taker intended to influence.
Other circuits are divided on whether the § 666(c)
exception applies to the bribe alone—the “anything of
value” that is corruptly solicited or offered—or both the
bribe and the transactional element of the § 666 offense.
Compare United States v. Mills, 140 F.3d 630, 633 (6th Cir.
1998) (holding that the § 666(c) exception applies to both
elements of the offense), with United States v. Marmolejo, 89
16 No. 09-3863
F.3d 1185, 1190 n.5 (5th Cir. 1996) (noting that the § 666(c)
exception for salaries, wages, and compensation “refers to
the alleged wrongdoing,” i.e., the bribe, and collecting
cases on this point). The Sixth Circuit’s reading of § 666(c)
in Mills is hard to square with the statutory text, which
uses the language of an exception, not the language of
a limitation on the proofs.
The natural reading of the exception is that § 666 does
not target bona fide salary, wages, and compensation;
that is, compensation paid in the ordinary course shall
not be construed as a bribe. There is nothing in the text
of § 666(c) to suggest that it applies more broadly to the
other elements of the offense. More to the point here,
there is nothing in § 666(c) to suggest that bona fide
salary and other compensation is inadmissible to prove
the value of the “business” or “transaction” that the bribe-
giver or bribe-taker sought to influence. We agree with
the Fifth Circuit that the exception contained in § 666(c)
pertains to the alleged wrongdoing—that is, the bribe
itself—and does not limit the modes of proof for the
$5,000 minimum-value requirement in the transactional
element of the offense. See Marmolejo, 89 F.3d at 1190 n.5.
The government’s method of proving this element,
however, raises a more fundamental question—one that
we raised at oral argument and asked the parties to
analyze in supplemental briefs. The Supreme Court held
in Salinas v. United States, 522 U.S. 52, 61 (1997), that the
§ 666 bribery offense does not require the government
to prove that “the bribe in question had any particular
influence on federal funds.” That is, there need not be a
No. 09-3863 17
factual link between the federal funds and the bribe.
Later, in Sabri, the Court held that the absence of a
“nexus” requirement did not mean that Congress ex-
ceeded its power under the Spending and Necessary
and Proper Clauses when it enacted the statute. 541 U.S.
at 605-06. Because money is fungible, Congress could
punish acts of bribery aimed at corrupting agents
of federally funded entities without requiring any con-
nection between the bribe and the federal money.
Id. Sabri held that Congress has the authority under the
Necessary and Proper Clause “to see to it that taxpayer
dollars appropriated under th[e] [Spending] power are
in fact spent for the general welfare, and not frittered
away in graft or on projects undermined when funds
are siphoned off or corrupt public officials are derelict
about demanding value for dollars.” Id. at 605.
Salinas was before the Court on certiorari from the
Fifth Circuit’s decision in Marmolejo, and one of the
questions the court of appeals decided in that case was
whether the transactional element of § 666(a) en-
compasses transactions in intangible benefits. Salinas/
Marmolejo involved an inmate at a county jail who bribed
the sheriff and a deputy sheriff to allow conjugal visits
with his wife and girlfriend. The jail received federal
funds to help defray the costs of housing federal pris-
oners. Although the defendant was a prisoner housed
in the jail under the agreement between the fed-
eral government and the county, there was no obvious
link between the federal funds and the subject matter of
the bribery scheme. The Fifth Circuit held that the
statute did not require proof that the federal funds had
18 No. 09-3863
any connection with the bribe and also that the
transactional element of the § 666(a) offense “cover[s]
transactions involving intangibles, such as conjugal
visits, that are difficult to value.” Marmolejo, 89 F.3d
at 1191-93. The Supreme Court affirmed on the first
question, Salinas, 522 U.S. at 57-60, but specifically
reserved judgment on the second, id. at 61 (“[W]e do not
address [§ 666(a)’s] applicability to intangible benefits
such as contact visits, because that question is not fairly
included within the questions on which we granted
certiorari.”).
Here, as in Marmolejo, Robinson’s bribe was not intended
to influence any specific transaction or series of transac-
tions of the Chicago Police Department; it was intended
more generally to induce Weyworth to divert police
attention away from Robinson’s cocaine-trafficking opera-
tion in the Washington Park Homes. This raises the
question decided by the Fifth Circuit in Marmolejo but
reserved by the Supreme Court in Salinas: Does § 666(a)
apply to bribes intended to influence the intangible
transactions or business of federally funded organizations?
The broad language of the statute suggests that the
answer is “yes.” The statute targets bribes solicited or
offered “with intent to influence or reward” an agent of
a federally funded organization “in connection with
any business, transaction, or series of transactions . . .
involving anything of value of $5,000 or more.” 18 U.S.C.
§ 666(a)(2) (emphasis added). “Any” and “anything” are
terms of expansion. Although “transaction” usually
connotes a discrete act or event involving reciprocal
No. 09-3863 19
exchange, the term “business” has a broader meaning,
at least in the context in which it is used here.4
Robinson suggests that the term “business” in § 666(a)(2)
should be understood in its commercial sense. We dis-
agree. The “business” of a federally funded “organization,
government, or agency” is not commonly “business” in
the commercial sense of the word. An interpretation
that narrowly limits the scope of the transactional
element to business or transactions that are commercial
in nature would have the effect of excluding bribes
paid to influence agents of state and local governments.
This contradicts the express statutory text.
Based on the breadth of the statutory language, and the
absence of any language specifically “restricting [the
statute] to transactions involving money, goods, or ser-
vices,” the Fifth Circuit concluded in Marmolejo that
§ 666(a) covers bribes intended to influence business or
transactions in intangibles. 89 F.3d at 1191-92. The
Eleventh Circuit has agreed. See United States v. Townsend,
4
The words “transaction” and “business” have broader and
narrower meanings. “Transaction” means “an instance of
buying or selling something; a business deal . . . ; the action of
conducting business;” but also “an exchange or interaction
between people.” N EW O XFORD A MERICAN D ICTIONARY 1838
(3d ed. 2010). “Business” runs the gamut from “a person’s
regular occupation, profession, or trade . . . ;” to “an activity
that someone is engaged in . . . ; a person’s concern . . . ; work
that has to be done or matters that have to be attended to . . . ;”
to “the practice of making one’s living by engaging in com-
merce. ” Id. at 237.
20 No. 09-3863
630 F.3d 1003, 1010-11 (11th Cir. 2011). Townsend involved
bribes paid to a corrections officer in exchange for
relaxing a jail inmate’s conditions of pretrial detention.
Focusing on the statute’s use of the broad phrase “any-
thing of value,” the Eleventh Circuit held that “intan-
gibles, such as freedom from jail and greater freedom
while on pretrial release, are things of value under
§ 666(a)(1)(B).” Id. at 1011.
Other circuits, while not addressing the question quite
so directly, are in accord. See, e.g., United States v.
Hines, 541 F.3d 833, 836-37 (8th Cir. 2008) (bribes paid
to deputy sheriff for his help in expediting eviction pro-
ceedings are covered by § 666(a)); United States v. Zimmer-
mann, 509 F.3d 920, 926-27 (8th Cir. 2007) (bribes paid
to city councilman for his help in securing favorable
treatment on zoning matters are covered by § 666(a));
United States v. DeLaurentis, 230 F.3d 659, 662 (3d Cir.
2000) (bribes paid to police detective for his interces-
sion with the town council for favorable treatment on
renewal of liquor license are covered by § 666(a)); United
States v. Santopietro, 166 F.3d 88, 93 (2d Cir. 1999) (bribes
paid to influence municipal officials in exchange for
favorable treatment in various zoning and subdivision
matters are covered by § 666(a)). Similarly, in this
circuit we have affirmed a § 666(a) conviction of a
deputy prosecutor who took bribes in exchange for
falsely expunging drunk-driving convictions. United
States v. Fernandes, 272 F.3d 938, 944 (7th Cir. 2001).
We acknowledge the cautionary effect of the Supreme
Court’s decision in Skilling v. United States, 130 S. Ct. 2896,
No. 09-3863 21
2931 (2010), which limited the reach of the honest-
services fraud statute, 18 U.S.C. § 1346, to bribes and
kickbacks in schemes aimed at corrupting the intangible
right of honest services. We acknowledge as well that
the broad language in § 666(a) leaves the boundaries of
the offense somewhat ambiguous. But no more so than
the circumscribed version of the honest-services fraud
offense after Skilling. We need not determine the outer
limits of the § 666(a) offense to decide this case. We
agree with our sister circuits that the language of the
business or transaction clause in § 666(a) is broad
enough to include bribes offered to influence the
intangible business or transactions of a federally funded
organization, such as the law-enforcement “business” of
a police department that receives federal funds.
This understanding of the transactional element
is consistent with the Supreme Court’s discussion of
§ 666(a) in Sabri. There, the Court emphasized the
statute’s focus on protecting the integrity of federal
programmatic funds: “Section 666(a)(2) addresses the
problem at the sources of bribes, by rational means,
to safeguard the integrity of the state, local, and tribal
recipients of federal dollars.” 541 U.S. at 605. Bribes paid
to influence the intangible, noncommercial business of
a federally funded organization threaten to undermine
the integrity of those organizations no less than bribes
paid to influence a discrete commercial-like transaction.
The Court’s decision in Salinas also counsels against a
too-narrow construction of the statute. In holding that the
transactional element “is not confined to a business or
transaction which affects federal funds,” the Court noted
22 No. 09-3863
that “[t]he word ‘any,’ which prefaces the business or
transaction clause, undercuts the attempt to impose [a]
narrowing construction.” Salinas, 522 U.S. at 57.
In this case, Robinson paid Weyforth to divert police
attention from his drug-trafficking operation at the Wash-
ington Park Homes. Although law-enforcement services
are intangible and difficult to quantify, the language of
§ 666(a) is broad enough to cover bribes paid to a
police officer to induce him to refrain from enforcing
the law.
This brings us back to the evidentiary question: When
the bribe is aimed at the intangible business or trans-
actions of a federally funded entity, what kind of evidence
will suffice to prove that the business or transaction
at issue was worth at least $5,000? Some cases have ap-
proved using the amount of the bribe as a proxy for
the value of its intangible subject matter on the theory
that the benefit is worth at least what the bribe-giver
was willing to pay for it. See Townsend, 630 F.3d at 1012
(“[T]he value of an intangible in the black market of
corruption is set at the monetary value of what a willing
bribe-giver gives . . . in exchange for the intangible.”);
Zimmermann, 509 F.3d at 926 (finding that the value of
the bribe satisfied the $5,000 requirement, and the gov-
ernment need not prove that the zoning matter at issue
had a $5,000 value to the city); Fernandes, 272 F.3d at
944 (accepting the amount paid in bribes for the
expungement of drunk-driving convictions as proof
“that the ‘thing of value’ in this bribery scheme ex-
ceeded $5,000”); United States v. Zwick, 199 F.3d 672, 689-90
(3d Cir. 1999) (finding that “the statute does not require
No. 09-3863 23
that value be measured from the perspective of the or-
ganization, government, or agency”; what the bribe-
giver agreed to pay satisfies the $5,000 requirement),
abrogated on other grounds by Sabri; Santopietro, 166 F.3d
at 93 (same); Marmolejo, 89 F.3d at 1193-95 (same).
Without excluding other possible methods of valuation,
we agree that the amount of the bribe may suffice as a
proxy for value; at least it provides a floor for the valua-
tion question. Here, the government relied only in part
on this evidence of value. Robinson made an open-
ended offer to pay Weyforth $1,000 a week to divert
police attention from his drug-trafficking activities. The
government argued that Robinson’s willingness to pay
$1,000 a week on an ongoing basis was evidence that
the subject matter of the bribe was worth at least $5,000.
As the government seemed to recognize, however, this
argument was weakened by the fact that Robinson paid
far less than that amount. Perhaps this accounts for the
government’s primary focus on evidence of the officers’
salaries and also the profit Robinson stood to realize
from unfettered cocaine trafficking, using the controlled
transaction as a measure. We see nothing objectionable
in these alternative methods of proof; both easily
exceeded the $5,000 threshold. Accordingly, we con-
clude that the evidence was sufficient to permit a
rational juror to find that the government carried
its burden of proof on the transactional element of the
§ 666(a) offense.
A FFIRMED.
11-3-11