UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 94-60812
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIGIDO MARMOLEJO, JR. and MARIO SALINAS,
Defendants-Appellants.
__________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
__________________________________________________
June 13, 1996
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Brigido Marmolejo, Jr. and Mario Salinas, the former Sheriff
and Chief Deputy Sheriff of Hidalgo County, Texas were convicted of
various offenses arising from a series of bribes that Marmolejo
received, and Salinas aided and abetted, in exchange for permitting
conjugal visits for a federal prisoner housed at the Hidalgo County
Jail. Marmolejo appeals his conviction and his sentence. Salinas
appeals only his conviction. We affirm both defendants'
convictions, but vacate Marmolejo's sentence and remand for
resentencing.
I
While Marmolejo was the Sheriff of Hidalgo County, Texas,
Homero Beltran-Aguirre (Beltran) was a federal prisoner housed at
the Hidalgo County Jail pursuant to an agreement between the United
States Marshals Service and Hidalgo County.1 As Sheriff of Hidalgo
County, Marmolejo was in charge of the operation of the Hidalgo
County Jail. Salinas was Marmolejo's immediate subordinate as the
Divisional Chief for Detention of the Hidalgo County Sheriff's
Office.
Beltran was housed at the Hidalgo County Jail on two separate
occasions: first, from June 7, 1991 to April 14, 1992, and second,
from November 6, 1992 to April 26, 1993. The series of bribes
comprising the pattern of racketeering charged in the indictment
against Marmolejo and Salinas occurred during these periods.
As a result of the bribery scheme between Marmolejo and
Beltran, Marmolejo and Salinas were convicted of numerous offenses.
A jury found Marmolejo guilty of violating RICO, in violation of 18
U.S.C. § 1962(c), RICO conspiracy, in violation of 18 U.S.C.
§ 1962(d), two counts of bribery in relation to a program receiving
more than $10,000 in federal funds, in violation of 18 U.S.C.
§ 666(a)(1)(B) and 18 U.S.C. § 2, aiding and abetting money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(I) and 18
U.S.C. § 2, two counts of money laundering, in violation of 18
U.S.C. § 1956(a)(1)(A)(I), and travel in interstate commerce to
1
This agreement is described in detail in Part II infra.
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promote bribery, in violation of 18 U.S.C. § 1952(a)(3). A jury
found Salinas guilty of RICO conspiracy, in violation of 18 U.S.C.
§ 1962(d), and two counts of bribery in relation to a program
receiving more than $10,000 in federal funds, in violation of 18
U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2. Both defendants filed
timely appeals.
II
Marmolejo and Salinas argue several points of error concerning
their convictions for bribery under 18 U.S.C. § 666(a)(1)(B), which
prohibits theft and bribery by officials of state and local
agencies that receive federal funds.2 We review questions of
statutory interpretation de novo. United States v. Westmoreland,
841 F.2d 572, 576 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.
Ct. 62, 102 L. Ed. 2d 39 (1988). "Courts in applying criminal laws
generally must follow the plain and unambiguous meaning of the
statutory language. '[O]nly the most extraordinary showing of
contrary intentions' in the legislative history will justify
2
Section 666 applies to an "organization, government, or agency [that]
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." 18 U.S.C. § 666(b).
The section under which the defendants were convicted punishes anyone who:
(a)(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 . . . .
18 U.S.C. § 666(a)(1)(B).
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departure from that language." United States v. Albertini, 472
U.S. 675, 680, 105 S. Ct. 2897, 2902, 86 L. Ed. 2d 536 (1985)
(citations omitted) (quoting Garcia v. United States, 469 U.S. 70,
75, 105 S. Ct. 479, 482, 83 L. Ed. 2d 472 (1984)).
A
Section 666(b) restricts the statute to agencies that receive
"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." 18
U.S.C. § 666(b). The defendants contend that the district court
did not have jurisdiction to try the bribery counts under 18 U.S.C.
§ 666 because Hidalgo County did not receive "benefits in excess of
$10,000 under a Federal program" or any "other form of Federal
assistance." Id.
The parties dispute whether it is proper, in determining
whether Hidalgo County Jail received Federal assistance, to focus
on (1) a Cooperative Agreement Plan (CAP), which provided a
$850,000 grant for construction at the Hidalgo County Jail, and an
Intergovernmental Service Agreement (IGA), which provided that
Hidalgo County Jail would house federal prisoners in exchange for
their costs, or (2) just IGA.3 This issue is relevant not only to
3
The government contends that CAP and IGA together constituted a
Federal program under § 666(b). The defendants argue that the construction grant
issued pursuant to CAP is irrelevant to an analysis of what, if any, Federal
assistance the Hidalgo County Jail received while Beltran was in the jail. They
argue that because CAP was entered into and completed in 1984 and the bribery
scheme occurred between 1991 and 1993, CAP could not qualify as Federal
assistance received in a one year period before or after the date of the
commission of the offense. See 18 U.S.C. §§ 666(b) and 666(d)(5). The
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determine whether the arrangement constituted a Federal program or
Federal assistance, but also to determine whether Hidalgo County
satisfies the requirement that it received the benefit within a one
year period.4
The plain language of § 666(b) is ambiguous in defining
"Federal program" and "Federal assistance." Although it is clear
that the assistance can consist of a grant, contract, subsidy,
loan, guarantee, or insurance, the other defining qualities of
"Federal assistance" are still unclear. The legislative history,
however, provides that the term "Federal program involving a grant,
a contract, a subsidy, a loan, a guarantee, insurance, or another
form of Federal assistance" should be construed broadly. S. Rep.
No. 225, 98th Cong., 2d Sess. 369 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3511 [hereinafter S. Rep. No. 225]. We must
determine, therefore, whether under a broad interpretation of
"Federal assistance," it is proper to analyze IGA and CAP
collectively as a single agreement because they are so
defendants argue further that IGA does not qualify as "Federal assistance" or a
"Federal program" because it was simply a contract for services rendered, and
thus a commercial transaction exempted from the statute by §§ 666(b) and (c).
4
Section 666(d)(5) defines a one-year period as "a continuous period
that commences no earlier than twelve months before the commission of the offense
or that ends no later than twelve months after the commission of the offense.
Such period may include time both before and after the commission of the
offense." Because Hidalgo County received the $850,000 construction grant in
1984, and because the offenses committed in this case occurred from June 1991 to
April 1992 and from November 1992 to July 1993, and assuming that only CAP is a
Federal program under § 666(b), Hidalgo County would not have received the
required amount of benefit within the relevant one-year period. However, if IGA
and CAP should be viewed collectively as one agreement, and the agreement
constitutes a Federal program, then the one-year requirement would be met,
because Hidalgo County received approximately $840,000 per year pursuant to IGA
for housing federal prisoners at cost per CAP during the time that Beltran was
housed at the jail.
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interrelated.
IGA and CAP were entered into in 1984 to establish and govern
relations between the U.S. Marshals Service and Hidalgo County.
CAP was the first agreement; it provided for "Federal participation
in the funding of local governmental jail construction, renovation
or improvement programs" and was "predicated upon the Federal
government's requirement for detention space and services and the
local government's provision of such services." As a condition to
the receipt of this grant, Hidalgo County Jail had to guarantee
that it would provide detention space for federal prisoners. The
second agreement, IGA, established the actual formal relationship
between the U.S. Marshals Service and other federal user agencies
and Hidalgo County for the detention of federal prisoners.
Although Hidalgo County had already guaranteed that it would
provide such space, IGA established the specific provisions and
requirements of the agreement including the compensation that
Hidalgo County would receive.
These agreements are so interrelated that they must be viewed
collectively as one agreement, especially given the fact that the
grant issued pursuant to CAP was conditioned on the agreement in
IGA. Having reviewed the nature and purposes of CAP and IGA, we
conclude that together they constituted "Federal assistance" or a
"Federal program" under 18 U.S.C. § 666(b), consisting of a grant,
CAP, and a contract, IGA. Our holding is supported by the broad
construction of § 666(b) mandated in the legislative history. S.
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Rep. No. 225 at 3511.
Focusing exclusively on IGA, the defendants argue that the
arrangement between Hidalgo County and the U.S. Marshals Service
was a commercial transaction. In urging that this is a commercial
transaction, the defendants emphasize the fact that the U.S.
Marshals Service received something in return for the funds it
provided to Hidalgo County.5
The legislative history again demonstrates why the defendants'
argument must fail. The Senate Report states that the goal in
enacting 18 U.S.C. § 666 was to protect the integrity of federal
funds by punishing theft and bribery involving Federal programs for
which there is "a specific statutory scheme authorizing the Federal
assistance in order to promote or achieve certain policy
objectives." S. Rep. No. 225 at 3510. Focusing on this
legislative history, the Second Circuit in United States v. Rooney,
986 F.2d 31, 35 (2d Cir. 1993) rejected a quid pro quo argument
similar to that argued by Marmolejo and Salinas. The Rooney court
5
The defendants appear to argue that as a "commercial transaction,"
this arrangement would be excluded from the statute by §§ 666(b) and (c).
However, § 666(c), which excludes "bona fide salary, wages, fees, or other
compensation paid, or expenses paid or reimbursed, in the usual course of
business," refers to the alleged wrongdoing, to ensure that the statute is not
applied to "acceptable commercial and business practices," H.R. Rep. No. 797,
99th Cong., 2d Sess. 30, reprinted in 1986 U.S.C.C.A.N. 6138, 6153, not to the
nature of the benefit that the agency receives pursuant to the Federal program.
See United States v. Valentine, 63 F.3d 459, 465 (6th Cir. 1995) (declining to
hold that the use of employees for personal benefit is in the usual course of
business); United States v. Grubb, 11 F.3d 426 (4th Cir. 1993) (declining to hold
that salary obtained in exchange for $10,000 bribe was "bona fide"). But see
United States v. Nichols, 40 F.3d 999, 1000 (9th Cir. 1994) (applying § 666(c)
to the nature of the Federal assistance). Certainly the defendants are not
arguing that the money they received from Beltran or the benefit that Beltran
received from them was "bona fide" and "in the usual course of business." 18
U.S.C. § 666(c).
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stated that the proper focus in determining whether federal funds
constitute "Federal assistance" under § 666(b) is "whether the
funds disbursed can be considered Federal assistance within a
specific statutory scheme intended to promote public policy
objectives and not payments by the government as a commercial
entity." Rooney, 986 F.2d at 35. Finding that the statute equated
"benefit" with "Federal assistance," the Second Circuit held that
an Farmers Home Administration loan could constitute Federal
assistance under § 666(b), despite the fact that the defendant was
obligated to repay the loan plus interest, because the money the
defendant received was authorized by a specific statute to
accomplish specific policy goals established by Congress. Id. at
34-35.
Likewise, in this case, the funds that the federal government
provided for Hidalgo County were authorized by a specific statute
and were intended to further public policy goals. The fact that
Hidalgo County housed federal prisoners in return for the money it
received from the United States Marshals Service does not preclude
the arrangement from being a Federal program under § 666(b). The
federal funds were authorized by 18 U.S.C. § 4002 to fulfill the
federal government's policy of providing "suitable quarters for the
safekeeping, care, and subsistence of all persons held under
authority of any enactment of Congress," 18 U.S.C. § 4002, and as
stated in CAP, to provide for "[f]ederal participation in the
funding of local governmental jail construction, renovation or
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improvement programs." Therefore the combination of CAP and IGA
qualifies as a Federal program under § 666(b), regardless of the
fact that the government received something in return for the
assistance it provided to Hidalgo County.6
B
The defendants next argue that they were "improperly
prosecuted" under 18 U.S.C. § 666(a)(1)(B). They argue that in
enacting 18 U.S.C. § 666, Congress did not intend to reach their
behavior. Specifically, they contend that there was not a
business, transaction, or series of transactions "involving
anything of value of $5,000 or more," as required under
§ 666(a)(1)(B).
Section 666(a)(1)(B) requires the government to prove that
agents of a local government solicited, demanded, accepted, or
agreed to accept anything of value from any person intending to be
influenced "in connection with any business, transaction, or series
of transactions of such government . . . involving anything of
value of $5,000 or more." 18 U.S.C. § 666(a)(1)(B). The evidence
at trial demonstrated that Beltran was housed at the Hidalgo County
Jail, pursuant to IGA. After observing that several of the federal
prisoners were receiving special treatment at the jail, Beltran
entered into an agreement with Marmolejo to receive special
6
Because we hold that IGA and CAP together constitute a Federal
program, Hidalgo County meets the one-year requirement as defined in 18 U.S.C.
§ 666(d)(5), because it received $840,000 a year for housing federal prisoners
during the period in which the offenses were committed.
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treatment in exchange for monetary consideration. Specifically,
Marmolejo allowed Beltran to have conjugal visits with his wife and
girlfriend in exchange for $6,000 a month and $1,000 per visit.
These visits took place in the jail library and eventually in
Sheriff Marmolejo's office.
The evidence also disclosed that Marmolejo told Beltran's
brother-in-law, Guardado, who often arranged the visits, that if
Marmolejo was not available, he could contact Salinas about
arranging a visit. Marmolejo usually guarded his office door when
Beltran and his wife or girlfriend were visiting. However, Salinas
supervised the visits on several occasions. The evidence also
established that Beltran instructed Guardado to purchase four sets
of men and women's Rado watches, one set of which was given to
Salinas and one set to Marmolejo. Both Salinas and Marmolejo also
received cars from Beltran. Marmolejo was also involved in
numerous financial transactions with Beltran.
We 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. Westmoreland, 841 F.2d at 578 (upholding
conviction of a county supervisor under § 666(a)(1)(B) for taking
bribes in connection with the granting of contracts for the
maintenance of local roads and bridges although the funds corruptly
disbursed were not federal funds). Therefore, although the
government did not have to trace any federal funds to the illegal
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transaction between Beltran and Marmolejo and Salinas, we must
consider whether the term "anything of value" in § 666(a)(1)(B) was
intended to cover transactions involving intangibles, such as a
conjugal visits, that are difficult to value.
We turn first to the plain language of the statute. The term
"anything of value" in § 666(a)(1)(B) is broad in scope and
contains no language restricting its application to transactions
involving money, goods, or services. Similarly, the statute does
not require that the organization, government, or agency or the
person giving the agent the bribe, valued the transaction at $5,000
or more. We hold, therefore, that the plain meaning of the statute
compels our conclusion that the term "anything of value" in
§ 666(a)(1)(B) includes transactions involving intangible items,
such as the conjugal visits at issue in this case.7 See United
States v. Mongelli, 794 F. Supp. 529, 531 (S.D.N.Y. 1992) (holding
that term "anything of value" in 18 U.S.C. § 666(a)(1)(B) includes
intangibles).
This broad language squares with Congress's intent in enacting
18 U.S.C. § 666 to safeguard "the integrity of federal funds by
assuring the integrity of the organizations or agencies that
receive them." Westmoreland, 841 F.2d at 577, 578. The Senate
7
We note that the dissent’s belief that the relevant language of
§ 666(a)(1)(B) ambiguous, directly contradicts our finding in Westmoreland, 841
F.2d at 576. In Westmoreland, we rejected the defendant’s argument that
“sufficient statutory ambiguity exists to invoke the rule of strict construction
applicable to criminal statutes and the rule that congressional intent, as
evidenced by the legislative history, controls,” because we found the statutory
language “plain and unambiguous.” Id. at 575-76.
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Report stated that:
[18 U.S.C. § 666 was] 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.
S.Rep. No. 225 at 3510. Specifically, the statute was intended to
fill a gap in the then-current federal bribery and theft statutes
caused by the difficulty of tracing federal monies.8 To accomplish
its goal, Congress "cast a broad net to encompass local officials
who may administer federal funds, regardless of whether they
actually do." Id. at 577.
We also note that other courts have interpreted the term
"anything of value" in criminal statutes broadly to include
8
The Senate Report described the then-existing state of the law:
[T]itle XI covers both theft and bribery type offenses. With
respect to theft, 18 U.S.C. § 665 makes theft or embezzlement by an
officer or employee of an agency receiving assistance under the Job
Training Partnership Act a Federal offense. However, there is no
statute of general applicability in this area, and thefts from other
organizations or governments receiving Federal financial assistance
can be prosecuted under the general theft of Federal property
statute, 18 U.S.C. 641, only if it can be shown that the property
stolen is property of the United States. 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.
With respect to bribery, 18 U.S.C. 201 generally punishes
corrupt payments to Federal public officials, but there is some
doubt as to whether or under what circumstances persons not employed
by the Federal Government may be considered as a "public official"
under the definition in 18 U.S.C. 201(a). . . .
S.Rep. No. 225 at 3510.
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intangibles. See United States v. Nilsen, 967 F.2d 539, 542 (11th
Cir. 1992) (stating that "Congress' frequent use of 'thing of
value' in various criminal statutes has evolved the phrase into a
term of art which the courts generally construe to envelope both
tangibles and intangibles"), cert. denied, 507 U.S. 1034, 113 S.
Ct. 1856, 123 L. Ed. 2d 478 (1993); United States v. Piquet, 963
F.2d 54, 55 (5th Cir.) (holding that the term "anything of value"
in 18 U.S.C. § 1029(a)(2) should be interpreted broadly), cert.
denied, 506 U.S. 902, 113 S. Ct. 290, 121 L. Ed. 2d 215 (1992);
United States v. Girard, 601 F.2d 69, 71 (2d Cir.) (holding that
term "thing of value," when used in criminal statutes, such as in
18 U.S.C. § 641, includes intangibles, such as amusement, sexual
intercourse, a promise to reinstate an employee, and information),
cert. denied, 444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979);
see also United States v. Williams, 705 F.2d 603, 622-23 (2d Cir.)
(holding that term "anything of value" in 18 U.S.C. § 201(c) and 18
U.S.C. § 201(g) can apply to stock that, although it had no actual
value, the defendant expected it to have value), cert. denied, 464
U.S. 1007, 104 S. Ct. 524, 78 L. Ed. 2d 708 (1983); McDonald v.
State, 329 So.2d 583, 587-88 (1975) (holding that sexual
intercourse or the promise of sexual intercourse is a "thing of
value" under state bribery statute), cert. denied, 429 U.S. 834, 97
S. Ct. 99, 50 L. Ed. 2d 99 (1976); Scott v. State, 141 N.E. 19, 22-
23 (1923) (same).
Because the conduct in this case involves serious acts of
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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. § 666.9 As Sheriff and Chief Deputy Sheriff of Hidalgo
County, the defendants were in charge of carrying out the Federal
program of housing and safekeeping the federal prisoners, including
Beltran, at Hidalgo County Jail. Part of their responsibilities
pursuant to IGA was to provide and regulate the prisoners'
visitation rights. As agents of the Hidalgo County Jail,
8
The defendants argue that even if their actions meet the literal
definition of the statute, Congress did not intend to punish their type of
behavior in enacting 18 U.S.C. § 666. Again, the legislative history supports
our finding that this prosecution was proper. The Senate Report stated that
Congress intended 18 U.S.C. § 666 to encompass behavior in three specific cases,
each of which involved an organization or agency that provided the Federal
government with a service by administering a government program, much like the
Hidalgo County Jail did in this case. S. Rep. No. 225 at 3511 (citing United
States v. Hinton, 683 F.2d 195 (7th Cir. 1982) (involving head of a nonprofit
corporation organized to administer federal funds from a HUD program who
solicited money in exchange for housing rehabilitation contracts funded by HUD),
aff'd sub nom. Dixson v. United States, 465 U.S. 482, 104 S. Ct. 1172, 79 L. Ed.
2d 458 (1984); United States v. Mosley, 659 F.2d 812 (7th Cir. 1981) (involving
head of state administrator of funds from a CETA program who solicited money in
exchange for preferential treatment under the program); United States v. Del
Toro, 513 F.2d 656 (2d Cir.) (involving bribery of city administrator of funds
from HUD program), cert. denied, 423 U.S. 826, 96 S. Ct. 41, 46 L. Ed. 2d 42
(1975).
Defendants cite United States v. Cicco, 938 F.2d 441 (3d Cir. 1991), as
support for their argument that Congress did not intend to reach their behavior
in enacting 18 U.S.C. § 666. The facts of Cicco, however, do not support their
argument. In Cicco, the defendants were indicted for soliciting political
support in exchange for the retention of municipal jobs. The Third Circuit
reasoned that the legislative history revealed that Congress enacted § 666 to
enlarge those covered by federal bribery laws, not "the sort of 'political
patronage harassments' alleged" in that case. Id. at 446 (quoting S.Rep. No.
1245, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S.C.C.A.N. 2883, 2884).
Because the defendants' behavior in Cicco was covered by another criminal
statute, 18 U.S.C. § 601, which was "'directed at protecting federally-funded
employment from partisan favoritism,'" the court concluded that Congress did not
intend to encompass such behavior under § 666. Id. The Cicco court was
persuaded in particular by the fact that if the conduct at issue was covered by
§ 666 as well as § 601, the punishment would have been ten times as severe under
§ 666, and without any mention of § 601 in the legislative history, the Cicco
court was not prepared to conclude that Congress intended such a result. Id.
Instead, the court believed "Congress intended § 666 to address different and
more serious criminal activity" involving theft and bribery. Id.
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Marmolejo and Salinas accepted money, watches, and cars intending
to be influenced in connection with transactions of the jail,
namely, the issuance and regulation of prisoner visits with family
and friends. The transactions involved something of
value))conjugal visits that Beltran was willing to pay for.
We must now determine whether these conjugal visits had a
value of $5,000 or more. Again, we observe that the statute does
not contain language "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.'"
Westmoreland, 841 F.2d at 576. "[A]ny reference to federal funds
is conspicuously absent from the operative provisions," allowing
Congress to ensure the integrity of federal funds by protecting the
integrity of the organizations that receive them. Id. at 577-78.
The statute does not specifically require that the payor or the
payee of the bribe value the transaction at $5,000.10 Instead, the
10
Compare Westmoreland, 841 F.2d at 576-78 (stating that the
unambiguous language of § 666(a)(1)(B) does not require the government to
establish any relation between the transaction involving a "thing of value of
$5,000" and the federal funds the agency receives) with United States v. Foley,
73 F.3d 484, 490 (2d Cir. 1996) (stating that § 666(a)(1)(B) was enacted to
permit prosecution for bribery in connection with federal program funds,
therefore, in determining whether a transaction involves "anything of value of
$5,000 or more," the "value must be connected, even if only indirectly, to the
integrity of federal program funds"). The dissent claims that Foley holds that
“the proper method to value a transaction is from the perspective of the
protected entity.” However, Foley’s only statement about assessing the “thing’s
value” states that it must be connected to the integrity of the federal program
funds. Foley, 73 F.3d at 490. Foley does intimate that if the transaction
involved in that case had affected the financial interests of the protected local
organization, then that case might have been properly prosecuted under
§ 666(a)(1)(B). Id. at 492-93. However, the only decisive language in Foley
concerns the fact that the federal program funds were not affected, even
indirectly, by the transaction. Id. at 490, 492 & 493. We note that the
plaintiff in Westmoreland could not have been convicted under § 666(a)(1)(B)
under the holding in Foley. Foley requires a connection between the
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$5,000 triggering provision ensures that the statute reaches acts
of bribery involving transactions of substantial value. Id. at
578. To decide whether a transaction involving intangibles has a
value of $5,000 or more, courts should look to traditional
valuation methods. See Mongelli, 794 F. Supp. at 531. We conclude
that the conjugal visits in this case did have a value which
exceeded $5,000. We arrive at this estimate in the same way that
an appraiser would value an asset))by looking at how much a person
in the market would be willing to pay for them. Id.; see also
Herman v. United States, 289 F.2d 362 (5th Cir.) (stating that to
determine if the value of stolen property is $5,000 or more, as
required in 18 U.S.C. § 2314, courts must look at "the price a
willing buyer would pay a willing seller at the time and place the
property was stolen"), cert. denied, 368 U.S. 897, 82 S. Ct. 174,
7 L. Ed. 2d 93 (1961); United States v. Seagraves, 265 F.2d 876 (3d
Cir. 1959) (stating that amount defendants paid for stolen property
can form basis for expert's valuation of the property under 18
U.S.C. § 2314). Pursuant to the bribery transactions, Beltran was
willing to pay Marmolejo $6,000 a month plus $1,000 for each visit.
Therefore, the transactions between Beltran and Marmolejo and
transaction's value of $5,000 or more and the integrity of the federal program
funds that the government receives. The Foley court stated that the legislative
history indicated that § 666(a)(1)(B) was "not designed for the prosecution of
corruption that was not shown in some way to touch upon federal funds." Foley,
73 F.3d at 493. However, the plaintiff in Westmoreland, a county supervisor, was
convicted of accepting bribes in exchange for effecting sales transactions worth
$14,482.92. We upheld her conviction even though it was undisputed that the
alleged acts of bribery concerned only state monies, not the federal funds that
the county received. To the extent that the Foley court would have reversed her
conviction under § 666(a)(1)(B), this case is in conflict with Fifth Circuit law.
-16-
Salinas involved something "of value of $5,000 or more."
Accordingly, we conclude that Marmolejo and Salinas were properly
prosecuted under 18 U.S.C. § 666(a)(1)(B).11
III
At trial, the government alleged that the defendants violated
TEX. PENAL CODE ANN. § 36.02(a)(1), which constituted "predicate acts
establishing a pattern of racketeering activity" in violation of
RICO.12 See 18 U.S.C. § 1962(c). A state offense can only
constitute a predicate act establishing a pattern of racketeering
activity if the offense is punishable by more than one year in
prison. 18 U.S.C. § 1961(1)(A). Salinas and Marmolejo allege that
their prosecution under TEX. PENAL CODE ANN. § 36.02(a)(1) was
improper because a more specific statute, TEX. PENAL CODE ANN.
11
The defendants' final argument with respect to 18 U.S.C. § 666 is
that the Sheriff's office is not an agent of a local government as required by
§ 666(a)(1). Section 666 applies to every "agent of an organization, or of a
State, local, or Indian tribal government, or any agency thereof." 18 U.S.C.
§ 666(a)(1). "Local" is defined as "of or pertaining to a political subdivision
within a state." 18 U.S.C. § 666(d)(3). It is clear that this statute was
intended to encompass all employees of all governmental agencies and their
subdivisions. See 18 U.S.C. § 666(d)(2). The Hidalgo County Sheriff's office
is an agency of Hidalgo County, and both defendants are agents of the Sheriff's
office; therefore, they are covered by the statute.
Salinas also argues that there was insufficient evidence to convict him of
aiding and abetting Marmolejo's violation of 18 U.S.C. § 666(a)(1)(B). After a
careful review of the record, we conclude there was sufficient evidence to
sustain the conviction.
12
TEX. PENAL CODE ANN. § 36.02(a)(1) provides:
A person commits an offense if he intentionally or knowingly offers,
confers, or agrees to confer on another, or solicits, accepts, or
agrees to accept from another any benefit as consideration for the
recipient's decision, opinion, recommendation, vote, or other
exercise of discretion as a public servant, party official, or
voter.
-17-
§ 36.08(b), applies to their conduct.13 They rely on a well-
established rule of construction "that if two legal provisions
apply, one general and one specific, the specific takes
precedence." United States v. Tunnell, 667 F.2d 1182, 1185 (5th
Cir. 1982). While TEX. PENAL CODE ANN. § 36.02(a)(1) is a felony
punishable by more than one year in prison, TEX. PENAL CODE ANN.
§ 36.08(b) is a misdemeanor which is not punishable by more than
one year in prison. Therefore, if the defendants should have been
prosecuted under § 36.08(b) instead of § 36.02(a)(1), they would
not have committed predicate acts constituting racketeering
activity in violation of RICO.
Having reviewed the evidence against the defendants, we hold
that they were properly charged under TEX. PENAL CODE ANN.
§ 36.02(a)(1), which prohibits accepting bribes, rather than
§ 36.08(b), which prohibits accepting gifts. The appropriate
inquiry is which statute criminalizes the defendants' conduct here.
See Tunnell, 667 F.2d at 1185 (concluding that defendants were
properly charged under the statute which criminalized their exact
behavior). The evidence at trial demonstrated an elaborate system
of bribes between Marmolejo and Beltran, aided and abetted by
Salinas. The cash payments, watches, and other consideration that
the defendants received were not gifts; they were given as payment
13
TEX. PENAL CODE ANN. § 36.08(b) provides that "[a] public servant in
an agency having custody of prisoners commits an offense if he solicits, accepts,
or agrees to accept any benefit from a person the public servant knows to be in
his custody or the custody of his agency."
-18-
for conjugal visits and other special favors. Thus the defendants
were properly convicted under the more serious statute,
§ 36.02(a)(1), which prohibited the exact behavior which they
engaged in))bribery. See id. at 1185; Cerda v. State, 750 S.W.2d
925, 927 (Tex. App.))Corpus Christi 1988, pet. ref'd).14
IV
Salinas appeals the trial court's jury instruction on the RICO
conspiracy count,15 arguing that it erroneously allowed the jury to
convict him without proof that he performed or agreed to perform
personally two of the predicate acts which comprised the pattern of
14
The defendants also argue that the government failed to prove that
they were "public servant[s]" within the meaning of the statute and that they
acted in a discretionary manner in allowing conjugal visits. TEX. PENAL CODE ANN.
§ 1.07(41)(A) defines public servant as one who is "elected, selected, appointed,
employed, or otherwise designated as . . . an officer, employee, or agent of
government." Marmolejo was elected Sheriff of Hidalgo County which is an agent
of government; therefore, he satisfies this broad definition of public servant.
Salinas also satisfies the definition because he was either selected or appointed
as an employee of Hidalgo County.
TEX. PENAL CODE ANN. §36.02(a)(1) punishes the receipt of benefits in
exchange "for the recipient's decision, opinion, recommendation, vote, or other
exercise of discretion as a public servant." The defendants argue that as
jailers they act in a ministerial, not a discretionary manner. This argument is
also without merit. Conjugal visits were not permitted under Hidalgo County Jail
policy. They were allowed in this case, only as a result of Marmolejo's exercise
of discretion, aided and abetted by Salinas, in exchange for money and other
types of consideration.
The defendants also argue that the government failed to prove that Beltran
was in "custody." TEX. PENAL CODE ANN. §36.02(a)(1) does not require custody;
therefore, this argument is also without merit.
15
Salinas was charged with violating a substantive RICO provision, 18
U.S.C. § 1962(c), and with conspiring to violate a substantive RICO provision,
18 U.S.C. § 1962(d). He was acquitted of the substantive count, but convicted
on the conspiracy count. Section 1962(d) provides that it is unlawful "for any
person to conspire to violate any of the provisions of subsection (a), (b), or
(c) of this section." 18 U.S.C. § 1962(d). Section 1962(c) prohibits "any
person employed by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of unlawful debt." 18
U.S.C. § 1962(c).
-19-
racketeering activity.16 "While great latitude is shown the trial
court in fashioning jury instructions, we will review [the
instructions] to determine whether they accurately and completely
state the law." Banc One Capital Partners Corp. v. Kneipper, 67
F.3d 1187, 1192 (5th Cir. 1995).
Fifth Circuit cases have obfuscated the issue of whether each
RICO conspirator must agree to commit personally two or more
racketeering acts or whether it is sufficient that the conspirator
simply agree that one of his co-conspirators will commit two or
more racketeering acts.17 This issue has divided the circuits, with
the majority holding that a RICO conspirator need only agree "that
members of the conspiracy will violate [a substantive RICO
provision] through the commission of two proscribed acts," not that
he will personally commit two proscribed acts.18 United States v.
16
The trial court's instruction on the RICO conspiracy count stated:
What you are being asked to decide in Count Two is . . . If Salinas
was only involved in one or two or even none, did he, nevertheless,
know about this pattern. Did he know that this whole pattern of
activity was going on and did he then knowingly and willfully join
in and participate and contribute in some fashion.
17
Both the majority and the minority views on this issue ground their
interpretation of § 1962(d) on United States v. Elliott, 571 F.2d 880 (5th Cir.),
cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978). "However,
a reading of Elliott in conjunction with the later case of United States v.
Sutherland, 656 F.2d 1181 (5th Cir. 1981) reveals that the Fifth Circuit had not
definitively resolved this issue." United States v. Neapolitan, 791 F.2d 489,
496 n.3 (7th Cir.), cert. denied, 479 U.S. 940, 107 S. Ct. 422, 93 L. Ed. 2d 372
(1986).
18
The majority consists of the Sixth, Third, Ninth, Eleventh, and
Seventh Circuits. See United States v. Joseph, 781 F.2d 549, 554 (6th 1986);
United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S.
971, 106 S. Ct. 336, 88 L. Ed. 2d 321 (1985); United States v. Tille, 729 F.2d
615, 619 (9th Cir.), cert. denied, 469 U.S. 845, 105 S. Ct. 156, 83 L. Ed. 2d 93
(1984); United States v. Carter, 721 F.2d 1514, 1529 (11th Cir.), cert. denied
sub nom, Morris v. United States, 469 U.S. 819, 105 S. Ct. 89, 83 L. Ed. 2d 36
-20-
Neapolitan, 791 F.2d 489, 494 (7th Cir.), cert. denied, 479 U.S.
940, 107 S. Ct. 422, 93 L. Ed. 2d 372 (1986).
Our decision in United States v. Elliott, 571 F.2d 880 (5th
Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344
(1978) lays the groundwork for analyzing the present controversy.
The issue in Elliott was whether the government can link together,
under a RICO conspiracy charge, multiple conspiracies whose crimes
may have no relation to each other except for their affiliation
with a common criminal enterprise. Id. at 902-03. In answering
this question affirmatively, we explained:
the object of a RICO conspiracy is to violate a
substantive RICO provision))here, to conduct or
participate in the affairs of an enterprise through a
pattern of racketeering activity))and not merely to
commit each of the predicate crimes necessary to
demonstrate a pattern of racketeering activity. . . .
Under the statute, it is irrelevant that each defendant
participated in the enterprise's affairs through
different, even unrelated crimes, so long as we may
reasonably infer that each crime was intended to further
the enterprise's affairs.
Id. at 902. Our subsequent cases have made it clear that to prove
a RICO conspiracy "no actual acts of racketeering need occur; there
need only exist a conspiracy to perform the necessary acts plus
some overt action by one of the conspirators in furtherance of the
conspiracy." United States v. Phillips, 664 F.2d 971, 1038 (5th
(1984); Neapolitan, 791 F.2d at 497. The First and Second Circuits currently
compose the minority, holding that a RICO conspirator must personally agree to
commit two predicate acts. See United States v. Ruggiero, 726 F.2d 913, 921 (2d
Cir.), cert. denied sub nom., Rabito v. United States, 469 U.S. 831, 105 S. Ct.
118, 83 L. Ed. 2d 60 (1984); United States v. Winter, 663 F.2d 1120, 1136 (1st
Cir. 1981), cert. denied, 460 U.S. 1011, 103 S. Ct. 1250, 75 L. Ed. 2d 479
(1983).
-21-
Cir. 1981) (citing United States v. Sutherland, 656 F.2d 1181, 1187
n.4 (5th Cir. 1981), cert. denied, 455 U.S. 949, 102 S. Ct. 1451,
71 L. Ed. 2d 663 (1982)), cert. denied sub nom., Meinster v. United
States, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982).
Yet, our cases have still not resolved what RICO conspirators must
individually agree to.
Today we join the majority view among the circuits in holding
that to be guilty of RICO conspiracy, the conspirator must simply
agree "to the objective of a violation of RICO; he need not agree
personally to violate the statute." Neapolitan, 791 F.2d at 498.
Our decision is mandated not only by the plain language of the RICO
statute, but also by the nature and purpose of the statute.
Section 1962(d) specifically prohibits a conspiracy to violate
any of the substantive RICO provisions. 18 U.S.C. § 1962(d).
Nothing in this language indicates that Congress intended to do
anything more than to criminalize a conspiratorial objective))the
violation of a substantive RICO provision. Sutherland, 656 F.2d at
1193; Elliott, 571 F.2d at 903; Neapolitan, 791 F.2d at 497. If we
were to hold that in addition to agreeing to the overall criminal
objective, a RICO conspirator had to agree to perform the actual
crime, two predicate acts comprising a substantive violation of
RICO, this holding would be a marked departure from traditional
conspiracy law for which there is no support in the language of the
statute or the statutory history. Neapolitan, 791 F.2d at 497-98
("Requiring an agreement personally to commit two predicate acts
-22-
would establish a new form of conspiring in contradistinction to
section 1962(d)'s base in traditional conspiracy law.").
The Congressional purpose in enacting RICO was to provide a
new remedy to punish organized crime. Id. at 495 & 498; see United
States v. Barton, 647 F.2d 224, 237-38 (2d Cir. 1981) ("It is the
purpose of this Act to seek the eradication of organized crime in
the United States . . . by establishing new penal prohibitions, and
by providing enhanced sanctions and new remedies to deal with the
unlawful activities of those engaged in organized crimes.")
(quoting The Statement of Findings of the Organized Crime Control
Act of 1970, 84 Stat. 923), cert. denied, 454 U.S. 857, 102 S. Ct.
307, 70 L. Ed. 2d 152 (1981). To be guilty of a RICO violation,
one must have violated other laws in a way that implicates RICO.
Neapolitan, 791 F.2d at 497 ("The statute does not create a new
type of crime; it establishes prerequisites for the imposition of
harsher penalties."). Therefore to be an effective tool against
organized crime, a RICO conspiracy should not require anything more
than is required to conspire to violate any other federal crime.
Id. This conclusion is bolstered by the expansive reading that the
Supreme Court has given the statute.19
Having concluded that a RICO conspirator need not agree to
personally perform the two predicate acts which compose the
substantive violation of RICO, we find that the court's
19
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498, 105 S. Ct. 3275,
3286, 87 L. Ed. 2d 346 (1985).
-23-
instructions were an accurate statement of the law.20
V
Section 1963(a) provides that anyone who violates RICO must
forfeit any interest that they have acquired or maintained in
violation of the statute, any enterprise that they have established
or conducted in violation of RICO, and any property constituting or
derived from proceeds obtained from racketeering activity in
violation of RICO. 18 U.S.C. § 1963(a). Section 1963(m) provides
that if by some "act or omission of the defendant" the government
cannot locate the property it is authorized to forfeit by
subsection (a), "the court shall order the forfeiture of any other
property of the defendant up to the value of any property" that the
defendant has made untraceable. 18 U.S.C. § 1963(m). The
government sought the forfeiture of $151,000 in bribe proceeds from
Marmolejo pursuant to 18 U.S.C. § 1963(a). Marmolejo argues that
the court erred in authorizing the forfeiture of substitute assets
without requiring the government to prove that he made unavailable
the assets that he obtained from his violations of RICO. We review
20
Salinas also argues that there was insufficient evidence to support
his conviction for RICO conspiracy. In reviewing a sufficiency of the evidence
challenge, we view "the evidence in the light most favorable to the jury verdict
and affirm[] if a rational trier of fact could have found that the government
proved all essential elements of the crime beyond a reasonable doubt." United
States v. Puig-Infante, 19 F.3d 929, 937 (5th Cir.), cert. denied, ___ U.S. ___,
115 S. Ct. 180, 130 L. Ed. 2d 115 (1994). To prove a RICO conspiracy charge, the
government must prove "that the defendant conspired to engage in a pattern of
racketeering activity." United States v. Marcello, 876 F.2d 1147, 1152-53 (5th
Cir. 1989). To establish a pattern of racketeering activity, the government must
prove "two predicate acts, each of which must be a criminal offense." Id.
Having carefully reviewed the record, we conclude that there was sufficient
evidence to convict Salinas of RICO conspiracy.
-24-
the district court's findings of fact under the clearly erroneous
standard of review, and the question of whether those facts
constitute legally proper forfeiture de novo. United States v.
1977 Porsche Carrera, 946 F.2d 30, 33 (5th Cir. 1991).
One of the specific ways that § 1963(m) provides that the
government can forfeit substitute property is if some of the
property, "as a result of any act or omission of the defendant has
been transferred or sold to, or deposited with, a third party." 18
U.S.C. § 1963(m)(2). At the forfeiture hearing, both Marmolejo and
the government stipulated that if a government agent were called to
testify he would testify that he could not locate the specific
property the government sought to forfeit because "some of the
property had been transferred, sold or deposited with third
parties." Marmolejo's attorney specifically acknowledged that the
government could not trace any of Marmolejo's assets. Furthermore,
Marmolejo did not oppose the district court's Order of Forfeiture
which specifically stated that the parties stipulated that
forfeiture of substitute assets was appropriate. Therefore, given
that both parties stipulated that substitution of assets was
appropriate, and because the court's decision was based on a
legally proper ground, § 1963(m)(2), we hold that the forfeiture
was proper.
VI
Defendants argue that the district court erred in denying
their motions to suppress evidence seized pursuant to a search
-25-
warrant that they allege was invalid.21 In reviewing a district
court's denial of a motion to suppress evidence obtained pursuant
to a search warrant we must decide: "(1) whether the good-faith
exception to the exclusionary rule applies; and (2) whether
probable cause supported the warrant." United States v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) (footnote omitted).
However, because this case does not involve novel issues of law
that need to be resolved to assist law enforcement officers and
magistrate judges in the future, we need not decide whether the
warrant was supported by probable cause if we find that the good-
faith exception to the exclusionary rule applies. Id.; United
States v. Restrepo, 994 F.2d 173, 187 (5th Cir. 1993).
"When a warrant is supported by more than a 'bare bones'
affidavit, officers may rely in good faith on the warrant's
validity" in conducting a search. Satterwhite, 980 F.2d at 321.
However, an affidavit that contains only conclusions and "lack[s]
the facts and circumstances from which a magistrate can
independently determine probable cause" is considered "bare bones"
and cannot be the basis of an objectively reasonable good-faith
21
Before trial, Marmolejo moved to suppress evidence obtained pursuant
to three search warrants. Based on the affidavit of John Trevino, Special Agent
of the Internal Revenue Service, Criminal Division, the government obtained three
warrants to search Marmolejo's residence, ranch, and office. The warrant sought
nine categories of items ranging from personal address and telephone books that
would contain the addresses or telephone numbers of Marmolejo's associates to
documents reflecting receipts or disbursements of money from Beltran to
Marmolejo.
Salinas also sought to suppress evidence found pursuant to a search warrant
that was also obtained based on Special Agent Trevino's affidavit. The warrant
for Salinas' residence sought six categories of items ranging from personal
address and telephone books that might contain Salinas' associates to a set of
his and hers Rado watches given by Beltran to Salinas and his wife.
-26-
reliance by an officer. Id. We review de novo whether the good-
faith exception to the exclusionary rule applies. Id. at 321.
We conclude that the affidavit which supported the search
warrants for Marmolejo's residence, ranch, and office and Salinas'
residence contained sufficient facts from which the magistrate
could determine probable cause. The affidavit contains detailed
first-hand observations by the affiant, as well as detailed
information provided by informants whom the affiant establishes as
reliable.22 It describes the bribery scheme between Beltran and
Marmolejo in detail and Salinas' role in aiding and abetting it.23
22
For example, the affidavit states that confidential source number
one, ("CS-1"):
has provided information about Homero BELTRAN receiving special
privileges and visits at the Hidalgo County Jail, as corroborated by
CS-2, CS-3 and by testimony of a witness before the Federal Grand
Jury in McAllen, Texas. CS-1 has also provided information that
Homero BELTRAN gave a 1989 Pontiac Trans-Am to Brigido MARMOLEJO
JR., which has been independently corroborated by a record check
with the Texas Department of Motor Vehicles and by statements made
to law enforcement officers participating in this investigation by
the current owner of the vehicle that Brigido MARMOLEJO JR., was the
former owner of the vehicle.
Another example of the reliability of the confidential sources demonstrated in
the affidavit is:
CS-3 has provided information to your affiant and other law
enforcement officers for the past three months as to the ownership
of real estate by a convicted drug trafficker, Homero BELTRAN, and
that Brigido MARMOLEJO JR. was involved in the proposed sale of the
property, which has been corroborated by CS-1, CS-2, and independent
investigation by your affiant and special agents assigned to the DEA
OCDETF group in McAllen, Texas.
23
The affidavit explains that by September 1991, Beltran was receiving
special privileges inside the jail because of an agreement that he had with a
jail employee named Zavala. It recounts how Marmolejo then met with Beltran and
agreed to increase the frequency and duration of Beltran's visits with his
family. Initially, Beltran was to pay Marmolejo $5,000 per month for having at
least one visit a week with his family. The affidavit describes how the
agreement was renegotiated to allow for three visits per week for $5,000 per week
and $1,000 per visit. The affidavit states that "CS-1 and CS-2 observed on
several occasions Mario Salinas guarding the door to Brigido Marmolejo's office."
-27-
Many of the facts are corroborated by the observations of others
and by taped conversations with Marmolejo which the affiant helped
record.
Based on these facts, the magistrate could independently
determine probable cause; therefore, the affidavit was more than
"bare bones" which the officers could rely on in good faith. Since
the officers acted in good faith in relying on the search warrants,
we need not determine whether the warrants were supported by
probable cause. We conclude that the defendants' motions to
suppress were properly denied.24
VII
Salinas argues that his criminal prosecution was prohibited by
the Double Jeopardy Clause. He contends that prior to his criminal
trial, the government forfeited his property, two Rado watches,
The affidavit describes the watches that Beltran bought for Marmolejo and
Salinas and their wives. It also explains that Beltran gave Marmolejo $11,000
to complete a pavilion that Marmolejo was building at his ranch for his
daughter's wedding. The affidavit further states that, "CS-2 was present when
Brigido MARMOLEJO JR. had taken Mario SALINAS to his ranch and showed him the
pavilion. Brigido MARMOLEJO JR. stated that 'if it was not for Homero BELTRAN,
I wouldn't have the pavilion.'"
The affidavit also details the many financial transactions that Marmolejo
entered into with Beltran.
24
Salinas also argues that the search exceeded the scope of the search
warrant because officers searched his car which was not authorized in the search
warrants. As result, Salinas argues, all evidence obtained in the search should
be suppressed. However, Salinas does not state what evidence from the vehicles,
was discovered and admitted at trial. The only items of evidence the government
admitted at trial that was seized pursuant to the search warrants were two Rado
watches seized from Salinas' residence and a telephone number list seized from
Salinas' office. Under the severability doctrine, evidence that is illegally
seized has no effect on the admissibility of legally seized evidence. United
States v. Willey, 57 F.3d 1374, 1390 (5th Cir.), cert. denied, ___ U.S. ___, 116
S. Ct. 675, 133 L. Ed. 2d 524 (1995); United States v. Hamilton, 931 F.2d 1046,
1054 (5th Cir. 1991). Therefore, without any allegation of illegally seized
evidence, Salinas' claim is without merit.
-28-
which constituted punishment for his crime, thereby precluding any
subsequent punishment. The district court rejected Salinas' claim,
finding that the government had suspended forfeiture proceedings
and only intended to keep the watches as evidence for trial. We
review the denial of a motion to dismiss on Double Jeopardy grounds
de novo. United States v. Arreola-Ramos, 60 F.3d 188, 191 (5th
Cir. 1995).
Salinas' property was seized by the DEA for forfeiture under
21 U.S.C. § 881 as property used or acquired as the result of a
drug-related offense.25 The DEA sent Salinas a Notice of Seizure
in November 1993. The Notice informed Salinas that he could either
request remission or mitigation of the forfeiture within thirty
days of his receipt of the notice, or contest the forfeiture within
twenty days of the first date of publication of the notice))
November 17, 1993. On December 30, 1993, Salinas sent a Petition
for Remission, or in the Alternative for Mitigation of the
Forfeiture which was then denied by the DEA. The DEA, however,
never issued a Declaration of Forfeiture administratively
forfeiting the watches.
Salinas argues that the watches were effectively forfeited
when he failed to file a claim and post a bond contesting the
forfeiture before the time for contesting expired on December 7,
1993. Salinas argues that this automatic forfeiture occurred
25
The government's theory was that the watches had been purchased by
Beltran with drug proceeds. Beltran was a well-known drug dealer who had made
$4 to 5 million in profits from marijuana smuggling.
-29-
because of 21 C.F.R. § 1316.77(a). Section 1316.77(a) provides
For property seized by officers of the Drug Enforcement
Administration, if . . . a claim and bond are not filed
within the 20 days hereinbefore mentioned, the DEA
Special Agent-in-Charge or DEA Asset Forfeiture Section
shall declare the property forfeited. The DEA Special
Agent-in-Charge or DEA Asset Forfeiture Section shall
prepare the Declaration of Forfeiture and fovard [sic] it
to the Administrator of the Administration as
notification of the action he has taken.
21 C.F.R. § 1316.77(a). If Salinas were correct in arguing that
automatic forfeiture occurs once the twenty days expire, then there
would be no need for the statute to require that either the DEA
Special Agent-in-Charge or DEA Asset Forfeiture Section "declare
the property forfeited" and then prepare a "Declaration of
Forfeiture." The statute would simply provide that the property is
automatically forfeited once the twenty days had expired. We find
that instead of authorizing automatic forfeiture, the statute
authorizes the DEA to declare property forfeited when no person
files a claim within the required period. See United States v.
Baird, 63 F.3d 1213, 1217 (3d Cir. 1995) ("Where no person files a
claim to the seized property within the statutory period, the
agency is authorized to declare the property forfeited.") (citing
19 U.S.C. § 1609(b) and 21 C.F.R. § 1316.77) (emphasis added),
cert. denied, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d. ___
(1996); cf. Arreola-Ramos, 60 F.3d at 190 (stating that once the
time for making a claim and posting a bond has expired, the seizing
agency automatically issues a declaration of forfeiture). However,
if the agency does not issue a "Declaration of Forfeiture," the
-30-
property is not forfeited. Cf. Arreola-Ramos, 60 F.3d at 190
(stating that the declaration of forfeiture by a seizing agency has
"the same effect as a final decree and order of forfeiture entered
in a judicial proceeding").
The Ninth Circuit, in a case that is factually similar to this
one, recently rejected the exact argument that Salinas makes. See
United States v. Sanchez-Cobarruvias, 65 F.3d 781 (9th Cir.), cert.
denied, ___ U.S. ___, 116 S. Ct. 797, ___ L. Ed. 2d ___ (1996). In
Sanchez-Cobarruvias, United States Border Patrol Agents seized
several guns from the defendant's car at which time the defendant
filled out a Petition for Remission or Mitigation of Forfeiture
form. The defendant was thereafter indicted for firearms
violations. Customs officials then initiated civil administrative
forfeiture proceedings against the defendant's car and sent him a
Notice of Seizure explaining how the defendant could contest the
forfeiture. After the twenty day claims period expired, the
defendant moved to dismiss his criminal charges on double jeopardy
grounds. The district court denied the motion, holding that no
final disposition had taken place in the forfeiture proceedings;
therefore, the property had not been forfeited, and jeopardy could
not have attached. Id. at 782. The Ninth Circuit affirmed the
district court's denial of the defendant's motion to dismiss on
double jeopardy grounds based on its interpretation 19 U.S.C.
§ 1609(a), which contains similar procedures as 21 C.F.R.
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§ 1316.77.26 The court stated,
The fact that section 1609(a) uses mandatory rather than
hortatory language means only that the government will
declare seized property forfeited and proceed to auction
it off, if there has been no challenge to the forfeiture
proceedings; it does not mean that forfeiture is complete
as a matter of law simply because the twenty days have
passed. Put another way, a Declaration of Forfeiture or
final Disposition Order is not an empty gesture; it is
the means whereby the government legally obtains title to
seized property in order to dispose of it.
Id. at 783-84. Because there had been neither a Declaration of
Forfeiture nor a final Disposition Order, the Ninth Circuit held
that there had been no finality to the forfeiture proceeding. Id.
at 784. Therefore the defendant's property had not been forfeited,
and there was no double jeopardy bar to his criminal prosecution.
The DEA has never issued a Declaration of Forfeiture for
Salinas' watches. Consequently, we hold that there has been no
finality to the forfeiture proceedings and therefore no forfeiture.
As a result, jeopardy has not attached in the first proceeding to
erect any potential bar to Salinas' subsequent criminal
prosecution.
VIII
The district court departed upward in sentencing Marmolejo
based on its belief that he perjured himself at trial. Marmolejo
argues that this was error because the court failed to give him
adequate notice of its intent to depart upward on this ground. We
agree.
26
See 19 U.S.C. §§ 1608 and 1609(a) and (b).
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Parties must be given notice and an opportunity to comment on
matters relating to sentencing. FED. R. CRIM. P. 32(a)(1); Burns v.
United States, 501 U.S. 129, 137 & 138, 111 S. Ct. 2182, 2187, 115
L. Ed. 2d 123 (1991). If the district court decides sua sponte to
depart from the Sentencing Guidelines without providing adequate
notice, "a critical sentencing determination will go untested by
the adversarial process contemplated by Rule 32 and the
Guidelines." Burns, 501 U.S. at 137, 111 S. Ct. at 2187.
In pronouncing Marmolejo's sentence, the district court stated
that it was departing upward from the Guidelines based on its
belief that he perjured himself at trial. Perjury was not
mentioned in the Presentence Investigation Report as a ground for
upward departure, and it is clear from the transcript of the
sentencing hearing that Marmolejo's attorney did not have notice of
this ground nor was he prepared to comment on it.27 We hold that
the district court erred by failing to give Marmolejo adequate
notice of its intent to depart upward from the Guidelines, see
United States v. Moore, 37 F.3d 169, 175 (5th Cir. 1994); United
States v. Williams, 937 F.2d 979, 981 (5th Cir. 1991); therefore,
we vacate his sentence and remand for resentencing.28
27
When Marmolejo's attorney objected to his lack of notice of the
court's intent, the court responded, "I'm giving it to you now."
28
Marmolejo argues several other points of error, none of which have
merit. First, Marmolejo argues that there was insufficient evidence to convict
him of money laundering. Viewing the evidence in the light most favorable to the
jury verdict, see Puig-Infante, 19 F.3d at 937, we find that a rational trier of
fact could have found that the government proved beyond a reasonable doubt that
Marmolejo was guilty of money laundering.
Marmolejo also contends that the district court erred by admitting hearsay
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IX
For the foregoing reasons, we AFFIRM both defendants'
convictions, but VACATE Marmolejo's sentence and REMAND for
resentencing.
evidence and disallowing other "critical impeachment evidence." We find that the
district court did not abuse its discretion. See United States v. Coleman, 997
F.2d 1101, 1105 (5th Cir. 1993) ("Rulings limiting the scope or extent of cross-
examination are committed to the sound discretion of the trial court and are
reviewed only for abuse of discretion."), cert. denied, ___ U.S. ___, 114 S. Ct.
893, 127 L. Ed. 2d 86 (1994); United States v. Vela, 673 F.2d 86, 90 (5th Cir.
1982) (stating that we review a trial court's decision to admit business records
for abuse of discretion).
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E. GRADY JOLLY, Circuit Judge, concurring in part and dissenting in
part:
I respectfully dissent from Part II B of the majority's
opinion. The majority holds that it is a federal crime for local
jail officials to accept bribes for conjugal visits because
conjugal visits constitute "business" or "transactions" of the
Hidalgo County Jail. It reaches this conclusion even though the
conduct in question did not affect federal funds directly or
indirectly, the only congressional objective of this criminal
statute. Moreover, the majority holds that these conjugal visits
have a value of at least $5,000 based solely on the amount of the
bribes received by the local jail officials. The majority thus
enlarges the scope of this statute by effectively holding that the
statute is violated whenever a bribe satisfies the transactional
amount prescribed by the statute even when the transaction has no
value to the jail and thus could have no effect on federal
interests. With due respect for the majority, I am unable to agree
with this virtually unlimited expansion of 18 U.S.C. §
666(a)(1)(B).
(1)
As noted in the majority opinion, the statute requires that
the government prove that the defendants were agents of the Hidalgo
County Jail, and that the jail received, in any one-year period
encompassing the defendants' conduct, more than $10,000 in
"benefits" from a "Federal program" involving a grant or contract.
18 U.S.C. § 666(a)(1), (b) (1994). The government further must
prove that the defendants, as agents of the jail, accepted
"anything of value" from someone, and did so with the intent to be
influenced or rewarded in connection with "any business,
transaction, or series of transactions" of the jail "involving
anything of value of $5,000 or more." § 666(a)(1)(B).
The majority concludes that the statute clearly encompasses
the conduct of the defendants. I conclude that the statute clearly
does not reach the conduct at issue. These two contrary positions,
each supported by its own rationale, would lead one to conclude
that the statute is ambiguous.
The majority parses the language of the statute to find
clarity where, when fully considered, there is only ambiguity.
Isolating words from the context of the statute, it focuses on
"anything of value" instead of considering the whole of the phrase
"any business, transaction, or series of transactions of such
organization, government, or agency involving anything of value of
$5,000 or more" so as to conclude that the statute is plain and
clear that valuations can be from the perspective of any of the
parties involved. The Second Circuit persuasively demonstrated the
ambiguity involved in this point when it recently rejected the
"clarity" proclaimed by the majority here, by stating:
"§ 666(a)(1)(B) is silent as to the identity of the person or
entity to whom the `[]thing' must have at least a $5,000 value."
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United States v. Foley, 73 F.3d 484, 490 (2d Cir. 1996).29
In its effort to fulfill the elemental requirements of the
statute, specifically that the "transactions" had a "value of
$5,000," the majority confuses and then fuses the value of the
transactions with the amount of the bribe. Yet, the two are
completely distinct under the statute. The text of the statute
makes clear that the acceptance of "anything of value," i.e., the
acceptance of the bribe, is a separate element of the crime from
the amount of the transaction; consequently, the amount of the
bribe has no statutory relevance to the value of the transaction.
Stated differently, the value of the transaction cannot
automatically be extrapolated from the amount of the bribe, but
instead must be established on grounds independent, at least in
some way, of the bribe. Our decision 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), illustrates the illogic of the
majority's analysis in using the bribe to satisfy both the
"anything of value" element of the crime and the "value of the
transaction" element. There, a county supervisor accepted bribes
totaling $2,202 in connection with the purchase of $14,482.92 worth
of goods for the county. Id. at 575. The purchases made by the
29
The majority cites Westmoreland to support its claim that the
statutory language is unambiguous. Maj. Op., at 11 n.7. The fact that we found
the statutory language “plain and unambiguous” on one issue, namely, whether §
666(a)(1)(B) imposes a tracing requirement, does not mean that it is “plain and
unambiguous” on all issues.
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county supervisor constituted the series of transactions of the
county "involving anything of value of $5,000 or more"; the bribes
satisfied the "anything of value" element of the crime. In short,
as applied in this case, the language of § 666(a)(1)(B) is at best
ambiguous insofar as it concerns the method of valuing a
transaction.
(2)
Given this ambiguity, it is necessary to turn to the
legislative history for guidance in interpreting and applying the
statute. Hightower v. Texas Hospital Association, 65 F.3d 443, 448
(1995). Faced with legislative history that does not support its
reading of the statute, however, the majority evades grappling
directly with the legislative history.30 Instead, the majority
falls back on generalized descriptions of that legislative history
from our decision in Westmoreland. The majority states that its
broad reading of the language of the statute "squares with
Congress's intent in enacting 18 U.S.C. § 666 to safeguard `the
integrity of federal funds by assuring the integrity of the
30
The majority does quote a passage from the legislative history that
directly contradicts its interpretation of § 666 without attempting to explain
this contradiction:
[18 U.S.C. § 666 was] 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.
Maj. Op., at 11 (quoting S.Rep. No. 225, 98th Cong., 2d Sess., reprinted in 1984
U.S.C.C.A.N. 3182, 3510) (emphasis added).
-38-
organizations or agencies that receive them.'" Maj.Op., at 11
(quoting 841 F.2d at 578). The majority also states that "Congress
`cast a broad net to encompass local officials who may administer
federal funds, regardless of whether they actually do.'" Id. at 12
(quoting 841 F.2d at 577). Unfortunately, the majority quotes from
Westmoreland without reviewing the context of the legislative
history in which those descriptions arose. Such a review
demonstrates the majority's inappropriate use of these descriptions
to support its overly-broad reading of the reach of the statute.
In Westmoreland, a county supervisor was convicted of
receiving kickbacks for purchases of county materials that involved
only non-federal funds of the county. 841 F.2d at 573. The
defendant argued that "the statute requires the involvement of
federal, not merely state, funds in the allegedly corrupt
transactions." 841 F.2d at 575. After reviewing the statutory
language and the legislative history, we said:
[W]hile the legislative history manifests a congressional
intent to preserve the integrity of federal funds,
Congress specifically chose to do so by enacting a
criminal statute that would eliminate the need to trace
the flow of federal monies and that would avoid
inconsistencies caused by the different ways that various
federal programs disburse funds and control their
administration." Id. (emphasis added).
The court in Westmoreland thus recognized that the legislative
history exhibited a clear intent to protect federal funds
distributed to non-federal entities. Recognizing the difficulty
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involved in tracing federal funds, Westmoreland remained faithful
to this congressional objective by holding that § 666 encompassed
transactions involving non-federal funds of an entity receiving
federal funds. Westmoreland did not hold that Congress meant to
criminalize any act of bribery involving non-federal entities
receiving federal funds, but only those acts of bribery that could
somehow be traced, directly or indirectly, to the integrity of
federal program funds. The majority's use of Westmoreland's
generalized descriptions of the legislative history to support its
overly-broad reading of the statute thus does not square with
Westmoreland's own recognition of congressional purpose or the
reasoning behind its holding.
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.
"This part of title XI 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." 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
-40-
distributed through Federal programs from theft, fraud, and undue
influence by bribery." Id. at 3511.
The majority's attempt to find support in the circuit court
cases cited in the legislative history, see Maj.Op., at 13 n.8;
1984 U.S.C.C.A.N. at 3511 & nn.2-3, will not withstand a careful
look. None of the cases from the legislative history cited by the
majority supports the majority's reading of § 666(a)(1)(B) because
the conduct at issue in those cases directly implicated federal
monies. United v. Hinton, 683 F.2d 195 (7th Cir. 1982) (soliciting
money in exchange for award of housing rehabilitation contracts
funded by HUD), aff'd sub nom., Dixson v. United States, 465 U.S.
482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984); United States v.
Mosley, 659 F.2d 812 (7th Cir. 1981) (receiving money in exchange
for giving preferential treatment to individuals seeking jobs
funded by Comprehensive Employment and Training Programs Act);
United States v. Del Toro, 513 F.2d 656 (2d Cir.) (bribing city
administrator to insure that program receiving funding from HUD
would lease building), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46
L.Ed.2d 42 (1975). In this case, allowing conjugal visits to a
federal prisoner, in no way that my eyes can see, implicates
federal monies.
Furthermore, I have found nothing in the legislative history
to indicate that Congress meant to reach acts of bribery--as the
majority does--involving any and all official acts of agents of
-41-
non-federal entities in the same way that 18 U.S.C. § 201 reaches
acts of bribery involving all official acts of federal agents.31
Instead, Congress was focused on providing criminal sanctions
precisely and only for abuse of, or threat to, federal monies that
are disbursed to these non-federal entities. Westmoreland
logically extends the reach of the statute--based on a recognition
of the fungibility of money--to non-federal funds of that entity.
(3)
The majority's decision today also creates a split with the
well-reasoned and more carefully crafted decision of the Second
Circuit in United States v. Foley.32 In Foley, a Connecticut
legislator was convicted of receiving a bribe to help secure the
passage of legislation that would have given a recently-merged bank
a one-year exemption from a divestiture requirement. 73 F.3d at
486-87. Although the defendant received a $25,000 bribe and the
exemption was worth more than $5,000 to the bank, the Second
Circuit held that the transaction did not meet the "$5,000 or more"
requirement of § 666(a)(1)(B) because the government had not shown
31
Section 201 reads in part: "Whoever, being a public official . . .
accepts . . . anything of value . . . for being influenced in the performance of
any official act . . . shall be . . . imprisoned . . . ." 18 U.S.C. § 201(b)
(1994). Congress was well aware of this provision when it passed § 666 because
a circuit split concerning § 201's application to non-federal entities motivated
congressional action on § 666. See 1984 U.S.C.C.A.N. at 3510-11.
32
Surprisingly, the majority supports its holding by citation to United
States v. Mongelli, 794 F.Supp. 529, 531 (S.D.N.Y. 1992), Maj. Op., at 11, 15,
a decision overruled by the Second Circuit in Foley. See 73 F.3d at 496
(Lumbard, J., dissenting).
-42-
that the exemption was worth at least $5,000 to the State of
Connecticut. "[T]he exemption affected neither the financial
interests of the protected organization nor federal funds
directly." Id. at 493. Based on a clear understanding of the
congressional objective in enacting § 666, the Second Circuit
determined that the proper method to value a transaction is from
the perspective of the protected entity, not from the perspective
of "any willing buyer," as the majority would have us accept.
Maj.Op., at 15. The Foley court stated:
[T]he value of a thing for purposes of § 666(a)(1)(B) is
not to be assessed by reference to any and every
perspective or measure of value, no matter how subjective
or arbitrary. Instead, the assessment of the thing's
value must be connected, even if only indirectly, to the
integrity of federal program funds.
73 F.3d at 490.
In an effort to distinguish Foley from these facts and from
Fifth Circuit law, the majority contends that the defendant in the
Fifth Circuit's Westmoreland decision would not have been convicted
under Foley because the transaction in that case did not involve
federal funds. Maj.Op., at 15 n.9. Based on two quoted passages
from Foley mentioning federal funds, the majority strains to
conclude that the Foley Court held that federal funds must be
involved in the transaction and that, therefore, the decision
conflicts with Westmoreland. Id. A casual reading of Foley will
reveal the majority's erroneous interpretation of that decision.
-43-
First, Foley cites with approval our decision in Westmoreland. 73
F.3d at 491. Second, the Foley Court noted that the Second Circuit
has already held that the government is not required to trace the
corrupt transaction to federal program funds. Id. at 490-91
(citing United States v. Coyne, 4 F.3d 100, 108-10 (2d Cir. 1993),
cert. denied, ___ U.S. ___, 114 S.Ct. 929, 127 L.Ed.2d 221
(1994)).33 Third, the Foley Court recognized that the corrupt
transaction violated § 666(a)(1)(B) if it affected either "the
financial interests of the protected organization" or "federal
funds directly." Id. at 493. The majority's attempt to
distinguish Foley is, I respectfully submit, superficial.
(4)
Finally, I would observe that when a criminal statute only
ambiguously applies to the conduct in question, surely the rule of
lenity counsels that we construe the statute in favor of the
defendant. Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct.
2084, 2089, 85 L.Ed.2d 434 (1985).
(5)
To summarize, in interpreting § 666(a)(1)(B), we first must
look to the specific statutory language, and in the light of its
ambiguity, the legislative history, to determine whether this
33
The Coyne court itself recognized that it "agree[s] with the other
circuits who have considered the question," including Westmoreland. 4 F.3d at
110.
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provision intends to reach this conduct. Dowling v. United States,
473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985)
("[W]hen assessing the reach of a federal criminal statute, we must
pay close heed to language, legislative history, and purpose in
order strictly to determine the scope of the conduct the enactment
forbids"). Neither the plain language nor the legislative history
indicates that Congress wrote this provision to reach the
acceptance of bribes for conjugal visits, conduct that left both
federal and state fiscs untouched. Congress intended to reach only
conduct involving--directly or indirectly--the fiscal integrity of
non-federal entities receiving federal monies. Because the
defendant's conduct in no discernable way implicated the fiscal
integrity of the Hidalgo County Jail, and because the majority's
reading of the statute contradicts the clear expression of
congressional intent in the legislative history, I respectfully
dissent.
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