dissenting:
I would reverse the conviction and render a judgment of dismissal with prejudice, thereby precluding a retrial of defendant Albert Lipscomb. Accordingly, I respectfully dissent from the contrary result reached by Judge Wiener’s opinion and Judge Duhé’s partial concurrence, which is to subject this seventy-seven-year-old defendant — who has already served more than half of his approximately three and one-half-year sentence of incarceration waiting for his appeal to be decided — to a *361new trial under a statute that has no application to him.
Two of the three judges on this panel are of the view that Lipscomb properly-raised the issue of whether 18 U.S.C. § 666 is unconstitutional as applied to him. Nonetheless, we fail to decide that issue because one of the judges declines to address it, leaving the other two judges evenly split on the question. If we were to address it, we should easily conclude that Congress has no authority to criminalize Lipscomb’s conduct, and the government had no authority to subject him to a first trial, let alone a second one.
I.
Judge Duhé is correct that “[cjonstitu-tionality is an issue on the merits, not a jurisdictional one.” He also accurately states that a criminal defendant may waive constitutional challenges to a statute by failing to argue them. Although Judge Duhé follows the proper methodology by looking to Lipscomb’s four trial motions and his appellate brief for the answer, Judge Duhé errs in applying a hyper-technical test in reviewing Lipscomb’s arguments, a test that elevates semantics over substance.
Our inquiry is a relatively easy one: Has Lipscomb argued that Congress cannot reach his conduct under the United States Constitution? When we focus on the text of Lipscomb’s motions and briefs, we can have no doubt that the answer is yes.
A.
Judge Duhé argues that Lipscomb’s September 3, 1999, “Motion To Dismiss the Indictment or, Alternatively, for an Evidentiary Hearing Requiring the Government To Establish Federal Jurisdiction” is a motion that “seeks proof of federal jurisdiction, and does not challenge the constitutionality of § 666.” But the full text shows that Lipscomb is making a constitutional argument; he just uses the words “jurisdiction” and “power” interchangeably:
However, in Salinas, the Court squarely left open the question whether Section 666 “requires some other kind of connection between a bribe and the expenditure of federal funds” lest it be applied in some manner which loould alter or fail to “give proper respect to the federal-state balance” of powers [quoting Salinas]. The Court found “no serious doubt about the constitutionality of Section 666(a)(1)(B) as applied to the facts of this case” [quoting Salinas].
In this case, however, no sufficient jurisdictional basis is evident.... Any exercise of federal jurisdiction must demonstrate a proper respect for concepts of dual sovereignty and federalism. On its face, this indictment fails even to allege an appropriate basis for the exercise of federal jurisdiction and accordingly Section 666 is being unconstitutionally applied in this case....
The Tenth Amendment ... provides: [quoting] ... “[T]he ‘double security’ embodied in the concept of federalism requires ‘a proper balance between the States and the Federal Government’ ” [citing Gregory v. Ashcroft, 501 U.S. 452, 459, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)]. The States’ constitutional prerogatives plainly include their “constitutional responsibility for the establishment and operation of its own government....” Under our federal system, states possess the primary authority to define and enforce criminal law [citing United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)].
*362Thus, the application of Section 666 in circumstances with no evident assertion of a federal interest offends two state prerogatives: (1) the States’ constitutional responsibility for regulation of electoral government and for the establishment and operation of its own government and the qualifications of its officials; and (2) the definition and enforcement of criminal law. As a constitutional principle, it simply cannot be that $10,000.00 in federal funds provided to a major city thumps the Tenth Amendment and the prerogatives and responsibilities reserved to the States therein. The Tenth Amendment, after all, “was enacted to allay lingering concerns about the extent of national power” [citing Alden v. Maine, 527 U.S. 706, 713-14, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)]. “When the Federal Government asserts authority over a States’ [sic] most fundamental political processes, its [sic] strikes at the heart of the political accountability so essential to our liberty and republican form of government” [citing Alden; Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)]. The proper state-federal balance is disturbed when there is an intrusion upon State prerogatives in important areas resewed to the States. This indictment fails to identify the federal interest served by this exercise of federal jurisdiction and therefore constitutes an unconstitutional application of Section 666.... [F]ederal jurisdiction is being exercised in a manner that plainly intrudes upon the prerogative of the States to define, apply and enforce criminal law, and to monitor and oversee the operation of its government.
(Emphasis added.)
If Lipscomb were merely arguing jurisdiction, why would he five times cite Salinas- — which does not even mention jurisdiction' — for the proposition that § 666 has been unconstitutionally applied to him? Why would he employ a “Special Counsel for Tenth Amendment purposes only,” and have that counsel sign the motion? Why would he twice invoke the Tenth Amendment and cite the Tenth Amendment cases of Ch’egory, Printz, and New York v. United States, as well as Alden’s Tenth Amendment discussion? Why would he six times argue that § 666 abridges the states’ constitutional responsibilities and prerogatives? Why would he three times argue that § 666 upsets the constitution’s federal-state balance of powers? Why would he three times state that § 666 is being unconstitutionally applied to him?
Judge Duhé sidesteps all of this and, instead, notes that the motion’s title mentions federal jurisdiction, not constitutionality, and Lipscomb uses the word “jurisdiction” throughout his argument. Since when do we accord one word such talis-manic power that its mere presence or absence in a motion or brief can negate all remaining arguments? Since when do we forbid a defendant from raising two points — both constitutionality and jurisdiction — in one motion? The Federal Rules of Procedure eliminated just the type of rigid form pleading that Judge Duhé invokes today.
Lipscomb’s motion is less than polished, and his interchange of “jurisdiction” and “power” is clumsy. As Judge Wiener explains, sometimes Lipscomb uses “jurisdiction” to refer to a federal court’s subject matter jurisdiction, and sometimes he uses “jurisdiction” to refer to the persons and acts over which Congress may legislate. But any confusion is easily eliminated: Substitute “federal power” or “congressional power” every time Lipscomb says *363“jurisdiction” in his motion, and the motion’s meaning remains the same. But substitute “subject matter jurisdiction” or “federal court jurisdiction,” and parts of the motion become nonsensical.
For example, the final paragraph makes no sense when “federal court jurisdiction” is used:
The proper state-federal balance is disturbed when there is an intrusion upon State prerogatives in important areas reserved to the States. This indictment fails to identify the federal interest served by this exercise of [federal court jurisdiction] and therefore constitutes an unconstitutional application of Section 666.... [Federal court jurisdiction] is being exercised in a manner that plainly intrudes upon the prerogative of the States to define, apply and enforce criminal law, and to monitor and oversee the operation of its government.
But this paragraph reads perfectly well when “congressional power” is filled in.
Lipscomb’s lack of artfulness should not doom his appeal, especially given that the Supreme Court and our circuit often have been guilty of the same offense of conflating “jurisdiction” and “power.” In United States v. Cotton, — U.S. -, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the Court acknowledged that it has sometimes employed a “somewhat expansive notion of jurisdiction” that covered both general constitutional questions and the concept of subject matter jurisdiction. Id. at 1784-85 (internal quotations omitted). Recently, the en banc court of this circuit reheard United States v. Longoria, 259 F.3d 363 (5th Cir.), vacated for rehearing en banc, 262 F.3d 455 (5th Cir.2001), to undo the confusion generated by our loose use of the term “jurisdiction.” Lipscomb should not be held to a higher standard of legal diction than are the judges and Justices of this court and the Supreme Court.
Judge Duhé and I also read Lipscomb’s February 8, 2000, motion for judgment of acquittal quite differently. Lipscomb made, inter alia, the following arguments:
As applied to Lipscomb, 18 U.S.C. § 666 is unconstitutional. No evidence was introduced that any of the funds given to Lipscomb can be connected to “a threat to the integrity and proper function of a federal program.” None of the federal funds was shown to relate to the taxicab industry. At no time did any of the votes alleged in the indictment impinge upon the use, distribution, diversion or application of any federal funds. Congress intended to protect federal and the integrity of those funds.
(Emphasis added.)
Lipscomb flatly states that § 666 is unconstitutional as applied to him, and he follows with a constitutional argument from Salinas. The Salinas Court explained that because the crime “was a threat to the integrity and proper operation of the federal program[, w]hatever might be said about § 666(a)(l)(B)’s application in other cases, the application of § 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds.” Salinas v. United States, 522 U.S. 52, 61, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). Lipscomb argues the inverse — because his crime did not threaten the integrity and proper operation of a federal program, the application of § 666 to him is not constitutional.
Judge Duhé recharacterizes this argument as a challenge to the jurisdictional reach of § 666; Lipscomb, he concludes, actually is asserting that § 666 requires a nexus between federal funds and the bribery. Judge Duhé does not explain why, if this is so, Lipscomb failed to place this argument under heading B of his motion— “The Government has failed to establish *364the jurisdictional prerequisite for each substantive count.”
Nor does Judge Duhé explain why Lipscomb would support this argument by quoting from the same passage in Salmas that held, “The text of § 666(a)(1)(B) is unambiguous ... [and] does not require the Government to prove federal funds were involved in the bribery transaction.” Salinas, 522 U.S. at 60, 118 S.Ct. 469. Instead, Judge Duhé notes that neither the government nor the district court mentioned the constitutional issue. Just because the district court and the government may have misunderstood Lipscomb’s claim, however, does not mean he failed to present it.
B.
Lipscomb devotes ten pages of his appellate brief to the constitutional issue. Even though Lipscomb admits that “[i]t is not a jurisdictional requirement of [§] 666 that the alleged bribe actually affect federal funds,” Judge Duhé insists that Lipscomb is making only a jurisdictional argument. More incredibly, Judge Duhé claims Lipscomb “never mentions a constitutional question,” even though Lipscomb states, “there must be some connection between the bribe and the expenditure of federal funds. Otherwise, the reach of § 666 intrudes well beyond the scope of federal authority into areas of state responsibility, and serious constitutional questions are presented." (Emphasis added.)
Lipscomb further notes that the Salinas Court
left open the question whether Section 666 “requires some other kind of connection between a bribe and the expenditure of federal funds” lest it be applied in some manner which would alter or fail to “give respect to the federal-state balance” of powers [citation], “Whatever might be said about [§] 666(a)(l)(B)’s application in other cases, the application of Section 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds.” [citation],
Lipscomb follows with the observation that “[a]ny exercise of federal jurisdiction must demonstrate a proper respect for concepts of dual sovereignty and federalism (citing the Tenth Amendment). The States’ constitutional prerogatives plainly include constitutional responsibility for the establishment and operation of its own government .... [citing Gregory, 501 U.S. at 462, 111 S.Ct. 2395].” He adds, “As a constitutional principle, it simply cannot be that $10,000.00 in federal funds provided to a major city trumps the Tenth Amendment and the prerogatives and responsibilities reserved to the States” (referring also to our “republican form of government”) (emphasis added).
Lipscomb further argues that § 666 is enacted under the Spending Clause, which has limits. Beyond those limits, the “delicate balance of federalism” is obliterated, he argues. Finally, Lipscomb notes that a prosecution under § 666 must be “under-girded by some adequate federal jurisdictional base” to avoid serious constitutional problems.
Again, Lipscomb uses the term “jurisdiction” loosely, and he sometimes makes two arguments under one heading in his brief. Nonetheless, he easily has raised adequately the requisite constitutional arguments.
II.
Despite the caption of this opinion as a dissent, this part II is not a dissent, because there is no majority decision, on this issue, from which to dissent. Judge Wiener opines that § 666 is constitutional as applied, and I conclude, to the contrary, *365that the statute is unconstitutional as applied. But Judge Duhé declines to address this issue, even in the alternative, despite that it is law of the case, under the majority holding of two judges, that the issue is properly raised and preserved.
So, although a majority of this court holds that Lipscomb properly raised and preserved this constitutional challenge, and although this challenge, if decided, could lead to Lipscomb’s immediate release with no possibility of retrial, we do not rule on it. The government had no authority to try Lipscomb the first time around; instead of announcing that fact and ending these proceedings, we compound the error by forcing Lipscomb to undergo a second illegitimate trial.
The full absurdity of today’s decision comes to light when we imagine the future of this case. If Lipscomb is convicted a second time, he presumably will appeal (if he lives that long; he is elderly and too ill to be incarcerated in prison). In his second appeal, Lipscomb could argue the same constitutional claim before this same court — perhaps even before this same panel- — -and this time, because he was careful to omit the word “jurisdiction” from his brief, he could be acquitted and told that the government never had the power to try or detain him in the first case. As I explain below, this should be our decision today.
A.
As Judge Wiener explains, Westmore-land’s broad construction of § 666 continues to be the law in this circuit, so we are precluded from construing the statute to avoid a constitutional question. We must, perforce, examine Lipscomb’s constitutional challenge to the statute as applied.
Congress enacted § 666 under the Spending Clause.1 Phillips, 219 F.3d at 414. It is well recognized that Congress may use its spending power to regulate the states indirectly through the use of conditional grants. E.g., 1 LaureNge H. Tíube, AMERICAN Constitutional Law § 5-6, at 833 (3d ed. 2000). The power to regulate indirectly is nevertheless a limited one, as explained in South Dakota v. Dole, 483 U.S. 203, 207-08, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987).
Dole involved a statute conditioning a small portion of each state’s federal highway aid on the state’s establishing a minimum drinking age. Id. at 205, 107 S.Ct. 2793. The Court upheld the condition based on Congress’s authority under the Spending Clause to “condition” states’ access to federal funds. Id. at 206, 107 S.Ct. 2793. The Court held that when Congress chooses to go beyond specific enumerated powers and to use its spending power “to further broad policy objectives by conditioning receipt of federal monies upon compliance with federal statutory and administrative directives,” it must meet four conditions, the failure to meet any of which might render a statute unconstitutionally broad: (1) The power must be used in pursuit of the general welfare; (2) Congress must state any conditions unambiguously; (3) conditions must be related to the federal interest in particular national projects or programs; and (4) conditions must not violate other independent constitutional restrictions on government activity. Id. at 207-08, 107 S.Ct. 2793.2
*366The Dole test is inappropriate to analyze the constitutionality of § 666, however, because the section does not qualify as a conditional-grant statute. First, § 666 does not unambiguously state that certain conditions attach to the receipt of any particular federal grants. Second, a condition statute generally requires a state’s compliance with federal regulatory or administrative directives in exchange for receipt of federal funds. Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 570-72 (4th Cir.1997) (en banc) (plurality opinion).
Section 666, however, neither requires an act of compliance nor applies directly to the recipient governments, as did the statute in Oklahoma v. United States Civil Serv. Comm’n, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947).3 Instead, § 666 applies directly to individuals; as the court in United States v. Cantor, 897 F.Supp. 110, 113 (S.D.N.Y.1995), stated persuasively, § 666 does not impose any conditions at all, much less conditions related to federal interests, on particular national projects or programs: “18 U.S.C. § 666 does not impose a condition on the receipt of federal funds. The statute neither requires a state’s compliance with federal regulatory or administrative directives, nor prevents state action.” Id. Therefore, § 666 cannot be classified as a conditional grant to the states,4 and, correspondingly, Dole cannot be applied to analyze its constitutionality.5
B.
Recognizing that Dole does not answer the question, we turn elsewhere for constitutional grounding. In Salinas, the Court *367held § 666 constitutional as applied, addressing constitutionality only briefly:
[T]here is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jail managed pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(l)(B)’s application in other cases, the application of § 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds. See Westfall v. United States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036 (1927).
Salinas, 522 U.S. at 60-61, 118 S.Ct. 469. Unfortunately, the Court did not reveal the framework it used in concluding that § 666 was constitutionally applied in Salinas, nor did it say what test should be used in determining whether , other applications of the statute are constitutional. We conduct our own inquiry, because this case, unlike Salinas, does not involve any readily apparent connection to federal funds or programs.
As I have said, the fact that § 666 is not a direct exercise of the spending power does not doom its constitutionality. The Constitution gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const. art. I, § 8. Thus, to determine whether the application of § 666 to Lipscomb’s acceptance of bribes by a local taxi company is constitutional, we must decide whether prosecuting such behavior is “necessary and proper” to carrying out Congress’s spending power.6
1.
We examine the relevant legislative history to discover why Congress thought that § 666 was necessary and for what purposes it deemed the statute proper, for although Congress is not the final judge of what is necessary and proper to carry out its powers, it is likely to have an informed opinion on the matter. Such opinion is particularly persuasive to the extent that it finds legislation is necessary and proper only in limited circumstances, because, in such cases, we need not worry that Congress’s interpretation is motivated by a desire to expand its power beyond proper bounds. Thus, when Congress states that legislation passed as necessary and proper to carry out one of its enumerated powers is actually necessary only in certain circumstances, we should be hesitant to conclude that the Necessary and Proper Clause permits the legislation to reach further than Congress felt necessary or proper to carry out its delegated powers.
Courts have recognized the particular relevance of the legislative history of § 666 *368in cases — like this — in which that history-shows Congress’s limited goals in drafting a broadly worded statute. The legislative history of the act shows that Congress passed § 666 because it was concerned with its inability to protect federal funds once they are transferred from the federal government to states, local governments, and agencies. Section 666 “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 distributed through Federal programs from theft, fraud, and undue influence by bribery.” Id. at 3511.
In Salinas, the Court noted that § 666 was enacted in response to specific difficulties the federal government had encountered under preceding statutes in prosecuting the theft of federal funds by non-federal employees. The Court explained:
Before § 666 was enacted, the federal criminal code contained a single, general bribery provision codified at 18 U.S.C. § 201. Section 201 by its terms applied only to “public officials],” which the statute defined as “officers] or employee^] or person[s] acting for or on behalf of the United States ....” § 201(a). The Courts of Appeals divided over whether state and local employees could be considered “public officials” under § 201(a) .... § 666(a)(1)(B) was designed to extend federal bribery prohibitions to bribes offered to state and local officials employed by agencies receiving federal funds. The facts and reasoning of [United States v.] Del Toro, [513 F.2d 656, 661-62 (2d Cir.1975)], give particular instruction in this respect. In that case, the Second Circuit held that a city employee was not a “public official” under § 201(a) even though federal funds would eventually cover 100% of the costs and 80% of the salaries of the program he administered. 513 F.2d, at 662. Because the program had not yet entered a formal request for federal funding, the Second Circuit reasoned, “[t]here were no existing committed federal funds for the purpose.” Ibid. The enactment of § 666 forecloses this type of limitation.
Salinas, 522 U.S. at 58-59, 118 S.Ct. 469. Moreover, in United States v. Zwick, 199 F.3d 672, 684 (3d Cir.1999), the court explained that under a separate statute criminalizing the theft of federal property, 18 U.S.C. § 641,
the federal government could prosecute only when it could establish that the stolen property was property of the United States, which often was impossible if title had passed before the property was stolen or when federal funds were so commingled with non-federal funds that the federal character of those funds could not be shown.[7]
Furthermore, the Senate Report states that the intent of § 666 is “to reach thefts and bribery in situations of the types involved in the Del Toro, Hinton, and Mosley cases cited herein[.]” S. Rep. No. 98-225, 369-370, 1984 U.S.C.C.A.N. at 3511. The court in Zwick noted that the corrupt transactions in these three cases all plainly implicated federal interests. Zwick, 199 F.3d at 684.
*369In Del Toro, the defendants conspired to bribe Pedro Morales, the Assistant Administrator of the Harlem-East Harlem Model Cities Program, for which the United States Department of Housing and Urban Development (“HUD”) paid 100% of the cost of the program and 80% of its salaries. Because Morales was a city employee, however, the court concluded that, notwithstanding that he was administering a HUD program, he was not a “public official” for purposes of § 201 and therefore could not be prosecuted. Id.
Similarly, in United States v. Hinton, 683 F.2d 195, 198-200 (7th Cir.1982), aff'd sub nom. Dixson v. United States, 465 U.S. 482, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984), the defendants were officials of a non-profit corporation that administered a HUD program and had discretion in the distribution of HUD funds. The court found that they were “public officials for purposes of § 201 because they exercised considerable discretion in the distribution of federal funds.” Id. at 198-200. The Supreme Court affirmed but noted that, to be a “public official” under § 201(a), “an individual must possess some degree of responsibility for carrying out a federal program or policy.... Individuals who work for block grant recipients and business people who provide recipients with goods and services cannot be said to be public officials under section 201(a) unless they assume some duties of an official nature.” Dixson v. United States, 465 U.S. 482, 499-500, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984).
In United States v. Mosley, 659 F.2d 812, 816 (7th Cir.1981), the defendant, an Illinois state employee, was convicted of receiving bribes while evaluating applicants for jobs under a federally-funded program. Here again, the defendant was covered by § 201, because he exercised discretion in the administration of federal funds. In Zwick, the court concluded that the inclusion of these cases as examples of conduct that would be covered by § 666 showed that Congress intended that the statute would be applied only in corruption cases impacting federal interests.8
Although I do not agree that the plain language of § 666 allows prosecution only where the charged corrupt activity has impact on a federal interest, the fact that Congress did not find it necessary that § 666 be applied in cases not involving federal funds or programs is highly relevant to the issue of whether the statute’s application to local corruption not involving federal funds is “necessary and proper” to execute the spending power. Armed with knowledge of Congress’s purpose in enacting § 666, I examine whether the statute’s employment here — to prosecute a city councilmember for accepting bribes in return for pursuing local taxi regulations beneficial to a local taxi company — is “necessary and proper for carrying into execution” the spending power. In other words, what are the minimum factors that must be present to make a prosecution under § 666 “necessary and proper” under the spending power?
*370I am aware of no court that has dealt with the issue of what uses of § 666 are necessary and proper to effect the spend-, ing power. Of no help is United States v. Suarez, 263 F.3d 468 (6th Cir.2001).9 The Second and Third Circuits have narrowly interpreted § 666, however, for the express purpose of avoiding a constitutional question. Their views on what limitations are necessary to keep § 666 within the realm of constitutionality are therefore useful. In Zwiclc, the court interpreted § 666 to require a relationship between the prohibited conduct and a federal interest, because doing otherwise would raise constitutional problems:
Interpreting § 666 to have no federal interest requirement produces serious concerns as to whether Congress exceeded its power under the Spending Clause in enacting this statute. See McCormack, 31 F.Supp.2d at 187-89. To pass muster under the Spending Clause, legislation regulating behavior of entities receiving federal funds must, among other things, be based upon a federal interest in the particular conduct. See South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Applying § 666 to offense conduct, absent evidence of any federal interest, would appear to be an unconstitutional exercise of power under the Spending Clause.
Zwick, 199 F.3d at 687 (footnote omitted). The court thus rejected the government’s position that no connection between the bribery and the federal funds was necessary beyond proof that the agency in question had received federal funds in excess of $10,000. To do otherwise, the court reasoned, would eviscerate significant federal-state boundaries by turning § 666 into a general anti-corruption statute, an intention not expressed by Congress. Id. at 686.10
In the pre-Salinas case of United States v. Foley, 73 F.3d 484, 493 (2d Cir.1996), the court held that the conduct prosecuted under § 666 must be “shown in some way to touch upon federal funds.” The court also held that the local government or agency whose transaction involves $5,000 or more and at which the corruption is aimed must itself receive at least $10,000 in federal funds. Id.
The court re-evaluated Foley post-Salinas in United States v. Santopietro, 166 F.3d 88 (2d Cir.1999), recognizing that Salinas had made plain that the corruption need not have a value of $5,000 to the local government on which the corruption is *371practiced. Instead, there only must be the receipt of at least $10,000 of federal funds and a corrupt transaction valued at $5,000 or more by any of the parties' — the local government, the party paying the bribe, or the bribe recipient. Thus, the Santopietro court reversed and held that the defendants could be convicted under § 666. Even though the bribery at issue did not result in a loss of $5,000 or more to the town, the statutory requirement that a transaction of at least $5,000 be involved was plainly satisfied by the fact that the total bribe was $25,000. Id. at 92-93.
Santopietro, however, did not retreat from Foley's, requirement of “at least some connection between the bribe and a risk to the integrity of the federal funded [sic] program,” because “nothing in Salinas disturbs such a requirement.” Id. at 93. The court held that a federal connection sufficient to satisfy § 666 existed where real estate developers had made corrupt payments to the mayor, the Republican town chairman, and the president of the board of aldermen to secure their influence in landing city development contracts that were substantially funded by HUD dollars. Id. The court held that the evidence
satisfies the requirements of Foley, undisturbed by Salinas, that the transaction sought to be influenced had some connection with a federal program. Indeed, Salinas may be read to indicate that the “threat to the integrity and proper operation of [a] federal program” created by the corrupt activity is necessary to assure that the statute is not unconstitutionally applied.
Id. (quoting Salinas 522 U.S. at 60-61, 118 S.Ct. 469) (citation omitted) (alteration in original).
The court made plain that there was a direct connection between the bribery and the federally-funded programs and that “this is not a case where the transactions sought to be influenced concerned one department of a city and the requisite $10,000 of federal funds were received by a totally unrelated department.” Id. at 93-94. The court stated that “even after Salinas, [the undisturbed requirements of] Foley would not permit the Government to use § 666(a)(1)(B) to prosecute a bribe paid to a city’s meat inspector in connection with a substantial transaction just because the city’s parks department had received a federal grant of $10,000.” Id.11
The reasoning of the Second and Third Circuits is persuasive. It is a tautology to say that for legislation to be necessary and proper for effecting the spending power, it must be related to that power in some way. In other words, prohibiting activity that is unrelated to federal spending or programs cannot be necessary to execute the spending power.
This is not to say that only activity that directly affects federal funds may be prohibited. Salinas made evident that the spending power can be rendered ineffectual not only where the integrity of federal funds is compromised, but also where the integrity of programs funded by those federal dollars is assaulted. Thus, in Salinas the Court found that § 666 did not “extend federal power beyond its proper bounds,” id. at 61, 118 S.Ct. 469, where the statute was used to prosecute a state officer who had allowed himself to be bribed to influence his management of a federally funded program, even though no federal funds actually were diverted. In Zwick, the court held that “a highly attenuated impli*372cation of a federal interest will suffice for purposes of § 666.”12
2.
The government goes far beyond the holding of Salinas and argues that for a prosecution to be proper under § 666, no relationship at all is required between federal funds or programs and local corruption. The government argues that because funds are fungible, and the receipt of federal funds for any project frees a state to spend more funds on other projects, no more is required for a prosecution under § 666 than that a local government receive at least $10,000 in federal funds annually.
Although this is, strictly speaking, a correct textual interpretation of § 666, the statute obviously does not satisfy constitutional requirements when used in this manner; it cannot be necessary and proper to executing the spending power for the government to prosecute local crimes that have no relationship whatsoever to federal funds and programs.
Any argument that it is “necessary” to protect the spending power by passing legislation that regulates conduct totally unrelated to federal spending is meritless on its face. Accepting this proposition would allow § 666 to become a general federal police power statute that criminalizes corruption in all local governments and private agencies receiving federal funds.
Such a general police power is denied the federal government by constitutional design, for it is among those powers, reserved to the states, that constitute the heart of state sovereignty.13 Furthermore, states have the primary authority to define and enforce criminal law,14 United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and the “double security” embodied in the concept of federalism requires “a proper balance between the States and the Federal Government,” Gregory, 501 U.S. at 459, 111 S.Ct. 2395. Central to that balance, and to state sovereignty, is each state’s preroga-*373five over the “constitutional responsibility for the establishment and operation of its own government....” Id. at 462, 111 S.Ct. 2395.
Congress may pass laws criminalizing conduct that is already proscribed by the states, but this “change in the sensitive relation between federal and state criminal jurisdiction”15 must be made under the powers delegated to the federal government by the Constitution. If adopted, the government’s argument that it is necessary and proper, under the Spending Clause, for the federal government to root out all local corruption whenever more than $10,000 of federal funds is received by a local government would cause a massive shift in the “balance between the States and the Federal Government” that is contrary to basic concepts of federalism and the Tenth Amendment.16
This power cannot be said to be necessary and proper to carrying into execution the spending power, because the means are not appropriate, are well beyond “the scope of the constitution,” are inconsistent “with the letter and spirit of the constitution,” and thus are unconstitutional. McCulloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 421, 4 L.Ed. 579 (1819).17 Moreover, the government’s argument that no connection need be shown between federal funds or programs and the local corruption prosecuted under § 666 confuses a connection to a federal interest in federally-funded programs with the federal government’s generalized interest in everything that occurs within its borders.
The government argues that the United States has an interest in the honesty of all officials, local and federal, and this is assuredly so. The government has a similar interest in a great many things that are, however, beyond its power to regulate directly. For example, members of Congress profess sincere interest in a variety of problems — from reducing crime to encouraging the stability of marriage — yet Congress has no more power directly to criminalize local burglaries than it does to regulate marriage directly. In both cases, if the government wishes to pursue its interest, it must do so through targeted spending and conditional grants of federal funds.18
It is this conflation of generalized federal interests with a federal interest in a program (i.e., a connection to federal funding) that prompts the government to argue that any generalized interest of the United States suffices to allow federal criminalization of local matters, so long as some insignificant amount of federal funds are given to the locality. Such an analysis turns the accepted understanding of the *374Necessary and Proper Clause on its head and, in effect, asserts that because Congress may pursue the general welfare through the Spending Clause, all laws that are necessary and proper to the general welfare must be considered constitutional under the Spending Clause.19 This argument, if followed, would overturn the accepted meaning of the Spending and the General Welfare Clauses that has existed for nearly two centuries. See generally 1 Tribe, supra, § 5-6, at 831-34 (3d ed. 2000).
3.
The government argues, alternatively, that if a connection is required between federal funding or programs and the charged corruption, such connection is present in this case. The federal connection that the government asserts, however, is exceedingly tenuous. The government avers that a federal connection existed between Lipscomb’s acts of corruption and federal funds because
Lipscomb voted to seek and disburse federal money on improvements to Love Field airport. Thus, the federal government had an interest in the success of the airport, a center of interstate travel. It is common sense that an airport depends in part for its success on the taxicab service provided for passengers. On the flip side, taxicabs depend in part for their success on the viability of airports, which provide fertile ground for fares.
If merely the airport — rather than the city as a whole — is seen as the analog of the jail in Salinas, that case’s holding must extend to this one. Lipscomb, like the jailer, was partly responsible for managing a federally-funded entity, the airport. The airport in turn provided business to, and needed the business of, taxicabs (including Richards’ taxicabs) for its success — just as the jail had a direct relationship with the welfare of the prisoner who paid the bribes. And just as the preferential treatment given to the prisoner was “a threat to the integrity and proper operation of the federal program,” Salinas, 522 U.S. at 61, 118 S.Ct. 469, so the preferential treatment of Richards was a threat to the integrity of the airport-funding program.
The government’s “cabs go to the airport” theory is feeble at best. The government may as well argue that because the United States funds medical research at Dallas hospitals, and researchers sometimes take taxis, especially to airports to fly to conferences, there is a sufficient nexus between taxis and federal funds. Or, the government could aver that federal funds go to pay welfare benefits and, because welfare recipients often cannot afford cars, they may take taxis to the grocery store to use their food stamps, and thus federal prosecution of cases of local bribery affecting taxi regulations is necessary to protect the spending power. In sum, if the government’s posited connection between the federal funds and the corruption is sufficient to provide nexus, any connection at all will do.
The facts of this case reveal no substantial relationship to federal funds or programs, whereas in Salinas there were three direct connections between federal funds and the corrupt activity. First, the *375prisoner paying the bribes was a federal prisoner. Second, the county jail in which the prisoner was housed had been constructed substantially with federal funds. Third, the prisoner was in the jail as part of a federal program in which the county was paid per diem for each federal prisoner it housed.
Here, to the contrary, Richards, who was the person paying the bribes, had no federal status or connection. Neither the taxis nor the city regulation of the taxi industry was funded by federal funds in any way. Finally, there was no federal program relating to taxi regulation, nor was the integrity of any federally funded program affected by the payment of Lipscomb to vote for certain taxi regulations.
Thus, the connection between federal funds and the prosecuted activity here is nothing like the direct connections between federally funded programs and corrupt activity in Salinas. It is far less substantial than even the most attenuated connections that the Third Circuit imagined might suffice to avoid constitutional questions in Zwick.20 Under the specific facts of this case, the connection to federal funds is insufficient, as a matter of law, to support a conclusion that the § 666 prosecution was necessary and proper to protect federal funding of Love Field or the city generally.21
4.
The government alternatively posits that, because the City of Dallas received a sizeable amount of federal funds in real dollars, it was proper for Lipscomb’s bribery to be federally prosecuted. The government points out that in 1998, the city *376accepted over $56 million in federal funds. This, it argues, is a significant amount that warrants the federal prosecution of a local official even for mere local corruption.
The government contends that the receipt of this large amount of federal money would make the prosecution of Lipscomb pass muster even under Zwick. This is plainly incorrect. Zwick stated that if “the greater part of a township’s budget came from federal funds, bribery of a township agent for any purpose might be said to implicate federal interests.” Zwick, 199 F.3d at 687 (emphasis added). The city received over $56 million in 1998 — admittedly a significant amount. Because its 1988 budget was $1.6 billion, however, federal funds made up only 3.5% of the City’s budget.
This is nowhere near the example given in Zwick, where a federal interest could arise if the “greater part of a township’s budget” came from federal funds. Indeed, if federal funding of as little as 3.5% of a city’s budget allows prosecution of a city official, then the fact that every state and most cities receive more than $10,000 in federal funds each year is alone enough to allow the federalization of local corruption cases. This cannot be necessary and proper for executing the spending power.
5.
The government further contends that Lipscomb was not just any city employee and that as a city councilman he “was one of fifteen people responsible for running the City of Dallas.” The government then argues that high officials, such as Lipscomb, always should be liable for prosecution under § 666, because high officials make decisions on the disposition of both local and federal funds, and therefore dishonesty in the disposition of local funds is a proper cause of worry to the United States.22
The government contends that such prosecution is necessary, because otherwise corrupt officials would be left in place to administer federal funds in the same corrupt fashion that they administer local matters. While this argument has some initial appeal, it ultimately has no merit.
First, it seems unlikely that, had the state prosecutor been given the fruits of the Lipscomb investigation, he would have declined to prosecute. The charges against Lipscomb were serious, the evidence was compelling, and Lipscomb was a high-profile public servant — all factors that strongly argue for state prosecution.
Second, even if one thinks that states sometimes do not prosecute local crimes where federal prosecutors might do so, it does not follow that allowing double prosecution of local crimes would deter corruption involving federal funds and programs. Instead, allowing the double prosecution of local, but not federal, corruption might tend to cause dishonest local officials to abuse federal dollars rather than local funds.
Before § 666 was enacted, local embezzlement was covered by local penalties, and federal embezzlement was covered by federal penalties, with only small overlap. Thus, before the advent of § 666, a rational local official would simply weigh the *377rewards of embezzling local or federal funds against the risk of getting caught and the probable penalty earned by each crime. He then would commit those acts of embezzlement with the best ratio of payoff-to-punishment. Because of the severity of federal penalties, the most rational acts of embezzlement often would be local.
If § 666 is used to prosecute purely local acts of corruption, however, this calculus changes substantially. Federal acts of corruption still carry the same ratios of reward-to-punishment, but local crimes of corruption now qualify as both federal and local crimes. Thus, federal embezzlement would be more rewarding at the margins than would be local embezzlement. As a result, rather than protecting federal funds and programs, § 666, if applied to purely local crimes, should actually cause an increase in the criminal misuse of federal funds; accordingly, it cannot be said that prosecution of local crimes under § 666 is necessary and proper to carry into execution the spending power, and the application of § 666 to Lipscomb on the facts of this case is, accordingly, unconstitutional.
III.
The panel majority errs in deciding the question of venue. The majority teaches that it is better to force the government and defendant to have a biased trial than to inconvenience them with a five-hour drive or a one-hour flight. Because this directly contradicts the plain text of our past precedents, and all common sense, I respectfully dissent.
“The trial court has broad discretion in determining whether a transfer is warranted.”23 “[Ajbsent a showing of illicit motivation, the transfer may be granted.within the trial court’s discretion unless the defendant shows that a transfer would be prejudicial.” Osum, 943 F.2d at 1399. Lipscomb makes two attempts to show prejudice; both are meritless. First, Lipscomb asserts that if he had been tried in Dallas, he would have had more blacks in his jury pool, and black jurors would have been more likely to acquit him, a black defendant. Besides the fact that a criminal defendant has no right to jury or veni-re of “any particular composition,” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); United States v. Sanchez, 508 F.2d 388, 395 (5th Cir.1975), there is a not a hint of an indication that the district court transferred the case to alter the jury pool’s racial composition, see United States v. McKinney, 53 F.3d 664, 673 (5th Cir.1995).
Lipscomb next argues that Amarillo was inconvenient because it “is 300 miles from Dallas,” and the “defendant and all of the witnesses resided in Dallas and every defense attorney practiced there.” This cannot rise to the necessary level of prejudice. We repeatedly have held that so long as the district court has some “valid reason for changing venue,” “travel and lodging expenses for lawyers and witnesses do not constitute prejudice sufficient to overcome a district court’s determination regarding the place of trial.” United States v. Kaufman, 858 F.2d 994, 1006 (5th Cir.1988). In Kaufman, we held that a district court’s concern “that if it held trial in Austin, then [its] docket in Waco would have to be completely ignored” constituted such a valid reason and outweighed the “only minor inconvenience” of a 102 mile transfer. Kaufman, 858 F.2d at 1006. If docket management constitutes a valid reason for *378-394transfer, then surely a court’s conviction that it cannot provide. a fair trial does.
Directly on point is United States v. Alvarado, 647 F.2d 537 (5th Cir. Unit A June 1981). We affirmed a sua sponte decision to transfer a case to a venue 231 miles away based on pretrial publicity. We held that the alleged prejudicial effects of “additional travel and lodging expenses [for the defendants] and their attorneys in addition to the expenses that became necessary in order to subpoena crucial witnesses ... do not rise to the level necessary to prove the trial judge abused his discretion by transferring venue so as to avoid an unfair trial from a great deal of publicity.” Id. at 539.
The majority seems to argue that Lipscomb’s case is different because 300 miles is really far. But Kaufman makes no allowance for distance within a district. What’s more, Kaufman relies on United States v. Fagan, 821 F.2d 1002, 1008 (5th Cir.1987), for its holding. In Fagan, a Fed.R.CRimP. 21 case, we affirmed the refusal to transfer from the Southern District of Texas to the Eastern District of Louisiana. We noted “that holding trial in Houston, rather than Louisiana, made it more disruptive to [the defendant], his witnesses, and his attorney” and may have cost him the representation of a second attorney, but this was not enough to mandate transfer. Id. at 1008. If the 348-mile distance in Fagan was not prejudicial as a matter of law, then the 300 mile distance in this case certainly is not.
Today's holding has the potential to inject great uncertainty into the trial process and actually to increase the number of unfair trials. Luckily, future district courts will not be bound by it. The majority’s venue ruling plainly contradicts Alvarado, and it is well established that “[w]hen two panel opinions appear in conflict, it is the earlier which controls.” Harvey v. Blake, 913 F.2d 226, 228 (5th Cir.1990). But, the fact that today’s holding will not be binding does not make it any less in error.
I respectfully dissent.
. U.S. Const. Art. I, § 8 ("Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defense and general Welfare of the United States....”).
. At least one court has concluded that use of § 666 to prosecute crimes with no federal nexus violates the Dole test's third condition. See United States v. McCormack, 31 F.Supp.2d 176 (D.Mass.1998) (finding the statute uncon-*366slitutional as applied where a defendant had bribed a local police officer to prevent that officer's further investigation into a state crime, where the entity that received federal funds was the officer's employing police department).
. In Oklahoma, the statute at issue placed “Hatch Act” limitations on any officer or employee of any state or local agency whose principal employment was in connection with any activity that was financed in whole or in part by loans or grants made by the federal government. The condition on the state appears to have been that either it would agree to fire any individual who, after an investigation by the federal civil service commission, was found to have violated the statute, or the commission in the future would be authorized to withhold, from the state, an amount equal to twice that employee’s salary. The Dole Court cited Oklahoma as an example of the federal government's conditioning receipt of federal funds on compliance by the recipient with federal statutory and administrative objectives. Dole, 483 U.S. at 206-07, 107 S.Ct. 2793.
. But see United States v. McCormack, 31 F.Supp.2d 176 (D.Mass.1998), which suggests that § 666 is a "condition” statute because the recipient can avoid the statute’s application to its officials by not accepting federal funds of $10,000 or more. The McCormack court argued further that § 666 sets out federal requirements for recipient governments and prescribes negative consequences if those requirements are not followed. I disagree. A mere grant of money cannot be called a condition, and Dole requires not just a condition, but an explicitly stated condition. Section 666 fails this requirement.
.If the Dole test were applicable, it would require a holding that § 666 is unconstitutional as applied, because the third requirement of the Dole test — that "conditions must (among other requirements) bear some relationship to the federal spending,” New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) — is not met. The only relationship the government can manage to muster between Lipscomb's violation of state criminal law and federal spending is that Yellow Cab's taxis sometimes go to a city airport that receives federal dollars for improvements. This connection is so tenuous as to be no connection at all; were it enough to satisfy the Dole test, then "the spending power could render academic the Constitution’s other grants and limits of federal authority.” Id.
. Since the early days of the Republic, the Necessary and Proper Clause has provided justification for laws necessary for the execution of Congressional powers. For example, in McCulloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 4 L.Ed. 579 (1819), the Court held that the enactment of a law establishing a national bank was necessary and proper to carrying into execution the spending power, the commerce power, the taxing power, the power to coin money, and the war power. Chief Justice Marshall described the reach of the clause as follows: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Id.
. Based on this legislative history, the Zwick court concluded that "[t]he goal [of § 666] was to overcome impediments to reaching actions in which there was a federal interest, not to federalize crimes in which a federal interest was lacking.” Zwick, 199 F.3d at 684.
. See Zwick, 199 F.3d at 685 (holding that “nothing in the legislative history suggests that Congress intended to go well beyond the examples in Del Toro, Hinton, and Mosley to make § 666 applicable when no federal interest is implicated by certain offense conduct.”). The Zwick court also noted that ”[a]nother comment in the Senate Report illustrates that an entity's receipt of federal funds does not automatically establish a federal interest in corrupt activity of employees of that entity.” Id. The court quoted the Senate Report: "For example, if a government agency lawfully purchases more than $10,000 in equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from the supplier a Federal crime.” Id. (quoting S. Rep. No. 98-225, at 370, 1984 U.S.C.C.A.N. at 3511).
. Suarez advances the position of neither side in the instant case. There, the panel majority reluctantly upheld the conviction:
Were we writing on a clean slate, I like [the dissent], might well agree that proper application of 18 U.S.C. § 666 requires a minimal nexus between the alleged criminal activity and the federal funding received pursuant to that statute. We are not, however[;j the well established law of this Circuit [binds us].
Suarez, 263 F.3d at 489. In Suarez, only the dissent analyzed the constitutional issue and Supreme Court precedent, and die dissent concluded that the statute was unconstitutional as applied:
To sustain Suarez's conviction would make § 666 a generalized anti-corruption statute under the spending power. The best reading of the Fischer and Salinas cases seems to be that the Supreme Court does not want this interpretation to take hold.
Id. he dissenting judge voted to remand for development of the record on whether there was a nexus between the crime and the federal program.
. Although the court in Zwick seems to have applied a Dole analysis to the issue, the court's reasoning that a federal interest must be present to avoid a constitutional question is persuasive, as well, in analyzing § 666's constitutionality under the Necessary and Proper Clause.
. But see United States v. Jennings, 160 F.3d 1006, 1012 (4th Cir.1998) (interpreting § 666, without examining its constitutionality, to require no nexus between bribes and federal funding); United States v. Dakota, 197 F.3d 821 (6th Cir.1999) (same).
. The court provided examples of attenuated connections that would be sufficient to allow prosecution under § 666:
We can conceive of several ways in which the government could prove a federal interest in a § 666 [sic] in light of this threshold. The amount of federal funds could provide the requisite federal implication, even if the purpose of those funds has no explicit relationship to the subject of the bribe. If, for example, in a given year, the greater part of a township’s budget came from federal funds, bribery of a township agent for any purpose might be said to implicate federal interests. Absent that situation, the offense conduct would have to somehow implicate a particular substantive federal interest, as the Supreme Court found it did in Salinas, where federal funds were being provided to house federal prisoners in local prisons.
Zwick, 199 F.3d at 687.
. See, e.g., United States v. Morrison, 529 U.S. 598, 618 n. 8, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); New York v. United States, 505 U.S. 144, 155, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991).
.As the Court said in United States v. Lopez, 514 U.S. 549, 561 n. 3, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995):
Under our federal system, the " 'states possess primary authority for defining and enforcing the criminal law.’ ” Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)); see also Screws v. United States, 325 U.S. 91, 109, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (plurality opinion) ("Our national government is one of delegated powers alone. Under our federal system, the administration of criminal justice rests with the states except as Congress, acting within the scope of those delegated powers, has created offenses against the United States.”).
. United States v. Enmons, 410 U.S. 396, 411-12, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973) (quoting United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971)).
. See U.S. Const, amend. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
. See also Zwick, 199 F.3d at 686:
If we adopted the government’s interpretation that § 666 requires no connection between the offense conduct and federal funds or programming, § 666 would criminalize a host of corrupt acts committed by state agents, among others, by virtue of the fact that all states receive at least $10,000 in federal funds per year. See McCormack, 31 F.Supp.2d at 186. This result raises significant federalism concerns, turning traditionally local conduct into a matter for federal enforcement involving a substantial extension of federal law enforcement resources.
.For instance, the government may provide funds to put more local police officers on the streets or may reform federal welfare spending in an effort to create incentives for families to stay together.
. Using this reasoning, the government could as easily argue that under the Commerce Clause, conduct may be criminalized wherever it is committed by one who participates in interstate commerce, rather than oniy where there is some link between the conduct and interstate commerce. In fact, this reasoning would allow federal police power under numerous clauses of the Constitution.
. The "highly attenuated implication of a federal interest" that Zwick imagined would provide a "sufficient federal connection” to satisfy the requirements of § 666 was a far less attenuated federal interest than is the one the government asserts here. The Zwick court
conceive[d] of several ways in which the government could prove a federal interest in § 666.... If, for example, in a given year, the greater part of a township's budget came from federal funds, bribery of a township agent for any purpose might be said to implicate federal interests. Absent that situation, the offense conduct would have to somehow implicate a particular substantive federal interest, as the Supreme Court found it did in Salinas, where federal funds were being provided to house federal prisoners in local prisons.
Zwick, 199 F.3d at 687. The court cited further examples, including Santopietro, holding that bribes paid by real estate developers in search of development contracts with city agencies that were overseeing HUD programs met the federal nexus requirement of § 666. Zwick also cited Frega, in which a district court concluded that bribery of state judges did not meet the requisite federal interest, but hypothesized that a sufficient federal connection could exist in different circumstances, such as if the state courts received federal funds for the purpose of appointing habeas counsel and the bribes paid affected the appointment of particular habeas counsel. Id. at 687-88.
Although these indeed are examples of federal connections that are somewhat attenuated, nevertheless the federal interest in each example is plain, as is the necessity of protecting it against corruption so that Congress may properly execute its spending power, free of the danger that federally funded programs will be corrupted and perverted. The same cannot be said of Lipscomb's prosecution, for no federal program was, in any way, affected by his corruption.
. Moreover, this post hoc argument — that the integrity of federal funding at the airport was endangered by Lipscomb's taxicab corruption — was never charged in the indictment or argued to the jury. Instead, the jury instructions merely stated:
It is also not necessary that the $10,000 in federal assistance be directly involved in or traced to the allegedly corrupt acts charged in the Indictment. All that is necessary is that the City of Dallas received in excess of $10,000 from the federal government during a one-year period.
. Santopietro, 166 F.3d at 94 n. 3, also raised this question, but did not answer it: We need not consider whether Santopie-tro's role as mayor — the chief executive officer of the city and hence the officer ultimately responsible for all city departments — would render the statute applicable to corrupt payments received by him for any transaction involving the city, even though the federal funds were received for a program entirely unrelated to the program in connection with which the corrupt payments were made.
. United States v. Osum, 943 F.2d 1394 (5th Cir.1991); accord United States v. Kaufman, 858 F.2d 994, 1006 (5th Cir.1988); United States v. Weddell, 800 F.2d 1404, 1406 (5th Cir.1986).