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Summary of Opinion: United States v. Curley Hines, No. 07-2685 (8th Cir. Sept. 8, 2008)

Factual and Procedural Background

Curley Hines, a deputy sheriff in St. Louis County, Missouri, was tried and convicted by a jury on ten counts of accepting bribes in violation of 18 U.S.C. § 666(a)(1)(B), one count of aiding another deputy to do the same, and one count of conspiracy. Hines's official duties as an execution deputy included enforcing eviction orders and collecting or seizing property in execution of court judgments. The evidence at trial showed a longstanding practice among execution deputies of accepting small cash payments from moving companies and property owners in connection with eviction-related duties; witnesses testified about payments made to Hines over many years and payment practices (e.g., ten percent of invoices, $100 per eviction). The district court sentenced Hines to 33 months' imprisonment. On appeal, Hines raised three principal issues: (1) that § 666 requires a nexus between federal funds and the offense; (2) that the transactions charged did not meet the statute's minimum amount requirement; and (3) that his conspiracy conviction violated Wharton's Rule. The Eighth Circuit affirmed.

Legal Issues Presented

  1. Whether a conviction under 18 U.S.C. § 666 requires proof of a nexus between the federal funds establishing jurisdiction and the activity constituting the offense (nexus requirement).
  2. Whether the evidence and the units of prosecution charged satisfied the statute's minimum jurisdictional amount (the "thing of value" involving $5,000 or more and aggregation of transactions within a count).
  3. Whether the conspiracy conviction violated Wharton's Rule because the alleged agreement was only between the briber and the bribee.

Arguments of the Parties

Appellant's Arguments

  • Hines contended that the government failed to establish a required nexus between federal funds (the jurisdictional basis under § 666(b)) and his alleged bribery activity, and advanced an as-applied challenge: he was not entrusted with disbursements of federal funds, his dealings were purely local, and federal monies given to St. Louis County did not reach his department.
  • He argued that the "thing of value" required by § 666(a)(1)(B) must be worth $5,000 or more to either the briber or the bribee, excluding consideration of money judgments and foreclosed property values, and that the government's indictment used incorrect units of prosecution by aggregating multiple payments within a single count improperly.
  • He argued that his conspiracy conviction violated Wharton's Rule because the agreement was only between the briber and the bribee.

Appellee's (Government's) Arguments

  • The government presented evidence that the jurisdictional amount under 18 U.S.C. § 666(b) was satisfied for each of the years covered by the indictment.
  • The government maintained that the statutory "thing of value" could be assessed with respect to the value of the eviction judgments and their value to the property owners or St. Louis County, and that the evidence demonstrated the $5,000 threshold was met in each charged count.
  • The government argued that § 666 permits aggregation of multiple transactions in a single count when they are part of a single plan or scheme and fall within the statutory time period, and that each count here aggregated transactions that took place in a single day; it also noted that Hines suffered no prejudice from any alleged multiplicity because his sentences run concurrently.
  • Regarding Wharton's Rule, the government argued (implicitly through the court's discussion) that the statute's purpose—protecting the integrity of federal funds—means the immediate consequences of the offense rest on society at large and that the conduct implicated more participants than merely the briber and bribee.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
United States v. Sabri, 326 F.3d 937 Rejected contention that § 666 requires proof of connection with federal money as an element of the offense (Eighth Circuit decision). The court relied on its prior rejection of a similar challenge and cited Sabri to support that § 666 does not require a nexus element beyond the jurisdictional amount.
Sabri v. United States, 541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 Supreme Court affirmed the Eighth Circuit's position that § 666 need not include proof of connection with federal money as an element; Congress's jurisdictional amounts suffice under the Necessary and Proper Clause. The court invoked the Supreme Court's approval of the Eighth Circuit's interpretation to reject Hines's facial and as-applied nexus arguments.
Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 Principle that where a regulated class of activities falls within federal power, courts may not excise individual trivial instances of the class (Commerce Clause context). The court used Raich analogously to support the proposition that courts should not excise individual instances when Congress has regulated a class of activities tied to its authority to protect federal interests.
United States v. Caro-Muniz, 406 F.3d 22 Post-Sabri decision declining to require connection between federal funds and the activity constituting a § 666 violation. Listed as one of several post-Sabri decisions that the court pointed to in support of not requiring such a nexus.
United States v. Kranovich, 401 F.3d 1107 Post-Sabri decision declining to require a connection between federal funds and the conduct charged under § 666. Cited among similar post-Sabri authorities supporting the court's position.
United States v. Spano, 401 F.3d 837 Post-Sabri decision declining to require a connection between federal funds and the substantive activity under § 666. Cited as additional authority consistent with the court's conclusion on the nexus issue.
United States v. Mirikitani, 380 F.3d 1223 Post-Sabri decision declining to require a connection between federal funds and the activity constituting a § 666 violation. Included in the list of post-Sabri cases supporting rejection of a nexus requirement.
United States v. Zimmermann, 509 F.3d 920, 926 Interpreted § 666 to permit consideration of the "thing of value" in relation to interested parties beyond a restricted technical interpretation. The court relied on Zimmermann to reject Hines's contention that valuation must be limited to the briber or bribee, thereby allowing consideration of the value to property owners or the county.
United States v. Cruzado-Laureano, 404 F.3d 470, 484 Permitted aggregation of transactions in the context of § 666 to reach the statutory minimum when part of a single plan or scheme. Cited to support the court's holding that multiple transactions may be aggregated in a single count if part of a single plan or scheme (here, each count aggregated transactions within a single day).
United States v. Yashar, 166 F.3d 873, 876 Authority permitting aggregation in the context of § 666 prosecutions. Used as supporting precedent for allowing aggregation of transactions within a count.
United States v. Valentine, 63 F.3d 459, 466 Permitted aggregation and discussed the one-year period requirement for the series of transactions charged; cited for aggregation and temporal limits. The court cited Valentine for the proposition that series charged must fall within a one-year period during which the agency received $10,000 or more in federal funds.
United States v. Lemons, 941 F.2d 309, 819 Explains that even if multiplicity is waived, a defendant may still object to multiple sentences if they are not concurrent. The court cited Lemons to explain that Hines suffered no prejudice from any alleged multiplicity because his sentences run concurrently, so the imprisonment length was not increased.
Iannelli v. United States, 420 U.S. 770, 781-82, 95 S.Ct. 1284, 43 L.Ed.2d 616 Defines Wharton's Rule and the "general congruence" test for when a conspiracy and the underlying substantive offense merge. The court relied on Iannelli to frame the Wharton's Rule inquiry and to conclude that the rule did not apply because the immediate consequences of § 666 offenses rest on society at large and the conduct implicated more participants.

Court's Reasoning and Analysis

The court's analysis proceeds in three parts corresponding to the issues raised on appeal.

A. Nexus Requirement under § 666

The court observed that § 666(b) supplies a jurisdictional amount (organization, government, or agency receiving benefits in excess of $10,000 under a federal program) and noted that the record showed the jurisdictional amount was satisfied for each year covered by the indictment. It rejected the contention that § 666(a) requires proof, as an element of the offense, of a direct nexus between federal funds and the defendant's activity. The court relied on its prior decision in United States v. Sabri, 326 F.3d 937, and the Supreme Court's affirmance in Sabri v. United States, 541 U.S. 600, which held that Congress's inclusion of jurisdictional amounts creates a sufficient nexus under the Necessary and Proper Clause and that the statute need not require proof of a connection with federal money as an element of the offense. The court characterized Hines's challenge as an as-applied challenge and concluded it failed because the plain language of the statute does not impose a nexus element and because Congress reasonably sought to protect the integrity of federal funds by not forcing prosecutors to prove a potentially impossible-to-trace causal impact on federal monies. The court also cited several post-Sabri decisions that declined to require such a connection.

B. Minimum Jurisdictional Amount and Aggregation

The court set out the statutory language of § 666(a)(1)(B), which criminalizes accepting anything of value intending to be influenced or rewarded in connection with any business, transaction, or series of transactions involving any thing of value of $5,000 or more. It rejected Hines's argument that the "thing of value" must be worth $5,000 to the briber or bribee only, relying on United States v. Zimmermann to permit consideration of the thing's value to other parties with an immediate interest (e.g., property owners or St. Louis County). The court noted the jury instruction identified the judgments or orders of eviction as the transaction and allowed the jury to consider value to the county and private entities. The evidence presented (testimony about daily losses to landlords, property damage, market value loss, and attorneys' testimony) supported the conclusion that each charged eviction transaction met the $5,000 threshold.

On the units-of-prosecution and aggregation issue, the court rejected Hines's claim that the government could not aggregate multiple payments within a single count unless the count included all such charged transactions within the defendant's scheme. The court held that § 666 permits aggregation of multiple transactions in a single count to reach the $5,000 minimum so long as they were part of a single plan or scheme, citing authority that permitted aggregation (Cruzado-Laureano, Yashar, Valentine). It further noted that the series of transactions charged must fall within a one-year period during which the government agency received $10,000 or more in federal funds (citing 18 U.S.C. § 666(d)(5) and Valentine). The court explained that longstanding schemes extending beyond one year may be charged in multiple counts, each satisfying the $5,000 requirement; in this case, each count aggregated transactions occurring in a single day.

Regarding multiplicity, the court declined to address the claim because Hines did not object to the indictment below and because he was not prejudiced—the sentences ran concurrently—so there was no increase in the length of imprisonment (citing Lemons).

C. Wharton's Rule and the Conspiracy Conviction

The court reviewed Hines's Wharton's Rule argument for plain error because he failed to raise it below. It described Wharton's Rule (via Iannelli) as a narrow exception when there is "general congruence" between the conspiracy agreement and the substantive offense—i.e., when the parties to the agreement are the only participants in the substantive offense and the immediate consequences rest on the parties themselves rather than on society. The court concluded Wharton's Rule did not apply: the purpose of § 666 is to protect the integrity of federal funds, meaning the immediate consequences of the proscribed behavior rest on society at large, not merely on the conspirators. The court also found the conduct here to be self-perpetuating, implicating additional entities beyond the two who exchanged money (movers, property owners), and thus posing the kinds of threats to society that the law of conspiracy seeks to avert.

Holding and Implications

Holding: The judgment of the district court is AFFIRMED.

Implications / Direct effect:

  • The Eighth Circuit affirmed Hines's convictions and his 33-month sentence.
  • The court reaffirmed that § 666 does not require proof, as an element of the offense, of a direct nexus between the activity charged and federal funds beyond the statutory jurisdictional amounts, and it cited Sabri and subsequent cases in support of that position.
  • The court held that the $5,000 "thing of value" requirement may be satisfied by considering the value of the transaction to interested parties (e.g., property owners or the county) and that aggregation of multiple transactions within a count is permissible when they are part of a single plan or scheme and fall within the relevant statutory period.
  • The court held Wharton's Rule inapplicable under these circumstances, concluding the offense's consequences implicated society at large and involved more participants than only the briber and bribee.

This decision affirms the convictions and does not announce a novel rule beyond reaffirming the court's and the Supreme Court's interpretations of § 666 as discussed in the opinion.

UNITED STATES of America, Appellee, v. Curley HINES, Appellant.

WOLLMAN, Circuit Judge.

Curley Hines, a deputy sheriff in St. Louis County, Missouri, was convicted on ten counts of accepting bribes in violation of 18 U.S.C. § 666(a)(1)(B), one count of aiding another deputy to do the same, and one count of conspiracy. He was sentenced by the district court to 33 months' imprisonment and now appeals, raising three issues: that a violation of § 666 requires a nexus between the federal funds and the offense charged; that the transactions charged within each count did not reach the minimum amount required under the statute; and that his conspiracy conviction violated Wharton's Rule. We affirm.

The Honorable Rodney W. Sippel, United States District Judge for the Eastern District of Missouri.

I. Background

The jury found that Hines, an execution deputy whose official duties included enforcing court orders of evictions and collecting or seizing property in execution of court judgments, was involved in a longstanding practice among the execution deputies in the St. Louis County Sheriffs Office of accepting small cash payments from various moving companies and property owners for the deputies' performance of their eviction-related duties. The owner of one moving company testified that his business had made payments to Hines for more than twenty years; another testified that his business made payments in the amount of ten percent of his invoice for each eviction. Representatives of a real estate firm testified that the firm paid Hines $100 for each eviction he performed for it. The payments were made to facilitate the deputies' timely and cooperative performance of their duties, which included scheduling the evictions and providing the color of authority at the eviction site.

II. Analysis

Section 666 of Title 18 of the United States Code sets forth the circumstances that must exist to form the basis of a charge of theft or bribery concerning programs receiving federal funds. One of these circumstances is that the organization, government, or agency receive benefits in excess of $10,000 under the federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of federal assistance. 18 U.S.C. § 666(b). The record reveals that the jurisdictional amount was satisfied for each of the years covered by the indictment.

A.

Hines argues that the government failed to establish a nexus between the federal funds establishing jurisdiction under § 666(b) and the activity for which he was indicted under § 666(a). We rejected a similar contention in United States v. Sabri, 326 F.3d 937 (8th Cir. 2003), a position that the Supreme Court affirmed in Sabri v. United States, 541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). Reviewing a facial challenge to § 666 on the basis that it failed to require such a nexus, the Supreme Court "readily dispose[d] of this position that, to qualify as a valid exercise of Article I power, the statute must require proof of connection with federal money as an element of the offense." Sabri, 541 U.S. at 605, 124 S.Ct. 1941. Instead, the Court stated that Congress's inclusion of jurisdictional amounts creates a sufficient nexus to constitute a valid enactment under the Necessary and Proper Clause. Id. at 605-06, 124 S.Ct. 1941.

The facts in Sabri arguably evidenced a connection between federal funds and the defendant's criminal activities, as Sabri had bribed a city councilman who was in a position to administer funds and whose agencies received federal funds. Hines thus raises an as-applied challenge, contesting the rationality of applying § 666 to him in particular. He argues that he was not entrusted with the disbursements of any money, federal or otherwise; his dealings were purely local and could not jeopardize in any significant manner the integrity of federal programs; and the federal monies given to St. Louis County did not reach his department.

Hines's as-applied challenge fails, for the plain language of the statute does not require, as an element to be proved beyond a reasonable doubt, a nexus between the activity that constitutes a violation and federal funds. See Sabri, 326 F.3d at 940-45. The Supreme Court upheld our interpretation of § 666 as Congress's attempt to preserve the integrity of federal funds by lessening the burden of federal prosecutors to prove what may be an impossible-to-trace, but very real, impact of local corruption on federal funds. See Sabri, 541 U.S. at 606-07, 124 S.Ct. 1941. That legitimate purpose and Congress's rational means of achieving it by eschewing a nexus requirement in the offense would be undermined if defendants such as Hines could require the government to establish such a nexus. See Gonzales v. Raich, 545 U.S. 1, 3, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (stating, in the context of legislation enacted pursuant to the Commerce Clause, that "where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class" (internal quotation and alteration omitted)). Thus, we reiterate our position on this issue and also point to those post- Sabri decisions that have declined to require any connection between federal funds and the activity that constitutes a violation of § 666. See, e.g., United States v. Caro-Muniz, 406 F.3d 22 (1st Cir. 2005); United States v. Kranovich, 401 F.3d 1107 (9th Cir. 2005); United States v. Spano, 401 F.3d 837 (7th Cir. 2005); United States v. Mirikitani, 380 F.3d 1223 (9th Cir. 2004).

B.

Hines also argues that the evidence is insufficient to show that the minimum jurisdictional amount required by § 666 was met for each count of his conviction. The relevant language of that statute provides that an agent of a state or local government violates the statute if he

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 any thing of value of $5, 000 or more. . . .

§ 666(a)(1)(B) (emphasis added).

Hines argues that the "thing of value" must be worth $5,000 or more to either the briber or the bribee, and thus the money judgments and foreclosed property values should not be considered in calculating that value. Our decision in United States v. Zimmermann, 509 F.3d 920, 926 (8th Cir. 2007), forecloses that contention. The plain language of the statute does not require a restricted, technical interpretation that would prevent the consideration of the "thing's" value to other parties with an immediate interest in the transaction.

The relevant jury instruction identified the "judgment(s) or order(s) of eviction" as the transaction to be considered and permitted the jury to "consider the value to St. Louis County or to the private entities or individuals or both." The bribery payments were made in order to effectuate Hines's and his colleagues' timely performance of their official duties involving court orders of eviction. The evidence adduced at trial showed that these orders of eviction and their associated money judgments were worth substantial amounts of money to the property owners and landlords to whom they were awarded. One of the property owners involved and at least two lawyers experienced in landlord-tenant issues testified that a landlord or property owner loses a substantial amount in market value, rent and mortgage payments, and/or property damage every day a defaulting tenant or mortgagee is in possession of the property. Thus, those losses grow ever larger in the absence of the timely cooperation of the execution deputies in enforcing the eviction notices obtained as the result of the nonpayment of rental and mortgage obligations. Without recounting the details of the monetary value of the eviction transactions, we agree with the government that its evidence satisfied the $5,000 threshold in each of the charged counts.

For the first time on appeal, Hines argues that the government's indictment failed to use the correct units of prosecution for each count. Specifically, he argues that the government should not be permitted to aggregate multiple payments within a single count unless the count includes all such charged transactions within the defendant's scheme. We reject this contention and hold that § 666 that permits the government to aggregate multiple transactions in single count to reach the $5,000 minimum as long as they were part of a single plan or scheme. See, e.g., United States v. Cruzado-Laureano, 404 F.3d 470, 484 (1st Cir. 2005) (permitting aggregation in the context of § 666(a)(1)(A), the "theft" prong of the statute); United States v. Yashar, 166 F.3d 873, 876 (7th Cir. 1999); United States v. Valentine, 63 F.3d 459, 466 (6th Cir. 1995). The series of transactions so charged must fall within a one-year period wherein the government agency or organization received $10,000 or more in federal funds. See 18 U.S.C. § 666(d)(5); Valentine, 63 F.3d at 463. Significant longstanding schemes that extend for longer than one year, such as the one that took place in the St. Louis County Sheriffs Office, may be charged in multiple counts so long as the $5,000 requirement is met in each one-year time period. In this case, each count aggregated the transactions that took place in a single day.

Although Hines argues that the government's indictment in this case is multiplicitous, and thus arbitrarily divides a single crime into multiple counts, we express no opinion with respect to the issue because Hines failed to object to the indictment and was not prejudiced by any error. The danger of multiplicitous indictments is that the defendant may be exposed to multiple sentences for a single crime. Because Hines's sentences run concurrently, however, the length of his imprisonment was not increased by any multiplicitous convictions. See United States v. Lemons, 941 F.2d 309, 819 (5th Cir. 1991) ("Even if a defendant waives his right to assert a multiplicity claim, he may still object to multiple sentences . . . but only if the sentences are not to be served concurrently." (internal quotations and alterations omitted)).

C.

Hines argues that his conviction for the conspiracy count violates Wharton's Rule because he and the only other party to the agreement were briber and bribee. Because Hines did not raise this argument below, our review of this issue is for plain error only.

We conclude that Wharton's Rule does not apply in this case. Wharton's Rule, which operates as a narrow exception to the general principle that a conspiracy and its underlying substantive offense do not merge, applies when there is a "general congruence of the [conspiracy] agreement and the completed substantive offense." Iannelli v. United States, 420 U.S. 770, 781-82, 95 S.Ct. 1284, 43 L.Ed.2d 616. This "general congruence" exists when "[t]he parties to the agreement are the only persons who participate in commission of the substantive offense, . . . the immediate consequences of the crime rest on the parties themselves rather than on society at large," and when "the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert." Id. at 782-83, 95 S.Ct. 1284. The purpose of § 666, to protect the integrity of federal funds, indicates that "the immediate consequences" of the behavior it proscribes rest on society at large. Furthermore, the behavior implicated in this case was self-perpetuating in the way of a conspiracy and implicated more entities than just those who exchanged money. The underlying offense of bribery was part of a coercive system on the part of the deputies of St. Louis County to implicate movers and property owners who sought to enforce their evictions.

The judgment is affirmed.

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