(Don't) Toss a Coin to Your State Rep
(Don't) Toss a Coin to Your State Rep
Eleventh Circuit upholds public corruption convictions despite recent Supreme Court decisions overturning similar prosecutions
In recent years, the Supreme Court (often unanimously) has issued a series of decisions in high-profile cases trimming the scope of federal criminal laws related to public corruption. Most recently, the Court overturned the convictions of two aides to then-New Jersey governor Chris Christie. Federal prosecutors had pursued charges against those aides for their efforts to alter traffic patterns on a bridge into Manhattan to punish one of the governor’s political opponents.
But as the justices have narrowed the scope of two primary federal anticorruption laws—the honest services fraud (18 U.S.C. §§ 1343, 1346) and federal bribery (18 U.S.C. § 201)—prosecutors have begun turning to a different statute: the federal funds bribery law (18 U.S.C. § 666). And last week the Eleventh Circuit issued the latest of several appellate decisions accepting the government’s broad view of that statute.
Don’t Clean Up My Back Yard
This case began with the EPA’s efforts to expand an Alabama Superfund site in Birmingham and add it to the National Priorities List. Adding the sit to the list would allow access to federal funds, but required the EPA to reach an agreement with the Alabama Department of Environmental Management (“ADEM”) under which the state would pay ten percent of the cleanup costs.
Several companies the EPA had named as parties potentially responsible for the pollution at the site—and particularly the Drummond Company—had strong financial motivations to block this efforts. Drummond thus set out to hamper the EPA’s efforts. Its counter-campaign was led by Joel Gilbert, a partner at the law firm Balch & Bingham LLP, and Drummond’s VP of Governmental Affairs, David Roberson.
In February 2015, Gilbert signed a “consulting agreement” between Balch and then-State Representative Oliver Robinson’s charitable foundation in exchange for help running a “community outreach program” opposing the EPA. In exchange for Representative Robinson’s help, Roberson would wire money to the foundation either from Drummond or a shell corporation that collected “hefty annual membership fees” from other industrial companies in the area with an interest in dodging environmental liability.
The “help” Drummond wanted, however, had less to do with public advocacy and more to do with Representative Robinson’s ability to use his official position as a State Representative from the Birmingham area to block the EPA’s cleanup plans. First, Representative Robinson met with the EPA to hawk talking points prepared by Gilbert and Balch opposing the plan, which prompted Roberson to approve $7,000 per month payments to Robinson’s foundation. Then, Representative Robinson spoke against the plan at a public AEMC meeting, after being prepped by Gilbert and Roberson, arguing that finding additional companies (like Drummond) liable for the cleanup would harm the community and that he did not think the science supported the EPA’s plan.
After this second meeting, Representative Robinson sent AEMC a letter requesting information about its Director’s communications with the EPA. Though it was on Alabama legislature letterhead, this letter had been drafted by Gilbert. Robinson later provided the documents he received to Balch and Drummond.
Finally, Representative Robinson helped vote a resolution out of committee stating “that the EPA was operating on the basis of faulty science and was working against ADEM, urg[ing] the EPA to reconsider its actions, and ask[ing] that ADEM and the Alabama Attorney General ‘combat the EPA’s overreach.’” This resolution had, again, been drafted by Gilbert—and it eventually passed both houses of the legislature and was signed by the governor.
Roberson and Gilbert were each charged with, among other things, federal programs bribery under Section 666. At trial, Representative Robinson (who had earlier pleaded guilty to charges against him) testified against them. After Roberson and Gilbert were convicted based on that testimony and other evidence, they appealed, arguing that they had not committed a crime under the Supreme Court’s recent public corruption decisions.
No Official Act, No Problem
In its 2016 McDonnell decision, the Supreme Court overturned a former Virginia governor’s convictions for honest-services fraud based on the government’s failure to prove the governor had accepted bribes in exchange for an “official act.” In doing so, the Court narrowly defined “official act” to include only a “question, matter, cause, suit, proceeding or controversy involving a formal exercise of governmental power.” Simply arranging or attending meetings between lobbyists and government officials was not enough.
Roberson and Gilbert argued that the government similarly failed to prove that Representative Robinson took “official acts” in exchange for their payments in this case. But the panel unanimously rejected this argument.
The problem, the Eleventh Circuit explained, was that—unlike the federal bribery statute (which the McDonnell parties conceded also applied to honest-services fraud prosecutions)—Section 666 does not require proof of an official act to commit federal programs bribery. The phrase does not appear in the text of the statute, which says:
Whoever … corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of … a State, local, or Indian tribal government [which receives more than $10,000 a year from a Federal program], 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 shall be fined under this title, imprisoned not more than 10 years, or both.
The Eleventh Circuit had earlier rejected attempts to graft an official acts requirement onto Section 666. And the only two published opinions from other Circuits—one from the Second Circuit and one from the Sixth Circuit—had likewise refused to do so.
In short, the limitations on “official acts” outlined in McDonnell and Sun-Diamond, an earlier Supreme Court decision related to gifts to a former cabinet official, simply did not apply to Section 666.
Retaining the “Retainer Theory”
Next, Roberson and Gilbert argued that the government’s use of a “retainer theory” of bribery was improper. The panel also rejected that argument.
The “retainer theory” was developed by the Second Circuit and best explained by then-Judge Sotomayor in United States v. Ganim: Under this theory, the quid pro quo in a bribery case could “be satisfied by showing that a public official received a benefit in exchange for his promise to perform official acts or to perform such acts as the opportunities arose.”
In 1991, the Supreme Court held in McCormick v. United States that prosecutors must prove an explicit quid pro quo to obtain bribery convictions based on political contributions or other campaign spending. This, combined with McDonnell’s narrow definition of official acts, undermines the retainer theory because an amorphous promise to perform some acts in the future is not concrete enough to support a bribery theory. (That said, the Second Circuit has said that it survives where the promise is to perform a specific kind of official act in the future.)
But the Eleventh Circuit explained that Roberson and Giblert’s case is distinguishable because it does not involve donations or campaign contributions that would be laden with free speech interests. Moreover, the express quid pro quo requirement does not necessarily apply to Section 666 prosecutions. Thus, the panel held, the retainer theory remains a valid one, at least in non-contribution federal funds prosecutions.
Other Arguments
The panel also quickly rejected a series of additional arguments:
Joining the First and Third Circuits, it held that Representative Robinson was an agent of the state government as a whole, not merely the legislature. So bribing him could support a federal funds conviction.
It explained that there was no requirement that Representative Robinson have actually influenced the decisions of the ADEM or EPA.
It rejected the argument that the district court should have instructed the jury that merely expressing support for a position or action is not an “official act” in connection with honest services fraud charges.
And finally, it rejected Roberson’s argument that, by refusing to sever the trial with Gilbert, the district court effectively deprived him of the ability to present an advice-of-counsel defense.
Conclusion
In short, the Eleventh Circuit’s decision in this case reflects the growing consensus among the Circuits that Section 666 provides broad authority for the federal government to pursue bribery prosecutions against state officials (especially given the ubiquity of federal funding programs). But the Supreme Court has upended similar trends in the past, especially in this area of federal criminal law. It remains to be seen whether the justices will step in again—either in this case or another one.
The case is United States v. Roberson, No. 18-14654
The panel included Judges Wilson, Branch, and Restani (author).
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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