Sabri v. United States

Justice Souter delivered the opinion of the Court.

The question is whether 18 U. S. C. Sec. 666(a)(2), proscribing bribery of state, local, and tribal officials of entities that receive at least $10,000 in federal funds, is a valid exercise of congressional authority under Article I of the Constitution. We hold that it is.

I

Petitioner Basim Omar Sabri is a real estate developer who proposed to build a hotel and retail structure in the city of Minneapolis. Sabri lacked confidence, however, in his ability to adapt to the lawful administration of licensing and zoning laws, and offered three separate bribes to a city councilman, Brian Herron, according to the grand jury indictment that gave rise to this case. At the time the bribes were allegedly offered (between July 2, 2001, and July 17, 2001), Herron served as a member of the Board of Commissioners of the Minneapolis Community Development Agency (MCDA), a public body created by the city council to fund housing and economic development within the city.

The charges were brought under 18 U. S. C. Sec. 666(a)(2), which imposes federal criminal penalties on anyone who
"corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more."

For criminal liability to lie, the statute requires that "the organization, government, or agency receiv[e], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance."

In 2001, the City Council of Minneapolis administered about $29 million in federal funds paid to the city, and in the same period, the MCDA received some $23 million of federal money.

Before trial, Sabri moved to dismiss the indictment on the ground that Sec. 666(a)(2) is unconstitutional on its face for failure to require proof of a connection between the federal funds and the alleged bribe, as an element of liability. The Government responded that "even if an additional nexus between the bribery conduct and the federal funds is required, the evidence in this case will easily meet such a standard" because Sabri's alleged actions related to federal dollars. Although Sabri did not contradict this factual claim, the District Court agreed with him that the law was facially invalid. A divided panel of the Eighth Circuit reversed, holding that there was nothing fatal in the absence of an express requirement to prove some connection between a given bribe and federally pedigreed dollars, and that the statute was constitutional under the Necessary and Proper Clause in serving the objects of the congressional spending power.

II

Sabri raises what he calls a facial challenge to Sec. 666(a)(2): the law can never be applied constitutionally because it fails to require proof of any connection between a bribe or kickback and some federal money. It is fatal, as he sees it, that the statute does not make the link an element of the crime, to be charged in the indictment and demonstrated beyond a reasonable doubt.

We can readily dispose 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. We simply do not presume the unconstitutionality of federal criminal statutes lacking explicit provision of a jurisdictional hook, and there is no occasion even to consider the need for such a requirement where there is no reason to suspect that enforcement of a criminal statute would extend beyond a legitimate interest cognizable under Article I, Sec. 8.

Congress has authority under the Spending Clause to appropriate federal monies to promote the general welfare, and it has corresponding authority under the Necessary and Proper Clause to see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt public officers are derelict about demanding value for dollars. Congress does not have to sit by and accept the risk of operations thwarted by local and state improbity. Section 666(a)(2) addresses the problem at the sources of bribes, by rational means, to safeguard the integrity of the state, local, and tribal recipients of federal dollars.

It is true, just as Sabri says, that not every bribe or kickback offered or paid to agents of governments covered by Sec. 666(b) will be traceably skimmed from specific federal payments, or show up in the guise of a quid pro quo for some dereliction in spending a federal grant. But this possibility portends no enforcement beyond the scope of federal interest, for the reason that corruption does not have to be that limited to affect the federal interest. Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value. Liquidity is not a financial term for nothing; money can be drained off here because a federal grant is pouring in there. And officials are not any the less threatening to the objects behind federal spending just because they may accept general retainers. It is certainly enough that the statutes condition the offense on a threshold amount of federal dollars defining the federal interest, such as that provided here, and on a bribe that goes well beyond liquor and cigars.

For those of us who accept help from legislative history, it is worth noting that the legislative record confirms that Sec. 666(a)(2) is an instance of necessary and proper legislation.

No piling is needed here to show that Congress was within its prerogative to protect spending objects from the menace of local administrators on the take. The power to keep a watchful eye on expenditures and on the reliability of those who use public money is bound up with congressional authority to spend in the first place.

We remand for proceedings consistent with this opinion. The judgment of the Court of Appeals for the Eighth Circuit is Affirmed.


Justice Thomas, concurring in the judgment.

I write further because I find questionable the scope the Court gives to the Necessary and Proper Clause as applied to Congress' authority to spend. In particular, the Court appears to hold that the Necessary and Proper Clause authorizes the exercise of any power that is no more than a "rational means" to effectuate one of Congress' enumerated powers. This conclusion derives from the Court's characterization of the seminal case McCulloch v. Maryland, as having established a "means-ends rationality" test, a characterization that I am not certain is correct.

But the Court did not then conclude that the Necessary and Proper Clause gives unrestricted power to the Federal Government. ("[T]he powers of the government are limited, and ... its limits are not to be transcended"). Rather, it set forth the following test: "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."

"[A]ppropriate" and "plainly adapted" are hardly synonymous with "means-end rationality." Indeed, "plain" means "evident to the mind or senses: OBVIOUS,"

"CLEAR," and "characterized by simplicity: not complicated." A statute can have a "rational" connection to an enumerated power without being obviously or clearly tied to that enumerated power. To show that a statute is "plainly adapted" to a legitimate end, then, one must seemingly show more than that a particular statute is a "rational means," to safeguard that end; rather, it would seem necessary to show some obvious, simple, and direct relation between the statute and the enumerated power.

Under the McCulloch formulation, I have doubts that Sec. 666(a)(2) is a proper use of the Necessary and Proper Clause as applied to Congress' power to spend. All that is necessary for Sec. 666(a)(2) to apply is that the organization, government, or agency in question receives more than $10,000 in federal benefits of any kind, and that an agent of the entity is bribed regarding a substantial transaction of that entity. No connection whatsoever between the corrupt transaction and the federal benefits need be shown.

The Court does a not-wholly-unconvincing job of tying the broad scope of Sec. 666(a)(2) to a federal interest in federal funds and programs. But simply noting that "[m]oney is fungible," for instance, does not explain how there could be any federal interest in "prosecut[ing] 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." It would be difficult to describe the chain of inferences and assumptions in which the Court would have to indulge to connect such a bribe to a federal interest in any federal funds or programs as being "plainly adapted" to their protection. And, this is just one example of many in which any federal interest in protecting federal funds is equally attenuated, and yet the bribe is covered by the expansive language of Sec. 666(a)(2). Overall, then, Sec. 666(a)(2) appears to be no more plainly adapted to protecting federal funds or federally funded programs than a hypothetical federal statute criminalizing fraud of any kind perpetrated on any individual who happens to receive federal welfare benefits.

Because I would decide this case on the Court's Commerce Clause jurisprudence, I do not ultimately decide whether Congress' power to spend combined with the Necessary and Proper Clause could authorize the enactment of Sec. 666(a)(2). But regardless of the particular outcome of this case under the correct test, the Court's approach seems to greatly and improperly expand the reach of Congress' power under the Necessary and Proper Clause. Accordingly, I concur in the judgment.