Fifth Circuit Pulls Back the Reach of 18 U.S.C. ยง 666 As It Relates to Bribery of Local Judges
Long a favorite weapon of federal prosecutors, Section 666 of Title 18 makes it a crime for an agent of a state or local organization or agency to corruptly demand, offer, or accept anything of value of $5,000 or more in connection with any business or transaction of the organization or agency, where the organization or agency receives annual benefits in excess of $10,000 under a federal program. The statute has extended the reach of federal authorities to the lowest levels of municipal government, given the ubiquitousness of federal funding programs.
However, the Fifth Circuit has recently emphasized the limits of that reach. United States v. Whitfield, 2009 WL 4723467 (5th Cir., Dec. 11, 2009). In Whitfield, two Mississippi state judges had been convicted of § 666 violations for accepting bribes from a local attorney with cases pending in their courts. The government focused its proof on the receipt by the Mississippi administrative office of the courts of more than $10,000 in federal funding. Although the statutory element was contested below, the court of appeals further assumed that the two judges, Whitfield and Teel, were agents of that administrative office, since they hired chambers staff paid by that office. But the Fifth Circuit vacated the convictions on the ground that there was no proof that either judge had engaged in "business or transactions" of the administrative office when they ruled in their respective cases. In Mississippi the administrative office of the courts is by statute authorized only to assist in the "nonjudicial" activities of the court system. The appeals court held that their roles as judges presiding over the cases constituted the judicial activity of the Mississippi courts, and were unconnected to the business of the administrative office.
In other states, such as New Jersey, the administrative office of the courts seems more deeply engaged in the actual running of the court system, including the assignment and transfer of judges among courts; this circumstance could cause bribe-driven judicial rulings in such states to fall more comfortably within the reach of § 666, even under Whitfield. Nonetheless, the case helpfully refocuses attention on the statutory requirement that the activity in question must be proven to relate directly to the business of the federally-funded agency. With the Supreme Court possibly poised this term to pull back the extensive reach of the "honest services" mail and wire fraud statute, 18 U.S.C. § 1346, these developments may signal a judicial shift in favor of efforts to halt the relentless creep of federal criminal jurisdiction over purely local matters
