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'Theft or Bribery': The Circuit Split Over the Federal Nexus Element

By Michael J. Leotta and Jefferson M. Gray

When federal prosecutors encounter corrupt conduct by a state or local official, they may reach for a potentially useful tool ' Congress's attempt to prevent theft or bribery 'concerning programs receiving Federal funds,' 18 U.S.C. ' 666. In applying this statute, however, a federal prosecutor's reach must not exceed Constitutional limits on what Congress may grasp. Defining those limits has proved particularly challenging in recent years, as three circuits have inferred different Constitutional limits on ' 666's enforcement.

A defendant can violate the express terms of ' 666 without ever touching federal property. An agent of a covered entity (defined as an organization; a state, local or tribal government; or any agency thereof) that receives more than $10,000 per year in federal 'benefits' (' 666(b)), commits a federal crime if he embezzles or otherwise steals entity-controlled property (' 666(a)(1)(A)), or solicits a bribe regarding entity business (' 666(a)(1)(B)), that is valued at more than $5,000. An outsider who offers a bribe to an agent of a covered entity in connection with business involving $5000 or more likewise commits a federal crime (' 666(a)(2)).

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