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Supreme Court Overrules the Nexus Requirement in 18 USC ' 666
Several U.S. appellate courts have expressed discomfort with the breadth of 18 U.S.C. ' 666 (“Theft or bribery concerning programs receiving federal funds”) because its literal language makes certain theft and bribery federal crimes even when there is arguably no federal interest. Some circuits construed the statute to require a federal nexus to the wrongdoing, but each circuit that did so adopted a different test. Others refused to limit the statute at all. The Supreme Court last term purported to resolve the circuit split by affirming Congress's power to prohibit the corruption of entities that receive at least $10,000 in federal funds, regardless whether the crime has a federal nexus. United States v. Sabri, 124 S. Ct. 1941 (2004). Sabri rejected the constitutional limits courts had added to the statute, but it did not address the view of some courts that certain words within ' 666 express Congress's intent to limit the statute's reach on grounds of federalism.
What It Says
The statute applies to any entity that receives more than $10,000 per year in federal 'benefits' (' 666(b)), which includes state, local and tribal governments and agencies as well as private organizations. Agents of such entities commit a federal crime if they embezzle or otherwise steal entity property (' 666(a)(1)(A)), or solicit a bribe regarding entity business (' 666(a)(1)(B)), that is valued at more than $5000. An outsider who bribes an agent of a covered entity in connection with business involving $5000 or more likewise commits a federal crime (' 666(a)(2)).
Various courts, opining that every jurisdiction in America receives at least $10,000 in federal benefits, balked at making a federal case out of every $5000 bribery. See, e.g., United States v. Zwick, 199 F.3d 672, 686 (3d Cir. 1999) (' 666, read literally, “would criminalize a host of corrupt acts committed by state agents … turning traditionally local conduct into a matter for federal enforcement involving a substantial extension of federal law enforcement resources.”). The Second Circuit asked, skeptically, whether the federal government could use ' 666 “to prosecute 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?” United States v. Santopietro, 166 F.3d 88, 93 (2d Cir. 1999) (answering no).
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