No. 96-7960 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 BRIGIDO MARMOLEJO, JR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General RICHARD A. FRIEDMAN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether a jailor's receipt of bribes from a federal prisoner in return for allowing conjugal visits at the jail, when the jail received federal funds pursuant to a contract to reimburse the jail for the cost of housing federal prisoners, violates 18 U.S.C. 666 (a) (1) (B). (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT TO THE UNITED STATES OCTOBER TERM, 1996 No. 96-7960 BRIGIDO MARMOLEJO, JR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the court of appeals, as amended (Pet. App. 28a-55a) is reported at 89 F.3d 1185. JURISDICTION The judgment of the court of appeals was entered on July 17, 1996. Pet. App. 28a. A petition for rehearing was denied on August 15, 1996. Pet. App. 78a. The petition for a writ of certiorari was filed on February 20, 1997, and is therefore out of time under this Court's Rule 13.1. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). --------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted on one count of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. 1962 (d); one count of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. 1962 (c); two counts of bribery relating to a program receiving federal funds, in violation of 18 U.S.C. 666 (a) (1) (B); one count of money laundering to conceal the proceeds of specified unlawful activity, in violation of 18 U.S.C. 1956 (a) (1) (B) (i); one count of money laundering to promote specified unlawful activity, in violation of 18 U.S.C. 1956 (a) (1) (A) (i); and one count of traveling in interstate commerce to promote unlawful activity, in violation of 18 U.S.C. 1952 (a) (3). Petitioner was sentenced to 84 months' imprisonment, was fined 20,000, and was ordered to forfeit 151,000. The court of appeals affirmed the convictions and remanded for resentencing. 1. At the relevant times, petitioner was the Sheriff of Hidalgo County, and was responsible for the operation of the Hidalgo County Jail. His co-defendant, Mario Salinas, was the Divisional Chief for Detention of the Hidalgo County Sheriff's Office. The Hidalgo County Jail was constructed and improved with an 850,000 federal grant issued pursuant to a grant contract executed in May 1984, under which the County agreed to ---------------------------------------- Page Break ---------------------------------------- 3 house federal prisoners in the completed facility for the United States Marshals Service. Pet. App. 30a-32a. The agreement between the federal government and the County was authorized by 18 U.S.C. 4002, which establishes a federal program for providing "suitable quarters for the safekeeping, care, and subsistence" of persons held in custody under federal law. As a condition of receiving federal funds for jail construction, the County agreed that it would, from time to time, provide detention space for federal prisoners. A secondary agreement established specific provisions for the County's housing of federal prisoners, including the compensation to be paid to the County. Under that agreement, it was estimated that the federal government would pay the County $915, 000 annually for housing federal prisoners. Pet. App. 31a-32a. The rules of the Hidalgo County Jail did not permit conjugal visits. Family contact visits were limited to 30 minutes and ordinarily took place in the attorney visitation room, the booking area, or the detention squad room; those visits were subject to observation by jail guards. Under jail policy, if an ordinary contact visit became too physically intimate, the jailers would, after a warning, terminate the visit. Gov't C.A. Br. 5-6. 2. Homero Beltran-Aguirre (Beltran) was a federal prisoner housed in the Hidalgo County Jail pursuant to the County's agreement with the Federal government. Beltran was transferred to the Jail on June 7, 1991, and remained there until April 14, ---------------------------------------- Page Break ---------------------------------------- 4 1992, when he was transferred to another federal facility. Beltran returned to the Jail on November 6, 1992, and remained there until April 26, 1993. Pet. App. 28a-29a. In late August or early September 1991, petitioner and Beltran arranged for a series of bribes whereby Beltran would pay to be permitted to have conjugal visits with his wife. Beltran agreed to pay petitioner a fixed rate of 6,000 per month, and also 1,000 for each conjugal visit. The conjugal visits occurred two days a week during the period in which Beltran was incarcerated at the Jail. Several of the visits occurred in petitioner's office; either petitioner or Salinas stood outside while they were taking place. Gov't C.A. Br. 7-8. In January 1992, Beltran instructed his brother-in-law to purchase four pairs of men's and women's Rado watches. The watches cost Beltran approximately 8,500. Beltran gave petitioner and Salinas each a pair of watches, and gave a pair each to two of their associates. Gov't C.A. Br. 9-10. In early 1993, Beltran made arrangements with his brother- in-law to give petitioner 11,000. This money was to cover half of the construction cost of petitioner's daughter's wedding pavilion, which petitioner was building on his ranch. After the completion of the pavilion, the brother-in-law overheard petitioner mention to Salinas that the construction would not have been possible without Beltran's assistance. Gov't C.A. Br. 10. In March 1993, Beltran spoke to petitioner about his desire ---------------------------------------- Page Break ---------------------------------------- 5 to sell a building that he owned, titled in the name of his uncle, that was leased to a produce company. Petitioner offered to act as an intermediary for Beltran in negotiating the possible sale of the property to the lessee, with whom the petitioner was acquainted. Petitioner directed the lessee to make to him a 3,000 rent check. Petitioner kept 2,000 from each of two such rent checks as payment for conjugal visits that had occurred and refunded 1,000 to Beltran's brother-in-law. Gov't C.A. Br. 10- 11. 3. A divided panel of the court of appeals affirmed petitioner's convictions. Pet. App. 28a-55a. Judge Jolly dissented with respect to the bribery convictions. Id. at 50a- 55a. The court first rejected petitioner's contention that his acceptance of bribes did not fall within the reach of 18 U.S.C. 666 because the County Jail had not received "[f]ederal assistance" exceeding 10,000 in a year.1 Petitioner contended ___________________(footnotes) 1 Section 666 (a) (1) (B) punishes anyone who, being an agent of an organization or a state or local governmental agency, corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept anything of value from any person, intending to be influenced or rewarded 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. 18 U.S.C. 666 (a) (1) (B). To be covered by the prohibition, the state or local government or agency must "receive[] 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." 18 U.S.C. 666 (b). ------------------------------------------- Page Break ---------------------------------------- 6 that the federal funds received by the County Jail pursuant to its contract with the federal government to house prisoners were simply contract payments for services rendered, and were not "[f]ederal assistance" within the meaning of the statute. The court noted, however, that the contract to house prisoners was "interrelated" with the federal government's grant of funds to the County for jail construction, since, "[a]s a condition to the receipt of this grant, Hidalgo County Jail had to guarantee that it would provide detention space for federal prisoners." Pet. App. 31a. Accordingly, the court concluded that the grant, agreement and the contract, together, constituted "[f]ederal assistance" or a "[f]ederal program" within the meaning of Section 666 (b). Ibid. The court also concluded that, even with respect to the contract payments alone, petitioner's argument that the funds for housing prisoners were not "[f]ederal assistance" must fail. The court noted that the purpose of Section 666 is to protect the integrity of federal programs for which there is a "specific statutory scheme authorizing the Federal assistance in order to promote or achieve certain policy objectives." Pet. App. 32a (quoting S. Rep. No. 225, 98th Cong., 2d Sess. 370 (1984)). Because the funds provided by the federal government in this case were intended to fulfill the government's policy of providing for the safekeeping and care of prisoners in federal custody, it was irrelevant, the court concluded, that the government received something in return for the assistance it provided to the County. ---------------------------------------- Page Break ---------------------------------------- 7 Pet. App. 32a-33a. The court also rejected petitioner's argument that the operation of the County Jail to allow Beltran to have conjugal visits did not involve "anything of value of 5,000 or more," as required by Section 666 (a) (1) (B). The court noted, first, that under circuit precedent, Section 666 (a) (1) (B) "does not require the government to prove that federal funds were directly involved in a bribery transaction, or that the federal monies funded the corrupt transaction." Pet. App. 33a. It also noted that the term "anything of value" is "broad in scope and contains no language restricting its application to transactions involving money, goods, or services." Id. at 34a. The court therefore concluded that the term includes "transactions involving intangible items, such as the conjugal visits at issue in this case." Ibid. "Because the conduct in this case involves serious acts of bribery by agents of a local government who were carrying out their duties under a Federal program," the court stated, "this case is within the scope of conduct Congress intended to encompass within 18 U.S.C. 666." Id. at 35a-36a. The court noted that "[t]he transactions involved something of value -- conjugal visits Beltran was willing to pay for." Pet. App. 37a. And, because Beltran was willing to pay more than 5,000 to obtain conjugal visits, the court also found no difficulty in concluding that the visits were worth more than 5,000. The court reached that conclusion "in the same way an appraiser would value an asset -- by looking at how much a person ---------------------------------------- Page Break ---------------------------------------- 8 in the market would be willing to pay for [the visits]." Id. at 38a. DISCUSSION Petitioner contends (Pet. 4-8) that 18 U.S.C. 666, which prohibits bribery concerning programs receiving federal funds, reaches only those bribes that actually affect federal funds. That contention is substantially the same as one of the questions presented in Salinas v. United States, No. 96-738, in which this Court granted review on February 24, 1997.2 This case and Salinas arose out of the same set of facts, and the petitioner in this case and the petitioner in Salinas were tried together. Accordingly, the petition in this case should be held for the decision of the Court in Salinas. ___________________(footnotes) 2 The Court granted review on two questions presented in Salinas. The question presented in Salinas that is relevant to this case is as follows (96-738 Pet. I): II. The case against Salinas does not meet the prerequisites for federal prosecution under 18 U.S.C. Section 666 the Federal Bribery Statute because no federal funds were in any manner impinged upon. The case involved bribery from a prisoner in return for contact visits. It had nothing whatsoever to do with the disbursement of or impingement upon federal, or even state or local funds. The question presented here is: What kind of cases involving state employees are subject to prosecution under the Federal Bribery Statute 18 U.S.C. Section 666? Do such cases include cases where no federal funds are disbursed or impinged? The other question on which review was granted in Salinas concerns whether the RICO conspiracy statute requires proof that defendant agreed that he would personally commit two predicate acts of racketeering. That question is not presented by the petition in this case. ---------------------------------------- Page Break ---------------------------------------- 9 CONCLUSION The petition for a writ of certiorari should be held for the decision of the Court in Salinas v. United States, No. 96-738, and then disposed of as appropriate in light of that decision. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General RICHARD A. FRIEDMAN Attorney MARCH 1997