United States v. Zwick ( 1999 )

  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                                  for the Third Circuit
    United States v. Zwick
    Precedential or Non-Precedential:
    Docket 98-3641
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
    Recommended Citation
    "United States v. Zwick" (1999). 1999 Decisions. Paper 323.
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    Filed December 15, 1999
    No. 98-3641
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (Criminal Action No. 97-cr-00182-1)
    (District Judge: The Honorable William L. Standish)
    Argued: July 15, 1999
    Before: ROTH, RENDELL, Circuit Judges, and
    POLLAK,* District Judge
    (Filed December 15, 1999)
           SHELLEY STARK, Esquire
           Office of Federal Public Defender
           960 Penn Avenue
           415 Convention Tower
           Pittsburgh, PA 15222
           Counsel for Appellant
    * Hon. Louis H. Pollak, Senior Judge of the United States District Court
    for the Eastern District of Pennsylvania, sitting by designation.
           Office of U.S. Attorney
           633 U.S. Post Office & Courthouse
           Pittsburgh, PA 15219
           Counsel for Appellee
    RENDELL, Circuit Judge.
    In this appeal, we are asked to construe 18 U.S.C.S 666,
    a criminal provision entitled "Theft or bribery concerning
    programs receiving Federal funds" ("the Act" or "the
    statute"). Appellant James J. Zwick claims that the District
    Court misinterpreted the statute when it upheld his three-
    count conviction for bribery under S 666(a)(1)(B) without
    proof of a connection between the offense conduct and
    federal funds or programming. We conclude that the
    District Court erred in interpreting the statute in this
    respect and will therefore remand for further proceedings
    consistent with this opinion. Zwick also challenges the
    District Court's failure to reduce his offense level by an
    additional point for acceptance of responsibility pursuant to
    U.S.S.G. S 3E1.1(b). Because we find that the District Court
    erred in its application of this Guideline provision, we will
    vacate this aspect of the sentencing order and direct the
    District Court on remand to award the additional one-point
    reduction if it determines that Zwick timely provided
    complete information to the government or timely notified
    the government of his intent to plead guilty to enable the
    government and court to conserve their resources.1
    Appellant James J. Zwick was an elected member of the
    Ross Township Board of Commissioners, the governing
    body of Ross Township, Pennsylvania. Zwick and his fellow
    1. We reject Zwick's remaining challenges to the application of the
    statute to his particular situation, as we discuss more fully below.
    commissioners made policy decisions for the Township,
    including fixing salary levels, executing contracts,
    authorizing bids, and adopting budgets. In November of
    1997, the government accused Zwick of abusing his
    position to obtain illegal benefits and filed afive-count
    indictment charging him with three counts of theft or
    bribery concerning federal programs under 18 U.S.C.S 666,
    one count of mail fraud under 18 U.S.C. SS 2 & 1341, and
    one count of bank fraud under 18 U.S.C. SS 2 & 1344. The
    District Court had jurisdiction over Zwick's case pursuant
    to 18 U.S.C. S 3231.
    Initial efforts at negotiating a guilty plea failed when the
    government declined to accept a conditional plea, which
    would have preserved Zwick's legal challenge to the
    application of S 666 when there is no connection between a
    defendant's conduct and federal funds or programming.
    After declining to accept the plea, the governmentfiled a
    superseding indictment, which contained all of the charges
    in the original indictment, and added another count of theft
    or bribery under S 666, another count of bank fraud, and
    three more counts of mail fraud. Again, Zwick was willing
    to plead guilty to the bank fraud and mail fraud counts,
    but continued to seek a conditional guilty plea on the S 666
    counts. During a status conference on January 27, 1998,
    Zwick informed the District Court of his intention to plead
    guilty to the fraud counts, and the District Court scheduled
    the plea hearing for February 2, 1998. Further plea
    negotiations were derailed, however, when articles appeared
    in the Pittsburgh Post Gazette and North Hills News Record
    on January 28, 1998 and January 29, 1998, declaring that
    Zwick would plead guilty to the fraud charges. Zwickfiled
    a motion with the District Court to dismiss the indictment
    based on prosecutorial misconduct, alleging that, by
    providing information for the articles, the government had
    violated its obligation to refrain from making extrajudicial
    statements regarding the possibility of a guilty plea. The
    District Court denied Zwick's motion. Zwick ultimately
    entered a guilty plea to the fraud counts on March 9, 1998.
    The case against Zwick on the S 666 charges proceeded
    to trial on March 10, 1998, after a brief continuance so that
    Zwick could enter treatment for his gambling addiction.
    Although Zwick waived his right to a jury trial and
    requested a bench trial, the government opposed this
    request, so the case was tried to a jury. Zwick was
    convicted on counts one, two, and three of the four S 666
    Because Zwick makes several challenges to the
    sufficiency of the evidence to support his conviction under
    S 666, we will review the relevant facts adduced at trial
    regarding the alleged bribes. In count one, the government
    alleged that Zwick solicited a bribe from Christopher Kaclik,
    the owner and developer of the Shannopin Square II office
    building located in Ohio Township. Kaclik first became
    associated with Zwick in 1994, when he applied for sewer
    access for the predecessor to Shannopin Square II,
    Shannopin Square I. At that time, Kaclik testified that
    Zwick told him "anything you need to get done in the
    Township of Ross, I can help you out." In May or June of
    1996, during the building of Shannopin Square II, Zwick
    met with Kaclik at the development site and offered to
    secure the necessary votes for approval of the sewer taps in
    exchange for a donation to the "Men's Summer League for
    Ross Township," a basketball league run by Zwick. Kaclik
    wrote a check for $5,000, made out to "James Zwick," with
    a notation reading "Men's Summer League 1996
    Basketball." At Zwick's suggestion, Kaclik also provided
    Zwick with a blank check for $7,500, which Zwick falsely
    represented he would put toward the $17,500 required to
    reserve the sewer taps. When Kaclik discovered that Zwick
    had personally endorsed and cashed the checks, he asked
    that Zwick return the money. After repeated phone calls to
    Zwick, Kaclik received $2,500 from Zwick.
    Count two involved Zwick's dealings with the Fosnights,
    who had obtained an option on property in Zwick's ward in
    Ross Township to build and operate an assisted living
    facility there. To complete their project, the Fosnights were
    required to obtain approval from the Ross Township Board
    of Commissioners for various permits, including a
    conditional use permit and site plan approval. On
    September 9, 1996, after the Township Planning
    Commission had already recommended approval of the
    conditional use permit, the Board of Commissioners voted
    to table the permit for further investigation. After that
    meeting, Zwick contacted Tim Fosnight and set up a
    meeting with him and his brother Aaron at the project site.
    Zwick offered to help them obtain the required permits in
    exchange for a $15,000 donation to construct a playground
    on the grounds of his "pet" project, North Hills Affordable
    Housing ("NHAH"). Zwick explained that he could require
    the Fosnights to pay for a new traffic light and traffic
    studies, which could involve significant costs of up to
    $100,000 and lead to considerable delay, but he would not
    do so if such a "donation" was made.
    The Fosnights made four payments to Zwick totaling
    $10,500. Zwick directed them to make out the first two
    checks to "CSC"2 and "Cash" totaling $4,500. Zwick cashed
    both, and the funds were never received by NHAH. The next
    two checks, totaling $6,000, were made out to NHAH.
    Nonetheless, upon receipt of the funds, Judith Eakin,
    Director of NHAH, wrote Zwick two checks for $6,000 as
    payment for the telephone system Zwick was installing for
    NHAH, the project Zwick told the Fosnights their
    contribution would fund. Two months later, Zwick informed
    Eakin that more money was needed to purchase equipment
    that would complete the telephone system. When Eakin
    told Zwick that NHAH had no additional funds available for
    the telephone system, as no additional funds were in hand,
    Zwick assured Eakin that a further donation would be
    forthcoming from the Fosnights, and that, if the anticipated
    donation were not to be received in timely fashion, Zwick
    would personally guarantee the sum in question. In
    reliance on Zwick's personal guarantee, Eakin was
    authorized by her board president to advance Zwick the
    money required to purchase the equipment. Accordingly, in
    the ensuing two weeks, Eakin issued Zwick two checks
    totaling $7,440 made out to "Jim Zwick" as payment for the
    phone system. Shortly thereafter, Eakin agreed to issue
    Zwick two "replacement" checks for $7,740 when Zwick
    informed her that his accountant said the earlier checks
    should have been issued to his company, Jim Zwick
    Communications Systems, and not to him personally.
    Although Zwick provided Eakin with a check for $7,740 to
    2. CSC is an abbreviation for the name of Zwick's company. App. 427.
    replace the check issued to him personally, when NHAH
    attempted to cash it, it was returned from the bank due to
    an irregular signature. NHAH never received these funds.
    Zwick provided the Fosnights with a traffic study from
    his office so they would not have to finance their own, and
    the Fosnights did not make a contribution to the costs of
    constructing a traffic light. Zwick voted for the approval of
    the Fosnights' conditional use permit. He also moved to
    approve the Fosnights' final site permit but abstained from
    voting on it, explaining that he might put a bid on the
    telephone work for the project and did not want to create
    the appearance of a conflict of interest.
    Count three charged that Zwick had solicited bribes from
    Justin Ruff, the owner of Admiral Lawn Service, when he
    asked Ruff for "performance bonds" in exchange for
    ensuring that Ruff was awarded landscaping contracts with
    Ross Township. Although bonds were required for contracts
    over $10,000, Ross Township commissioners were not
    authorized to solicit or accept them, and certainly not
    entitled to cash them. Performance bonds were supposed to
    be kept in escrow and returned once the project was
    complete. In the summer of 1996, Ruff gave Zwick two
    blank checks for $3,500 in connection with a landscaping
    contract in Denny Park, Ross Township. Although Ruff was
    awarded the contract and performed the work, his checks
    were never returned to him; Zwick had cashed them and
    kept the proceeds. Zwick eventually repaid Ruff after Ruff
    repeatedly asked him to do so. Zwick continued to solicit
    bribes from Ruff in connection with various projects,
    including $4,500 for a $45,000 project that included
    cutting grass and dragging ball fields in Ross Township.
    Ruff repeatedly refused to pay Zwick after becoming aware
    that Zwick's requests violated Ross Township's policy
    regarding performance bonds.
    After he was convicted on the three counts, Zwick filed a
    motion for judgment of acquittal pursuant to Federal Rule
    of Criminal Procedure 29. The District Court denied the
    motion on October 5, 1998. The Probation Office prepared
    a Presentence Investigation Report recommending that
    Zwick be awarded a two-point reduction for acceptance of
    responsibility pursuant to U.S.S.G. S 3E1.1(a). However, the
    Probation Office Report did not recommend awarding the
    extra one-point reduction available under S 3E1.1(b)
    because the government had to prepare for trial on the
    bribery counts. The District Court found that the Probation
    Office's conclusion was a reasonable one "[b]ased on the
    unusual circumstances and procedural posture of this
    case." The District Court also considered that Zwick raised
    factual issues at trial, rather than limiting himself to legal
    arguments. The District Court sentenced Zwick to
    concurrent terms of thirty-three months as to each count,
    to be followed by five years of supervised release. Zwick
    filed the instant appeal. We have jurisdiction pursuant to
    28 U.S.C. S 1291.
    Zwick contends that the evidence as to all three counts
    of his S 666 conviction is insufficient because the
    government failed to prove the existence of any connection
    between his conduct and federal funds or programming.
    Specifically, he argues that S 666 requires such a
    connection, or, alternatively, that the statute is
    unconstitutional as applied to him. We exercise plenary
    review over questions of statutory interpretation. See United
    States v. Hayden, 
    64 F.3d 126
    , 128 (3d Cir. 1995).
    The federal bribery statute at issue, 18 U.S.C.S 666,
    provides in pertinent part:
           S 666. Theft or bribery concerning progr ams
           receiving Federal funds
           (a) Whoever, if the circumstance described in
           subsection (b) of this section exists --
           (1) being an agent of an organization, or of a Sta te,
           local, or Indian tribal government, or any agency
           thereof --
           . . . .
            (B) 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;
            . . . .
           shall be fined under this title, imprisoned not more
           than 10 years, or both.
           (b) The circumstance referred to in subsection (a) of
           this section is that the organization, government, or
           agency receives, 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.
    Prior to the enactment of S 666 in 1984, the limited scope
    of the federal bribery statute and general theft of property
    statute hampered the federal government's efforts to reach
    crimes affecting federal interests due to tracing
    requirements and limitations on application to non-federal
    employees. See 18 U.S.C. SS 201, 641. By its terms, S 666
    fills these particular voids; it imposes no title or tracing
    requirements and covers non-federal employees. The
    government only must prove the basic elements of the S 666
    offense. However, as Zwick's challenge reveals, the law is
    unsettled as to what S 666 requires. In Salinas v. United
    522 U.S. 52
    118 S. Ct. 469
    , 475 (1997), the
    Supreme Court resolved one significant issue, namely, that
    the government need not show federal funds actually were
    involved in or affected by an alleged bribery transaction.
    Yet, the Court specifically left open the question before us,
    that is, to what extent the statute "requires some other
    kind of connection between a bribe and the expenditure of
    federal funds." Id. at 474. We had prior occasion in this
    Circuit to examine the scope of S 666, see United States v.
    938 F.2d 441
    , 444 (3d Cir. 1991), but we have not
    addressed the specific question before us in this case. It is
    instructive to review the approaches taken by federal courts
    that have considered the extent to which S 666 requires a
    relationship between the offense conduct and federal funds
    or programs.
    A. Pre-Salinas
    Prior to Salinas, courts evaluated the requisite
    relationship under S 666 between a corrupt act and federal
    funds or programming from a number of different
    perspectives. Several courts viewed the statute's"plain
    language" as lacking any requirement, either implicitly or
    as an element of the offense, that the government prove
    federal money was directly involved in, or traceable in some
    way to, the corrupt transaction. Bolstering their view was
    the rationale that Congress sought to "cast a broad net" in
    protecting the integrity of agencies receiving federal funds
    and thus enacted S 666 with the specific intent to eliminate
    any tracing requirements that previously had obstructed
    prosecution efforts. See United States v. Westmoreland, 
    841 F.2d 572
    , 576-578 (5th Cir. 1988) (holding that direct
    involvement of federal funds in transaction is not an
    essential element of bribery charge under S 666); see also
    United States v. Pretty, 
    98 F.3d 1213
    , 1218-1219 (10th Cir.
    1996) (finding that the defendant was chargeable under
    S 666 even if actual money could not be traced to a federal
    program); United States v. Paradies, 
    98 F.3d 1266
    , 1288-89
    (11th Cir. 1996) (agreeing with Westmoreland that S 666
    does not require that the government trace the flow of
    federal funds to a particular project); United States v.
    63 F.3d 459
    , 464-65 (6th Cir. 1995) (holding that
    government does not need to prove that the
    misappropriated funds actually came from a federal
    program in a theft case); United States v. Simas, 
    937 F.2d 459
    , 463 (9th Cir. 1991) (concluding that the government
    was not required to trace federal funds to the project at
    issue to establish a S 666 violation).
    Interpreting a different subsection of S 666, others held
    that the program touched by bribery need not be the direct
    and actual recipient of $10,000 per year in federal funds.
    See United States v. Coyne, 
    4 F.3d 100
    , 109-110 (2d Cir.
    1993) (finding that S 666 lacks any requirement that the
    program at issue be the actual recipient of federal funds);
    United States v. Little, 
    889 F.2d 1367
    , 1369 (5th Cir. 1989)
    When asked to uphold convictions or find defendants
    guilty with no proof of a federal interest in the corrupt act,
    however, some courts were reluctant to do so. See United
    States v. Foley, 
    73 F.3d 484
    , 488-493 (2d Cir. 1996)
    (reversing Foley's conviction after government did not prove
    that corruption in some way touched on federal funds);
    United States v. Frega, 
    933 F. Supp. 1536
    , 1540-1541 (S.D.
    Cal. 1996) (dismissing indictment for failure to allege that
    "federal funds were corruptly administered, were in danger
    of being corruptly administered, or even could have been
    corruptly administered."). Courts in this camp expressed
    concern that interpreting S 666 to have no federal interest
    requirement would make a federal offense out of routine
    local bribery, dramatically changing the state-federal
    balance without an express Congressional directive that it
    intended to do so. See Frega, 933 F. Supp. at 1540.
    Courts finding that a federal connection is required were
    comfortable reaching this result even though they agreed
    that S 666 does not require tracing of funds or proof of an
    effect on federal funds and programs. For example, the
    Ninth Circuit's holding in Simas, that tracing is not
    required, did not prevent the District Court for the
    Southern District of California from concluding in Frega
    that S 666 requires a federal connection. Likewise, the
    Court of Appeals for the Second Circuit held thatS 666
    does not require that the corrupt act actually affected
    federal funds in United States v. Bonito, 
    57 F.3d 167
    , 172-
    173 (2d Cir. 1995), but concluded in a subsequent case
    that S 666 does require proof that the corruption has some
    connection with federal funds. See Foley, 73 F.3d at 493. A
    circuit split was created between the Second and Fifth
    Circuits when the Fifth Circuit held that a defendant's
    conduct fell within S 666 without specifically requiring a
    connection between the corrupt act and the federal funds,
    other than the fact that the accepters of the bribes were
    local government agents with duties relating to a federally-
    funded program. See United States v. Marmolejo, 
    89 F.3d 1185
    , 1203 (5th Cir. 1996), aff'd, Salinas v. United States,
    118 S. Ct. at 474.3 Neither Foley nor Marmolejo was a
    3. Marmolejo and Foley also parted ways regarding how to determine
    whether the transactions at issue are equal to or greater than $5,000 in
    unanimous decision.4
    B. Salinas
    On certiorari from the Fifth Circuit's Marmolejo decision,
    the Supreme Court did not resolve the broad question
    before us of whether defendants can be prosecuted under
    S 666 absent a federal interest in the offense conduct, but
    instead addressed the narrower question of whether S 666
    applies only when the bribe has a demonstrated effect on
    federal funds. Salinas, 118 S. Ct. at 472. 5 The Court found
    that the statute's "expansive, unqualified language, both as
    to the bribes forbidden and the entities covered, does not
    support the interpretation that federal funds must be
    affected to violate S 666(a)(1)(B)." Id. at 473. The Court
    acknowledged that it could depart from a statute's clear
    language upon an extraordinary showing of contrary
    intentions in the legislative history. See United States v.
    472 U.S. 675
    , 680 (1985). However, because the
    statute was enacted to expand the application of federal
    bribery provisions to non-federal employees, the Court
    found that it would be "incongruous" to restrict S 666 so
    4. In the Foley dissent, Judge Lumbard argued, in essence, that there is
    no federal connection requirement. Foley 73 F.3d at 494-497 (Lumbard,
    J., dissenting). Rather, the plain language of S 666 simply outlaws bribes
    to agents of organizations that receive federal funds: "It is sufficient
    Foley was an agent of a government that received $10,000 in federal
    funds and that he took a bribe involving something worth at least
    $5,000." Id. at 495. Taking the opposite view in the Marmolejo dissent,
    Judge Jolly endorsed the Second Circuit majority's reasoning in Foley;
    he argued that the Marmolejo majority misinterpreted its earlier decision
    in Westmoreland, on which it relied, and that S 666 was not intended to
    criminalize all acts of bribery involving entities that happened to
    some federal funding. Marmolejo, 89 F.3d at 1201-1204 (Jolly, J.,
    5. Salinas, a deputy sheriff for Hidalgo County, Texas, was convicted
    under S 666 for accepting benefits from a federal prisoner in his custody
    in exchange for allowing the prisoner to have "contact visits" with his
    wife and girlfriend. See Marmolejo, 89 F.3d at 1191. Hidalgo County had
    an agreement with the federal government to house federal prisoners in
    exchange for grants for improving its prison as well as payment per day
    for each federal prisoner housed. Id.
    that it applies only when a demonstrated effect on federal
    funds is shown. Salinas, 118 S. Ct. at 473. Significantly,
    the Court found only that the "text of S 666(a)(1)(B) is
    unambiguous on the point under consideration here." Id. at
    475 [emphasis added]. The Court did not reach a holding
    on whether another kind of federal connection was required
    under S 666, believing that the facts of Salinas' case
    presented a sufficient connection:
           We need not consider whether the statute requires
           some other kind of connection between a bribe and the
           expenditure of federal funds, for in this case the bribe
           was related to the housing of a prisoner in facilities
           paid for in significant part by federal funds themselves.
           And that relationship is close enough to satisfy
           whatever connection the statute might require.
    Id. at 474. The Court accordingly rejected a challenge to the
    constitutionality of the provision, at least as applied to
           Furthermore, there is no serious doubt about the
           constitutionality of S 666(a)(1)(B) as applied to the facts
           of this case. Beltran was without question a prisoner
           held in a jail managed pursuant to a series of
           agreements with the Federal Government. The
           preferential treatment accorded to him was a threat to
           the integrity and proper operation of the federal
           program. Whatever might be said about S 666(a)(1)(B)'s
           application in other cases, the application of
           S 666(a)(1)(B) to Salinas did not extend federal power
           beyond its proper bounds.
    Id. at 475.
    C. Post-Salinas
    Courts clearly have recognized that Salinas left open the
    question of whether S 666 requires that a federal interest be
    implicated by the offense conduct. See United States v.
    188 F.3d 663
     (6th Cir. 1999) (finding that in
    Salinas, "the nature of any necessary connection is left
    unanswered"); United States v. Santopietro, 
    166 F.3d 88
    , 93
    (2d Cir. 1999) (finding that the Supreme Court "was careful
    to note that the statute survived the constitutional as-
    applied challenge because the benefit obtained by means of
    the bribe -- the preferential treatment -- `was a threat to
    the integrity and proper operation of the federal
    program.' "). Therefore, Salinas has not prevented courts
    from reaching conflicting conclusions on whether S 666
    requires proof of a federal interest in the offense conduct.
    The Sixth Circuit held post-Salinas that S 666 does not
    require proof of a connection between the offense conduct
    and federal funds or programming. See Dakota, 188 F.3d at
    668 (finding no connection requirement based on its
    determination in its pre-Salinas decision in Valentine, a
    theft case, and providing no additional case cites or
    reasoning). Taking the opposite view, the Second Circuit
    held that its holding in Foley -- that some federal
    connection was required -- remained good law post-
    Salinas. See Santopietro, 166 F.2d at 93. The District Court
    of Massachusetts determined post-Salinas that S 666 was
    unconstitutional as applied to the defendant in that case,
    reasoning that the conduct at issue was not related to a
    legitimate national problem as required by South Dakota v.
    483 U.S. 203
    , 207-08 (1987) and thus Congress
    exceeded its bounds under the spending clause. See United
    States v. McCormack, 
    31 F. Supp. 2d 176
     (D. Mass. 1998).6
    6. Judge Gertner comprehensively evaluated whether "S 666 give[s]
    federal authorities a blank check to prosecute ostensibly significant acts
    of corruption involving the Malden Police Department just because the
    department receives a certain level of federal funds." Id. at 181. While
    expressing the view that the relevant language inS 666(a)(1)(B), "in
    connection with any business or transaction," is ambiguous and requires
    an examination of legislative history, id. at 186 (citing Foley, 73 F.3d
    490 - 492 and Frega, 933 F. Supp. at 1543), Judge Gertner concluded
    that Salinas foreclosed her from so ruling based on Salinas' holding that
    S 666(a)(1)(B) is clear and unambiguous. McCormack, 31 F. Supp.2d at
    186. Yet, the Court acknowledged that Salinas expressly left open the
    possibility that S 666(a)(1)(B) is unconstitutional as applied to cases
    lack some connection between the corrupt activity and federal funds or
    programming. The Court also found McCormack's prosecution under
    S 666 deficient in another respect relating to the "$5,000 value"
    requirement. Id. at 189.
    Zwick asks us to add our voice to the chorus of opinions
    regarding the need to prove that a federal interest was
    implicated by corrupt acts in a S 666 prosecution. To reach
    our own determination of whether S 666 requires such
    proof, we begin by examining the statutory language itself.
    See Collinsgru v. Palmyra Bd. of Educ., 
    161 F.3d 225
    , 233
    (3d Cir. 1998) (evaluating the Individuals with Disabilities
    Education Act) (citing United States v. Ron Pair Enters., Inc.,
    489 U.S. 235
    Section 666(a)(1)(B) requires proof that a bribe was given
    "in connection with" any business or transaction of an
    agency described in subsection (b), namely those receiving
    funds under certain federal assistance programs. The
    language does not state explicitly that the government must
    show a connection between the bribe and federal interests.
    Yet, the title of S 666, "Theft or bribery concerning
    programs receiving Federal funds," implies that a federal
    connection is anticipated, as does the statute's reference
    only to "agents" of entities receiving federal funds who
    accept bribes "in connection with" the business of the
    organization receiving federal funds.
    The wording of this statute is far from straightforward in
    many respects. Our reading of the statute, and the struggle
    of other courts to construe its meaning, lead us to conclude
    that S 666 can hardly be described as "plain to anyone
    reading the Act." Gregory v. Ashcroft, 
    501 U.S. 452
    , 467
    (1991) (interpreting Federal Age Discrimination in
    Employment Act).7 The only thing plain about the statute is
    that it yields two plausible alternative interpretations on
    the issue raised by Zwick. While noting that the fact
    7. We find that nothing in Salinas prevents us from determining that
    S 666(a)(1)(B) is ambiguous on the issue of whether there is a federal
    connection requirement, thus we disagree with the determination on this
    point reached by the District Court in McCormack. See McCormack, 31
    F. Supp.2d at 186 (finding that "Salinas has shut off this avenue of
    analysis."). Salinas found S 666(a)(1)(B) clear and unambiguous only on
    the question of whether the government must prove that the corrupt
    activity had a demonstrated effect on federal funds or programming.
    Salinas, 118 S. Ct. at 475.
    pattern in Salinas satisfied any federal connection test that
    S 666 might require, the Supreme Court pointedly skirted
    the issue of whether the statute clearly mandated such a
    connection, suggesting that the possibility of more than one
    interpretation is valid. The most literal interpretation --
    that the statute lacks a federal connection requirement --
    is troubling from an interpretative standpoint in that it
    broadens the range of activity criminalized by the statute
    and alters the existing balance of federal and state powers
    by encompassing acts already addressed under state law in
    which the federal government may have little interest. We
    cannot embrace such a broad reading of this federal
    criminal law unless that is the clear directive from
    Congress. Given the statute's ambiguity on this question,
    we will consult the legislative history. See Director, Office of
    Workers' Compensation Programs v. Sun Ship, Inc., 
    150 F.3d 288
    , 291 (3d Cir. 1998); Collinsgru, 161 F.3d at 233.
    Before proceeding further, it is worth reviewing our prior
    analysis of S 666, albeit on a different issue, in United
    States v. Cicco, 938 F.2d at 444. In Cicco , we considered
    whether S 666 is sufficiently broad to cover the solicitation
    of election day services in exchange for municipal
    employment.8 On appeal, we recognized that the statutory
    language could be construed literally to cover Cicco's
    conduct, but found that "the language of the drafters of
    S 666 is also consistent with an intention of focusing solely
    on offenses involving theft or bribery" in a classic sense.
    Cicco, 938 F.2d at 444. Thus, we found that the statute
    was ambiguous and turned to the legislative history. Id.9
    8. The District Court entered a judgment of acquittal in Cicco after
    determining that Congress did not intend S 666 to apply to Cicco's
    actions and that the government's interpretation of the statute was
    unconstitutionally vague and deprived Cicco of fair notice. Id. at 444.
    9. In outlining our approach in Cicco, we stated that examining the reach
    of a federal criminal statute requires close attention to statutory
    language, legislative history, and purpose to strictly determine the scope
    of forbidden conduct. Id. (citing Dowling v. United States, 
    473 U.S. 207
    213 (1985)). We learned through our legislative history review in Cicco
    that Congress enacted S 666 to "protect federal funds by authorizing
    federal prosecution of thefts and embezzlement from programs receiving
    substantial federal support even if the property no longer belonged to the
    federal government . . . [and] to enlarge and clarify the class of persons
    subject to the federal bribery laws" to go beyond only those who can be
    considered federal public officials. Cicco, 938 F.2d at 445 (citations
    As in Cicco, we now face a choice between a highly literal
    interpretation -- that no federal interest requirement is
    specifically set forth in the statute -- and a plausible, albeit
    more contextual, alternative. Thus, as in Cicco, we will refer
    to the legislative history for assistance in determining what
    Congress intended. See Collinsgru, 161 F.3d at 233.10
    The legislative history of S 666 explains that the statute
    was enacted to correct deficiencies in existing law by
    "creat[ing] new offenses to augment the ability of the United
    States to vindicate significant acts of theft, fraud, and
    bribery involving Federal monies that are disbursed to
    private organizations or State and local governments
    pursuant to a Federal program." S. REP. NO. 98-225, 369-
    370 (1984) (emphasis added), reprinted in 1984
    10. Examination of and references to the legislative history are not
    uncommon among the decisions that analyze S 666. The Supreme Court
    in Salinas referred to Congress' intentions in enacting S 666, although it
    did not review or cite Congressional reports directly. See Salinas, 118 S.
    Ct. at 474 (recounting Congress's intent in enactingS 666 based on a
    "chronology [of case law] and the statutory language" and rejecting
    Salinas' interpretation of the legislative history). See also Bonito, 57
    at 172 (citing legislative history noted by Bonito and ultimately
    Bonito's arguments); Valentine, 63 F.3d at 463 (reviewing legislative
    history to determine whether it supported Valentine's argument);
    Westmoreland, 841 F.2d at 576-577 (reviewing legislative history " `as an
    additional tool of analysis' with the recognition that our inquiry will
    result in `a limitation on the plain meaning of the statutory language'
    only under exceptional circumstances") (quoting Garcia v. United States,
    469 U.S. 70
    , 75 (1984)); Frega, 933 F. Supp. at 1542-1543 (reviewing
    legislative history after finding statute ambiguous because interpretation
    not requiring federal connection would alter federal-state balance absent
    a clear Congressional directive). Courts interpreting subsection (b) have
    followed a similar course. See United States v. LaHue, 
    170 F.3d 1026
    1030 (10th Cir. 1999) ("Like other courts that have wrestled with an
    interpretation of section 666(b), we look to the legislative history and
    underlying purpose of the statute for guidance"); United States v.
    143 F.3d 1439
    , 1442 (11th Cir. 1998) (having reached the
    conclusion on a "plain reading of S 666(b), we normally would not engage
    in any additional analysis. However, since some circuits have found
    S 666(b) to be ambiguous on its face, it is worth noting that our
    conclusion is consistent with the statute's legislative history."); Coyne,
    F.3d at 109 (reviewing legislative history regarding whether program at
    issue must be actual recipient of federal funds).
    U.S.C.C.A.N. 3182, 3510-11. A similar expectation is
    reflected in the stated purpose of the statute, described as
    protecting the integrity of vast sums of money distributed
    through Federal programs from theft, fraud, and undue
    influence by bribery. Indeed, the title of the relevant section
    of this portion of the legislative history, "Program Fraud
    and Bribery," suggests that Congress envisioned that a
    federally funded program would be the target or victim of
    the corrupt activity punishable under S 666.
    There is no doubt that the legislative history promotes a
    broad interpretation of the term "Federal program involving
    a grant, a contract, a subsidy, a loan, a guarantee,
    insurance, or another form of Federal assistance" to
    supplement the application of federal bribery and theft
    statutes. S. REP. NO. 98-225, 369-370. However, those gaps
    to be filled by this statute relate to elements in the federal
    bribery and theft statutes that increased the difficulty of
    reaching crimes in which there was a real federal interest.
    Under the theft of federal property statute, 18 U.S.C. S 641,
    the federal government could prosecute only when it could
    establish that the stolen property was property of the
    United States, which often was impossible if title had
    passed before the property was stolen or when federal
    funds were so commingled with non-federal funds that the
    federal character of those funds could not be shown.
    Perhaps more relevant for our purposes was the federal
    bribery statute, 18 U.S.C. S 201, which was construed to be
    inapplicable to some or all employees of private
    organizations receiving federal funds, making it more
    difficult for federal authorities to prosecute bribery even
    when federal interests were at stake. The goal was to
    overcome impediments to reaching actions in which there
    was a federal interest, not to federalize crimes in which a
    federal interest was lacking.
    Not surprisingly, the Senate Report notes that the intent
    of the statute is "to reach thefts and bribery in situations
    of the types involved in the Del Toro, Hinton, and Mosley
    cases cited herein," three cases in which the corrupt
    transaction clearly implicated federal interests. S. REP. No.
    98-225, 369-370. In United States v. Del Toro, 
    513 F.2d 656
    (2d Cir. 1975), the defendants conspired to bribe Pedro
    Morales, the Assistant Administrator of the Harlem-East
    Harlem Model Cities Program, a program that wasfinanced
    and supervised by the United States Department of
    Housing and Urban Development ("HUD"). The federal
    government paid one hundred percent of the cost of the
    program, and eighty percent of its salaries, including
    Morales's salary. Id. at 658, 661. The defendants wanted
    Morales to use his position with the program to secure
    Model Cities an office space lease in a building for which
    one of the defendants was the rental agent. Id. at 658.
    Because Morales was a city employee, and not a federal
    one, however, the Second Circuit Court of Appeals
    concluded that Morales was not a "public official" for
    purposes of S 201: "We do not believe that Morales was
    acting `under or by authority of any such department,
    agency, or branch' of the federal government. He was a city
    employee, carrying out a task delegated to him by his
    superior, another city employee." Id. at 662. Yet, the federal
    interest in Morales' corrupt transaction is apparent: the
    bribed official administered a program significantly funded
    by federal monies and the bribe was related to the program
    administered by the official.
    In the other two decisions cited in the Senate Report, the
    Seventh Circuit determined that non-federal employees
    could be considered "public officials" for purposes of S 201,
    but this decision turned on the fact that the defendants
    exercised considerable discretion in the administration of
    federal funds and the bribery related to the defendant's
    administration of the program, which for our purpose
    suggests that a federal interest clearly was implicated. See
    United States v. Hinton, 
    683 F.2d 195
    , 198-200 (7th Cir.
    1982); United States v. Mosley, 
    659 F.2d 812
    , 816 (7th Cir.
    1981). In Hinton, the defendants were officials of United
    Neighborhoods, Inc., a non-profit corporation that had
    entered into a contract with the City of Peoria to administer
    funds that HUD awarded to Peoria. The defendants had
    discretion in administering the federal funds, and the
    federal funds paid the defendants' salaries and the entire
    cost of the program they administered. Significantly, the
    bribery related to rehabilitation contracts that fell within
    the purview of the program and were paid with federal
    funds. Hinton, 683 F.2d at 196-99.11
    In Mosley, the defendant, an employee of the State of
    Illinois Bureau of Employment Security ("IBES"), was
    convicted of receiving bribes in exchange for giving
    preferential treatment to Comprehensive Employment and
    Training Programs Act ("CETA") applicants when he
    evaluated and referred applicants for CETA-funded jobs.
    Mosley, 659 F.2d at 813. The federal government funded
    the CETA program, the CETA jobs, and all of IBES's costs,
    including Mosley's salary. Id. As in Hinton, the defendants
    could be considered public officials because the program in
    Mosley was funded by the federal government, the
    defendant exercised discretion in the administration of
    federal funds, and the bribery related to the defendant's
    administration of the program. Again, the federal interest is
    The Senate Report's examples of intended S 666 offenses
    involved situations in which the corrupt acts clearly
    implicated a federal interest, as the acts were closely tied to
    the funded programs.12 Another comment in the Senate
    11. In affirming Hinton, the Supreme Court determined that individuals
    employed by private organizations that receive federal funds may be
    covered by S 201, at least if an individual possesses "some degree of
    official responsibility for carrying out a federal program or policy."
    v. United States, 
    465 U.S. 482
    , 499-500 (1984). In limiting the
    parameters of its holding, however, the Supreme Court cautioned:
           By finding petitioners to be public officials within the meaning of
           section 201(a), we do not mean to suggest that the mere presence of
           some federal assistance brings a local jurisdiction and its
           within the jurisdiction of the federal bribery statute or even that
           employees of local organizations responsible for administering
           federal grant programs are public officials within the meaning of
           section 201(a). To be a public official under section 201(a), an
           individual must possess some degree of responsibility for carrying
           out a federal program or policy . . . individuals who work for
           grant recipients and business people who provide recipients with
           goods and services can not be said to be public officials under
           section 201(a) unless they assume some duties of an official
    Id. at 500.
    12. See also LaHue, 170 F.3d at 1031 ("In all three cases [Del Toro,
    Hinton, and Mosley], the organization in question received federal
    Report illustrates that an entity's receipt of federal funds
    does not automatically establish a federal interest in
    corrupt activity of employees of that entity:
           For example, if a government agency lawfully
           purchases more than $10,000 in equipment from a
           supplier, it is not the intent of this section to make a
           theft of $5,000 or more from the supplier a Federal
    S. REP. NO. 98-225, 370. Thus, nothing in the legislative
    history suggests that Congress intended to go well beyond
    the examples in Del Toro, Hinton, and Mosley to make S 666
    applicable when no federal interest is implicated by certain
    offense conduct.
    Not only does the legislative history of S 666 lead us to
    conclude that the statute should be read to incorporate a
    federal interest requirement, but several well-established
    principles of statutory construction dictate this result.
    According to the Supreme Court, ambiguity in the language
    of a criminal statute should be resolved in favor of the
    defendant. See United States v. Bass, 
    404 U.S. 336
    , 347
    (1971) ("In various ways over the years, we have stated that
    `when choice has to be made between two readings of what
    conduct Congress has made a crime, it is appropriate,
    before we choose the harsher alternative, to require that
    Congress should have spoken in language that is clear and
    definite.' ") (quoting United States v. Universal C.I.T. Credit
    344 U.S. 218
    , 221-22 (1952)). Congress has not
    "clearly and definitely" instructed thatS 666 should be
    applied even absent some federal interest in the offense
    conduct. We should refuse the broader reading urged by
    the government and adopt the narrower construction of the
    activity criminalized by this provision. See also LaHue, 170
    F.3d at 1029 (in evaluating another subsection ofS 666,
    "we must exercise particular restraint in interpreting federal
    criminal statutes") (citing Dowling, 473 U.S. at 214).
    program funds as the intended recipient, and each was charged with the
    responsibility for administering or spending the federal grant monies to
    benefit the intended beneficiaries.").
    The Supreme Court also has instructed us that we
    should not interpret a statute in a manner that significantly
    alters the federal-state balance unless Congress has clearly
    indicated that it intended to do so. See Bass, 404 U.S. at
    349 ("In traditionally sensitive areas, such as legislation
    affecting the federal balance, the requirement of clear
    statement assures that the legislature has in fact faced,
    and intended to bring into issue, the critical matters
    involved in the judicial decision."); see also McCormack, 31
    F. Supp.2d at 186-187; Frega, 933 F. Supp. at 1540 (citing
    Bass). If we adopted the government's interpretation that
    S 666 requires no connection between the offense conduct
    and federal funds or programming, S 666 would criminalize
    a host of corrupt acts committed by state agents, among
    others, by virtue of the fact that all states receive at least
    $10,000 in federal funds per year. See McCormack, 31 F.
    Supp.2d at 186. This result raises significant federalism
    concerns, turning traditionally local conduct into a matter
    for federal enforcement involving a substantial extension of
    federal law enforcement resources. See Bass, 404 U.S. at
    350. We will not transform S 666 into a general federal anti-
    corruption statute when Congress has not clearly expressed
    its intention to do so. See McCormack, 31 F. Supp.2d at
    186 (expressing concern about adopting government's
    interpretation); Frega, 933 F. Supp. at 1540. As the
    Supreme Court stated in Bass, "consistent with our regard
    for the sensitive relation between federal and state criminal
    jurisdiction, our reading preserves as an element . . . a
    requirement suited to federal criminal jurisdiction alone."
    404 U.S. at 351.13
    13. In interpreting the illegal gratuity statute, 18 U.S.C. S
    Justice Scalia stated for an unanimous Court that"a statute in this field
    that can linguistically be interpreted to be either a meat axe or a
    should reasonably be taken to be the latter. Absent a text that clearly
    requires it, we ought not expand this one piece of the [illegal gratuity]
    regulatory puzzle so dramatically as to make many other pieces misfits."
    United States v. Sun-Diamond Growers of California, ___ U.S. ___, 119 S.
    Ct. 1402, 1410 (1999) (holding that S 201(c)(1)(A) requires that the
    government prove a link between a thing of value conferred upon a
    public official and a specific official act for or because of which it was
    given). We point out, however, that SS 201 and 666 are not necessarily
    parallel in their applications, so these remarks do not dictate a
    substantive outcome here. See United States v. Jennings, 
    160 F.3d 1006
    1015 fn 4 (4th Cir. 1998) (outlining distinctions between application of
    two provisions but not deciding whether S 666, like S 201, prohibits
    Finally, when a statute is unclear, we will construe it so
    as to avoid constitutional concerns, assuming that such
    construction does not amount to a rewriting of the statute.
    See Albertini, 472 U.S. at 680. InterpretingS 666 to have no
    federal interest requirement produces serious concerns as
    to whether Congress exceeded its power under the
    Spending Clause in enacting this statute. See McCormack,
    31 F. Supp.2d at 187-89.14 To pass muster under the
    Spending Clause, legislation regulating behavior of entities
    receiving federal funds must, among other things, be based
    upon a federal interest in the particular conduct. See South
    Dakota v. Dole, 
    483 U.S. 203
    , 207 (1987). Applying S 666 to
    offense conduct, absent evidence of any federal interest,
    would appear to be an unconstitutional exercise of power
    under the Spending Clause.
    Thus, we hold that S 666 requires that the government
    prove a federal interest is implicated by the defendant's
    offense conduct. In so holding, we part ways with the Sixth
    Circuit's holding in Dakota and agree with the result
    reached by the Second Circuit, as expressed most recently
    in Santopietro, and the District Court for the Southern
    District of California in its pre-Salinas Frega decision.
    Given that the Supreme Court found a sufficient federal
    connection existed in Salinas, we surmise that a highly
    attenuated implication of a federal interest will suffice for
    purposes of S 666.15 We can conceive of several ways in
    which the government could prove a federal interest in a
    S 666 in light of this threshold. The amount of federal funds
    could provide the requisite federal implication, even if the
    purpose of those funds has no explicit relationship to the
    subject of the bribe. If, for example, in a given year, the
    14. According to the Second Circuit, "Salinas may be read to indicate
    that the `threat to the integrity and proper operation of [a] federal
    program' created by the corrupt activity is necessary to assure that the
    statute is not unconstitutionally applied." Santopietro, 166 F3d at 93
    (citing Salinas, 118 S. Ct. at 475).
    15. In Salinas, the Supreme Court found that the federal government's
    interest in the housing of federal prisoners in federally-funded local
    facilities was sufficiently implicated when a prison official accepts
    from a federal prisoner in exchange for permitting the prisoner to have
    conjugal visits. See Salinas, 118 S. Ct. at 474.
    greater part of a township's budget came from federal
    funds, bribery of a township agent for any purpose might
    be said to implicate federal interests. Absent that situation,
    the offense conduct would have to somehow implicate a
    particular substantive federal interest, as the Supreme
    Court found it did in Salinas, where federal funds were
    being provided to house federal prisoners in local prisons.
    Examples from other cases may be illustrative. The
    Second Circuit found a sufficient federal connection in
    Santopietro when real estate developers made corrupt
    payments to defendants to secure defendants' influence
    with city agencies overseeing housing and urban
    development programs that were the beneficiaries of federal
    funds. See Santopietro, 166 F.3d at 93 - 94. The Second
    Circuit concluded that "this is not a case where the
    transactions sought to be influenced concerned one
    department of a city and the requisite $10,000 of federal
    funds were received by a totally unrelated department." Id.
    However, the Court noted that the federal interest
    requirement "would not permit the Government to use
    section 666(a)(1)(B) 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." Id., at 93.
    The District Court in Frega concluded that bribing state
    court judges to influence decisions in certain cases did not
    produce the requisite federal interest when California
    received federal funds for purposes not related to the state
    courts. See Frega, 933 F.Supp. at 1542 - 1543. The Court
    hypothesized, however, that some circumstances involving
    state court judges might produce the requisite federal
    connection, such as if the state court system received
    federal funding for the purpose of appointing counsel in
    death penalty habeas proceedings, and a state court judge
    accepted a bribe in exchange for appointing a particular
    attorney as habeas counsel. See id.
    There was evidence at Zwick's trial revealing that the
    federal funds were provided to Ross Township for
    reimbursement for emergency snow removal and funding of
    a project to prevent stream bank erosion.16 These uses bear
    16. The government presented proof that Ross Township received in
    excess of $10,000 in federal funds in a one-year period from two
    no obvious connection to Zwick's offense conduct, which
    involved sewer access, use permits and landscaping
    performance bonds. However, we will not direct the entry of
    a judgment of acquittal because the District Court ruled
    that S 666 did not require, and thus the government need
    not present proof, that Zwick's conduct implicated a federal
    interest.17 Instead, we will vacate Zwick's conviction and
    remand for a new trial.
    Zwick raises several other challenges to his S 666
    conviction that we find to be without merit. In connection
    with the conduct charged in count one, Zwick argues that
    there was insufficient evidence establishing that he acted
    as an agent of an entity that received the requisite amount
    of federal funds as S 666 requires. Zwick contends that the
    evidence presented at trial shows that Zwick was acting as
    an agent of Lowries Run, not as an agent of Ross Township.
    The government's theory at trial was that Zwick had offered
    to obtain sewer access for Kaclik in his capacity as an
    sources. First, Ross Township applied for federal reimbursement under
    a Presidential Declaration of Major Disaster for costs associated with the
    blizzard of 1996 and consequently received $30,587 in June of 1996
    from the Federal Emergency Management Agency ("FEMA"). The funds
    first flowed through the Pennsylvania Emergency Management Agency
    ("PEMA"), but they were segregated from other Commonwealth funds
    prior to distribution to Ross Township. Second, the United States Army
    Corps of Engineers carried out and funded a $326,200 project, to which
    Ross Township contributed $65,300, to prevent the erosion of a stream
    bank in Ross Township.
    17. At a pretrial conference, counsel discussed with the District Court
    whether S 666 requires a showing of a federal interest in Zwick's
    conduct. Counsel for the government informed the District Court that
    "there are crucial issues as to what would be admissible and arguable at
    trial that turn on what the jury instructions that you issue will be. For
    example, we would need a determination on whether there does or does
    not need, as we maintain, need to be a nexus between the bribe and
    receipt of federal funds by Ross Township." App. 269. In response, the
    District Court stated at least twice that "there doesn't have to be any
    relationship." App. 270, line 9, App. 271, lines 3-4.
    agent of Ross Township, not of Lowries Run, and the
    government did not offer any proof that Lowries Run
    received federal funds. Zwick concludes that his conviction
    on count one should be reversed.
    Under S 666(b), the government must establish that at
    least $10,000 in federal funds within a one-year period
    were received by the entity for which the defendant was
    acting as an agent. A defendant advancing a claim based on
    insufficiency of the evidence carries a heavy burden, as we
    apply a particularly deferential standard in reviewing this
    type of claim. United States v. Dent, 
    149 F.3d 180
    , 187 (3d
    Cir. 1998). We do not weigh the evidence or determine the
    credibility of the witnesses. Id. Rather, viewing the evidence
    in the light most favorable to the government, we will
    sustain the verdict if any rational trier of fact could have
    found the essential elements of the crime beyond a
    reasonable doubt. Id.
    The Lowries Run Sanitary Authority ("Lowries Run") is a
    joint venture between Ross Township and the McCandless
    Township Sanitary Authority; two of the members of its
    governing board are appointed by Ross Township, and two
    are appointed by McCandless Township. Lowries Run board
    members need not be commissioners from Ross Township.
    Zwick was selected as a member of the Lowries Run board,
    but not in his capacity as a Ross Township commissioner.
    Lowries Run operates independently from Ross Township; it
    has its own bank account that is administered by the
    McCandless Sanitary Authority, and money that it receives
    belongs to Lowries Run, not Ross Township.
    At trial, Kaclik testified that he could have applied to
    either Ross Township or Lowries Run for sewer access for
    his project, Shannopin Square II. Kaclik testified further
    that he understood that, in exchange for his money, Zwick
    would influence Ross Township to approve Kaclik's sewer
    access application; although he had the option of tapping
    into either the Ross Township or the Lowries Run sewer
    system, he preferred the Township option because it was
    less expensive. App. 732, 758-59. Thomas D. Lavorini,
    Manager of Ross Township, testified that he believed Kaclik
    approached Ross Township about obtaining access to the
    Ross Township sewer line, and that Lavorini may have had
    a discussion with Zwick about Kaclik's request. App. 658-
    59. Kaclik also testified that Zwick had told him he would
    obtain the necessary Republican and Democratic votes and
    that Zwick cashed Kaclik's check so that the Township
    would not know the source of the money. App. 733, 740-
    41. Both of Zwick's comments suggest Zwick was offering to
    deal with the Township, and not Lowries Run, on Kaclik's
    The substance of Kaclik's testimony suggests that he had
    some confusion regarding the difference between the
    Township and Lowries Run, and there was documentary
    evidence that the only formal application Kaclikfiled was
    with Lowries Run. App. 751-52, 761-62. However,
    assuming a jury found Kaclik and Lavorini credible, this
    evidence is not so compelling that it could have prevented
    a jury from finding, based on the evidence before it, that
    Zwick was acting as an agent of Ross Township during the
    sewer access transactions. Thus, we reject Zwick's
    With respect to count two, Zwick also argues that the
    government failed to establish that Zwick intended to be
    influenced "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."
    See 18 U.S.C. S 666(a)(1)(B) (emphasis added). According to
    Zwick's interpretation of S 666, the transaction or
    transactions must be worth at least $5,000 to Ross
    Township, not to the other entities involved. He also claims
    that the transactions involved in count two were not worth
    $5,000 or more as S 666 requires, but rather worth only
    $700, the cost of the conditional use permit and thefinal
    site plan that Zwick offered to help the Fosnights obtain.
    First, we disagree with Zwick's reading of the statute
    regarding valuation of the $5,000 element. We find that the
    plain language of the statute does not require that value be
    measured from the perspective of the organization,
    government, or agency. See 18 U.S.C. S 666(a)(1)(B)
    (prohibiting bribery "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" (emphasis added)); see also Santopietro, 
    166 F.3d 26
    at 93 ("there is no requirement that the corrupt
    transactions are worth $5,000 or more to the entity
    receiving the federal funds"); United States v. Marmolejo, 
    89 F.3d 1185
     (5th Cir. 1996)18 (finding that the $5,000 value
    element was designed to limit application of S 666 to
    significant corrupt transactions, not to restrict the manner
    in which or the perspective from which that value is to be
    calculated). See also United States v. Apple, 
    927 F. Supp. 1119
    , 1126 (N.D. Ind. 1996) (concluding that the
    government is not required "to show that the thing that
    held value of over $5,000 held that value for" the entity);
    United States v. Vona, 
    842 F. Supp. 1534
    , 1536 (W.D.N.Y.
    1994) (finding that the Act does not require that the
    defendant gain $5,000 or that the victim lose $5,000, but
    that "as long as the overall transaction or the target of the
    bribe is valued at $5,000 or more, the element of the crime
    is satisfied"); United States v. Mongelli, 
    794 F. Supp. 529
    530 (S.D.N.Y. 1992) ("The $5,000 triggering provision
    should thus be interpreted as intended to require that
    substantial matters of that actual value be involved, not
    that the agency be at risk of losing that amount.").19
    Second, we reject Zwick's argument that the transactions
    at issue were worth less than $5,000. Significantly, the
    Fosnights agreed to pay Zwick $15,000 for his assistance,
    which indicates that the value of the transactions was well
    18. In Marmolejo, defendant local officials agreed to provide a prisoner
    with conjugal visits in exchange for $6,000 a month and $1,000 for each
    visit. Id. at 1191. To value the transactions at issue, the Court looked
    "traditional valuation methods," specifically, what a person in the
    marketplace would be willing to pay for the transaction. Id. at 1193.
    19. We also reject Zwick's argument that we should follow the Second
    Circuit in requiring that the value be determined from Ross Township's
    perspective. For this argument, Zwick relies on the Second Circuit's
    ruling in Foley that the transaction must be valued from the perspective
    of the entity receiving the funds. Foley, 73 F.3d at 493. Regardless of
    merits of Zwick's claim, the Second Circuit has since abandoned that
    construction. See Santopietro, 166 F.3d at 93 ("[T]o the extent that Foley
    required the Government to plead and prove that the transaction
    involved something of value to the governmental entity that received the
    requisite amount of federal funds, that narrowing construction of the
    statute must . . . be discarded."). Thus, Zwick's reliance on Foley is
    above $700 and the $5,000 minimum. App. 424 - 425. See
    Marmolejo, 89 F.3d at 1194 (finding that the value of the
    conjugal visits was more than $5,000, because the prisoner
    was willing to pay $6,000 a month plus $1,000 per visit for
    them). There was evidence at trial that the Fosnights would
    have lost the $10,000 they paid to the owners of the
    property had their conditional use permit not been
    approved. App. 420-21, 465. The overall value of the
    Fosnight project was $4.6 million, and Ross Township
    would receive $90,000 in tax benefits from the project on a
    yearly basis, as well as $6,939 in permit fees before the
    project could go forward. App. 439, 442. The Fosnight
    project was clearly a significant transaction within the
    intended reach of the statute. Because we believe that there
    was substantial evidence from which the jury could have
    found that the $5,000 element was satisfied, we reject
    Zwick's challenge to the calculation of value underS 666
    with respect to count two.
    We also are not persuaded by Zwick's argument,
    applicable to all counts, that the District Court improperly
    instructed the jury that the future value of the transaction
    can be taken into account. Zwick cites the Sixth Circuit's
    decision in Valentine that the government could not
    aggregate the values of numerous thefts that occurred over
    a three-year period in order to meet the $5,000 threshold
    under S 666(a)(1)(A), the theft provision. See Valentine, 63
    F.3d at 464. Valentine is simply inapposite. Under the theft
    provision, the stolen property must be worth $5,000, while
    the bribery provision looks to the value of the underlying
    business or transaction. Compare 18 U.S.C.S 666(a)(1)(A)
    (prohibiting theft of "property that . . . is valued at $5,000
    or more") with 18 U.S.C. S 666(a)(1)(B) (prohibiting bribery
    "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"). Further,
    unlike in Valentine, the government in this case did not
    attempt to proffer evidence of the value of transactions or
    business outside of the statutory period in order to satisfy
    the $5,000 threshold. Here, the references to Ross
    Township's future revenues from the transactions were
    actually evidence of their current value. Even without
    reference to future revenues, there is substantial evidence
    establishing that the present value of the transactions and
    business involved in each of counts one, two, and three was
    at least $5,000. The sewer taps that Zwick offered to obtain
    for Kaclik were clearly worth more than $5,000, as Kaclik
    was willing to pay $17,500 to ensure that he received them;
    the contracts that were the subject of the bribery at count
    three were worth $45,000; and the permits in count two
    were worth more than $5,000 to the Fosnights, because, as
    detailed above, they were willing to pay Zwick $15,000 to
    ensure that they received them and would have lost
    $10,000 if they did not receive them in a timely manner.
    Zwick's final contention is that the District Court erred in
    failing to award him an additional point reduction in his
    offense level for acceptance of responsibility pursuant to
    U.S.S.G. S 3E1.1(b). We give great deference to the District
    Court's evaluation of the defendant's acceptance of
    responsibility, but exercise plenary review of the Court's
    construction of S 3E1.1. See United States v. Ceccarani, 
    98 F.3d 126
    , 129 (3d Cir. 1996). We review the District Court's
    determinations of fact for clear error. Id.
    Section 3E1.1 provides:
           (a) If the defendant clearly demonstrates acceptan ce of
           responsibility for this offense, decrease the offense level
           by 2 levels.
           (b) If the defendant qualifies for a decrease un der
           subsection (a), the offense level determined prior to the
           operation of subsection (a) is level 16 or greater, and
           the defendant has assisted authorities in the
           investigation or prosecution of his own misconduct by
           taking one or more the following steps:
           (1) timely providing complete information to the
           government concerning his own involvement in the
           offense; or
           (2) timely notifying authorities of his intention to
           enter a plea of guilty, thereby permitting the
           government to avoid preparing for trial and
           permitting the court to allocate its resources
           decrease the offense level by 1 additional level.
    The District Court awarded Zwick the two-point
    reduction provided in S 3E1.1(a). At issue here is the
    Court's rejection of the one-point reduction under
    S 3E1.1(b). Section 3E1.1(b) focuses on the timeliness of a
    defendant's offer of information or notice of intent to plead
    such that the defendant provides an opportunity to the
    government and court to conserve resources. See U.S.S.G.
    S 3E1.1, App. Note 6 ("For example, to qualify under
    subsection (b)(2), the defendant must have notified
    authorities of his intention to enter a plea of guilty at a
    sufficiently early point in the process . . . ."); United States
    v. Narramore, 
    36 F.3d 845
    , 847 (9th Cir. 1994) ("The
    additional reduction in section (b) with which we are
    concerned, is unlike the initial reduction in section (a), for
    it does not rest upon the demonstration of contrition.
    Section (b) allows the defendant to earn an additional
    reduction by providing timely notice of his intention to
    plead guilty, and it thus creates an incentive for an early
    Parsing section 3E1.1(b), it directs the sentencing judge
    to decrease the offense level by one additional level if 1) the
    defendant is entitled to the two-point reduction under
    S 3E1.1(a); 2) the defendant's offense level is 16 or greater;
    and 3) the defendant satisfies either of the two
    requirements provided in subparagraphs (b)(1) and (b)(2).
    See United States v. Paster, 
    173 F.3d 206
    , 214-15 (3d Cir.
    Zwick clearly satisfied the first two conditions under
    subsection (b), in that he was awarded the two-point
    reduction under S 3E1.1(a), and had an offense level of 22.20
    20. Although the government argues in its brief that "it is difficult if
    impossible, to find acceptance of responsibility in Zwick's pretrial and
    trial conduct," see Brief for Appellee at 53, we limit our discussion to
    whether Zwick satisfied either subparagraph (1) or (2) of S 3E1.1(b)
    because acceptance of responsibility is not the element at issue in this
    appeal and we assume it will be satisfied even after remand. In addition,
    However, the District Court adopted the Probation Office's
    conclusion that Zwick was not entitled to the extra point
    under subsection (b) because the government was required
    to prepare for trial,21 noting also that defendant made
    factual arguments at trial.22
    We believe that the District Court did not fully consider
    the elements of subsection (b). To receive an additional
    reduction for timely providing complete information to the
    government, subparagraph one of S 3E1.1(b) requires that
    the defendant timely provide complete information; it does
    not require, either expressly or impliedly, that the
    defendant actually forego his trial. See S 3E1.1(b)(1)
    (providing for a reduction for a defendant for "timely
    providing complete information to the government
    concerning his own involvement in the offense"). Instead of
    concluding that the one-point deduction was foreclosed
    we also assume that, even after remand, Zwick's offense level will be at
    level 16 or greater as subsection (b) requires. Although Zwick's offense
    level may change if the District Court determines on remand that the
    judgment on the S 666 counts is to be vacated, the offense level for the
    fraud counts alone is 17, which satisfies the second requirement of
    S 3E1.1(b) that Zwick's offense level be 16 or higher.
    21. The Probation Office, in its Presentence Investigative Report ("PSR")
            The defendant entered a guilty plea to Counts 4, 5, 7, 8, 9, and 10
            of the indictment. Ostensibly, he chose to go to trial over the
            remaining counts of the indictment, believing he should not have
            been charged with those offenses in federal court, instead that he
            should have been charged in state court. During the presentence
            interview, he admitted his conduct in all of the charged counts was
            illegal. The government was, therefore, required to prepare for
            in this matter. In view of this, only a two-point reduction for
            acceptance of responsibility is warranted.
    PSR P 75.
    22. Specifically, the District Court noted that the defendant's opening
    statement informed the jury that the government had to prove
    defendant's intent, and that defendant cross-examined Tim Fosnight as
    to the defendant's voting activities at a Ross Township Planning
    Commission hearing on the approval of a conditional use permit for the
    Fosnights' project in an effort to require the government to prove intent.
    simply because the government prepared for trial, the
    District Court should have considered whether Zwick timely
    provided complete information as the Guideline requires.
    Likewise, subparagraph two of S 3E1.1(b) requires that
    the defendant express his notice of intent to plead guilty
    early enough to permit the court and government to
    conserve resources, not that a guilty plea be entered in a
    timely fashion or that the reduction is unavailable if the
    case proceeds to trial. See S 3E1.1(b)(2). Permitting the
    government and court to conserve resources, see WEBSTER'S
    as "[t]o afford opportunity"), is not synonymous with the
    actual conservation of resources. We recognize that other
    courts, such as the Seventh Circuit Court of Appeals,
    require actual conservation of resources as a condition to
    receiving the point deduction under subsection (b)(2). See
    United States v. Wilson, 
    134 F.3d 855
    , 872 (7th Cir. 1998)
    ("courts are still required to consider whether this
    expressed intent actually resulted in conserving
    Government and court resources."). However, we believe
    that our reading is true to the plain language of the
    Guideline and comports with the underlying purpose the
    Guideline serves. This Guideline rewards the defendant's
    willingness to acknowledge responsibility for criminal
    wrongdoing in lieu of requiring all allegations to be proved
    in a trial. As such, the Guideline is triggered by the
    defendant's behavior, not by whether other factors out of
    the defendant's control prevent the acceptance of the
    defendant's plea. Surely the possibility of an extra point
    reduction is not necessarily foreclosed, for instance, by the
    government's rejection of a plea, for whatever reason. The
    government's refusal to accept the plea and to avail itself of
    the opportunity to conserve resources is not a per se
    barrier to the one-point deduction. If the drafters of the
    Guideline intended to limit the award of the point to
    situations in which a plea was entered, or resources were
    actually conserved, they could have crafted the language to
    reflect this intention.
    We recognize that conditional pleas raise unique issues,
    which need to be evaluated on a case-by-case basis. 23 We
    23. See United States v. Rogers, 
    129 F.3d 76
    , 80-81 (2d Cir. 1997)
    (finding that conditional offer to plead guilty did not come early enough
    also acknowledge that it may be a rare case in which
    anything short of a timely entry of a guilty plea suffices for
    purposes of S 3E1.1(b).24 However, because the District
    Court did not fully address, let alone resolve, whether
    Zwick's pre-trial activity entitled him to a reduction under
    the specific terms of S 3E1.1(b), we will remand to the
    District Court for consideration of whether Zwick timely
    provided complete information to the government under
    S 3E1.1(b)(1), or if his expression of his intent to plead
    in the proceedings to satisfy S 3E1.1(b)(2) because it came after the case
    was "effectively tried" with the motion to suppress); United States v.
    19 F.3d 982
    , 983-84 (5th Cir. 1994) (refusing to award an
    additional point because Gonzales never entered an actual guilty plea;
    the suppression hearing to which Gonzales wished to preserve a
    challenge in his guilty plea was the equivalent of a full trial, requiring
    full preparation and expenditure of resources by the government and the
    24. See United States v. Morillo, 
    8 F.3d 864
    , 872 (1st Cir. 1993) ("A
    defendant who withholds a guilty plea until he stands poised on the
    brink of trial has no entitlement to the soothing unguent of section
    3E1.1(b)(2). Therefore, the court below acted appropriately in awarding
    appellant a two-level, rather than a three-level, decrease for acceptance
    of responsibility"); Narramore, 36 F.3d at 846-47 (holding that defendant
    was not entitled to a reduction under S 3E1.1(b)(2) because he could
    have informed government of intention to plead guilty, even though he
    was waiting to actually plead guilty until after the court ruled on his
    motion to suppress); United States v. Villasenor-Cesar, 
    114 F.3d 970
    975 n.4 (9th Cir. 1997) ("Like Narramore, Villasenor-Cesar could have
    preserved the availability of the subsection (b)(2) adjustment if, instead
    of pursuing a stipulated-facts trial, he had notified authorities of his
    intent to plead guilty if the district court ruled against him on his
    to dismiss the indictment."); United States v. Covarrubias, 
    65 F.3d 1362
    1368 (7th Cir. 1995) ("Because defendant made no attempt to conserve
    government and district court resources in his case prior to November 7,
    the district court did not clearly err in denying him the additional
    reduction" when defendant did not plead guilty until the day of trial, and
    did not inform the government that he would be pleading guilty in the
    event that the motion to suppress, which was decided on the morning of
    trial, was denied); United States v. Williams , 
    74 F.3d 654
    , 657 (5th Cir.
    1996) (agreeing with Covarrubias).
    guilty was sufficiently timely under S 3E1.1(b)(2) to permit
    the conservation of government and court resources. 25
    For all of the foregoing reasons, we will remand this
    matter to the District Court for a new trial. We also will
    vacate the District Court's sentencing decision denying the
    additional one-point reduction under S 3E1.1(b), and
    remand to the District Court so that it may determine if
    Zwick is entitled to a reduction under S 3E1.1(b) for timely
    providing information to the government, or timely offering
    notice of intent to plead guilty. We reject Zwick's other
    contentions, and will affirm as to those issues.
    A True Copy:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    25. We also find that the fact that Zwick made legal arguments at trial
    is inapposite with respect to S 3E1.1(b). Application Note two provides
    that a defendant may be entitled to a reduction even if he goes to trial,
    if he does so to "assert and preserve issues that do not relate to factual
    guilt (e.g., to make a constitutional challenge to a statute or a
    to the applicability of a statute to his conduct)." Although the note does
    not explicitly provide that it applies only to S 3E1.1(a), a logical
    of the note compels this conclusion. The note espouses the principle that
    a defendant may in some circumstances show contrition even if he
    proceeds to trial; this has little to do with the timeliness of a
    offer of information or expression of intent to plead guilty, the focus of
    S 3E1.1(b). See Villasenor-Cesar, 114 F.3d at 974. In addition, the note
    is essentially a continuation of Application Note 1, which applies to
    subsection (a).