United States v. Lipscomb ( 2002 )


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  •                   IN THE UNITED STATES COURT OF APPEALS
                              FOR THE FIFTH CIRCUIT
    
                           __________________________
    
                                  No. 00-10461
                           __________________________
    
    
    UNITED STATES OF AMERICA,
    
                                     Plaintiff-Appellee, Cross-Appellant,
    
    versus
    
    
    ALBERT LOUIS LIPSCOMB,
    
                                     Defendant-Appellant, Cross-Appellee.
    
             ___________________________________________________
    
                Appeals from the United States District Court
                      for the Northern District of Texas
    
           ___________________________________________________
                              July 12, 2002
    Before SMITH, DUHÉ, and WIENER, Circuit Judges.
    
    WIENER, Circuit Judge:
    
         Albert Lipscomb, a former member of the Dallas City Council,
    
    appeals his convictions for conspiracy and program bribery, in
    
    violation of 18 U.S.C. § 666 (“§ 666”).           Whether he raises a
    
    constitutional challenge to his convictions, and, if so, how we
    
    should rule on that challenge, are questions that have divided our
    
    panel three ways, as will become clear from our separate writings.
    
    Despite    this     tripartite   fractionation,   however,   different
    
    majorities of the panel conclude that (1) the question of § 666’s
    
    as-applied constitutionality is properly before the panel and
    
    should be addressed; (2) the district court had subject-matter
    jurisdiction of this criminal bribery case against Lipscomb; and
    
    (3) the court abused its discretion in transferring the trial sua
    
    sponte over Lipscomb’s objections.            We therefore reverse his
    
    conviction, vacate his sentence, and remand for a new trial.
    
                                      I. FACTS
    
         Both Lipscomb’s conduct and particular jurisdictional facts
    
    are important to the varying views of the members of this panel.
    
    We therefore recount them in considerable detail.
    
    A.   Lipscomb’s Offense Conduct
    
         Lipscomb served on the Dallas City Council (the “Council”)
    
    from 1984 to 1993 and again from 1995 until 2000.          During his first
    
    period   of   service,   Lipscomb    vigorously       opposed   any    measure
    
    favorable to taxicab companies, including Yellow Cab and Checker
    
    Cab (together, “Yellow Cab”), both owned by his co-conspirator,
    
    Floyd Richards. Lipscomb’s animus against cab companies apparently
    
    was grounded in a belief that cab companies perennially failed to
    
    serve the minority community adequately.
    
         During his second period of service on the Council, however,
    
    Lipscomb demonstrated a considerably kinder disposition toward cab
    
    companies, especially Yellow Cab.            In 1994, during Lipscomb’s
    
    hiatus from the Council, Richards asked Lipscomb to help improve
    
    Yellow Cab’s reputation in the minority community and offered to
    
    pay Lipscomb $1,000 a month in cash for that help.                    Lipscomb
    
    assented to    this   proposal.     Richards    and    Lipscomb   agreed    to
    
    continue this arrangement as long as it was mutually agreeable.
    
                                         2
    All this transpired orally.
    
          Richards continued to make the monthly payments to Lipscomb
    
    after he was re-elected to the Council.         At times, Richards would
    
    receive phone calls from Lipscomb indicating that he needed a
    
    payment, after which Lipscomb would visit Yellow Cab’s office and
    
    receive cash that Richards took from the company safe.           Sometimes
    
    during these meetings, Richards and Lipscomb would discuss taxicab
    
    issues then pending before the Council.           The government alleged
    
    that in addition to making these monthly payments to Lipscomb,
    
    Richards gave Lipscomb free use of cars, free cellular telephone
    
    service, and free cab rides worth more than $3,300.
    
          When Lipscomb ran again, his advisers heard Richards declare
    
    that he was willing to spend up to $30,000 to get Lipscomb elected.
    
    When Richards learned that corporations could not contribute to
    
    campaigns and that individuals could contribute no more than
    
    $1,000, however, he decided to “lend” $20,500 to a business owned
    
    by Lipscomb’s daughter and son-in-law.         That money was intended by
    
    all concerned to help fund Lipscomb’s campaign, and it did so; but
    
    Lipscomb did not report the campaign “loan” or any of the payments
    
    in   his   campaign   finance   reports   or    his   personal   financial
    
    statements.
    
          Richards testified that although he never made the quid pro
    
    quo explicit, he expected that, in return for the monthly payments
    
    and the campaign funding, Lipscomb would cast votes favorable to
    
    Yellow Cab. Richards testified further that he and Lipscomb had an
    
                                        3
    understanding, and that Richards was satisfied that Lipscomb knew
    
    that the payments would stop if he voted the wrong way.
    
         Lipscomb’s support of Yellow Cab went far beyond the casting
    
    of favorable votes at meetings of the Council.   Over time, he and
    
    Richards discussed each of the taxicab issues on which Lipscomb
    
    allegedly was influenced by this bribery: (1) operating authority
    
    and fleet increases, (2) location of dispatch offices, (3) age
    
    limits and inspections, and (4) insurance ratings.    Lipscomb had
    
    opposed Yellow Cab on these issues before 1994, but when he
    
    returned to the Council, he supported that company vigorously and
    
    often.
    
         For example, in 1994 Lipscomb, as a private citizen, had
    
    spoken out against authority for Yellow Cab and two other cab
    
    companies to operate in Dallas.   Once he returned to the council,
    
    though, he supported Yellow Cab’s requests for increases in the
    
    size of its cab fleets.   Yet when cab companies unaffiliated with
    
    Richards sought authority to operate in Dallas, Lipscomb urged that
    
    their applications be removed from the council’s agenda.      When
    
    another cab company’s request for operating authority was taken up
    
    by the council, Lipscomb tried to require a voice vote on the
    
    matter.
    
         Yellow Cab also needed relief from a city ordinance requiring
    
    cab companies to maintain their dispatch offices inside the Dallas
    
    city limits.   After a city staffer learned that Yellow Cab was
    
    violating this policy, she sought to enforce it, but the Council
    
                                      4
    referred the matter to its Transportation Committee.          Even though
    
    Lipscomb did not serve on that committee, he attended its meeting
    
    and browbeat the staffer, going so far as to ask her when she would
    
    retire.   Eventually, with Lipscomb’s encouragement, the Council
    
    permitted cab companies to operate dispatch offices in the Dallas
    
    suburbs, thus legitimating Yellow Cab’s office, the only one in
    
    violation, in which Yellow Cab had invested $15,000.
    
         Because   Yellow   Cab   had   the   newest   fleet   among   the   cab
    
    companies serving Dallas, the City was encouraged by Yellow Cab
    
    energetically to enforce against its competitors the City’s age
    
    limit on vehicles for hire and its requirement that they be
    
    inspected.   In 1992, Lipscomb had favored relaxing both rules, but
    
    in 1996, after he was told by Richards that he wanted stricter
    
    enforcement, Lipscomb began to support age limits on sedan-style
    
    limousines similar to the limits that applied to taxicabs.         He also
    
    sought to remove older shuttles and limousines from service more
    
    quickly, and he opposed the Council’s effort to revisit its earlier
    
    vote —— favorable to Yellow Cab —— to approve stricter age limits.
    
         Lipscomb also acted on Yellow Cab’s behalf with respect to
    
    insurance issues.    Yellow Cab lobbied the Council to require that
    
    the insurance coverage mandated for taxis be written by insurers
    
    with favorable financial ratings.          This proposal proved to be
    
    controversial:      The City’s Director of Human Services, whose
    
    department handled insurance matters, was concerned that a rating
    
    requirement might favor large firms and exclude small businesses
    
                                        5
    owned by minorities or women.   Lipscomb nevertheless sought to put
    
    the rating requirement on the Council’s agenda, and both seconded
    
    and voted for a motion to increase the minimum rating.
    
         In sum, Lipscomb energetically used many of the tools at the
    
    disposal of a Council member —— his vote, his oversight authority,
    
    his agenda-setting power, and his other parliamentary privileges ——
    
    to support policies favorable to Yellow Cab, even though these
    
    policies conflicted with his previous positions.
    
    B.   Jurisdictional Facts
    
         During Lipscomb’s second period of council service, the City,
    
    through many of its agencies and departments, received substantial
    
    federal funds.    In the year ending in September 1996, Dallas
    
    received $44.3 million and spent $48.1 million in federal financial
    
    assistance which funded a wide range of joint priorities: community
    
    development, farmer’s market infrastructure, emergency shelter,
    
    housing, community policing, airport and freeway improvements, arts
    
    development, pollution control, emergency management, interlibrary
    
    cooperation,   child   immunization,   homeless   health   care,   and
    
    substance abuse control, among others.     Federal support in 1996
    
    dwarfed state support, which totaled only $3.7 million received and
    
    $3.1 million spent.    Other years were similar: in 1997, the city
    
    received $54.3 million and spent $53.3 million in federal funds,
    
    but received only $3.0 million and spent $3.8 million in state
    
    funds.
    
         Testimony of the city’s chief financial officer showed that in
    
                                     6
    Dallas’s efforts to obtain and then allocate federal funds, the
    
    Council played an integral role:
    
              Q. And once the City gets the Department of Housing money
         or grant funds, does the City then disburse those funds?
              A. Yes, we do.
              Q. And is the disbursement by approval of a City
         Councilmember or the City Council at large?
              A. If the individual expenditure is greater than $50,000,
         or $15,000 in the case of professional services, it would come
         back to the Council for approval of that specific contract.
              Q. And does that frequently happen?
              A. Yes, uh-huh.
              Q. All right. And, in fact, does the Council have to
         approve, vote for and approve the application to HUD and the
         other agencies of the federal government to get federal money?
              A. Yes. They vote for the application and the acceptance
         of the money.
    
    The Council as a whole thus controlled —— and individual council
    
    members influenced —— the City’s applications for, and receipt and
    
    expenditure of, at least forty million federal dollars each year.
    
                                     II. PROCEEDINGS
    
         The government secured a lengthy indictment against Lipscomb.
    
    Counts 2 through 33 charged him with specific substantive                bribery
    
    violations of § 666(a)(1)(B) and charged Richards with aiding and
    
    abetting those offenses.          Conversely, counts 34 through 65 charged
    
    Richards       with   bribery    violations   of   §   666(a)(2)   and   charged
    
    Lipscomb with aiding and abetting.            Count 1 charged Lipscomb with
    
    conspiring to violate § 666.             Notably, the government did not
    
    charge Lipscomb with the misuse of state or federal funds.
    
         Three weeks before the long-scheduled trial date, the district
    
    court, acting sua sponte, without giving notice to the parties or
    
    holding    a    hearing,   and    over   Lipscomb’s    strenuous   objections,
    
                                             7
    transferred the trial from the Dallas Division of the Northern Dis-
    
    trict of Texas to the Amarillo Division.               Thereafter, Richards
    
    entered into a plea agreement which, among other things, required
    
    him to testify at trial.         The jury convicted Lipscomb on all
    
    counts.       The   district   court       sentenced   him   to   41   months’
    
    imprisonment, imposed a $7,500 fine, and ordered him to pay a
    
    $6,500 special assessment.           The court also directed that the
    
    sentence be served under home confinement because of Lipscomb’s
    
    failing health and advanced age.
    
         Lipscomb appeals his conviction on several grounds.                    The
    
    government    cross-appeals    the     home-confinement      aspect    of   his
    
    sentence.
    
                         III. STATUTORY INTERPRETATION
    
    A.   Lipscomb’s Challenge to the Jurisdictional Reach of § 666
    
         As it stood at the time and now stands, § 666 contains two
    
    monetary thresholds.     Section 666 reads, in principal part:
    
         § 666.    Theft or bribery concerning programs 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
              State, 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;
    
    
                                           8
                   ...
         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.1
    
    Lipscomb insists that we should narrowly construe § 666 to avoid
    
    the constitutional question that arises if we interpret the statute
    
    to prohibit activity not directly related to federal spending or
    
    federally funded programs.     He proposes that we construe the
    
    statute to require a nexus between his offense conduct and federal
    
    funds —— or, put differently, that his conduct implicate a tangible
    
    federal interest.   He also contends that, when so construed, the
    
    statute does not reach his conduct.   Neither contention succeeds.
    
         The phylogeny of § 666 jurisprudence does reflect a growing
    
    tension between two possible focuses of the statute.    One, which
    
    another court has dubbed the “funds focus,” would concentrate on
    
    deterring direct depletion of federal funds; the other, the so-
    
    called “corruption focus,” would combat “the corrupting, public-
    
    trust eroding effects of bribery” and would not require that
    
    federal funds be depleted or misallocated as a direct result of the
    
    bribe.2   Lipscomb’s proposal that we adopt the narrower, funds
    
    focus, however, would require us to ignore our consistently broad
    
         1
          18 U.S.C. § 666 (2000) (emphasis added).
         2
          United States v. Apple, 
    927 F. Supp. 1119
    , 1124 (N.D. Ind.
    1996).
    
                                    9
    interpretation of § 666 as targeting corruption qua corruption.
    
    Furthermore, even if we were to read § 666 and our cases to
    
    construe it narrowly, to superimpose a nexus element, we would
    
    still    conclude     that   there    is    a    sufficient   linkage   between
    
    Lipscomb’s conduct and federal funds to support jurisdiction of
    
    Lipscomb’s case.
    
    B.   Westmoreland and Its Progeny: The Corruption Focus —— No
         Further Nexus Required
    
         We first interpreted § 666 in United States v. Westmoreland.3
    
    The defendant, Westmoreland, was a county supervisor who was
    
    convicted of accepting bribes and kickbacks in connection with the
    
    purchasing    of    supplies   for   the    county’s    highway   construction
    
    projects.4    The county received slightly more than $200,000 in
    
    total federal revenue-sharing funds, of which roughly 15% was
    
    allocated to Westmoreland’s district.5
    
         Westmoreland contended that “the federal revenue sharing funds
    
    received [by her district]...were segregated and not expended for
    
    the types of purchases she made.”6              She therefore argued that the
    
    bribery “concerned only state monies and did not fall within the
    
    purview of the statute.”7            We rejected such a construction as
    
    
         3
            
    841 F.2d 572
     (5th Cir. 1988).
         4
            Id. at 573–75.
         5
            Id. at 575.
         6
            Id.
         7
            Westmoreland, 841 F.2d at 575.
    
                                           10
    contrary to the statute’s text:
    
         Despite Westmoreland’s protestations, we find the
         relevant statutory language plain and unambiguous. By
         the terms of section 666, when a local government agency
         receives an annual benefit of more than $10,000 under a
         federal assistance program, its agents are governed by
         the statute, and an agent violates subsection (b) when he
         engages in the prohibited conduct “in any transaction or
         matter or series of transactions or matters involving
         $5,000 or more concerning the affairs of” the local
         government agency.     18 U.S.C. § 666(b) (Supp. 1984)
         (emphasis added).    Subsection (b) contains nothing to
         indicate that “any transaction involving $5,000” means
         “any federally funded transaction involving $5,000” or
         “any transaction involving $5,000 of federal funds[.]”8
    
    Westmoreland also made the argument that Lipscomb makes here:
    
    “[A]n expansive interpretation [of § 666]...extends federal power
    
    in a manner that, in many instances, the federal interest at stake
    
    does not warrant.”9    The Westmoreland panel responded:
    
         Once Congress has spoken, however, we do not sit to judge
         the wisdom of its action. It is sufficient that Congress
         seeks to preserve the integrity of federal funds by
         assuring the integrity of the organizations or agencies
         that receive them.... [T]he direct involvement of federal
         funds in a transaction is not an essential element of
         bribery under section 666(b); the government need not
         prove that federal monies funded a corrupt transaction.10
    
    Westmoreland thus held that no connection was required between the
    
    federal funds allocated to the county and the supervisor’s illegal
    
    
    
         8
          Id. at 576.
         9
          Id. at 577–78.
         10
          Id. at 578. We noted that “any reference to federal funds
    is conspicuously absent from the operative provisions [of § 666],
    and it is clear that Congress has cast a broad net to encompass
    local officials who may administer federal funds, regardless of
    whether they actually do.” Id. at 577.
    
                                      11
    conduct.     Instead, the only requisite involvement of federal funds
    
    was the county’s receipt of more than $10,000 per year.11
    
         Since     Westmoreland,   we   have   sometimes   applied   its   broad
    
    reading of § 666 unconditionally.         For example, in United States v.
    
    Moeller,12 the government appealed the dismissal of § 666 counts
    
    against employees of the Texas Federal Inspection Service (“TFIS”),
    
    a cooperative venture of the agriculture departments of Texas and
    
    the United States, in which state workers were empowered to conduct
    
    federal inspections.13     Although we said that “there must be some
    
    nexus between the criminal conduct and the agency receiving federal
    
    assistance,” that nexus was purely textual:            It was present when
    
    the Texas Department of Agriculture, a government agency for
    
    purposes of § 666, received more than $10,000 a year in federal
    
    funds, and the defendants, TFIS employees, were agents of that
    
    federally-funded agency.14      Thus Moeller cannot be read to have
    
    imposed the extratextual nexus that Lipscomb urges us to engraft on
    
    § 666.
    
         Some uncertainty seeped into our § 666 jurisprudence as a
    
    
    
    
         11
          Westmoreland, 841 F.2d at 575–76.     The Supreme Court has
    agreed, referring to the $5,000 figure as “the $5,000 threshold for
    the business or transaction in question.”        Salinas v. United
    States, 
    522 U.S. 52
    , 57 (1997).
         12
              
    987 F.2d 1134
     (5th Cir. 1993).
         13
              Id. at 1135.
         14
              Id. at 1137–38 (emphasis added).
    
                                         12
    result of United States v. Marmolejo.15               There, we upheld the
    
    conviction of a county sheriff in Texas who had accepted bribes in
    
    return for permitting conjugal visits to a federal prisoner whom
    
    the State of Texas, in return for a federal per diem fee, housed in
    
    a state prison renovated with federal funds.16 In addressing wheth-
    
    er § 666 gave jurisdiction to prosecute, we noted that “[w]e have
    
    previously held that § 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.”17       Nevertheless, when discussing whether conjugal
    
    visits were “anything of value” under § 666, we stated that
    
         [b]ecause 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, we
         conclude that this case is within the scope of conduct
         Congress intended to encompass with 18 U.S.C. § 666.18
    
    We did not identify whence we derived any limits on the “scope of
    
    conduct Congress intended to encompass.”         The dissent argued that
    
    Westmoreland interpreted § 666 to reach “only those acts of bribery
    
    that could somehow be traced, directly or indirectly, to the
    
    
    
         15
          
    89 F.3d 1185
     (5th Cir. 1996), aff’d sub nom. Salinas v.
    United States, 
    522 U.S. 52
     (1997).
         16
              Marmolejo, 89 F.3d at 1188–89.
         17
              Id. at 1191 (citing Westmoreland, 841 F.2d at 578).
         18
          Marmolejo, 89 F.3d at 1192–93 (emphasis added). See also id.
    at 1193 n.9 (examining legislative history and precedent to
    determine whether defendants’ conduct was behavior that “Congress
    . . . intend[ed] to reach”).
    
                                          13
    integrity of federal program funds.”19           The Supreme Court granted
    
    certiorari     to   address    this   argument   and   affirmed   the   panel
    
    majority’s holding, but beclouded our § 666 jurisprudence in the
    
    process.
    
    C.   The Salinas Speculation and Its Sequellae: The Funds Focus,
         Requiring a Further Nexus
    
         In reviewing Marmolejo, under the caption Salinas v. United
    
    States,20 the Supreme Court asked whether § 666 is “limited to cases
    
    in which the bribe has a demonstrated effect upon federal funds.”21
    
    The Court stated that “[t]he statute’s plain language fails to
    
    provide any basis” for such a limitation and that the legislative
    
    history forecloses it.22       The Court thus agreed with our Marmolejo
    
    holding that federal funds need not be directly involved in a
    
    violation of § 666.23         The Court nonetheless obliquely suggested
    
    
         19
          Id. at 1203 (Jolly, J., dissenting) (emphasis in original).
    “Turning to the precise legislative history, I find that it clearly
    reveals that Congress did not intend for § 666(a)(1)(B) to be
    applied to conduct such as the acceptance of bribes to allow
    conjugal visits.     Instead, Congress was only concerned with
    protecting the federal monies disbursed to non-federal entities.”
    Id.
         20
              
    522 U.S. 52
     (1997).
         21
              Id. at 54.
         22
              Id. at 57, 59.
         23
          Id. at 56–57 (citation omitted and brackets original):
         The enactment’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 § 666(a)(1)(B)....     [T]he statute
         forbids acceptance of a bribe by a covered official who
         intends “to be influenced or rewarded in connection with
    
                                           14
    that there might be obstacles to applying § 666 to different facts:
    
              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.24
    
    Even so, the Court disposed of any constitutional question:
    
              [T]here    is   no    serious   doubt   about    the
         constitutionality of § 666(a)(1)(B) as applied to the
         facts of this case. [The briber] 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 § 666(a)(1)(B)’s application in other
         cases, the application of § 666(a)(1)(B) to Salinas did
         not extend federal power beyond its proper bounds.25
    
         Since Salinas, the Supreme Court has decided only one more
    
    § 666 case: United States v. Fischer,26 which also sent mixed
    
    messages.      Echoing Salinas, the Fischer Court described § 666 as
    
    “expansive, both as to the conduct forbidden and the entities
    
    covered”27 and read the statute to reveal Congress’s “expansive,
    
    
         any business, transaction, or series of transactions of
         [the defined] organization, government or agency.” The
         prohibition is not confined to a business or transaction
         which affects federal funds.     The word “any,” which
         prefaces the business or transaction clause, undercuts
         the attempt to impose this narrowing construction.
         24
              Salinas, 522 U.S. at 59.
         25
              Id. at 60–61 (emphases added).
         26
              Fischer v. United States, 
    529 U.S. 667
     (2000).
         27
          Id. at 678 (internal quotations and brackets omitted) (citing
    Salinas, 522 U.S. at 56).
    
                                         15
    unambiguous      intent    to   ensure        the   integrity     of   organizations
    
    participating in federal assistance programs”28 —— clearly embracing
    
    the   “corruption        focus.”        The    Court       therefore   affirmed   the
    
    conviction of a defendant who had defrauded a municipal hospital
    
    authority that participated in the federal Medicare program.29                     In
    
    so doing, however, the Court once again mentioned in passing a
    
    conceivable constitutional problem:                   To read the statutory term
    
    “benefits” too broadly, the Court cautioned, so as to mean “[a]ny
    
    receipt of federal funds,” could “turn almost every act of fraud or
    
    bribery into a federal offense, upsetting the proper federal
    
    balance.”30      Justice Thomas, joined in dissent by Justice Scalia,
    
    likewise warned that “[w]ithout a jurisdictional provision that
    
    would ensure that in each case the exercise of federal power is
    
    related to the federal interest in a federal program, § 666 would
    
    criminalize      routine    acts    of    fraud       or    bribery”   and   threaten
    
    principles of federalism.31
    
          Although Salinas and Fischer did not unconditionally validate
    
    our view that once a local government accepts more than $10,000 per
    
    year from the federal government, no further federal interest is
    
    needed to justify prosecution under § 666, neither did either of
    
    
          28
               Fischer, 529 U.S. at 678 (emphasis added).
          29
               Id. at 669–70, 681–82.
          30
               Id. at 681.
          31
          Fischer, 529 U.S.            at    690    n.3    (Thomas,    J.,   dissenting)
    (emphasis in original).
    
                                              16
    those cases condemn our broad approach.         The Salinas Court merely
    
    observed in passing that, even if a federal interest were required,
    
    such an interest clearly existed in preventing federal prisoners
    
    from bribing local jail officials participating in a federal
    
    incarceration program.       Similarly, the Fischer Court construed a
    
    term in § 666 broadly, simply musing that federalism principles
    
    might somehow limit the statute’s sweep.         As either a statutory or
    
    constitutional matter, then, the Court might be seen as harboring
    
    inchoate qualms about whether, for § 666 to apply, there might be
    
    some need for a direct interest in the funds involved in the
    
    prohibited conduct (or, alternatively, a need for either a nexus
    
    between the federal dollars and the offense conduct or an extra-
    
    textual jurisdictional element to § 666).           Lipscomb argues this
    
    inference forcefully, noting that Salinas left open the question
    
    whether § 666 “requires some other kind of connection between a
    
    bribe and the expenditure of federal funds.”32               He urges us to
    
    overlook Westmoreland and answer this question in the affirmative.
    
         This, of course, we could not do even if we were so inclined.
    
    Mere ruminations      in   Supreme   Court   opinions   do   not   empower   a
    
    subsequent panel of our court to disregard, much less overrule, the
    
    holding of a prior panel.      And, as we noted just last year, “[w]e
    
    are not convinced that Salinas wrought a change upon our earlier
    
    
    
    
         32
              Salinas, 522 U.S. at 59.
    
                                         17
    precedents.”33    Because Salinas and Fischer went no further than to
    
    advert in dicta to the mere possibility that the argument now
    
    advanced by Lipscomb might someday be favored, we are bound to
    
    adhere to Westmoreland’s statutory holding.34
    
         Likewise, our post-Salinas decisions interpreting § 666 must
    
    be read as adhering to this rule.         Nevertheless, the cautionary
    
    words in Salinas and Fischer, combined with our prior opinions’
    
    silence on the constitutional question, divided the next panel of
    
    this court to interpret § 666.    The panel majority in United States
    
    v. Phillips35 reiterated Moeller’s requirement of a nexus between
    
    the misconduct and the agency (as distinct from a nexus between the
    
    misconduct and the federal funds themselves),36 but added some
    
    extra-textual teeth in holding that defendant Phillips, a tax
    
    assessor, was not an “agent” of Louisiana’s St. Helena Parish,
    
    which received over $10,000 in federal funds, so as to be liable
    
    himself under § 666 for putting on his payroll a political ally who
    
    
    
         33
          United States v. Reyes, 
    239 F.3d 722
    , 735 (5th Cir. 2001),
    cert. denied, 
    121 S. Ct. 156
     (2001) and 
    122 S. Ct. 2618
     (2001).
         34
          Burge v. Parish of St. Tammany, 
    187 F.3d 452
    ,      466 (5th Cir.
    1999) (“It is a firm rule of this circuit that in the    absence of an
    intervening contrary or superseding decision by this     court sitting
    en banc or by the United States Supreme Court, a          panel cannot
    overrule a prior panel’s decision.”).
         35
              
    219 F.3d 404
     (5th Cir. 2000).
         36
          Id. at 413–14 (“[T]here must be some nexus between the
    criminal conduct and the agency receiving federal assistance.”)
    (quoting Moeller, 987 F.2d at 1137) (emphasis original to
    Phillips).
    
                                       18
    then did no work.37           The panel instead viewed Phillips as an agent
    
    of the Louisiana Tax Commission, which received no federal funds,
    
    and    concluded       that    the   statute    did    not     reach   his   activity.
    
    Underlying         this    definitional    question      about    “agent,”    however,
    
    lurked       the     majority’s      concern    that     the     defendant   was    too
    
    functionally distant from the flow of federal funds to the parish:
    
           We know from the Supreme Court’s decision in Salinas that
           the funds in question need not be purely federal, nor
           must the conduct in question have a direct effect on
           federal funds. The statute possibly can reach misuse of
           virtually all funds of an agency that administers the
           federal program in question. It is a different matter
           altogether, however, to suggest that the statute can
           reach any government employee who misappropriates purely
           local funds, without regard to how organizationally
           removed the employee is from the particular agency that
           administers the federal program.38
    
    We acknowledge that it is at least arguable, albeit tenuously, that
    
    this        “organizationally          removed”       language      conflicts       with
    
    Westmoreland         and    Moeller,    even    though    the     Phillips    majority
    
    purported       to    distinguish      those    two    cases    factually,    and   the
    
    Phillips panel may be perceived as having favored the “funds focus”
    
    
           37
                Phillips, 219 F.3d at 407–08, 411–15.
           38
          Id. at 411 (citations omitted and emphasis added). To the
    panel majority, the legislative history of § 666 revealed
    “Congress’ concern with a defendant’s ability to administer or
    control the federal funds provided to a particular agency,” id. at
    411 n.7, and Fischer counseled that “the fraud must have the
    potential to affect the identified federal funds or program,” id.
    at 412 n.13. But in the “absence of evidence that connects the
    assessor’s office to control or expenditure of any funds of the
    parish,” id. at 411 n.9, prosecuting under § 666 “advances no
    federal interest in safeguarding a particular federal program,” id.
    at 414.
    
                                               19
    for § 666.      To the extent that there is a conflict, however, the
    
    older case controls, as the Phillips dissenter correctly noted.39
    
         Only     by   interpreting      “agent”     narrowly   was    the    Phillips
    
    majority able to avoid the constitutional question.40                 The Phillips
    
    dissent read our own precedents as rejecting any nexus requirement
    
    whatsoever     and   took    issue   with    the   panel    majority’s      narrow
    
    definition of “agent.”41         The dissent asserted that a “specific
    
    nexus —— between Phillips and the federal funds inside Parish
    
    coffers —— is not required” and furthermore that “it is sufficient
    
    that the criminal conduct affect the agency receiving federal
    
    assistance:        in essence, we have determined that there is an
    
    inherent federal interest in insuring that agencies receiving
    
    significant amounts of federal funding are not corrupt.”42                      In a
    
    nutshell, this is precisely the “corruption focus” that we had
    
    firmly adopted       in    Westmoreland,     a   focus   that   has     never   been
    
    overruled either by this court en banc or by the Supreme Court.
    
    D.   Reyes and Williams: Either Way, § 666 Covers Lipscomb
    
         Two     cases   decided     last   year     demonstrate      our    continued
    
    commitment to applying § 666 to members of municipal and parochial
    
    governing bodies.         These cases provide additional support for the
    
    
    
         39
              Id. at 423 n.4 (E. Garza, J., dissenting).
         40
              Phillips, 219 F.3d at 414 (majority).
         41
              Id. at 422–23 (E. Garza, J., dissenting).
         42
              Id. at 422–23.
    
                                            20
    proposition that § 666 easily reaches Lipscomb’s conduct.         In
    
    United States v. Reyes,43 we affirmed the § 666 conviction of city
    
    council members who had been bribed to vote in favor of awarding a
    
    municipal construction project to a particular contractor.44      The
    
    government noted that a federal loan would have supported the
    
    project had it gone forward, but we explicitly declined to rely on
    
    that fact, stating instead that federal support of the three city
    
    departments involved in the project —— the finance, housing, and
    
    legal departments —— justified prosecuting under § 66645:
    
         Applying Westmoreland and Moeller..., we conclude that
         the connection between federal benefits and the charged
         conduct is sufficient to uphold Reyes’s convictions under
         § 666.... Like the county supervisor in Westmoreland and
         the senior agency officials in Moeller, here the charged
         criminal conduct related to city council members, who, by
         voting up or down on bids, ultimately decide how federal
         money will be spent.46
    
    Such an analysis firmly supports Lipscomb’s susceptibility to
    
    conviction under § 666: In Dallas, federal money supports the
    
    City’s transportation and human services departments —— the very
    
    agencies of city government that Lipscomb sought corruptly to
    
    influence.     Reyes reaffirms, as a statutory matter, that whatever
    
    nexus § 666 requires —— if any —— is present in this case.
    
    
    
    
         43
              United States v. Reyes, 
    239 F.2d 722
     (5th Cir. 2001).
         44
              Id. at 726–32.
         45
              Id. at 734 & n.5.
         46
              Id. at 734 (emphasis added).
    
                                       21
         More recently, we decided United States v. Williams47 without
    
    discussing any jurisdictional element or nexus requirement at all
    
    —— despite the fact that if there had been a jurisdictional flaw,
    
    it would have been incumbent on the Williams panel to address that
    
    problem, even sua sponte.             Williams involved facts virtually
    
    identical to those present in Reyes, in Westmoreland, and here.
    
    Williams, a former member of the Jackson, Mississippi City Council,
    
    was convicted under § 666 of aiding and abetting the solicitation
    
    and acceptance of bribes —— specifically, $150,000 in exchange for
    
    a re-vote on a cable television license contract.48               The Williams
    
    court did not describe any direct federal fiscal interest at stake
    
    in that re-vote.           Such questions, however, may not have been
    
    briefed     or    argued   in   Williams,   as   the   opinion   in   that   case
    
    expressly rejected only other challenges —— those grounded in equal
    
    protection, due process, and sufficiency and admissibility of the
    
    evidence     ——    to   Williams’s   conviction.49      Taken    in   isolation,
    
    Williams has little if any precedential value on the nexus issue,
    
    one way or the other.
    
         But of course Williams does not stand alone.            It is merely the
    
    most recent in a series of our opinions —— Westmoreland, Moeller,
    
    Marmolejo, Reyes, and Williams —— that have consistently applied
    
    
    
         47
              United States v. Williams, 
    264 F.3d 561
     (5th Cir. 2001).
         48
              Id. at 566–67.
         49
              Id. at 567–78.
    
                                           22
    the broad “corruption focus” of § 666.                      The Phillips panel did
    
    construe the term “agent” to avoid the constitutional question, but
    
    we cannot do that here: As a textual matter, the term “agent”
    
    plainly includes city council members.                    Westmoreland applied § 666
    
    to a county supervisor; Reyes and Williams both applied it to city
    
    council members.       Hence Westmoreland’s view of § 666 continues to
    
    be   the   law   in    this    circuit       and     to    preclude    a    more   narrow
    
    construction of the statute.             Even though we get to the question
    
    from different jurisdictional perspectives, Judge Duhé and I are in
    
    complete accord        on   the    result     for     Lipscomb    of       the   foregoing
    
    analysis of § 666:            He was subject to being tried in federal
    
    district court for violating that statute, and he was subject to
    
    being convicted by a jury.
    
               IV. DID LIPSCOMB RAISE THE CONSTITUTIONAL ISSUE?
    
          Before addressing the constitutional problem that Lipscomb’s
    
    statutory-construction argument presages (and writing for myself
    
    alone, although supplementing Judge Smith’s analysis), I must make
    
    three observations on our intrapanel disagreement over whether the
    
    constitutional issue is properly before us.                     To me, this debate:
    
    (1) is more semantical than substantive, (2) is in tension with
    
    controlling Supreme Court precedent, and (3) overlooks the real
    
    nature of the constitutional question at issue.
    
          Semantics       first:      As   the        Supreme    Court     recently     said,
    
    
    
    
                                                 23
    “jurisdiction...is a word of many, too many, meanings.”50                             This
    
    imprecision is one source of our panel’s split here.                          Judge Duhé
    
    reads “jurisdiction” in the pleadings, briefs, and record to mean
    
    adjudicative jurisdiction only —— the authority of federal courts
    
    to   hear       only    those         categories        of   cases    (subject-matter
    
    jurisdiction) authorized by Congress, between those categories of
    
    persons (personal jurisdiction) permitted by the Constitution. But
    
    in the context of the expressly constitutional arguments that
    
    Lipscomb sometimes makes, Judge Smith and I read his use of
    
    “jurisdiction”         ——     at     least    on   those     occasions    ——    to    mean
    
    legislative jurisdiction, the “authority” of Congress “to make its
    
    law applicable to particular persons or activities.”51
    
         Lipscomb          also        uses      the    ambiguous        phrase     “federal
    
    jurisdiction,” which could be either adjudicative or legislative.
    
    That ambiguity is not only terminological, but also conceptual. To
    
    state     the    obvious,          legislative     jurisdiction       flows    from   the
    
    Constitution to the Congress and limits, in today’s context, the
    
    subject matter         and     the    classes      of   persons   that   Congress     may
    
    regulate    by    statute.           In   contrast,      adjudicative    jurisdiction
    
    generally flows from Congress to the courts as grants of subject-
    
    matter jurisdiction, grants made by Congress in enacting laws
    
         50
          Steel Co. v. Citizens for a Better Environment, 
    523 U.S. 83
    ,
    90 (1998).
         51
          Hartford Fire Ins. Co. v. California, 
    509 U.S. 764
    , 813
    (1993) (Scalia, J., dissenting).    Legislative jurisdiction “is
    quite a separate matter from jurisdiction to adjudicate.” Id.
    
                                                  24
    pursuant to its power to constitute inferior federal courts.52                    In
    
    the instant context, the judicial power extends constitutionally to
    
    cases arising under federal criminal laws. Consequently, a court’s
    
    adjudicative jurisdiction to convict a defendant of a federal crime
    
    cannot exist in the absence of Congress’s legislative jurisdiction
    
    to criminalize the particular conduct of which the particular
    
    defendant is accused.
    
         The reach of Congress’s legislative jurisdiction, of course,
    
    is sometimes bounded by structural constitutional provisions.                    For
    
    example, grants of jurisdiction are limited by the Necessary and
    
    Proper Clause, which covers laws that “carry into Execution...all
    
    other powers vested by this Constitution in the Government of the
    
    United States or in any Department or Officer thereof.”53                   I cannot
    
    even imagine how it could be “necessary and proper” to the exercise
    
    of either the judicial power or the power to constitute inferior
    
    courts for      us   to    have   adjudicative      jurisdiction     over    a   case
    
    implicating      a   statute      that   Congress     lacked   the    legislative
    
    jurisdiction to enact.            It should go without saying, therefore,
    
    that our subject-matter jurisdiction has constitutional as well as
    
    statutory      limits54:     It    involves   “the     courts’     statutory      or
    
         52
              U.S. CONST. art. I, § 8, cl. 9.
         53
              U.S. CONST. art. I, § 8, cl. 18.
         54
          Edelman v. Jordan, 
    415 U.S. 651
    , 678 (1974) (“The Eleventh
    Amendment defense sufficiently partakes of the nature of a
    jurisdictional bar so that it need not be raised in the trial
    court.”).
    
                                             25
    constitutional power to adjudicate the case.”55
    
         To repeat, then: A federal forum simply must lack adjudicative
    
    jurisdiction to hear a case based on a federal statute that
    
    Congress    lacked    the   legislative        jurisdiction     (translation:
    
    constitutional power or authority) to apply to the situation in
    
    question.   If I am correct in my position that this case implicates
    
    our constitutional duty, at every level and at every stage of the
    
    proceedings,    to   ensure    the      existence   of    our   adjudicative
    
    jurisdiction, then that duty trumps the canon of constitutional
    
    avoidance that Justice Brandeis discussed in Ashwander v. TVA,56 a
    
    canon that on other occasions I have dutifully obeyed.57              At the
    
    risk of exposing my own intellectual shortcomings, then, I confess
    
    that neither semantically nor substantively can I understand the
    
    distinction, which Judge Duhé detects in Lipscomb’s pleadings and
    
    briefs,    between   adjudicative,      subject-matter    jurisdiction    and
    
    legislative    jurisdiction    (structural       constitutionality)     ——   a
    
    distinction that is clear to Judge Duhé but in this case remains
    
    blurred to me.       If a successful as-applied challenge to the
    
    constitutionality of § 666 would limit Congress’s legislative
    
    jurisdiction, i.e., would identify someone or some act beyond
    
         55
          Steel Co.,      523   U.S.   at    89   (original   emphasis   removed,
    emphasis added).
         56
          Ashwander v. TVA, 
    297 U.S. 288
    , 346–48 (1936) (Brandeis, J.,
    concurring).
         57
          See, e.g., U.S. v. Fox, 
    248 F.3d 394
    , 405 (2001), vacated on
    other grounds, Fox v. United States, 
    122 S. Ct. 1602
     (2002).
    
                                            26
    Congress’s authority, it cannot help but limit our adjudicative
    
    jurisdiction to the same degree.          In this sense, because Lipscomb
    
    appears to raise a structural jurisdictional challenge, I question
    
    whether his is the kind of constitutional argument that may be
    
    waived through delay or disuse; if it “involves a court’s power to
    
    hear a case, [it] can never be forfeited or waived.”58
    
         As I read them, Lipscomb’s pleadings and briefs do raise ——
    
    and thus do not waive —— the constitutional issue.          Rather, they
    
    question both Congress’s legislative jurisdiction (constitutional
    
    authority) to enact § 666 and our adjudicative power to apply § 666
    
    here.      Lipscomb has raised a classic challenge to subject-matter
    
    jurisdiction: He “argues that the extension of federal jurisdiction
    
    over acts such as [his] would exceed the power of Congress.”59
    
         My belief that we should consider this argument finds support
    
    in Salinas itself.      There the Supreme Court easily undertook to
    
    determine whether § 666 was constitutional, and squarely held that
    
    it was, as applied,60 despite the fact that neither we nor the
    
    district court had addressed the statute’s constitutionality.61        In
    
    
         58
          United States v. Cotton, __ U.S. __, __; 
    122 S. Ct. 1781
    , 1785
    (2002).
         59
          United States v. Suarez, 
    263 F.3d 468
    , 484 (6th Cir. 2001)
    (Boggs, J., dissenting in part).
         60
              Salinas, 522 U.S. at 61.
         61
          Compare Salinas, 522 U.S. at 60–61, with Marmolejo, 89 F.3d
    at 1188–94 (omitting constitutional analysis). Even the dissent in
    Marmolejo did not make constitutional arguments. See Marmolejo, 89
    F.3d at 1201–05.    See also Salinas v. United States, 
    1997 U.S. 27
    support of its “holding,”62 the Court explained:
    
         [s]tatutes should be construed to avoid constitutional
         questions, but this interpretative canon is not a license
         for the judiciary to rewrite language enacted by the
         legislature. Any other conclusion, while purporting to
         be an exercise in judicial restraint, would trench upon
         the legislative powers vested in Congress....
              These principles apply to the rules of statutory
         construction we have followed to give proper respect to
         the federal-state balance.... [W]e cannot press statutory
         construction to the point of disingenuous evasion even to
         avoid a constitutional question.63
    
    This is why, with all due respect, I find it odd, as we labor to
    
    interpret 18 U.S.C. § 666, for Judge Duhé to urge obeisance to the
    
    Ashwander canon, which the Supreme Court itself in Salinas first
    
    acknowledged and then declined to observe or apply.
    
         To the extent that the real question is whether Lipscomb
    
    adequately raised constitutionality, I trust Judge Duhé would
    
    concede two premises: first, that Lipscomb urged the district court
    
    (and this one) so to construe § 666 as to avoid a serious and
    
    identified constitutional flaw; and second, that this panel has
    
    unanimously concluded that we cannot so construe the statute.
    
    Starting with these two premises, I cannot avoid the conclusion
    
    
    
    Trans. Lexis 48, at *49–50:
         QUESTION: But the Tenth Amendment argument that you're
         presenting to us now--
         MR. ENRIQUEZ: Yes, ma'am.
         QUESTION: --did you make that in the lower courts?
         MR. ENRIQUEZ: We didn't specifically come out and say
         Tenth Amendment, Your Honor.
         62
              Salinas, 522 U.S. at 61.
         63
              Id. at 59–60 (citations and quotation marks omitted).
    
                                         28
    that Lipscomb did raise the constitutional flaw. By construing the
    
    statute as all three of us do, we are sailing into the very waters
    
    that    Lipscomb         warned    us      were    constitutionally    uncharted.    I
    
    knowingly and willfully proceed to endeavor to chart them.
    
                                                      V.
    
                         AS-APPLIED CONSTITUTIONALITY UNDER DOLE
    
           We review the constitutionality of a federal statute de novo.64
    
    My solo review here will focus on whether § 666 is necessary and
    
    proper to the spending power, but the proper foundation for that
    
    analysis       is    a    review      of   the    Supreme    Court’s   spending-clause
    
    jurisprudence.            That jurisprudence has focused on whether Congress
    
    may condition grants of federal funds.                       Even if § 666 is not a
    
    conditional-grant statute —— a conclusion of which I am less
    
    certain       than       is   Judge     Smith     ——   the   conditional-grant   cases
    
    establish both that “internal limits on congressional spending
    
    power are difficult to discern”65 and that, to whatever extent the
    
    Tenth Amendment is an external limit on the spending power, that
    
    Amendment does not function as “a prohibition on the indirect
    
    achievement of objectives which Congress is not empowered to
    
    achieve directly.”66            The Tenth Amendment thus is not as great an
    
    
    
           64
                See United States v. Rasco, 
    123 F.3d 222
    , 226 (5th Cir.
    1997).
           65
          1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-6, at 839 (3d
    ed. 2000).
           66
                South Dakota v. Dole, 
    483 U.S. 203
    , 210 (1987).
    
                                                      29
    obstacle to the necessity and propriety of § 666 as Judge Smith
    
    believes it to be.
    
    A.   Conditional-Grant Precedents
    
         Congress likely enacted § 666 pursuant to the Spending Clause
    
    of the Constitution.67     Under that clause, it is settled, Congress
    
    may regulate the states by conditioning grants.68      Cases on such
    
    conditions have established that the structural limits on federal
    
    power that often arise in the commerce-clause context do not
    
    operate with the same force against conditional-grant provisions.
    
         United States v. Butler,69 for example, is still good law for
    
    its announcement that Congress’s spending power, like its power to
    
    tax, is “to provide for the general welfare,”70 and is therefore
    
    untrammeled by the specific grants of legislative power found
    
    elsewhere in Article I, Section 8:
    
         While, therefore, the power to tax is not unlimited, its
         confines are set in the clause which confers it, and not
         in those of section 8 which bestow and define the
         legislative powers of the Congress. It results that the
         power of Congress to authorize expenditure of public
    
    
         67
          Fischer, 529 U.S. at 689 n.3 (Thomas, J., dissenting)
    (“Section 666 was adopted pursuant to Congress’ spending power.”);
    Phillips, 219 F.3d at 414 (“Congress’ authority to enact § 666
    rests on the Spending Clause of the Constitution.”). The spending
    power is not granted in such terms but is an outgrowth of the
    “Power To lay and collect Taxes, Duties, Imposts, and Excises, to
    pay the Debts and provide for the Common Defence and general
    Welfare of the United States.” U.S. CONST. art. I, § 8, cl. 1.
         68
              TRIBE, supra note 65, § 5-6, at 833.
         69
              
    297 U.S. 1
     (1936).
         70
              U.S. CONST. Art. I, § 8, cl. 1.
    
                                        30
         moneys for public purposes is not limited by the direct
         grants of legislative power found in the Constitution.71
    
         Although the Butler Court did hold that the Tenth Amendment
    
    cabined Congress’s spending power,72 the Court quickly abandoned
    
    this view, in Oklahoma v. United States Civil Service Commission,73
    
    which rejected a constitutional challenge to the Hatch Act.              That
    
    Act then forbade political activities by any “officer or employee
    
    of any State or local agency whose principal employment is in
    
    connection with any activity which is financed in whole or in part
    
    by loans or grants made by the United States.”74         Oklahoma and its
    
    State      Highway   Commissioner    challenged    the      Civil     Service
    
    Commission’s attempt to force on the State the choice between
    
    dismissing     the   Commissioner,   who   had    engaged    in     political
    
    activities, or forgoing highway funds in the amount of twice the
    
    commissioner’s salary.75     The Court responded:
    
         While the United States is not concerned with and has no
         power to regulate local political activities as such of
         state officials, it does have power to fix the terms upon
    
    
         71
              Butler, 297 U.S. at 66.
         72
              Id. at 66–78.
         73
              
    330 U.S. 127
     (1947).
         74
          Id. at 129 n.1, citing 18 U.S.C.A. § 61l. The Hatch Act,
    although recently reformed, remains on the statute books; today it
    criminalizes the extortion of political contributions under threat
    of withholding employment, payments, or benefits that are “provided
    for or made possible in whole or in part by an Act of Congress.”
    This language shows that Congress knows how to link criminal
    sanctions tightly to federal spending, should it so desire.
         75
              Oklahoma, 330 U.S. at 129–34.
    
                                         31
         which its money allotments to states shall be disbursed.
              The Tenth Amendment does not forbid the exercise of
         this power in the way that Congress has proceeded in this
         case....   [T]he Tenth Amendment has been consistently
         construed “as not depriving the national government of
         authority to resort to all means for the exercise of a
         granted power which are appropriate and plainly adapted
         to the permitted end.”.... The offer of benefits to a
         state...dependent upon cooperation by the state with
         federal plans, assumedly for the general welfare, is not
         unusual.76
    
    Oklahoma, the Court said, could evade the condition by the “simple
    
    expedient” of not yielding to the enticement of federal funds.77
    
         The apex of the Court’s conditional-grant jurisprudence is
    
    South Dakota v. Dole,78 which involved a statute conditioning a
    
    small portion of each state’s federal highway aid on the state’s
    
    establishing a minimum drinking age.79            The Court upheld the
    
    drinking-age requirement as an exercise of Congress’s Spending-
    
    Clause authority to condition federal grants.80         The Court also
    
    announced that when Congress chooses to go beyond its enumerated
    
    powers, and to use its spending power “to further broad policy
    
    objectives     by   conditioning   receipt   of   federal   monies   upon
    
    compliance with federal statutory...directives,” the statutory
    
    condition must itself meet four conditions, the failure to meet any
    
    
    
         76
              Id. at 143–44.
         77
              Id. at 143.
         78
              
    483 U.S. 203
     (1987).
         79
              Id. at 205.
         80
              Id. at 206.
    
                                        32
    one of which might render a statute unconstitutionally broad.81
    
    B.   The Dole Test Is Instructive Here
    
         Given Dole’s context, applying its test to § 666 could be
    
    trebly problematic.        First, like Judge Smith, two district courts
    
    have concluded that § 666 is not a conditional-grant statute at
    
    all, because it does not require the state (here, Texas) or its
    
    political subdivision (here, Dallas) to do anything.82 As the court
    
    in United States v. Cantor noted, § 666 “does not impose a
    
    condition on the receipt of federal funds.            The statute neither
    
    requires   a     state’s    compliance    with   federal...directives   nor
    
    prevents state action.”83 Like the Cantor court, however, I believe
    
    that this lack of direct effect on states and localities actually
    
    supports   the    statute’s    constitutionality.84      Furthermore,   the
    
         81
          Id. at 207-08. At least one court has concluded that use of
    § 666 to prosecute crimes with no federal nexus violates the Dole
    test’s third condition.    See United States v. McCormack, 31 F.
    Supp. 2d 176 (D. Mass. 1998) (finding the statute unconstitutional
    as applied to a defendant who had bribed a local police officer to
    prevent that officer’s further investigation into a state crime,
    and the entity that received federal funds was the police
    department that employed the bribed officer).
         82
          United States v. Sabri, 
    183 F. Supp. 2d 1145
    , 1156 (D. Minn.
    2002) (“[T]he    statute   does  not   apply   to  the   recipient
    government.”).
         83
          United States v. Cantor, 
    897 F. Supp. 110
    , 113 (S.D.N.Y.
    1995). A condition statute generally requires a state’s compliance
    with federal regulatory or administrative directives in exchange
    for receipt of federal funds. Va. Dep’t of Educ. v. Riley, 
    106 F.3d 559
    , 570-72 (4th Cir. 1997) (en banc) (plurality opinion).
         84
          Id. (“All Congress has done in Section 666 is to pass a law
    making the conduct of individuals, not the state, criminal. Hence,
    I do not believe that a Tenth Amendment argument is appropriate in
    
                                         33
    Supreme Court has not held that, for a statute to be a conditional-
    
    grant provision and stand or fall under a Dole analysis, the
    
    statute must require states or localities either to take or to
    
    refrain from taking any action.85    Dole may describe Congress’s
    
    spending power generally, not just its power to condition grants.
    
         Second, § 666 is a freestanding ban: It neither grants any
    
    funds nor takes part in a broader funding statute.     This fact has
    
    prompted the objection that its criminal sanction cannot be a
    
    condition.86   Although   superficially   appealing,   this   argument
    
    elevates form too highly over substance.        The anticorruption
    
    principle in § 666 applies equally to every federal dollar granted,
    
    and § 666 logically cuts across all federal grants to states and
    
    localities.87 To require Congress to insert a mini-§ 666 into every
    
    chapter of the United States Code that authorizes intergovernmental
    
    financial assistance would constitute excessive scrupulosity.
    
    
    
    this case.”) (citation omitted).
         85
          See New York v. United States, 
    505 U.S. 144
    , 167 (1992)
    (stating that conditional-grant statutes “may influence a State’s
    legislative choices” without clarifying that this is the only thing
    such statutes may do).
         86
          See Sabri, 183 F. Supp. 2d at 1156 (distinguishing § 666 from
    the conditions attached specifically to highway funding).
         87
          George D. Brown, Stealth Statute —— Corruption, the Spending
    Power, and the Rise of 18 U.S.C. § 666, 73 NOTRE DAME L. REV. 247,
    292–93 (stating that “§ 666 is not a grant condition,” but that it
    “operates in a similar way to grant conditions” and is analogous to
    a “crosscutting requirement” —— a “generally applicable requirement
    imposed on grants across the board to further various national,
    social and economic policies”) (internal quotation marks omitted).
    
                                    34
         Third, several judges have objected that Congress’s spending
    
    power cannot include the power to criminalize conduct by third
    
    parties, and that Dole therefore cannot apply.88           (This argument
    
    begs the broader question, which I address below, whether § 666 is
    
    necessary   and   proper   to   the   spending   power.)    Many   courts,
    
    including this one in Phillips, have nevertheless interpreted § 666
    
    using Dole’s factors.89    Therefore, although we may debate whether
    
         88
          See United States v. Morgan, 
    230 F.3d 1067
    , 1074 (8th Cir.
    2000) (Bye, J., dissenting):
         In enacting § 666, [ ] Congress did not contract with
         states or local governments. Neither did Congress bestow
         gifts of funds upon those governments. Rather, Congress
         passed a federal criminal statute designed to punish
         conduct that falls within the domain of traditional state
         concerns (bribery, embezzlement, fraud, etc.). Section
         666 reaches beyond punishment of the state and local
         governments who receive those funds to proscribe the
         conduct of third persons who aren’t parties to the
         funding contract.    Spending Clause power is not that
         broad.
    See also Sabri, 183 F. Supp. 2d at 1157 (finding Judge Bye’s
    observations in Morgan to be “germane and persuasive”).       For a
    scholarly argument to the same effect, see David E. Engdahl, The
    Spending Power, 44 DUKE L.J. 1, 92 (1994).
         89
          See, e.g., Fischer, 529 U.S. at 689 n.3 (Thomas, J.,
    dissenting) (“Section 666 was adopted pursuant to Congress’
    spending power, Art. I, § 8, cl. 1. We have held that the spending
    power requires, at least, that the exercise of federal power be
    related ‘to the federal interest in particular national projects or
    programs.’”) (citing Dole); Phillips, 
    219 F.3d 404
    , 414 (“[T]he
    power of Congress to impose duties on non-federal entities under
    the Spending Clause is not without limits.”) (citing Dole); Zwick,
    199 F.3d at 687 (“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.”) (citing Dole); McCormack, 
    31 F. Supp. 2d 176
    ,
    188 (“Of the four limits established in Dole, limit (3) ——
    requiring that the conditions be related to the federal interest in
    particular national projects or programs —— provides the most
    plausible attack on § 666(a).”).
    
                                          35
    the § 666 peg fits the conditional-grant hole, I shall test it
    
    under the four prongs of Dole.
    
    C.   The Dole Analysis
    
         Dole first requires that “exercise of the spending power must
    
    be in pursuit of the general welfare.”90          In assessing whether this
    
    is so, Dole cautions, “courts should defer substantially to the
    
    judgment of Congress.”91         Congress has stated that the purpose of
    
    § 666 is to “protect the integrity of the vast sums of money
    
    distributed through Federal programs from theft, fraud, and undue
    
    influence     by   bribery.”92     Mindful   of   the    deference   due   this
    
    judgment, I accept that Congress easily could have thought that
    
    § 666 advanced the general welfare by protecting the federal fisc
    
    and by ensuring that state and local decisions regarding federal
    
    programs are not made by corrupt officials.             I do not doubt, then,
    
    that Congress enacted § 666 “in pursuit of the general welfare.”
    
         Second, Dole warns that “if Congress desires to condition the
    
    States’ receipt of federal funds, it must do so unambiguously...,
    
    enabl[ing] the States to exercise their choice knowingly, cognizant
    
    
    
    
         90
          Dole, 483 U.S. at 207 (citing Helvering v. Davis, 
    301 U.S. 619
    , 640–41 (1937)).
         91
          Dole, 483 U.S. at 207 (citing Helvering, 301 U.S. at 640,
    645).   “[T]he concept of welfare or the opposite is shaped by
    Congress.” Helvering, 301 U.S. at 645.
         92
              S. REP. NO. 98-225, at 370 (1983).
    
                                          36
    of the consequences of their participation.”93      Even though § 666
    
    does not require the states to act, it does make state and local
    
    government officers criminally liable for specific misdeeds.     Thus
    
    the states arguably have a dignity interest at stake, and if so,
    
    they have a right to know the threat to that interest that § 666
    
    would pose —— and the language of § 666, which is anything but
    
    ambiguous, surely lets them know.       To the extent that § 666 is a
    
    conditional-grant statute, both the grant (of $10,000 or more in
    
    federal funds) and the condition (criminalizing official bribery
    
    and theft) are pellucid.94      I see little danger that a state or
    
    locality that receives federal funds could mistake the potential of
    
    § 666 to criminalize conduct by its officials.
    
         Third, Dole mandates that conditions on federal spending be
    
    related “to the federal interest in particular national projects or
    
    programs,”95 or that conditions “bear some relationship to the
    
    federal spending.”96    “The required degree of this relationship is
    
    one of reasonableness or minimum rationality.”97     It suffices here
    
    
         93
          Dole, 483 U.S. at 207 (citing Pennhurst State School and
    Hospital v. Halderman, 
    451 U.S. 1
    , 17 (1981)).
         94
          Even a critic of the broad reading of § 666 concedes that its
    text is “unambiguously broad.” Brown, supra note 74, at 277.
         95
          Dole, 483 U.S. at 207 (quoting Massachusetts v. United
    States, 
    435 U.S. 444
    , 461 (1978) (plurality opinion)).
         96
              New York v. United States, 
    505 U.S. 144
    , 167 (1992).
         97
          Kansas v. United States, 
    214 F.3d 1196
    , 1199 (10th Cir.
    2000); see also New York v. United States, 505 U.S. at 172 (stating
    that conditions were valid under Dole because they were “reasonably
    
                                       37
    to observe that many courts have held that § 666 is reasonably
    
    related to the federal interest in safeguarding federal dollars
    
    from control of dishonest administrators, and that § 666 therefore
    
    passes spending-power muster.     At least one court has so concluded
    
    when the offense conduct did not involve federal funds.98         Some of
    
    the other decisions arriving at this conclusion, however, may have
    
    dismissed   facial,   rather   than    as-applied,   challenges   to   the
    
    statute99; and other cases have affirmed convictions for conduct
    
    that implicated federal funds more directly than did Lipscomb’s
    
    
    
    
    related to the purpose of the expenditure”).
         98
          United States v. Ferrara, 
    990 F. Supp. 146
    , 152 (E.D.N.Y.
    1998) (“Federalism has not been compromised here.      The federal
    government has a right to attach reasonable conditions to the
    disbursement of its funds. State and local governments are free to
    accept or reject federal monies so encumbered.”).        There was
    nothing federal about the Ferrara defendants’ conduct: they bribed
    members of a town board to secure a change in zoning that would
    have permitted the construction of a radio tower. Id. at 148.
         99
          United States v. Russo, 
    111 F.3d 124
     (2d Cir. 1997) (table)
    (unpublished), 
    1997 WL 168276
     at *2 (“Because the conduct
    prohibited by § 666 furthers the legitimate federal interest in
    protecting federal funds from local bribery schemes, the statute
    falls well within the scope of Congress’ spending power.”)
    (omitting any discussion of a connection to federal funds); United
    States v. Cantor, 
    897 F. Supp. 110
    , 113 (1995) (“Nor is the conduct
    prohibited by § 666 so remote from the federal interest in
    protecting federal funds from the effects of local bribery schemes
    as to exceed the scope of [the] Congressional spending power or to
    run afoul of the Tenth Amendment.”) (applying § 666 to a defendant
    who had helped bribe an attorney for the New York City Board of
    Education, without detailing any connection to federal funds);
    United States v. Bigler, 
    907 F. Supp. 401
    , 402 (S.D. Fla. 1995)
    (rejecting a facial challenge to § 666).
    
                                          38
    actions here.100    Because Dole’s relatedness inquiry merges with my
    
    analysis of whether applying § 666 is necessary and proper to the
    
    spending power, I discuss both questions together in detail below.
    
         Fourth, in Dole’s final prong, the Court cautioned that “other
    
    constitutional provisions may provide an independent bar to the
    
    conditional      grant   of   federal   funds.”101   Yet   the    Court   then
    
    reiterated its Oklahoma holding that “a perceived Tenth Amendment
    
    limitation on congressional regulation of state affairs did not
    
    concomitantly limit the range of conditions legitimately placed on
    
    federal grants.”102 Rather, the “independent bar” simply means that
    
    Congress may not use its spending power “to induce the States to
    
    engage in activities that would themselves be unconstitutional.”103
    
    In this case, no action by Texas or Dallas is alleged to be
    
    unconstitutional, so the fourth Dole prong is plainly not at issue.
    
         In sum, to the extent that Dole controls whether § 666 can
    
    apply here, the only problem lies in the third part of the Dole
    
    test: reasonable relationship to a federal interest.             Because this
    
    reasonably-related prong of Dole is a specific application of the
    
    
    
         100
           See, e.g., United States v. Rooney, 
    37 F.3d 847
    , 851 (2d
    Cir. 1994) (“[Section] 666's manifest purpose is to safeguard
    finite federal resources from corruption and to police those with
    control of federal funds.”); id. at 849 (stating that the defendant
    was developing a federally-funded housing project).
         101
               Dole, 483 U.S. at 208 (collecting cases).
         102
               Id. at 210 (emphasis added).
         103
               Id.
    
                                            39
    more general test for whether an act of Congress is necessary and
    
    proper to an enumerated power,104 I treat these questions together.
    
                                       VI.
    
                  AS-APPLIED CONSTITUTIONALITY UNDER McCULLOCH
    
         In addition to assigning Congress the spending power, which
    
    brings with it the power to condition grants, the Constitution also
    
    gives Congress the power “[t]o make all Laws which shall be
    
    necessary and proper for carrying into Execution” the powers
    
    expressly delegated to the federal government.105          Prosecuting
    
    Lipscomb under § 666 is therefore constitutional if § 666 is “nec-
    
    essary and proper” to Congress’s spending power.
    
    A.   McCulloch and the Necessary and Proper Clause
    
         In testing for necessity and propriety, courts should remain
    
    mindful of Justice John Marshall’s prescient explanation, in McCul-
    
    loch v. Maryland,106 of what “necessary and proper” means:
    
         Let the end be legitimate, let it be within the scope of
         the constitution, and all means which are appropriate,
         which are plainly adapted to that end, which are not pro-
         hibited, but consist with the letter and spirit of the
    
    
    
    
         104
           See United States v. Ardoin, 
    19 F.3d 177
    , 188 & n.37 (5th
    Cir. 1994) (Wiener, J., concurring in part, dissenting in part and
    in the result) (“[T]he enumerated-power test of a federal statute’s
    validity is whether ‘the Congress might reasonably find that the
    act relates to one of the federal powers.’”) (quoting John E. Nowak
    & Ronald D. Rotunda, Constitutional Law § 3.3 (West Publishing
    1991)).
         105
               U.S. CONST. art. I, § 8. cl. 18 (emphasis added).
         106
               
    17 U.S. 316
     (1819).
    
                                        40
           constitution, are constitutional.107
    
    Importantly for the instant case, Marshall derived an expansive
    
    meaning of “necessary” from the principle that Congress can derive
    
    from     its     enumerated   powers   the     power   to   impose   criminal
    
    sanctions.108       From the enumerated power to “establish Post Offices
    
    and post Roads,”109 Congress had “inferred the right to punish those
    
    who steal letters from the post-office, or rob the mail.”110               In
    
    other words, Congress’s postal power carried with it the ability to
    
    impose criminal penalties to protect federal interests advanced by
    
    that power. To the McCulloch Court, this example demonstrated that
    
    “necessary” has a range of meanings, including “needful, requisite,
    
    essential, or conducive to.”111           It was through the lens of this
    
    broad construction of the Necessary and Proper Clause that Marshall
    
    saw justification for Congress’s creation of the national bank, the
    
    power to create which is nowhere enumerated in Article I.             Whether
    
    that broad construction justifies applying § 666 here depends on
    
    Congress’s intent in enacting the statute, as well as on the nature
    
    
    
           107
                 Id. at 421.
           108
           Id. at 416–17 (“So, with respect to the whole penal code of
    the United States: whence arises the power to punish, in cases not
    prescribed by the constitution? All admit, that the government
    may, legitimately, punish any violation of its laws; and yet, this
    is not among the enumerated powers of congress.”).
           109
                 U.S. CONST. art. I, § 8, cl. 7.
           110
                 McCulloch, 17 U.S. at 417.
           111
                 Id. at 418.
    
                                           41
    of the federal interest embodied in this case and the relationship
    
    between that interest and Lipscomb’s conduct.
    
    B.    Legislative History
    
          History often tells us why Congress deemed a statute necessary
    
    and proper.       Not so for § 666, however, because it was enacted as
    
    part of an omnibus spending bill of the type that makes the search
    
    for   legislative     history   Sisyphean.    What   history   exists   is
    
    multilayered, sparse, equivocal, and even mysterious. By no means,
    
    I respectfully submit, is it capable of supporting Judge Smith’s
    
    contention that “Congress did not find it necessary that § 666 be
    
    applied in cases not involving federal funds or programs.”112
    
          1.       The 1986 Technical Amendment
    
          We owe the current language of § 666 to the Criminal Law and
    
    Procedure Technical Amendments Act of 1986.113       As that Act’s title
    
    suggests, and as we recognized in Westmoreland,114 Congress did not
    
    intend the Act to change § 666 substantively in ways that would
    
    affect our reading of it here.115        This is important, because the
    
    
          112
                Infra at __.
          113
                P.L. 99-646, § 59, 100 Stat. 3592, 3612–13 (1986).
          114
           Westmoreland, 841 F.2d at 577 (“[T]he amended version of
    section 666 reinforces our interpretation. . . . [I]ts legislative
    history indicates that the relevant changes were ‘technical’
    ones.”).
          115
           H.R. REP. NO. 99-797 at 30 (1986), reprinted in 1986
    U.S.C.C.A.N. 6138, 6153:
         [S]ection 42 of the [House’s version of the technical
         corrections] bill amends 18 U.S.C. § 666, which deals
         with theft or bribery concerning programs receiving
    
                                        42
    1986 amendment rewrote language that reveals how Congress would
    
    have answered our constitutional question in 1984.
    
         2.    The 1984 Enactment
    
         As first enacted, § 666(b) read:
    
         Whoever, being an agent of an organization, or of a State
         or local government agency...[that receives more than
         $10,000 a year in federal funds], solicits, demands,
         accepts, or agrees to accept anything of value from a
         person or organization other than his employer or
         principal for or because of the recipient’s conduct in
         any transaction or matter or a series of transactions or
         matters involving $5,000 or more concerning the affairs
         of such organization or State or local government agency,
         shall be imprisoned....116
    
    The emphasized phrase strongly suggests that in 1984 Congress
    
    believed it necessary and proper for § 666 to reach bribery that
    
    had no relation to federal funds.
    
         3.    The 1983 Report
    
         To counter the broad original and current language of § 666,
    
    
    
         federal funds.... [S]ection 42 amends 18 U.S.C. 666 to
         avoid its possible application to acceptable commercial
         and business practices. Section 42 also makes technical
         amendments in 18 U.S.C. 666 to conform that section to
         the drafting style and format used generally in title 18
         of the United States Code.
    A footnote in the report, id. at 30 n.9, reprinted in 1986
    U.S.C.C.A.N. at 6153 n.9, also stated:
         18 U.S.C. 666 prohibits bribery of certain public
         officials, but does not seek to constrain lawful
         commercial business transactions. Thus, 18 U.S.C. 666
         prohibits corruptly giving or receiving anything of value
         for the purpose of influencing or being influenced in
         connection with any business, transaction, or series of
         transactions.
         116
           Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473,
    § 1104(a), 98 Stat. 1837, 2143—44 (1984).
    
                                    43
    Judge Smith relies heavily on a Senate Judiciary Committee report,
    
    but this report described a different bill that never became law.
    
    As eventually enacted, § 666 was a small part of a large crime bill
    
    which was engrafted on a huge omnibus spending bill that funded
    
    many departments and agencies.117            None of this bill’s reports,
    
    written as they were by the Appropriations Committees, gives
    
    context      for   §   666,   a   criminal    statute   which,   of   course,
    
    appropriated no funds.118
    
         Section 666 as enacted was identical to a provision in the
    
    Comprehensive Crime Control Act of 1984, which passed the Senate
    
    but never made it out of the House Judiciary Committee on its own
    
    and evidently had to piggyback on the omnibus spending bill to gain
    
    legislative momentum.119          The Senate report on the crime bill,
    
    
    
         117
           See Pub L. No. 98-473, 98 Stat. at 1837–2199. Entering “98
    P.L. 473” on Lexis retrieves a list of the omnibus bill’s twenty-
    eight short titles and a sense of its massive scope; it included
    five of the thirteen appropriations bills for fiscal year 1985.
    A summary of the bill, H.J. Res. 648 (98th Cong.), is available at
    http://thomas.loc.gov (visited Oct. 13, 2001).
         118
           See H.R. REP. NO. 98-1159 (1984) (conference report),
    reprinted in 130 Cong. Rec. 31445 (Oct. 10, 1984); S. REP. NO. 98-
    634 (1984) (Senate Appropriations, accompanying S.J. Res. 356); and
    H.R. REP. NO. 98-1030 (1984) (House Appropriations). Parts of the
    conference report are reprinted at 1984 U.S.C.C.A.N. 3710–17; for
    the conference report’s entire discussion of the crime bill, see
    130 Cong. Rec. at 31565–67.
         The absence of language interpreting § 666 from the reports on
    this bill is understandable also as a result of the omnibus bill’s
    timing. Congress enacted it and the President signed it during
    October 10–12, 1984, less than a month before an election. See 98
    Stat. at 2199.
         119
               See 1984 U.S.C.C.A.N. at 3182.
    
                                          44
    printed in 1983, can be taken as an authoritative statement of the
    
    Senate Judiciary Committee’s intent for what became § 666.         It is
    
    tenuous at best, however, to rely, as does Judge Smith, solely on
    
    one committee report —— on a wholly separate bill —— as stating the
    
    views of the entire Congress.
    
         The questionable probative weight of the Senate report aside,
    
    that report is still not determinative here, for the evidence goes
    
    both ways.       The relevant passage is titled “Part C—Program Fraud
    
    and Bribery,” and states that § 666
    
         is designed to create 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.120
    
    The report notes, however, that under the prior law banning theft
    
    of federal property, prosecuting was often impossible
    
         because title has passed to the recipient [government]
         before the property is stolen, or the funds are so
         commingled that the Federal character of the funds cannot
         be shown. This gives rise to a serious gap in the law,
         since even though title to the monies may have passed,
         the Federal Government clearly retains a strong interest
         in assuring the integrity of such program funds.121
    
    Even though the report’s emphasis on program funds would support a
    
    narrow reading of the necessity and propriety of § 666, its
    
    emphasis on commingling supports a broad one.     In fact, the Senate
    
    Judiciary Committee’s most explicit direction actually suggests
    
         120
           S. REP NO. 98-225, at 369 (1984),          reprinted   in    1984
    U.S.C.C.A.N. 3182, 3510 (emphases added).
         121
               Id.
    
                                       45
    that the Committee intended to limit the scope of § 666, but in a
    
    way that still would cover Lipscomb-like conduct:
    
         The Committee intends that the term “Federal program
         involving a grant, a contract, a subsidy, a loan, a
         guarantee, insurance, or another form of Federal
         assistance” be construed broadly, consistent with the
         purpose of this section to protect the integrity of the
         vast sums of money distributed through Federal programs
         from theft, fraud, and undue influence by bribery.
         However, the concept is not unlimited. The term “Federal
         program” means that there must exist a specific statutory
         scheme authorizing the Federal assistance in order to
         promote and achieve certain policy objectives. Thus, not
         every Federal contract or disbursement of funds would be
         covered. 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 crime.122
    
    Thus one of the two lines that the Senate Judiciary Committee
    
    expressly drew —— to exclude theft from a supplier from the
    
    coverage     of     §   666   ——   would   not   exclude   Lipscomb’s   conduct,
    
    quintessentially “undue influence by bribery.”
    
         4.          The Specified Cases
    
         The immediate next sentence in the report, subject to much
    
    exegesis by Judge Smith, states:            “It is, however, the intent [‘of
    
    this section’] to reach thefts and bribery in situations of the
    
    types involved in the Del Toro, Hinton, and Mosley cases.”123               With
    
    continued due respect to Judge Smith, I do not discern in this
    
    sentence any clear direction to us.                  Both Hinton and Mosley
    
    
         122
           S. REP NO. 98-225, at 370, reprinted in 1984 U.S.C.C.A.N. at
    3511 (emphasis added).
         123
               Id.
    
                                               46
    sustained      convictions    of   bribed     local   officials   whom   courts
    
    considered to be federal officials under the prior bribery statute
    
    because      they   exerted   federal        authority   and   controlled   the
    
    disbursement of federal funds.124            Simple logic dictates that just
    
    because the Committee intended § 666 in part to codify these cases
    
    does not meant that it sought to limit § 666 to these cases
    
    exclusively.
    
         In Del Toro, the federal interest was more attenuated.                 The
    
    defendants were convicted of bribing a New York City official to
    
    ensure that they would supply office space to a city program that
    
    was eligible for federal funds.125              The Del Toro court reversed
    
    these bribery convictions, noting that even if the official had
    
    succeeded in provisionally securing the lease as desired, three
    
    local agencies would have had to approve the lease before the city
    
    could apply to the federal government for funds, so that “[t]here
    
    were no existing committed federal funds for the purpose.”126               The
    
    Senate Committee’s intent to overrule Del Toro thus reflects that
    
    the Committee thought it necessary and proper for § 666 to reach
    
    
    
    
         124
           United States v. Hinton, 
    683 F.2d 195
    , 198–200 (7th Cir.
    1982); United States v. Mosley, 
    659 F.2d 812
    , 815–16 (7th Cir.
    1981).
         125
               United States v. Del Toro, 
    513 F.2d 656
    , 658–61 (2d Cir.
    1975).
         126
               Id. at 662.
    
                                            47
    bribery even before the federal government had committed funds.127
    
         The most that can be concluded from the report, then, is that
    
    the Senate Judiciary Committee delimited the scope of § 666 in part
    
    by seeking to exclude theft from suppliers but to include bribery
    
    of officials running programs that might receive federal funds.    I
    
    do not see the report as shedding much light on our question.
    
    Lipscomb’s conduct falls into a middle ground that the report
    
    simply does not address.
    
         5.    The 1981 Bill
    
         The plot thickens still further when an effort is made to
    
    verify the assertion in the 1983 report that the language of § 666
    
    was derived from a 1981 bill that never became law.128     The 1981
    
    bill and its report emerged from Senate Judiciary —— the same
    
    committee that later wrote the 1983 bill and report.   The Committee
    
    omitted from both the 1983 bill and the 1984 act, however, the very
    
    language in the 1981 bill that would have answered our question:
    
              (c) Jurisdiction.——There is federal jurisdiction
         over an offense described in this section if——
              ...
                   (6) the public servant is an agent of a
              State or local government charged by a federal
    
         127
           “Arguably [ ] Congress did not intend the involvement of
    federal funds in a corrupt transaction to be a factual certainty.”
    Westmoreland, 841 F.2d at 577 (interpreting Del Toro).
         128
           S. REP. NO. 98-225, at 369 (“The proposal is derived from
    S. 1630, the Criminal Code Reform Act of 1981[,] approved by the
    Committee in the 97th Congress.”) & n.1 (“See, e.g., sections 1731
    (Theft) and 1751 (Commercial Bribery) of S. 1630 and the discussion
    at pages 726 and 803 of S. Rept. No. 97-307 (97th Cong., 1st
    Sess.”)), reprinted in 1984 U.S.C.C.A.N. at 3510.
    
                                    48
               statute, or by a regulation issued pursuant
               thereto, with administering monies or property
               derived from a federal program, and the
               official action or legal duty [with respect to
               which the bribe is taken] is related to the
               administration of such program.129
    
    Thus, in 1983, the Senate Judiciary Committee had in hand —— and
    
    even mentioned —— a two-year-old bill that would have required a
    
    federal interest or nexus as a jurisdictional predicate.    Yet the
    
    1983 bill and 1984 enactment contained none of that language or
    
    anything similar.130   The reason for that absence is unclear.   In
    
    1981, when the Committee clearly sought to require a federal nexus,
    
    it had sufficient command of the English language to do so.      To
    
    suppose that the Committee lost that faculty over either two or
    
    four years is ludicrous.     Section 666 as enacted and amended,
    
    therefore, might have reflected a change in the Senate Judiciary
    
    Committee’s view on whether to require a federal nexus, but we
    
    
         129
           S. 1630, 97th Cong. § 101 (1981) (recodifying all of Title
    18). This jurisdictional language in the proposed bribery section
    would have been the new 18 U.S.C. § 1351(c)(6). See S. 1630, 97th
    Cong. § 101, at 76–77 (codifying program bribery offense).
         The commercial bribery section in the 1981 bill contained a
    similar   nexus   requirement  for   the  existence  of   federal
    jurisdiction.    See S. 1630, 97th Cong. § 101, at 134 (1981)
    (proposing a new 18 U.S.C. § 1751(c)(1)(I)).
         130
           Any attempt to rely on the legislative history of the 1981
    bill is therefore misguided. Unfortunately, a panel of this court
    has done so, quoting the 1981 report as if it were the 1983 report
    that shed light on the enacted text. See Phillips, 219 F.3d at 413
    n.14 (citing United States v. Coyne, 
    4 F.3d 100
    , 110 n.1 (2d Cir.
    1993) for its description of the “Committee Report,” but failing to
    note that the quote was from the 1981 report, not the 1983 report).
    Both Phillips and Coyne erred in relying on a report interpreting
    a jurisdictional requisite that never became law.
    
                                     49
    cannot say this with certainty: For all we know, the Committee
    
    might well have sought to exercise federal criminal jurisdiction up
    
    to its constitutional limits, leaving the issue to the courts to
    
    decide.
    
    C.   The Views of Other Courts
    
         Whatever the reason for § 666’s silence on this question, the
    
    courts have struggled to produce the answer.   Some district courts
    
    have tested § 666 against the Tenth Amendment, treating the statute
    
    as an emanation of the spending power, and have come to varying
    
    conclusions.131   Additionally, four of our fellow appellate courts
    
    have examined the sweep of § 666, either as a statutory matter or
    
    a constitutional one, and are also divided.
    
         131
           Compare United States v. Sabri, 
    183 F. Supp. 2d 1145
    ,
    1154–58 (D. Minn. 2002) (seemingly holding, contra Salinas, § 666
    to be a facially unconstitutional exercise of the spending power)
    and United States v. McCormack, 
    31 F. Supp. 2d 176
    , 178, 183–89 (D.
    Mass. 1998) (finding § 666 unconstitutional, because exceeding
    Congress’s spending power, as applied to indict defendant who
    bribed a local police officer to prevent investigation and
    prosecution of state crimes, despite the fact that the police
    department received federal funds) with United States v. Ferrara,
    
    990 F. Supp. 146
    , 152 (E.D.N.Y. 1998) (rejecting federalism
    challenge to indictment of defendant who attempted to bribe members
    of a town board so that they would vote to approve zoning changes
    necessary to the construction of a radio tower completely
    unconnected to federal funds) and United States v. Bigler, 907 F.
    Supp. 401, 402 (S.D. Fla. 1995) (sustaining indictment against
    federalism and Tenth-Amendment attack, and finding § 666 a
    constitutional exercise of, because necessary and proper to, the
    spending and general-welfare powers, without detailing any
    connection to federal funds). See also United States v. Cantor,
    
    897 F. Supp. 110
    , 112–13 (S.D.N.Y. 1995) (affirming the
    constitutionality of § 666 under the spending power and against
    Tenth-Amendment attack, and thus sustaining indictment of defendant
    who had facilitated bribery of official of Board of Education,
    without detailing any connection to federal funds).
    
                                     50
         Lipscomb relies on United States v. Zwick,132 in which the
    
    Third Circuit declined to apply § 666 to conduct such as his:
    
         Interpreting § 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.    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 § 666
         to offense conduct, absent evidence of any federal
         interest, would appear to be an unconstitutional exercise
         of power under the Spending Clause.133
    
    To avoid this supposed constitutional problem, the Zwick court
    
    believed that to read § 666 literally is to err, and held that
    
    Ҥ 666 requires that the government prove a federal interest is
    
    implicated by the defendant’s offense conduct.”134    Not to require
    
    a nexus, reasoned the Third Circuit, would erase significant
    
    federal-state boundaries by turning § 666 into a general anti-
    
    corruption law, which, in the Third Circuit’s view, Congress had
    
    not intended.135
    
         What then, under Zwick, would constitute a federal interest?
    
    “The amount of federal funds” alone, reasoned the Zwick court,
    
    could constitute the interest if the federal funds provided “the
    
    greater part of a township’s budget”; if not, the offense conduct
    
         132
               
    199 F.3d 672
     (3d Cir. 1999).
         133
               Id. at 687 (parallel citations omitted).
         134
               Id.
         135
               Id. at 686.
    
                                       51
    would have to implicate a substantive or programmatic interest,
    
    even though “a highly attenuated implication of a federal interest
    
    will suffice.”136     Since deciding Zwick, the Third Circuit has
    
    clarified that the federal interest can reach very deep into the
    
    ranks of local government.137
    
         In diametric opposition to the Third Circuit, two other
    
    circuits have declined to read an extra-textual nexus into § 666.
    
    The Sixth Circuit has rejected a constitutional attack on its pre-
    
    Salinas position that except for the textual $10,000 threshold,
    
    § 666 does not require a nexus between federal funds and the
    
    offense conduct.138    The Supreme Court recently declined to review
    
    
    
         136
           Id. Evidence in Zwick showed that federal funds supported
    erosion control and emergency snow removal.    Id. at 688.   The
    defendant, a township commissioner, had taken bribes in exchange
    for action on “sewer access, use permits and landscaping
    performance bonds.” Id. Finding “no obvious connection” between
    the two, the court remanded for a new trial. Id.
         137
           United States v. DeLaurentis, 
    230 F.3d 659
    , 662 (3d Cir.
    2000) (vacating dismissal of § 666 counts against former supervisor
    of police detectives for Hammonton, New Jersey, when a jury might
    conclude that (1) Hammonton received $25,000 a year under the
    federal Community Oriented Policing Services Program, (2) the
    defendant was bribed to intercede to protect a local bar, and (3)
    a federally-funded police officer was dispatched to the bar).
         138
           See United States v. Suarez, 
    263 F.3d 468
    , 472–73, 489–91
    (6th Cir. 2001) (affirming conviction of police officer for
    converting victim restitution funds and police evidence).      The
    Suarez majority does not clearly state that Suarez is a
    constitutional holding, but Suarez “clarifie[d] that this claim is
    a constitutional one.” Id. at 484 (Boggs, J., dissenting as to
    Part VI). See also United States v. Dakota, 
    188 F.3d 663
    , 666–68
    (6th Cir. 1999) (affirming conviction of an agent of a tribal
    organization that received federal funds, although the agent’s
    offense conduct bore no relation to federal funds).
    
                                     52
    this result.139        The Seventh Circuit likewise has held that the
    
    broad text of § 666 controls: “It is not our part to trim § 666 by
    
    giving its text a crabbed reading.”140      Noting that the fungibility
    
    of money militates against a narrow reading of § 666, the Seventh
    
    Circuit concluded as a statutory matter that the district court
    
    properly convicted a township supervisor, even though his bribe-
    
    taking related only to his control of the town’s general-assistance
    
    program, which did not receive any federal funds.141
    
           In addition to his reliance on Zwick, Lipscomb would rely on
    
    a precedent from the Second Circuit, but close inspection of that
    
    case reveals that it actually supports his conviction here.            In
    
    United States v. Santopietro,142 that court stood by its earlier
    
    
           139
                 Suarez v. United States, 
    122 S. Ct. 1547
     (2002) (mem.).
           140
                 United States v. Grossi, 
    143 F.3d 348
    , 350 (7th Cir. 1998);
    id.:
           Grossi wants us to say that, unless the program or
           activity that was touched by bribery itself received
           $10,000 in federal funds, the “circumstance described in
           subsection (b)” does not obtain. Yet money is fungible
           and its effect transcends program boundaries.        The
           general assistance program has more to spend on welfare
           (or dangle as a lure for bribes) if the federal
           government meets some of the Township’s other expenses.
                Congress has on occasion limited regulation to the
           specific    activity   that    receives   the    federal
           money. [Giving examples of statutory language] . . .
           Section 666(b), by contrast, refers not to a “program or
           activity” but to the “organization, government, or
           agency.” The difference is palpable.
           141
           Id. at 350.    The court also stated that “the district
    court’s subject-matter jurisdiction is supplied by 18 U.S.C. § 3231
    and is secure.” Id. at 351.
           142
                 United States v. Santopietro, 
    166 F.3d 88
     (2d Cir. 1999).
    
                                          53
    requirement of “at least some connection between the bribe and a
    
    risk to the integrity of the federal [sic] funded program.”143 ——
    
    obviously a “corruption focus.” Nevertheless, the example that the
    
    Second Circuit gave of bribery that § 666 would not reach —— a
    
    bribe paid to the hypothetical meat inspector of a city that
    
    received a federal grant only for its parks department —— involves
    
    a   federal       interest   that   is   much    more   attenuated   from   the
    
    perpetrator than does this case.144             Furthermore, the Santopietro
    
    court affirmed the convictions of former officials of Waterbury,
    
    Connecticut, who had accepted bribes from real estate developers.145
    
    Linkage between the officials’ offense conduct and federal funds
    
    was actually more remote than the connection in the instant case:
    
          [C]orrupt payments were made by real estate developers to
          secure the use of the appellants’ influence with city
          agencies including the City Plan Commission, the Zoning
          Commission, the Water Department, and the Fire Marshal,
          and the use of their influence to further the interests
          of the developers in the appointments of members and
          chairpersons of land use boards and relevant committees
          and agencies in the City of Waterbury.        During the
          relevant periods, substantial federal funds were received
          by Waterbury for housing, urban development, and other
          programs within the purview of these agencies and
          officials.     Since federal funds were received by
          Waterbury for housing and urban development programs and
          the corrupt payments concerned real estate transactions
          within the purview of the agencies administering federal
          funds, the requisite connection between the bribes and
          the integrity of federally funded programs is satisfied.
          Thus, this is not a case where the transactions sought to
    
          143
                Id. at 93.
          144
                Id.
          145
                Id. at 91.
    
                                             54
         be influenced concerned one department of a city and the
         requisite $10,000 of federal funds were received by a
         totally unrelated department.146
    
    Santopietro thus stands indisputably for a purview test: To be
    
    prosecuted under § 666, a bribed official must at least influence
    
    other officials who have within their purview federally funded
    
    programs, but the corruption need not touch those programs.                In
    
    other words, Santopietro asks whether a defendant could have
    
    influenced   the   use   of   federal   funds    by   controlling   the   same
    
    agencies or staffers whom he actually corruptly influenced with
    
    respect to purely local matters.
    
         Such a purview test, applied to the case at bar, supports
    
    convicting Lipscomb, who took bribes in return for influencing
    
    matters within the purviews of two Dallas departments, human
    
    services and transportation, which both received federal funds.
    
    The connection between federal funds and corrupt conduct is closer
    
    here than in Santopietro, where the court did not explain how the
    
    “City Plan Commission, the Zoning Commission, the Water Department,
    
    and the Fire Marshal” administered federal funds, but rather
    
    suggested that these agencies and officials made decisions ——
    
    presumably determining whether proposed developments complied with
    
    zoning, fire, and other codes147 —— with respect to housing and
    
         146
           Id. at 93–94 (emphasis           added;    citations   and   internal
    quotation marks omitted).
         147
           See United States v. Santopietro, 
    996 F.2d 17
    , 18 (2d Cir.
    1993) (prior merits appeal) (“Benefits to certain bankers and land
    developers included zoning changes, subdivision approvals,
    
                                        55
    urban development programs, likely administered by other agencies,
    
    that did receive federal funds.148            In other words, the federal
    
    interest in Santopietro was more remote than it is here, as
    
    Lipscomb himself cast votes to approve requests for federal funds,
    
    and himself both lobbied and pressured officials who ran federally-
    
    funded programs.
    
           A less cumbersome and more direct purview rule would apply
    
    § 666 to defendants who themselves influence or control federal
    
    funds.149      Such a rule also would support convicting Lipscomb here.
    
    The Santopietro court, however, did not affirmatively adopt this
    
    rule, explicitly leaving open the question whether the former mayor
    
    could be prosecuted under § 666 for any transaction involving the
    
    city    if     the   federal   funds   were   entirely   unrelated   to   that
    
    transaction.150 Santopietro, therefore, although confirming a nexus
    
    
    confidential appraisal information for use in bidding on city-owned
    property, expedited treatment from city agencies, and input into
    appointments.”).
           148
                 Santopietro, 166 F.3d at 93.
           149
           This may be the rule in the Fourth Circuit, which has
    summarized § 666 as banning “payoffs to state and local officials
    who influence the distribution of federal funds.” United States v.
    Jennings, 
    160 F.3d 1006
    , 1012 (4th Cir. 1998).       However, the
    offense conduct in Jennings clearly involved federally funded
    programs: the bribed official gave federally funded housing-
    construction contracts to the briber. Id. at 1010–12.
           150
             Santopietro, 166 F.3d at 94 n.3:
           We need not consider whether Santopietro’s role as
           mayor——the chief executive officer of the city and hence
           the officer ultimately responsible for all city
           departments——would render the statute applicable to
           corrupt payments received by him for any transaction
    
                                            56
    rule, also could be read as supporting Lipscomb’s conviction under
    
    such a rule or (just possibly) as skirting the relevant question
    
    entirely.      Thus, of the two cases from other circuits —— Zwick and
    
    Santopietro —— that Lipscomb relies on heavily, only Zwick could
    
    support finding § 666 unconstitutional as applied here.
    
    D.   Federal Interests at Stake
    
         My      own   review   is   guided    by   the   traditional,   rational-
    
    relationship test for whether a statute is necessary and proper to
    
    an enumerated federal power.151 In this case, two federal interests
    
    support the view that Congress reasonably could have thought it
    
    necessary and proper to apply § 666 to agents and officials like
    
    Lipscomb.
    
         1.       Absolute Amount of Federal Dollars
    
         The government argues that the total federal funding received
    
    by Dallas —— $56 million in 1998 —— justified federal jurisdiction
    
    over Lipscomb’s conduct.          Lipscomb focuses on the fact that $56
    
    million was only 3.5% of Dallas’s city budget in that year.                 In
    
    part, this is a dispute over the meaning of one passage in Zwick:
    
         We can conceive of several ways in which the government
         could prove a federal interest in a § 666 [case].... 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 greater part of a
    
    
         involving the city, even though the federal funds were
         received for a program entirely unrelated to the program
         in connection with which the corrupt payments were made.
         151
               See TRIBE, supra note 65, § 5–3, at 798–802, 805.
    
                                              57
          township’s budget came from federal funds, bribery of a
          township agent for any purpose might be said to implicate
          federal interests.152
    
    In   the     abstract,    this    “greater    part”   yardstick    may    have    an
    
    appealing ring, but it is utterly divorced from reality.                          In
    
    actuality, no state government and, I suspect, only a rare county
    
    or city government (not even the District of Columbia), is so
    
    wholly a creature of the United States as to rely on Washington for
    
    “the greater part” of its revenue.153           In the rare case that federal
    
    funding       is   a   majority    of   total   revenue,    federal      power    to
    
    criminalize local corruption would undoubtedly exist; but surely
    
    the absolute level of federal grants, as well as their relative
    
    importance to the city’s budget, would provide a federal interest,
    
    to the protection of which § 666 is necessary and proper.
    
          To determine whether this is so —— to judge if § 666 is indeed
    
    reasonably related to the federal interest in safeguarding $56
    
    million —— I would analogize the federal government and Dallas to
    
    partners in spending federal dollars to advance shared goals.                     In
    
    the private sector, what would a reasonable funding partner who has
    
    advanced $56 million do after learning that its service partner
    
    takes       kickbacks,    albeit    regarding     matters    not    within       the
    
          152
                Zwick, 199 F.3d at 687.
          153
            See U.S. BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, STATISTICAL
    ABSTRACT OF THE UNITED STATES: 2001, tables 435, 437, 439, 445, 447
    (121st ed. 2001) (showing total revenue and federal revenue of the
    states and the largest cities and counties by population). None of
    the states, and none of the cities and counties listed, relies on
    the federal government for a majority of its revenue.
    
                                             58
    partnership’s scope?      The funding partner might well dissolve the
    
    partnership rather than wait for the service partner’s corruption
    
    to widen and infect partnership dealings.
    
          The partnership analogy does not bear close inspection, but
    
    its failure, instead of undermining the constitutionality of § 666,
    
    actually supports it.     The analogy founders on the fact that in the
    
    public sector, states, counties, and municipalities hold monopolies
    
    on delivering many governmental services to their citizens.          Thus,
    
    when Congress seeks to benefit the citizenry of a particular state
    
    and locality, it can turn to very few potential public partners.
    
    This scarcity suggests that if the federal-Dallas partnership were
    
    dissolved when corruption among Dallas officials is discovered ——
    
    or if the federal government were to withhold funds in such a case
    
    —— the purpose of the federally funded programs would be defeated,
    
    and Congress would be prevented from using the spending power to
    
    promote the welfare of citizens of Dallas. The populace of Dallas,
    
    however, is by definition innocent of official corruption, and
    
    should not suffer a cut in federally funded services on account of
    
    it.   The prospective specter of criminal sanctions against corrupt
    
    officials   themselves,    rather   than   post-hoc,   fiscally   punitive
    
    measures against Dallas, is therefore a logical and appropriate
    
    solution for local corruption that threatens —— even indirectly, as
    
    here —— $56 million in federal funds.
    
          The Council votes to apply for federal funds, to accept
    
    federal funds, and to approve all large contracts, including those
    
                                        59
    involving federal funds.        Congress could rationally believe that
    
    the integrity of $56 million of federal funds applied for by the
    
    Council —— particularly when the federal treasury is funding not
    
    just one or two projects but many —— suffices as a federal interest
    
    weighty     enough   to   justify   federal   criminal   jurisdiction   over
    
    Council members who are bribed with respect to local issues.
    
         2.       The Integrity of State and Local Officials
                  with Authority over Federal Funds
    
         A second federal interest at stake here is the integrity vel
    
    non of federal programs and funds, regardless of the quantum or
    
    budget percentage of funds at issue.             A corrupt state or city
    
    official who has real responsibility for, or often participates in,
    
    the allocation of federal funds is a “threat to the integrity”154 of
    
    those funds, even if they are not actually or directly infected by
    
    his corruption.      Congress may legitimately view as necessary and
    
    proper the imposition of federal criminal liability for bribery, so
    
    as to ensure the honesty of state and local officials who have
    
    federal funds in their purview or federal programs under their
    
    authority.
    
         Judge Smith advances two explicit arguments against such
    
    liability (neither of which, with respect, I find persuasive) and
    
    one implicit argument that is defeated by the text of the statute
    
    and the facts of this case.            The implicit contention is that
    
    bribery of Lipscomb alone, apart from any of his fourteen council
    
         154
               Salinas, 522 U.S. at 61.
    
                                          60
    colleagues, cannot create a sufficient federal interest or nexus,
    
    because Lipscomb cannot act for the Council.   This argument might
    
    also be grounded in the fact that, alone, one legislator does not
    
    administer program funds.    The text of § 666 disposes of this
    
    argument, as a statutory matter, because Congress clearly sought to
    
    apply § 666 to legislative-branch officials.155 As a constitutional
    
    matter, there is little or no basis for holding that federal
    
    jurisdiction over bribery of Council members depends on whether the
    
    briber can command a majority.    One Council member’s vote, after
    
    all, can tip the balance on a close question; and, as Lipscomb’s
    
    conduct here demonstrates, a member has a number of arrows in his
    
    parliamentary quiver besides the final vote.
    
         Judge Smith also speculates that the State of Texas would have
    
    prosecuted Lipscomb had it known of the evidence against him.   This
    
    is not a constitutional argument; it merely begs the constitutional
    
    question regarding the limits of the spending power.156    And, as
    
         155
           Lipscomb is an “agent” under the statute because he is an
    “officer” of Dallas. 18 U.S.C. § 666(d)(1) (2000). Even if he
    were merely an agent of a “subdivision of the [ ] legislative...
    branch of government,” the statute’s text would still cover him.
    18 U.S.C. § 666(d)(2) (2000).
         156
           See United States v. Bailey, 
    990 F.2d 119
    , 126 (4th Cir.
    1993) (citations omitted):
              We find no merit to this claim.... [T]he Tenth
         Amendment does not prohibit the federal government from
         enforcing its laws, even when there are state laws
         addressing the same criminal act.
              . . .
              Although South Carolina could have brought state
         criminal charges against Bailey based upon the same
         facts, this does not prevent the United States from
    
                                     61
    either a positive or a normative statement —— that the federal
    
    government either does or should leave such prosecutions to the
    
    states —— it fails.       There are at least three reasons why federal
    
    rather than state bribery prosecutions might be necessary and
    
    proper in cases like Lipscomb’s.             First, the federal government
    
    might have a greater incentive to prosecute than does the state
    
    government,      either   because   the      offense    conduct      directly   or
    
    potentially affects federal funds or because the federal government
    
    provides      more   money   to   the    locality      than   does    the   state
    
    government.157       The latter proposition is true in this case: In
    
    terms of dollars provided to Dallas, the federal government has a
    
    stake in the city’s fiscal integrity that is between fifteen and
    
    twenty times greater than the state’s stake.158
    
         Second, federal officials might be less corruptible than state
    
    
         enforcing its criminal statutes.
         157
           Both reasons were part of the Senate Judiciary Committee’s
    thinking in recommending that the Senate enact § 666. See S. REP.
    NO. 98-225 at 369, reprinted in 1984 U.S.C.C.A.N. at 3510:
         In many cases, such prosecution is impossible because
         title has passed to the recipient before the property is
         stolen, or the funds are so commingled that the Federal
         character of the funds cannot be shown. This situation
         gives rise to a serious gap in the law, since even though
         title to the monies may have passed, the Federal
         Government clearly retains a strong interest in assuring
         the integrity of such program funds. Indeed, a recurring
         problem in this area (as well as in the related area of
         bribery of the administrators of such funds) has been
         that State and local prosecutors are often unwilling to
         commit their limited resources to pursue such thefts,
         deeming the United States the principal party aggrieved.
         158
               See Part I.B., supra (discussing jurisdictional facts).
    
                                            62
    and local officials,159 and an informant with evidence of misconduct
    
    by a state or local official might feel safer in taking his
    
    information to federal authorities; indeed, he could even prefer
    
    that it not be shared with state or local authorities.                  Third,
    
    federal prosecutors are less likely to be linked to state and local
    
    politicians and are generally more independent of local political
    
    forces that might try to protect high officials from aggressive
    
    state enforcement.
    
         Judge        Smith’s    second   contention    against    high-official
    
    liability is a law-and-economics argument that, in my opinion, does
    
    not hold water and affords courts little basis, if any, on which to
    
    pronounce     a    statute    unconstitutional,    whether   facially   or   as
    
    applied. As I understand his argument, it is that if courts permit
    
    the United States as well as states to prosecute high local
    
    officials for bribery involving local funds and programs, corrupt
    
    officials will change their behavior and, on the margin, take more
    
    bribes directly related to federal funds and programs than they
    
    otherwise would.160         With respect, I perceive at least three flaws
    
         159
           See RICHARD A. POSNER, ECONOMIC ANALYSIS OF THE LAW 698 (5th ed.
    1998) (emphasis added):
         Some federal criminal jurisdiction can be explained by
         reference to the point...that monopolies of political
         power are more easily achieved at the state than at the
         federal level. Federal criminal prosecutions of corrupt
         local   government    officials     exploit    the    relative
         incorruptibility of federal officials —— stemming from
         the greater costs of corrupting a federal agency... —— in
         order to reduce corruption at the local level.
         160
               See infra at ___.
    
                                           63
    of logic in this argument.
    
           First, social science has not yet proven that the rational-
    
    actor model adequately explains the real-world behavior of white-
    
    collar       criminals:     As     behavioral     law    and   economics      warns     us,
    
    inadequate        information,       biases,     and    heuristics        often    prevent
    
    individuals from acting rationally.                    For example, unless a local
    
    official        is   well   integrated      into    a     culture    of    white-collar
    
    criminality (which would itself suggest that federal prosecution
    
    may    be     necessary),     he    will   lack    even    anecdotal       data    on   the
    
    probability that either the state or the federal government will
    
    detect and prosecute bribery. (Anecdotal data would, of course, be
    
    the only data available.)                  Therefore, an official considering
    
    whether to take a bribe would not be likely to calculate the odds
    
    of detection or prosecution in the dispassionately mathematical way
    
    that the rational-actor model might suggest.
    
           Furthermore,         standard    law-and-economics           analysis      actually
    
    justifies federal criminal jurisdiction on the basis of interstate
    
    externalities, an argument eminently applicable here.161 If bribery
    
    in    Dallas     threatens       federally-provided        funds,     that   corruption
    
    threatens the federal Treasury, which is funded by taxes collected
    
    not just from Texas but from all across the Nation.
    
           Lastly and most importantly, even if Judge Smith’s law-and-
    
    economics objection to federal jurisdiction here were an accurate
    
    
           161
                 See POSNER, supra note 120, at 697.
    
                                                64
    predictor, it has little force. The most that his prediction might
    
    prove is that Congress has deluded itself into passing a law that
    
    may be self-defeating, because it increases the vulnerability of
    
    federal funds to corruption and thus disregards economic facts.
    
    “But a law can be both economic folly and constitutional.”162                  A
    
    means-ends tradeoff, weighing costs against benefits, is precisely
    
    the sort    of   political    judgment     that    members    of   Congress   are
    
    entitled —— and better equipped than judges —— to make, and that
    
    courts should generally defer to.          As judges, we do not experience
    
    the perils attendant on taxing one’s own constituents, do not enjoy
    
    the political significance of bringing home the fiscal bacon, and
    
    do not share the frustration of seeing hard-won federal dollars
    
    bleed off through the hands of corrupt local officials.                 Lacking
    
    the power to tax and spend, federal judges should defer to a
    
    plausible   risk-reward      construct     that    Congress   has   enacted   to
    
    protect the federal fisc.
    
    E.   Constitutional Limits to § 666?
    
         Lipscomb    strongly    argues   that    if    §   666   constitutionally
    
    criminalizes conduct like his by state and local agents, then there
    
    are no limits to its sweep, and federal criminal law extends to
    
    briberies totally removed from federal funds.             As I have analyzed
    
    Lipscomb’s constitutional challenge to the statute as it applies to
    
    him, I need not determine here whether there is a constitutional
    
         162
           CTS Corp. v. Dynamics Corp. of America, 
    481 U.S. 69
    , 96–97
    (1987) (Scalia, J., concurring).
    
                                          65
    limit on § 666’s reach.       A brief comment is nonetheless in order.
    
         As a statutory matter, even Westmoreland —— our broadest (and
    
    controlling) reading of § 666 —— did not address whether § 666 can
    
    reach      the   lowest   levels   of   state   and   local   bureaucracies.
    
    Westmoreland did, however, advert to the limits in the statute’s
    
    text:
    
         [T]he statute does not encompass every local bribery as
         Westmoreland suggests.     Although the extent of the
         federal government’s assistance programs will bring many
         organizations and agencies within the statute’s scope,
         the statute limits its reach to entities that receive a
         substantial amount of federal funds and to agents who
         have the authority to effect significant transactions.163
    
         As a constitutional matter, under the Necessary and Proper
    
    Clause, the test is whether prosecution would be rationally related
    
    to a federal interest —— that is, to effecting Congress’s spending
    
    power.      In this case, two already-noted federal interests justify
    
    applying § 666 to Lipscomb’s conduct: (1) the total amount of
    
    federal funds extended to Dallas and (2) Lipscomb’s purview —— his
    
    high rank and his broad influence over many programs that receive
    
    federal funds.       Of these two interests, his purview would easily
    
    accommodate, in another case, the Second Circuit’s hypothetical
    
    implication in Santopietro that it could not be necessary and
    
    proper to the spending power for federal criminal liability to
    
    extend to a corrupt city meat inspector when the city receives
    
    
    
    
         163
               Westmoreland, 841 F.2d at 578.
    
                                            66
    federal funds only for its parks.164    That case is not before us
    
    today, however, so I need not predict, in double dicta, whether
    
    there might be categories of prosecutions under § 666 that are not
    
    necessary and proper to the spending power.     For today’s purposes
    
    it is sufficient to note that if there are such categories,
    
    Lipscomb is far removed from them.
    
    F.   Conclusion
    
         The constitutional argument in this case boils down to how
    
    direct must local corruption’s threat to federal funds be for § 666
    
    to apply.   Lipscomb insists that, although federal funds need not
    
    be directly involved in the offense conduct, the state or local
    
    official’s conduct still must threaten the integrity of federal
    
    funds more directly than did his.    Not so.   The foregoing analysis
    
    has shown that (1) the text of § 666 reads otherwise; (2) the
    
    legislative history does not clearly contradict it (as it must to
    
    override a clear criminal statute165); and (3) our controlling
    
    precedents on point reject such a limit.        Reduced to the bare
    
    
         164
           Santopietro, 166 F.3d at 93. Meat inspection is very much
    a federal responsibility, however, and the Second Circuit may have
    overlooked the Federal Meat Inspection Act, 21 U.S.C. § 601 et
    seq., especially 21 U.S.C. § 622 (banning bribery of meat
    inspectors employed by the United States).
         165
           Salinas, 522 U.S. at 57 (“Courts in applying criminal laws
    generally must follow the plain and unambiguous meaning of the
    statutory language.    Only the most extraordinary showing of
    contrary intentions in the legislative history will justify a
    departure from that language.”) (quoting United States v.
    Albertini, 
    472 U.S. 675
    , 680 (1985)) (further citations, internal
    quotation marks, and brackets omitted).
    
                                    67
    essentials, application of § 666 to Lipscomb’s conduct is indeed
    
    reasonably related to a federal interest, and thus is necessary and
    
    proper to Congress’s exercise of its spending power.                Congress
    
    could have believed, quite legitimately, that preventing federal
    
    funds from passing through state and local legislative bodies whose
    
    members   are   corrupt,   and    to    do   so   with   the   deterrent   of
    
    criminalizing the legislators’ corruption, even with respect to
    
    purely state or local issues, was necessary and proper to the
    
    federal spending power.    As courts can require of Congress nothing
    
    more than such a rational relationship to the spending power, § 666
    
    is constitutional as applied here.
    
                                     VII. VENUE
    
         Having established that the federal courts have jurisdiction
    
    of this case, we turn to Lipscomb’s assignments of reversible error
    
    by the district court.     Chief among these is his contention that
    
    the court abused its discretion in transferring the trial from
    
    Dallas to Amarillo sua sponte, shortly before trial, and over
    
    Lipscomb’s objection.
    
    A.   The Transfer Order
    
         The district court read its unexpected transfer order into the
    
    record at the end of a hearing on December 20, 1999.              The order
    
    reads, nearly in its entirety:
    
         As everyone knows this case will involve the trial of one
         of the best[-]known sitting elected officials in the
         Dallas/Fort Worth metroplex for allegations of public
         corruption. This Court cannot recall such a trial of a
         sitting elected official in Dallas for allegations of
    
                                           68
    public corruption.     This case has already received
    significant media attention and undoubtedly will receive
    more.
          The Court notes that both sides have requested or
    not opposed requests for individual voir dire examination
    of the prospective jury panel and both sides have
    requested use of a jury questionnaire. Both motions,
    unusual and rare motions in federal criminal cases in
    Dallas, are made precisely because of the high profile of
    Defendant Lipscomb, a Dallas City Councilman of twelve
    years[’] experience and one of the most influential and
    well[-]known political leaders in the Dallas African[-
    ]American community for the last three decades.
    Councilman Lipscomb has been an effective representative
    of his constituency and locally has strong supporters and
    detractors. These facts will obviously make selection of
    a jury of twelve with no preconceived opinions about Al
    Lipscomb no easy task.
          As stated this case has thus far generated
    substantial publicity in the local media and will
    generate more throughout the trial. Such coverage has
    resulted in the Court reading in the newspapers certain
    information that has been filed under seal. The Court is
    also concerned about the ability to select a fair and
    impartial jury.
          In considering the various motions regarding jury
    selection that both sides have filed[,] the Court is not
    convinced that such measures would be sufficient to
    assure Councilman Lipscomb, the other defendants, and the
    Government a fair trial.     It is this Court’s fervent
    desire and absolute obligation to see to it that a fair
    trial is conducted —— fair to both the defendants and the
    Government. This Court will do all in its power under
    the law to make sure the verdict in this case is based on
    the evidence presented in the courtroom, and absolutely
    nothing else.
          There is no “divisional” venue in criminal cases
    under Federal Criminal Rule [sic] of Procedure 18. Since
    the 1966 amendment of this rule[,] providing for
    prosecution to be had in the district in which the
    offense was committed, a division of a federal judicial
    district is no longer a unit of venue in criminal cases.
    United States vs. Burns, 
    662 F.2d 1378
     (11th Cir., 1981);
    Zicarelli vs. Gray, 
    543 F.2d 466
     (3rd Cir., 1976).
    Within[-]district transfers of criminal cases are allowed
    under the law in this circuit.        See United States
    vs.[ ]Bridges, 
    551 F.2d 651
     (5th Cir. 1977) and United
    States vs. James, 
    528 F.2d 999
     (5th Cir. 1976), cert.
    denied, 
    97 S. Ct. 382
    , 770. Indeed, this Court disposed
    
                               69
         of all criminal cases filed in the Wichita Falls Division
         of the Northern District of Texas (about 100 cases) over
         a 4 ½ year period (1994 to 1999) in the Dallas Division
         of the Northern District of Texas. The law is clear that
         in the Court’s sound discretion, after considering the
         statutory elements, which this Court has done, this case
         may be tried anywhere within the Northern District of
         Texas.
              Amarillo is a good[-]size[d] city[,] serviced by
         several airlines and is only a five[-]hour drive from
         Dallas. No defendant is indigent and all have retained,
         as opposed to appointed, council [sic]. The Court has
         made a careful analysis and given due consideration of
         the convenience of the witnesses and the parties, and
         considered the prompt administration of justice. These
         considerations, coupled with the concerns for selection
         of an impartial jury as expressed by the parties in their
         pretrial motions, as well as all the concerns the Court
         has expressed above, causes [sic] the Court to find that
         the prompt administration of justice would best be
         effectuated by having the trial of this case in the
         Amarillo Division of the Northern District of Texas.
              ...
              The Court is absolutely convinced that the prompt
         administration of justice will best be served by
         conducting this trial in Amarillo, where it is unlikely
         [sic] that few, if any on the jury panel will have ever
         heard of Al Lipscomb or Floyd Richards, and fewer still,
         if any[,] will have any preconceived ideas or opinions
         about them. This will help assure that the jury verdict
         is based on the merits of the evidence presented in the
         courtroom, and nothing else.
    
    Before the issuance of this order, no party had presented evidence
    
    regarding prejudice from pretrial publicity or regarding any other
    
    issue relative to venue.   On hearing the order read, lawyers for
    
    Lipscomb and his co-defendant, Richards, objected.   Lipscomb filed
    
    written objections nine days later —— objections on which the court
    
    did not rule before the trial began, as long scheduled, on January
    
    11, 2000, in Amarillo, some three hundred miles from Dallas.
    
         In a motion for a new trial following his conviction, Lipscomb
    
    
                                    70
    renewed his objections to the venue transfer, which motion the
    
    district court later denied.              Also after trial, the government
    
    filed thirty-seven newspaper articles about Lipscomb’s case that
    
    had appeared from March through December 19, 1999, as well as other
    
    articles that appeared after the transfer order —— none of which
    
    had been in the record when the transfer order issued and none of
    
    which were so much as mentioned by the district court.
    
    B.     Standard of Review: Abuse of Discretion
    
           We review all questions concerning venue under the abuse of
    
    discretion          standard.166    In   general,     “[a]    district   court      by
    
    definition abuses its discretion when it makes an error of law.”167
    
    A district court also abuses its discretion if it “bases its
    
    decision ... on a clearly erroneous assessment of the evidence.”168
    
    As a leading treatise on standards of review suggests, a trial
    
    court abuses its discretion “when the judge has considered the
    
    wrong factors in applying his discretion (the judgment call was
    
    made    as     to    issues   or   factors     not   within   the   scope   of     his
    
    discretionary powers).”169
    
    
    
           166
           United States v. Asibor, 
    109 F.3d 1023
    , 1037 (5th Cir.
    1997); United States v. Alvarado, 
    647 F.2d 537
    , 539 (5th Cir. Unit
    A June 1981).
           167
                 Koon v. United States, 
    518 U.S. 81
    , 100 (1996).
           168
                 Esmark Apparel, Inc. v. James, 
    10 F.3d 1156
    , 1163 (5th Cir.
    1994).
           169
           1 STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS         OF   REVIEW
    § 4.01(A) (3d ed. 1999).
    
                                              71
         Reversal of an intradistrict transfer is proper only if a
    
    party    demonstrates   a   “substantial   ground   for   overturning   the
    
    district court’s decision.”170     In the typical case, the defendant
    
    appeals the trial court’s denial of a Rule 18 motion to transfer
    
    venue.     And, in the typical case, the defendant’s appeal is
    
    unsuccessful because the district court is “not [ ] required to
    
    move the trial absent a strong showing of prejudice”171 to the
    
    defendant.     Some of our cases suggest that this same strong-
    
    showing-of-prejudice standard applies when, as here, the defendant
    
    seeks to block a transfer.172       When the government is the party
    
    seeking a transfer, however, at least one case appears to require
    
    that the government have a “legitimate reason” for doing so.173
    
    
         170
           United States v. Dickie, 
    775 F.2d 607
    , 609 (5th Cir. 1985),
    abrogated in part on other grounds, 
    37 F.3d 160
     (5th Cir.1994),
    (brackets omitted) (citing United States v. Malmay, 
    671 F.2d 869
    ,
    876 (5th Cir. 1982)).
         171
           United States v. Duncan, 
    919 F.2d 981
    , 985 (5th Cir. 1990)
    (“An intradistrict transfer is not required absent a strong showing
    of prejudice.”); Malmay, 671 F.2d at 876. See also Dickie, 775
    F.2d at 609.
         172
           See United States v. Osum, 
    943 F.2d 1394
    , 1399 (5th Cir.
    1991) (“[T]he transfer [requested by the government] may be granted
    within the trial court’s discretion unless the defendant shows that
    a transfer would be prejudicial.”). Osum cited only Duncan for
    this proposition, but Duncan actually involved a transfer motion
    made by the defendant. Duncan, 919 F.2d at 985. Osum also stated
    that “[W]e cannot in this case, given the existence of a valid
    reason supporting transfer and no showing of prejudice by the
    defendant, say that the district court abused its discretion.”
    Osum, 943 F.2d at 1400.
         173
           Osum, 943 F.2d at 1400 (finding that the transferee judge’s
    familiarity with the conspiracy alleged in the case was a
    “legitimate reason”).
    
                                        72
    Here, however, neither the government nor the defense sought
    
    transfer.
    
    C.   Analysis
    
         We      must   begin    our   analysis   by   recognizing an important
    
    distinction between intradistrict and interdistrict transfers: Only
    
    an interdistrict transfer implicates the Constitution.174            There is
    
    no basis for inferring the existence of a constitutional right to
    
    trial within the division where a criminal defendant lives or where
    
    a crime was committed.175           In one intradistrict transfer case,
    
    however, we interpreted the Sixth Amendment to mean that “it is the
    
    public policy of this Country that one must not arbitrarily be
    
    sent, without his consent, into a strange locality to defend
    
    himself      against   the   powerful   prosecutorial    resources    of   the
    
    Government.”176
    
         The Federal Rules of Criminal Procedure also distinguish
    
    between interdistrict and intradistrict transfers. Rule 21 governs
    
    transfers to another district and provides that this may be done
    
    
    
    
         174
               See U.S. CONST. art. 3, § 2, cl. 3; U.S. CONST. amend. VI.
         175
           United States v. James, 
    528 F.2d 999
    , 1021 (5th Cir. 1976)
    (noting that the Sixth Amendment makes “no reference to a division
    within a judicial district”); Lafoon v. United States, 
    250 F.2d 958
    , 959 (5th Cir. 1958).
         176
           Dupoint v. United States, 
    388 F.2d 39
    , 44 (5th Cir. 1967)
    (interpreting a prior version of Rule 18 that did not allow for an
    intradistrict transfer for the prompt administration of justice).
    
                                            73
    only on motion of the defendant.177       Rule 18, in contrast, governs
    
    intradistrict transfers:
    
         Except as otherwise permitted by statute or by these
         rules, the prosecution shall be had in a district in
         which the offense was committed. The court shall fix the
         place of trial within the district with due regard to the
         convenience of the defendant and the witnesses and the
         prompt administration of justice.178
    
    Although the text of Rule 18 refers only to convenience and prompt
    
    administration, the district court may consider other factors.179
    
    
    
         177
           FED. R. CRIM. P. 21(a):
         For Prejudice in the District. The court upon motion of
         the defendant shall transfer the proceeding ... to
         another district ... if the court is satisfied that there
         exists in the district where the prosecution is pending
         so great a prejudice against the defendant that the
         defendant cannot obtain a fair and impartial trial ... in
         that district.
    See also FED. R. CRIM. P. 21(b) (“For the convenience of parties and
    witnesses, and in the interest of justice, the court upon motion of
    the defendant may transfer the proceeding ... to another
    district.”).
         178
               FED. R. CRIM. P. 18.
         179
           See 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE Crim § 305,
    at 339–40 & n.11 (3d ed. 2000 & supp. 2002) (collecting cases)
    (“There is now substantial authority for the proposition that the
    court . . . may take into account numerous factors appearing in the
    particular case.”). Compare FED. R. CRIM. P. 18 advisory committee’s
    notes to 1979 amendments:
         The amendment to rule 18 does not eliminate either of the
         existing considerations which bear upon fixing the place
         of trial within a district, but simply adds yet another
         consideration in the interest of ensuring compliance with
         the Speedy Trial Act of 1974. The amendment does not
         authorize the fixing of the place of trial for yet other
         reasons. Cf. United States v. Fernandez, 
    480 F.2d 726
         (2d Cir. 1973) (court in the exercise of its supervisory
         power held improper the fixing of the place of trial “for
         no apparent reason other than the convenience of the
         judge”).
    
                                        74
    In this case, the court mentioned several, which we shall evaluate
    
    in turn, and we shall rule out others that are not relevant here.
    
         1.       Convenience
    
         Rule 18’s “due regard to the convenience of the defendant and
    
    the witnesses” militates strongly against transfer in this case.
    
    The record shows that the defendant and all witnesses resided in
    
    Dallas.      In addition, every defense attorney practiced there, and
    
    the judge was based in Dallas.             Not a single relevant event
    
    occurred outside Dallas.180 As “convenience of the prosecution...is
    
    not a factor to consider in changing venue,”181 the convenience
    
    facts rarely cut as totally against transfer as they did here.
    
         The district court did not mention these contra-transfer facts
    
    in its order.     It merely noted that Amarillo was served by several
    
    airlines, that it was a five hours’ drive from Dallas, and ——
    
    perhaps inaccurately and irrelevantly —— that the defendants were
    
    represented by “retained” counsel.182       These facts, of course, did
    
         180
           This case is thus readily distinguishable from United States
    v. Gourley, 
    168 F.3d 165
     (5th Cir. 1999), where we found no abuse
    of discretion when the Southern District of Texas transferred a
    trial from the Houston division to the Laredo division. Some of
    the defendant’s witnesses were in Houston, id. at 171, suggesting
    that convenience in that case may have cut in favor of Houston; but
    an element of the offense conduct —— conspiracy to import cocaine
    —— took place “at the border near Laredo,” and the crime in
    progress was detected in both Laredo and Houston. Id. at 167.
         181
               Dickie, 775 F.2d at 610.
         182
           Although Lipscomb was not represented by court-appointed
    lawyers, the trial court’s use of “retained” connotes that Lipscomb
    was paying his lawyers’ fees. The record clearly shows, however,
    that Lipscomb faced large legal bills, lacked the means of his own
    
                                          75
    not   diminish   the   basic   truth    that   trial   in     Amarillo   was
    
    inconvenient for Lipscomb, his counsel, and all witnesses.               This
    
    case is, therefore, easily distinguishable from the two cases on
    
    which the district court relied, because convenience did not
    
    militate against transfer in either of them.183        Those cases do not
    
    support the court’s sua sponte transfer here, and the trial court
    
    erred as a matter of law in relying on them.
    
          2.    Court Policy
    
          The trial court also referred to its prior transfers of “about
    
    100 [criminal] cases” from Wichita Falls to Dallas (less than half
    
    the distance, we note, as Dallas to Amarillo).              This historical
    
    fact, however, does not support the transfer at issue.           Nothing in
    
    the record shows why those transfers took place. Such reference to
    
    the court’s prior venue practice verges on circularity and runs the
    
    risk of creating a per se rule that violates Rule 18’s focus on the
    
    
    
    
    to pay them (partly because Dallas city council members are not
    paid a salary), and resorted to fundraising.     One article also
    stated that Lipscomb’s lead defense lawyer had placed himself last
    in line for whatever money Lipscomb might manage to raise.
          183
           See James, 528 F.2d at 1003, 1021–22 (showing that
    convenience did not militate against transfer because six of the
    seven defendants did not even live in state, much less in the
    transferring division, and four of the witnesses were in jail). In
    the other case relied on by the district court, the defendants
    never objected to the place of trial, which was only forty miles
    further from the place of the crime than the alternative
    courthouse; inconvenience, if any, was slight. United States v.
    Bridges, 
    551 F.2d 651
    , 652 & n.5 (5th Cir. 1977).
    
                                       76
    facts of each case.184          To whatever extent the district court
    
    perceived from past transfers a generalized but informal policy
    
    regarding transfers as a matter of course, without reference to the
    
    permissible considerations under Rule 18 that may have supported
    
    those      transfers,   it    committed     legal   error   by    including   an
    
    impermissible consideration in its Rule 18 balancing.
    
         As      local   court    policy   is    irrelevant,    and    permissible
    
    convenience considerations militated strongly against transfer to
    
    Amarillo, the issue becomes whether any other legitimate factors,
    
    discernible from the record as it stood when the order was made,
    
    sufficiently supported transfer to bring this one within the range
    
    of discretionary choices to which we must defer on appeal.
    
         3.       Speedy Trial
    
         The rule’s second textual factor —— “due regard to...the
    
    prompt administration of justice” —— is in part a literal command
    
    that trials comply with the Speedy Trial Act.185                  This factor,
    
    however, did not support trial transfer in this case, as a review
    
    of the record shows.         Lipscomb was indicted on March 4, 1999, and
    
    he appeared in court the next day.          Trial was initially set for May
    
    17, but Lipscomb moved for continuance.               The court refused to
    
    continue the trial date indefinitely, instead setting a hearing for
    
    May at which counsel had to submit their schedules for the coming
    
         184
           See United States v. Burns, 
    662 F.2d 1378
    , 1382–83 (11th
    Cir. Dec. 1981).
         185
               18 U.S.C. § 3161 (2000).
    
                                           77
    months.      Counsel for Lipscomb had court engagements scheduled in
    
    each month from August through November of 1999, so at the hearing,
    
    all parties agreed on January 10, 2000, as the trial date.186
    
    Later, in November, the trial court extended the trial date one
    
    day, to January 11.        Early in December, 1999, Lipscomb filed
    
    another motion to continue the trial, which motion the district
    
    court promptly denied.     When, on December 20, the district court
    
    unexpectedly ordered the transfer, the parties already knew that
    
    (1) trial was firmly set for January 11 and (2) there was no reason
    
    to expect that voir dire would not begin on that day.     Nothing in
    
    the record suggests that facilities appropriate for the trial were
    
    unavailable in Dallas at that time.      There were thus no speedy-
    
    trial issues in this case.
    
         The district court did characterize the possibility of a
    
    difficult voir dire as an obstacle to “prompt administration.”    We
    
    do not understand the term “prompt administration” to have been
    
    promulgated in the Rules with the intention of permitting courts to
    
    avoid even attempting arduous voir dire proceedings.     Rather, the
    
    triggering purpose of the “prompt administration” amendment to Rule
    
    18 was to clarify that district courts are authorized to fix the
    
    place of trial so as to comply with the Speedy Trial Act.187    That
    
    
         186
           The scheduling order determined, pursuant to 18 U.S.C.
    § 3161(h)(8)(A) and (B)(iv), that the ends of justice would be best
    served by the new trial date.
         187
               See note 137.
    
                                      78
    Act concerns itself solely with the timeliness of when trial
    
    begins, not with when either voir dire or the entire trial will
    
    conclude,188 and in this circuit, trial is deemed to begin with voir
    
    dire.189    Because the transfer to Amarillo did not change, much less
    
    hasten, the already-scheduled start of the trial, the transfer did
    
    not accomplish the “prompt administration” of this case in the
    
    textual, speedy-trial sense.
    
         Nevertheless,     we   have   held    that   a   trial   court,   in   its
    
    discretion, may fix the place of trial with regard to factors other
    
    than convenience and prompt administration: such factors commonly
    
    include, but are not necessarily limited to, docket management,
    
    courthouse space and security, and —— most importantly for this
    
    case —— pretrial publicity.
    
         4.       Docket Management
    
         In the context of docket management, we have construed the
    
    term “prompt administration of justice” to refer not just to the
    
    particular case that may be transferred, but also to other trials
    
    on the court’s docket.190         A district court may consider docket
    
    management in its Rule 18 balancing, and docket issues may even
    
    
    
    
         188
               See 18 U.S.C. § 3161.
         189
               United States v. Howell, 
    719 F.2d 1258
    , 1262 (5th Cir.
    1983).
         190
               In re Chesson, 
    897 F.2d 156
    , 159 (5th Cir. 1990).
    
                                          79
    outweigh convenience factors that point entirely the other way.191
    
    But nothing in the court’s remarks or in the record of this case
    
    suggests that docket management was implicated here.
    
         5.        Logistics
    
         Another factor that a court may consider in fixing the place
    
    of trial within its district is whether a particular courthouse
    
    meets      a   particular    trial’s    security   requirements   or   other
    
    facilities needs.          Courtroom availability, unsurprisingly, is a
    
    permissible consideration.192          So too are the amount of jail space
    
    available there for defendants or witnesses193 and the adequacy of
    
    security arrangements in a particular criminal trial.194           Even so,
    
    
         191
           Thus, when the Western District of Louisiana was at two-
    thirds its authorized strength, and the trial judge not only
    resided in Monroe, Louisiana, but also had other civil and criminal
    matters on his docket there, he did not abuse his discretion by
    transferring an anticipated three-week trial there from Lake
    Charles, Louisiana, 150 miles away, over the defendants’ objections
    that they, their witnesses, and their counsel lived and worked in
    the Lake Charles area. Chesson, 897 F.2d at 157–59. In another
    case, even though the offense was committed in Greenville,
    Mississippi, and all the witnesses, counsel, and defendants were
    located there, the district court did not abuse its discretion by
    fixing the place of trial at Oxford, Mississippi, where the
    district court had other cases scheduled. United States v. Harris,
    
    25 F.3d 1275
    , 1277–78 (5th Cir. 1994).
         192
           United States v. Faulkner, 
    17 F.3d 745
    , 757 & n.13 (5th Cir.
    1994) (listing courtroom availability as one of the considerations
    that prevented an intradistrict transfer from rising to the level
    of plain error, which was the applicable standard of review because
    defendants had failed to preserve error).
         193
               United States v. McKinney, 
    53 F.3d 664
    , 673 (5th Cir. 1995).
         194
          Harris, 25 F.3d at 1278 (“Rule 18 allows a court to consider
    ‘the prompt administration of justice’ in fixing the place of
    trial, and ‘matters of security clearly fall within that
    
                                            80
    the record and transfer order here are devoid of any indication
    
    that such logistical considerations played any role in the transfer
    
    from Dallas to Amarillo, and no party argues to us that they did.
    
         6.       Pretrial Publicity
    
         Pretrial publicity, then, is the only factor that might
    
    counterbalance convenience and render the transfer to Amarillo a
    
    proper exercise of discretion.               We have not delineated the quality
    
    or quantity of prejudicial publicity that will support a trial
    
    court’s      sua        sponte    transfer   in   the   face     of     countervailing
    
    convenience factors. We have, however, defined the opposite end of
    
    the zone of deference for interdistrict transfers:                         When pretrial
    
    publicity is the basis for a defendant’s motion to transfer to
    
    another district under Rule 21, a trial court errs as a matter of
    
    law in denying such a motion only if the defendant can show that
    
    pretrial publicity inflamed the jury pool, pervasively prejudiced
    
    the community against the defendant, probatively incriminated the
    
    defendant,         or     exceeded    “the   sensationalism         inherent     in   the
    
    crime.”195
    
         Here, the district court neither identified nor analyzed the
    
    publicity      that        it    conclusionally    relied      on     as    sufficiently
    
    prejudicial to require a highly inconvenient transfer over the
    
    
    
    
    consideration.’”) (quoting FED. R. CRIM. P. 18 and United States v.
    Afflerbach, 
    754 F.2d 866
    , 869 (10th Cir. 1985)).
         195
               United States v. Parker, 
    877 F.2d 327
    , 331 (5th Cir. 1989).
    
                                                 81
    defendant’s objections.196         Indeed, until after the trial, the
    
    record did not even contain copies of the publicity at issue.
    
    (Notably, we have not found one criminal case in which the trial
    
    court inferred prejudice justifying a transfer from publicity of
    
    which it merely took judicial notice.197)            The court did nothing
    
    more than globally label the unspecified publicity as “significant”
    
    and “substantial” and state that voir dire in Dallas would be “no
    
    easy task.”198      But surely, this is not the standard for determining
    
    whether pretrial publicity renders a trial unfair.                The court’s
    
    lack    of      record   documentation    or   analysis   on   this   point   is
    
    particularly troubling in light of our acknowledgment that “[e]very
    
    claim of potential jury prejudice due to publicity must turn upon
    
    its own facts.”199
    
           Despite the trial court’s statement to the contrary, it was
    
    not that court’s duty, in ensuring a fair trial, to select “a jury
    
    
    
           196
           Although the court did state that the media had reported
    material filed under seal, the only sealed material in the record
    on appeal is Lipscomb’s pre-sentencing report. We therefore have
    no way of evaluating the prejudice of the reports to which the
    court referred and reviewing the court’s reasoning on this point.
           197
           The government points us to In re Agent Orange Product
    Liability Litigation, 
    818 F.2d 145
    , 169 (2d Cir. 1987), but that
    was not a criminal case, and the court there took notice of the
    publicity to evaluate not prejudice among the venire pool but the
    sufficiency of notice to potential class members.
           198
           We are somewhat troubled by the implication in this remark
    that, foreseeing a lengthy jury-selection process in Dallas, the
    court may have become concerned for its own convenience.
           199
                 United States v. Aragon, 
    962 F.2d 439
    , 444 (5th Cir. 1992).
    
                                             82
    of twelve with no preconceived opinions about Al Lipscomb.”            This
    
    simply is not the applicable standard.         The law is actually much
    
    more realistic:
    
           Qualified jurors need not [ ] be totally ignorant of the
           facts and issues involved.
                “To hold that the mere existence of any preconceived
           notion as to the guilt or innocence of an accused,
           without more, is sufficient to rebut the presumption of
           a prospective juror’s impartiality would be to establish
           an impossible standard. It is sufficient if the juror
           can lay aside his impression or opinion and render a
           verdict based on the evidence presented in court.”200
    
    A defendant’s right to a fair trial is violated only if he shows
    
    that    “the   trial   atmosphere   was   ‘utterly   corrupted   by   press
    
    coverage.’”201    Therefore, even if inflammatory pretrial publicity
    
    did saturate the community, raising a presumption of prejudice to
    
    the defendant, the government can usually rebut this presumption
    
    through voir dire that ferrets out such prejudice.202       In this case,
    
    to the extent that the district court focused on prejudice to the
    
    government, it failed to give Lipscomb any opportunity to rebut
    
    that presumption through voir dire.
    
           The exception to this rebuttable-presumption rule regarding
    
    prejudicial publicity was announced by the Supreme Court in Rideau
    
    
    
           200
           Murphy v. Florida, 
    421 U.S. 794
    , 799–800 (1975) (quoting
    Irvin v. Dowd, 
    366 U.S. 717
    , 723 (1961)).   See also Dobbert v.
    Florida, 
    432 U.S. 282
    , 302 (1977) (same).
           
    201 Black v
    . Collins, 
    962 F.2d 394
    , 409 (5th Cir. 1992) (quoting
    Dobbert, 432 U.S. at 303).
           202
           Parker, 877 F.2d at 331 (quoting United States v. Harrelson,
    
    754 F.2d 1153
    , 1159 (5th Cir. 1985)).
    
                                         83
    v.   Louisiana,203        in   which    a   defendant’s     uncounselled,    taped
    
    confession had been broadcast three times to two-thirds of a small
    
    community,      rendering      the     venire    pool   presumptively   prejudiced
    
    against him, so that confirmation of this prejudice through voir
    
    dire was not necessary.204             From Rideau we derived the following
    
    rules for habeas cases:
    
          where petitioner adduces evidence of inflammatory,
          prejudicial pretrial publicity that so pervades or
          saturates the community as to render virtually impossible
          a fair trial by an impartial jury drawn from that
          community, jury prejudice is presumed and there is no
          further duty to establish bias.
          ...
               Given that virtually every case of any consequence
          will be the subject of some press attention, however, the
          Rideau principle of presumptive prejudice is only rarely
          applicable, and is confined to those instances where the
          petitioner can demonstrate an extreme situation of
          inflammatory pretrial publicity that literally saturated
          the community in which his trial was held.205
    
    Despite this standing caution against presuming prejudice, the
    
    trial court in this case essentially created out of whole cloth a
    
    Rideau exception for cases in which publicity is unfavorable to the
    
    government and (we infer) jury nullification is possible.                   Even if
    
    such a rule were proper, however, the record of this case would not
    
    support its application.
    
          Lipscomb contends that such a rule would not be proper, urging
    
    
    
          203
                
    373 U.S. 723
     (1963).
          204
                Id. at 724.
          205
           Mayola v. Alabama, 
    623 F.2d 992
    , 997 (5th Cir. 1980)
    (citations, brackets, and internal quotation marks omitted).
    
                                                84
    that in fixing the quantum of prejudicial publicity that renders a
    
    highly inconvenient transfer discretionary, we should distinguish
    
    between      publicity   prejudicing      the    defendant   and   publicity
    
    prejudicing      the   government.     Essentially,     he   proposes   that
    
    publicity prejudicial to him may justify transfer, but publicity
    
    prejudicial to the government cannot.           To support this contention,
    
    he points to the Advisory Committee Notes to Rule 18, which state:
    
         If the court is satisfied that there exists in the place
         fixed for trial prejudice against the defendant so great
         as to render the trial unfair, the court may, of course,
         fix another place of trial within the district (if there
         be such) where such prejudice does not exist. Cf. Rule
         21 dealing with transfers between districts.206
    
    Rule 21 —— which some courts find illuminative of Rule 18207 ——
    
    requires an interdistrict transfer for prejudice if the defendant
    
    requests it and the court determines that “there exists in the
    
    district where the prosecution is pending so great a prejudice
    
    against the defendant that the defendant cannot obtain a fair and
    
    impartial trial at any place fixed by law for holding court in that
    
    district.”208
    
         We cannot entirely accept Lipscomb’s suggested distinction,
    
    because we have in fact upheld a sua sponte intradistrict transfer
    
    —— to a division unrelated to the offense conduct, as here, and
    
         206
           FED. R. CRIM. P. 18 advisory committee’s notes to 1966
    amendments (emphasis added).
         207
           See United States v. Walker, 
    890 F. Supp. 954
    , 958 n.5 (D.
    Kan. 1995) (collecting authorities).
         208
               FED. R. CRIM. P. 21(a) (emphasis added).
    
                                         85
    over the objection of the defendant —— to cleanse the trial of the
    
    effects of publicity prejudicing the government.             Yet, as Lipscomb
    
    correctly notes, whenever we have upheld a sua sponte transfer over
    
    the defendant’s objection (whether the prejudice from publicity was
    
    to the government or to the defendant), a mistrial had already
    
    demonstrated     that    the   venire   pool   had   been   badly   tainted   by
    
    publicity and that retrial within the transferring division would
    
    pose virtually insuperable difficulties.
    
         Our most recent ruling to this effect, in United States v.
    
    Gonzalez,209 exemplifies this pattern: The defendant’s first trial
    
    was interrupted by two bomb threats and ended in a hung jury, and
    
    his second trial ended in a mistrial after three jurors reported
    
    that they received anonymous phone calls urging them to convict.210
    
    “[C]onsiderable publicity...from the first two trials” resulted.211
    
    Under such easily distinguishable circumstances, the trial court
    
    did not abuse its discretion in ordering an intradistrict transfer
    
    sua sponte.212      To the same effect are our decisions in United
    
    States v. Weddell213 and United States v. Dickie.214
    
    
    
         209
               
    163 F.3d 255
     (5th Cir. 1998).
         210
               Id. at 259.
         211
               Id.
         212
               Id. at 260.
         213
               
    800 F.2d 1404
    , 1406 (5th Cir. 1986).
         214
               
    775 F.2d 607
     (5th Cir. 1985).
    
                                            86
         United         States    v.   Faulkner215   involved     prosecution    of
    
    businessmen who developed condominium projects and in the process
    
    exhausted the funds of several savings and loan associations in the
    
    Dallas area.216           The “I-30 scandal” generated 1,100 newspaper
    
    articles, an ad in a gubernatorial campaign mentioning a defendant
    
    in a negative light, and such a public awareness of the case that
    
    60% of Dallas residents had formed an opinion that one defendant
    
    was guilty.217         After the first trial —— held in the Lubbock
    
    division of the Northern District —— ended in a mistrial, the trial
    
    court attempted voir dire in Dallas itself, but dismissed the panel
    
    after several days because of the effect of pretrial publicity.218
    
    The court then granted the defendants’ motions to transfer venue,
    
    moving the case to the El Paso division of the Western District,
    
    where the trial court sua sponte transferred the case yet again, to
    
    the Midland division of the same district.219             On appeal, given the
    
    unproblematical interdistrict transfer, we held that the second,
    
    sua sponte transfer did not amount to plain error.220
    
         No      case    of    ours,   therefore,    stands    squarely   for   the
    
    
    
         215
               
    17 F.3d 745
     (5th Cir. 1994).
         216
               Id. at 751–54, 756.
         217
               Id. at 756 & n.9.
         218
               Id. at 754.
         219
               United States v. Faulkner, 17 F.3d at 754–55.
         220
               Id. at 757–58.
    
                                            87
    proposition that the government urges us to accept, i.e., that for
    
    purposes of the venue of a defendant’s initial trial, pretrial
    
    publicity alone would permit the trial court, sua sponte and
    
    without a supporting record, to order an intradistrict transfer to
    
    a division entirely unrelated to the offense conduct, and in the
    
    process overrule the defendant’s objection, giving no regard to
    
    convenience, making no attempt at voir dire, and expressing only a
    
    generalized desire to ensure that the government, as well as the
    
    defendant, receive a fair trial.
    
         In his dissent, Judge Smith urges that the government’s
    
    proposed rule is embodied in United States v. Alvarado.221                 Even a
    
    cursory      reading   of   Alvarado,    however,     shows   that   our      terse
    
    discussion of the transfer issue there is entirely silent on
    
    several key questions: (1) Did the district court in that case
    
    transfer the case sua sponte; (2) if the transfer was sua sponte,
    
    did the district court create a record that showed prejudice by
    
    analyzing     publicity     or   by   attempting    voir   dire;   (3)   by   what
    
    standard did the district court determine the publicity to be
    
    prejudicial; and (4) what was the nature of the publicity itself?222
    
    From the opinion, none of these issues appears to have been
    
    contested.      As far as the Alvarado opinion goes, the defendants’
    
    argument       was     founded     entirely    on     a    mis-citation        and
    
    
         221
               
    647 F.2d 537
     (5th Cir. Unit A June 1981).
         222
               Id. at 539–40.
    
                                            88
    misunderstanding of the criminal venue statutes.223               Research into
    
    the district      court   case   confirms   not   only   that     the   Alvarado
    
    defendants actually moved to transfer, but also that they asked
    
    (unsuccessfully) that a newspaper reporter be instructed not to
    
    print anything concerning the rejection of a plea agreement, lest
    
    such publicity prejudice the case.224         The Alvarado district court
    
    held an evidentiary hearing on the defendants’ motion to transfer
    
    “due to publicity in the area” and took the motion under advisement
    
    until after voir dire on publicity was concluded.225            At that point,
    
    the district      court   denied   the   motion226;   but   the    court   later
    
    reconsidered that denial and granted the motion after a witness
    
    caused a mistrial by testifying that defendants had pled guilty.227
    
         All these facts provide context for, and render entirely
    
    understandable, the silence of our Alvarado opinion.                These facts
    
    also completely distinguish Alvarado from this case: The Alvarado
    
    
         223
               Id. at n.4.
         224
           See proceedings in United States v. Martinez, No. Cr. B-78-
    29 (S.D. Tex., Brownsville Div.), particularly the docket sheet
    entries for 8/17/79 (motion regarding newspaper reporter made and
    rejected); 8/24/79 and 8/27/79 (motions to transfer made).
    Martinez was the caption of Alvarado in the district court until
    the transfer of proceedings against fourteen defendants, at which
    point the case became United States v. Alvarado, No. Cr. V-79-4
    (S.D. Tex., Victoria Div.) —— the case appealed to us.
         225
               Martinez, docket sheet at entry for 8/28/79.
         226
           Id. at entry for 8/30/79. The court also denied a motion
    for mistrial based on some jurors having been seen with a
    newspaper. Id. at entry for 9/17/79.
         227
               Id. at entry for 9/21/79.
    
                                         89
    trial court did not transfer the case sua sponte as did the
    
    Lipscomb court; and the Alvarado defendants advocated transfer,
    
    unlike Lipscomb, who vigorously opposed it.     Rather than undermine
    
    our conclusion here, the Alvarado facts confirm our impression that
    
    the transfer in the instant case was quite unusual.    Any court that
    
    views Alvarado as trumping today’s holding under our rule of
    
    orderliness will have been led into serious error.228
    
         We have found only one case (from another circuit) that comes
    
    close to supporting the proposition for which the government
    
    contends, but that case ultimately is unpersuasive.        In United
    
    States v. Mabry,229 a defendant moved for individual voir dire
    
    regarding pretrial publicity.230     The trial court interpreted this
    
    motion as raising a concern about whether trial in the Albuquerque
    
    division of the district of New Mexico would be fair —— seemingly
    
         228
           The dissent’s reliance on two other cases is similarly
    misplaced. United States v. Kaufman, 
    858 F.2d 994
    , 1006 (5th Cir.
    1988) is entirely irrelevant here, because docket management is, as
    we have noted, a permissible factor in the Rule 18 balancing, but
    one that is entirely absent from this record. The reasoning of the
    other Fifth Circuit case that the dissent relies on is also easily
    understood:
         [T]the Southern District of Texas was the only district
         in which (at least absent further evidence) venue was
         initially proper as to all counts. While this does not
         prevent a Rule 21(b) transfer of all counts to another
         district, it is at least an indication that the
         government's selection of the forum was not arbitrary.
         We conclude that the district court did not abuse its
         discretion in denying Fagan's Rule 21(b) motion.
    United States v. Fagan, 
    821 F.2d 1002
    , 1008 (5th Cir. 1987).
         229
               
    809 F.2d 671
     (10th Cir. 1987).
         230
               Id. at 683.
    
                                       90
    to the defendants, not to the government —— and transferred the
    
    case, over the defendants’ objections, to Roswell,231 which we
    
    estimate to be some two hundred miles from Albuquerque.               On appeal,
    
    the Tenth Circuit found no abuse of discretion: “There was no
    
    substantial inconvenience to the defendants or the witnesses as a
    
    result      of   the    transfer   and        no   real   prejudice   has   been
    
    demonstrated.”232
    
         We discern several reasons not to follow the Mabry result
    
    here.      First, the   Mabry district court did not appear to transfer
    
    the case out of concern that the government receive a fair trial.
    
    To this extent, Mabry actually supports Lipscomb’s contention on
    
    that point.      Second, the cases on which the Tenth Circuit relied
    
    buttress Mabry’s result only weakly, if at all.233              Third, Mabry’s
    
    transfer holding has been largely ignored by other courts, perhaps
    
    because the Supreme Court later abrogated Mabry’s entrapment-
    
    instruction holding.234      Mabry is thus hardly persuasive authority
    
    
         231
               Id.
         232
               Id.
         233
           See United States v. Raineri, 
    670 F.2d 702
    , 706 (7th Cir.
    1982) (finding no abuse of discretion where trial court refused to
    transfer case to towns that lacked federal courthouses); Burns, 662
    F.2d at 1383 (reversing the trial court’s transfer order that was
    based conclusionally on the district’s court’s policy of
    consolidating criminal trials in one courthouse); United States v.
    Young, 
    618 F.2d 1281
    , 1288 (8th Cir. 1980) (restating the general
    rule that a defendant has no constitutional right to be tried in a
    particular district).
         234
           See United States v. Whalen, 
    976 F.2d 1346
    , 1348 n.1 (10th
    Cir. 1992) (“Mabry has since been indirectly overruled by Mathews
    
                                             91
    here.
    
           The district court here did not learn through hard experience
    
    that voir dire would be challenging.               It developed no facts to
    
    suggest that the pretrial publicity presumptively or actually
    
    tainted the jury pool; it failed to analyze the publicity itself
    
    for prejudice; it applied a wrong and unrealistically high standard
    
    to determine whether the putative jury would be prejudiced; and it
    
    relied on cases of ours that are not on point.                There is a plethora
    
    of    support   for   holding     that    the   district      court   abused      its
    
    discretion in transferring Lipscomb’s case to Amarillo.
    
           7.   Summary
    
           Both our precedents and persuasive authorities from other
    
    courts suggest, even if only by negative implication, that this
    
    case’s facts and proceedings make it a true outlier in the Rule 18
    
    jurisprudence. In concluding that there was no abuse of discretion
    
    in the aforementioned cases, neither we nor the other courts have
    
    purported to fix any bright-line boundary of that discretion.                      We
    
    are   constrained     to   set    one    such   limit   by    example,     however,
    
    believing that the district court’s doctrinal mistakes and clear
    
    factual errors make this case an appropriate vehicle with which to
    
    circumscribe     at   least      one    boundary   of   the    use    of   Rule    18
    
    discretion.       When     as    here,    facts    of   convenience        militate
    
    exclusively against transfer, and no factor other than pretrial
    
    
    v. United States, 
    485 U.S. 58
    , 
    108 S. Ct. 883
    , 
    99 L. Ed. 2d 54
    (1988).”).
    
                                             92
    publicity —— some favorable and some unfavorable to both the
    
    prosecution and the defense —— might, if properly developed and
    
    analyzed, militate in favor of transfer, the trial court abuses its
    
    discretion under Rule 18 by ordering a far-distant intradistrict
    
    transfer, sua sponte and over the defendant’s objections, without
    
    (1)   attempting   voir   dire   or     otherwise   creating   a   record,
    
    (2) providing an analysis of the publicity for the record to show
    
    how it prejudiced the jury pool, or (3) conducting a Rideau-style
    
    presumptive analysis.     In this instance, we as an appellate court
    
    can detect virtually nothing on the Rule 18 scale to counterbalance
    
    the defendant’s established inconvenience; and something outweighs
    
    nothing every time.
    
          Given the district court’s abuse of discretion, we must
    
    reverse Lipscomb’s conviction, vacate his sentence, and remand for
    
    a new trial in a venue determined consistently with this opinion.
    
                               VIII. CONCLUSION
    
          The trial court had jurisdiction to try Lipscomb for violating
    
    18 U.S.C. § 666, which is facially constitutional and —— in my own
    
    sole opinion —— is constitutional as applied to him.                As we
    
    conclude that the trial court abused its discretion in transferring
    
    Lipscomb’s trial, however, we must reverse and remand for a new
    
    trial. The other issues Lipscomb raises on appeal are either moot,
    
    meritless, or irrelevant to a new trial.
    
    CONVICTION REVERSED, SENTENCE VACATED, AND CASE REMANDED for a new
    
    trial.
    
                                          93
    94
    DUHÉ, Circuit Judge, CONCURRING IN PART, DISSENTING IN PART:
    
          I   write    separately        because,         although       I       concur       in   the
    
    conclusion reached by Judge Wiener that we must reverse Lipscomb’s
    
    conviction, vacate his sentence, and remand for a new trial, I
    
    cannot join his method of getting there. I adopt Judge Wiener’s
    
    factual and procedural background sections; concur in the result
    
    but not the reasoning of Part III; dissent from Parts IV, V, and
    
    VI; and concur in Part VII. I begin with an overview of the
    
    appropriate analytical framework.
    
                                  I. ANALYTICAL FRAMEWORK
    
          Judge Wiener’s opinion merges analysis of jurisdiction with
    
    analysis of the constitutionality of § 666. In Part IV of his
    
    opinion, Judge Wiener writes that the term “federal jurisdiction”
    
    is   ambiguous,    and    defines         it    for    purposes       of      this    case      as
    
    encompassing (a) the question whether we have subject matter
    
    jurisdiction under § 666 over Lipscomb’s conduct (which Judge
    
    Wiener calls “adjudicative jurisdiction”), and (b) the question
    
    whether Congress had the authority to enact § 666 (which Judge
    
    Wiener     terms     “legislative               jurisdiction”,               and     we        term
    
    constitutionality).       In       this    manner,      Judge       Wiener         reaches     the
    
    constitutionality        of    §    666,       by    calling    it       a    jurisdictional
    
    question. With all due respect, this is a categorization with no
    
    support.
    
          Jurisdiction       is    discussed        in    terms    of    “legislative”             and
    
    “adjudicative”     in    only      one     context     in     American         law    –    native
    American law.235 This case does not arise in that context, so we
    
    must     follow    the    generally     applied     definition   of   “federal
    
    jurisdiction”.
    
           Black’s    Law    Dictionary    defines    “federal   jurisdiction”    as
    
    “powers of federal courts founded on United States Constitution
    
    (Article III) and Acts of Congress (e.g. Title 28 of United States
    
    Code)”.236 Federal jurisdiction is not defined as the power of
    
    Congress to enact a statute. Professor Erwin Chemerinsky’s treatise
    
    on the subject, widely regarded as comprehensive, not once mentions
    
    legislative       jurisdiction    or   the   power    of   Congress   to   enact
    
    statutes.237 The only discussion of congressional authority is
    
    Congress’       authority    to   control        federal   jurisdiction,     and
    
    
           235
            See Strate v. A-1 Contractors, 
    520 U.S. 438
    , 440, 
    117 S. Ct. 1404
    , 1406, 
    137 L. Ed. 2d 661
     (1997); Iowa Mut. Ins. Co. v.
    LaPlante, 
    480 U.S. 9
    , 12, 
    107 S. Ct. 971
    , 974, 
    94 L. Ed. 2d 10
    (1987); Kerr-McGee Corp. v. Farley, 
    115 F.3d 1498
    , 1507 n.6 (10th
    Cir. 1997); Louis v. United States, 
    967 F. Supp. 456
    , 459 (D. N.M.
    1997). Judge Wiener cites Justice Scalia’s dissenting opinion in
    Hartford Fire Ins. Co. v. California, 
    509 U.S. 764
    , 
    113 S. Ct. 2891
    ,
    
    125 L. Ed. 2d 612
     (1993) as support for his contention that the term
    “jurisdiction” can mean both legislative and adjudicative
    jurisdiction. However, Justice Scalia’s words do not support Judge
    Wiener’s application. In Hartford Fire, Justice Scalia was faced
    with determining the extraterritorial reach of a statute – a
    constitutional issue placed by the parties before the Court – and
    to do so he had to consider whether Congress had the power to enact
    the statute with application outside our borders. This, he termed
    “legislative jurisdiction”. Hartford Fire, 509 U.S. at 813-14, 113
    S.Ct. at 2918-19. He did not term it “jurisdiction” as a means of
    raising extraterritoriality sua sponte, in an end-run around our
    requirement that parties argue those issues they wish before us.
           236
                 Black’s Law Dictionary 612 (1990).
           237
                 See Erwin Chemerinsky, Federal Jurisdiction (1994).
    
                                            96
    congressional power to create courts.238 Neither of these questions
    
    is before us.
    
         Moreover, Lipscomb explicitly asked that we find no subject
    
    matter jurisdiction. “The alleged bribery here had no connection to
    
    a federally funded program and, thus, the court below was without
    
    subject matter jurisdiction to proceed.”239 Even if Judge Wiener’s
    
    categorization can find support in the law, Lipscomb explicitly
    
    seeks      a    determination        of   adjudicative,   not     legislative
    
    jurisdiction.
    
         Judge Wiener’s categorization fails when extended to its
    
    logical conclusion, which he affirmatively does in his opinion. He
    
    writes: “[A] federal forum must lack adjudicative jurisdiction to
    
    hear a case based on a federal statute that Congress lacked the
    
    legislative jurisdiction (translation: constitutional power or
    
    authority) to apply to the situation in question.” This implies
    
    that federal courts must always consider constitutionality, even
    
    raising it sua sponte, when interpreting a statute. This elevates
    
    constitutionality to a category of claims over which we always have
    
    jurisdiction, and this is unsupported by our jurisprudence.
    
         For the foregoing reasons, I respectfully submit that Judge
    
    Wiener’s       is   an   erroneous   analytical   framework,    and   leads   to
    
    inappropriate consideration of the constitutionality of § 666. For
    
    
         238
               See id. at 167-246.
         239
               See App. Brief at 28.
    
                                              97
    this reason, I believe it necessary to outline the appropriate
    
    analytical framework.
    
         As a threshold matter in all cases, we are faced with the
    
    question   whether    we   have   personal   and   subject   matter
    
    jurisdiction.240 If we find that we do, we then address whatever
    
    substantive issues are before us. This is an abstract description
    
    of our task – what it means here is that we must first determine
    
    whether Lipscomb’s actions fall within the jurisdiction of § 666,
    
    and if our answer is “yes,” then address the merits of his appeal.
    
    It is at this second step that, were constitutionality at issue, it
    
    would arise. Constitutionality is an issue on the merits, not a
    
    jurisdictional one.
    
         Our governing precedent interpreting § 666 does exactly this.
    
    We have first answered the jurisdictional question, and have not
    
    taken it upon ourselves to consider the constitutionality of § 666
    
    if it was not appropriately before us on the merits.241
    
         240
            See Steel Co. v. Citizens for a Better Env’t, 
    523 U.S. 83
    ,
    94, 
    118 S. Ct. 1003
    , 1012, 
    140 L. Ed. 2d 210
     (1998) (“On every writ
    of error or appeal, the first and fundamental question is that of
    jurisdiction...”) (qtg. Great S. Fire Proof Hotel Co. v. Jones, 
    177 U.S. 449
    , 453, 
    20 S. Ct. 690
    , 691-92, 
    44 L. Ed. 842
     (1900)). See also
    United States v. Texas Tech Univ., 
    171 F.3d 279
    , 287 (5th Cir.
    1999).
         241
            See, for example, United States v. Reyes, 
    239 F.3d 722
     (5th
    Cir. 2001) (affirming a conviction under § 666 and making no
    constitutional ruling), cert. denied, Maldonado v. United States,
    
    533 U.S. 961
    , 
    121 S. Ct. 2618
    , 
    150 L. Ed. 2d 772
     (2001); and cert.
    denied, Reyes v. United States, 
    122 S. Ct. 156
    , 
    151 L. Ed. 2d 106
    (2001); United States v. Phillips, 
    219 F.3d 404
     (5th Cir. 2000)
    (reversing a conviction under § 666 but making no constitutional
    ruling); United States v. Westmoreland, 
    841 F.2d 572
     (5th Cir.
    
                                      98
          In     United    States     v.   Westmoreland,242      a   county   supervisor
    
    appealed her conviction under § 666 for accepting kickbacks in
    
    purchases of county materials. A panel of this court affirmed her
    
    conviction. Judge King’s carefully crafted opinion first considers
    
    the jurisdictional scope of § 666. After finding that § 666 did
    
    apply       to    Westmoreland’s       conduct,    and   thereby    answering       the
    
    jurisdictional question in the affirmative, the opinion addresses
    
    the substantive issues of the case.
    
          Nine years later, the Supreme Court decided Salinas v. United
    
    States,243 an appeal of the conviction of a Texas county sheriff for
    
    accepting bribes in exchange for allowing a federal prisoner housed
    
    in the county jail to receive conjugal visits. There, the Court
    
    affirmed         the   sheriff’s        conviction,      holding     that    federal
    
    jurisdiction under § 666 is not limited to cases in which the bribe
    
    has a demonstrated effect upon federal funds. The Court later
    
    asserted the constitutionality of § 666 as applied to that case.
    
    The   Salinas       decision    followed     the    two-step     approach    –   first
    
    determine        jurisdiction,     and    then    address    whatever     substantive
    
    issues      are    before   the    court.    The    Court    decided      Salinas    on
    
    jurisdictional grounds, and then went on to mention that § 666 was
    
    constitutional as applied.
    
    
    1988) (affirming a conviction                    under   §   666   and    making    no
    constitutional ruling).
          242
                
    841 F.2d 572
     (5th Cir. 1988).
          243
                
    522 U.S. 52
    , 
    118 S. Ct. 469
    , 
    139 L. Ed. 2d 352
     (1997).
    
                                                99
         Since Salinas, this circuit has been faced with questions of
    
    the jurisdictional reach of § 666 twice before the case at bar.
    
    Both times we followed the “jurisdiction-merits” two-step.
    
         In United States v. Phillips,244 we reversed the conviction
    
    under § 666 of a parish tax assessor, holding that he was not an
    
    agent   of   the   parish   for   purposes   of   the   statute.   Thus,   the
    
    statute’s jurisdiction did not extend to his actions. No discussion
    
    of the merits was required; and the ensuing discussion on potential
    
    constitutional issues is entirely dicta, because this court was
    
    without jurisdiction to hear the case.
    
         Our most recent holding on the applicability of § 666 was in
    
    United States v. Reyes,245 where we affirmed the § 666 conviction of
    
    a city councilman for accepting kickbacks on city contracts. We
    
    held that whatever nexus is statutorily required for jurisdiction
    
    under § 666, existed in that situation. We then went on to address
    
    the evidentiary and sentencing issues before us.
    
         Our analytical approach here should be exactly like that in
    
    the above-cited line of cases. We must satisfy ourselves of our
    
    jurisdiction, and then go on to address whatever issues are before
    
    us on the merits. For the foregoing reasons, the constitutionality
    
    of § 666 is a question on the merits that we will only address if
    
         244
               
    219 F.3d 404
     (5th Cir. 2000).
         245
            
    239 F.3d 722
     (5th Cir. 2001), cert. denied, Maldonado v.
    United States, 
    533 U.S. 961
    , 
    121 S. Ct. 2618
    , 
    150 L. Ed. 2d 772
    (2001); and cert. denied, Reyes v. United States, 
    122 S. Ct. 156
    ,
    
    151 L. Ed. 2d 106
     (2001).
    
                                         100
    (a) we find we have jurisdiction over this case, and (b) we find it
    
    appropriately before us.
    
                              II. STEP ONE – JURISDICTION
    
          Our first step in the analytical two-step is to satisfy
    
    ourselves of our jurisdiction over this case. Lipscomb argues that
    
    we do not have subject matter jurisdiction, because his actions do
    
    not   fall       within   those    governed     by     §   666.    He   argues   that
    
    jurisdiction under § 666 does not extend to cases of local bribery
    
    such as his, where the underlying conduct does not directly involve
    
    federal funds. A detailed review of Fifth Circuit and Supreme Court
    
    precedent demonstrates that his argument fails as a matter of
    
    statutory construction.246
    
    (A) Early Fifth Circuit Precedent
    
          We first interpreted § 666 in United States v. Westmoreland.247
    
    There, the defendant was a county supervisor convicted of accepting
    
    bribes      in    purchases   of    materials        for   the    county’s   highway
    
    construction projects.248 The district court found that the federal
    
    funds received by the county were not spent by Westmoreland,249 and
    
    
          246
             Because Article III of the United States Constitution
    authorizes federal courts to hear matters arising under all federal
    laws, and § 666 is a federal law, we may turn directly to whether
    there is statutory jurisdiction. U.S. CONST., Art. III. The question
    whether § 666 is a valid exercise of congressional authority is not
    before us when we determine our jurisdiction.
          247
                
    841 F.2d 572
     (5th Cir. 1988).
          248
                See id. at 574-75.
          249
                See id.
    
                                            101
    nonetheless convicted her under § 666.
    
         Westmoreland argued on appeal that her bribery did not fall
    
    under the jurisdiction of § 666, because it did not concern federal
    
    funds.250 We rejected this argument, concluding through statutory
    
    interpretation that federal funds need not be traceable to the
    
    “tainted transactions” in order for those transactions to be
    
    punishable under the statute:
    
                 [W]e find the relevant statutory language plain and
                 unambiguous. By the terms of section 666, when a local
                 government agency receives an annual benefit of more than
                 $10,000 under a federal assistance program, its agents
                 are governed by the statute, and an agent violates
                 subsection (b) when he engages in the prohibited conduct
                 “in any transaction or matter or series of transactions
                 or matters involving $5,000 or more concerning the
                 affairs of” the local government agency. 18 U.S.C. §
                 666(b) (Supp. 1984) [emphasis added]. Subsection (b)
                 contains nothing to indicate that “any transaction
                 involving $5,000" means “any federally funded transaction
                 involving $5,000" or “any transaction involving $5,000 of
                 federal funds,” and other subsections of the statute
                 contain no inconsistent provisions that might suggest
                 such a qualification.251
    
         We next reviewed the jurisdictional reach of § 666 in United
    
    States v. Moeller.252 There, the government appealed the dismissal
    
    of § 666 claims against employees of the Texas Federal Inspection
    
    Service, state workers empowered to conduct federal inspections.253
    
    We held that jurisdiction under § 666 extended to the employees’
    
    
         250
               See Westmoreland, 841 F.2d at 575.
         251
               Id. at 576.
         252
               
    987 F.2d 1134
     (5th Cir. 1993).
         253
               See id.
    
                                      102
    actions, because the Texas Department of Agriculture, a “government
    
    agency” within § 666, received more than $10,000 a year in federal
    
    funds; and the defendants were “agents” of that federally-funded
    
    agency for purposes of § 666.254
    
         In United States v. Marmolejo,255 we upheld the conviction of
    
    a sheriff who accepted bribes in return for permitting conjugal
    
    visits to a federal prisoner whom Texas, in return for a fee from
    
    the federal government, housed in a facility constructed with
    
    federal funds.256 In holding that these actions came under the
    
    jurisdiction     of   §   666,   we   referenced   our   earlier   statutory
    
    decisions: “[w]e have previously held that § 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.”257 We went on to conclude that
    
    conjugal visits are “anything of value” under the statute.
    
         The dissent in Marmolejo argued that Westmoreland interpreted
    
    § 666 to reach “only those acts of bribery that could somehow be
    
    traced, directly or indirectly, to the integrity of federal program
    
    
    
    
         254
               See id. at 1137-38.
         255
            
    89 F.3d 1185
     (5th Cir. 1996), aff’d sub nom. Salinas v.
    United States, 
    522 U.S. 52
     (1997).
         256
               See Marmolejo, 89 F.3d at 1188-89, 1201.
         257
               Id. at 1191 (citing Westmoreland, 841 F.2d at 578).
    
                                          103
    funds.”258
    
    (B) The Supreme Court Weighs In
    
          The Supreme Court granted certiorari in Marmolejo on whether
    
    § 666 is “limited to cases in which the bribe has a demonstrated
    
    effect upon federal funds.”259       Under the caption Salinas v. United
    
    States, the Court stated that “[t]he statute’s plain language fails
    
    to   provide    any   basis   for   limiting     §    666(a)(1)(B)   to   bribes
    
    affecting      federal   funds”     and   that       the   legislative    history
    
    “forecloses this type of limitation.”260 The Court therefore decided
    
    that as a statutory matter, federal funds need not be directly
    
    involved in a violation of § 666.261 The Court then in passing
    
    asserted the constitutionality of § 666 as applied to the case at
    
    bar.262
    
    
          258
            Id. at 1203. “Turning to the precise legislative history,
    I find that it clearly reveals that Congress did not intend for §
    666(a)(1)(B) to be applied to conduct such as the acceptance of
    bribes to allow conjugal visits. Instead, Congress was only
    concerned with protecting the federal monies disbursed to non-
    federal entities.” Id.
          259
            Salinas v. United States, 
    522 U.S. 52
    , 54, 
    118 S. Ct. 469
    ,
    471-72 (1997).
          260
                Id. at 57, 59.
          261
                See id. at 56-57.
          262
            See Salinas, 522 U.S. at 61. Judge Wiener cites this as
    evidence that we too should consider the constitutionality of § 666
    here. However, the Supreme Court’s assertion in passing that § 666
    was constitutional as applied does not bind us to rule on the
    constitutionality of § 666 as applied to Lipscomb here. First, we
    are not the Supreme Court and have different limitations on our
    jurisdiction. The Supreme Court, unlike us, is the definitive voice
    in interpreting federal statutes. See Erwin Chemerinsky, Federal
    
                                          104
         Since Salinas, the Supreme Court has decided only one other
    
    case involving § 666 – United States v. Fischer.263 There the Court
    
    affirmed the      conviction   of    a    defendant     who   defrauded    a   city
    
    hospital    authority   that   participated        in   the   federal     Medicare
    
    program.264 The Fischer analysis, however, is not relevant to this
    
    case.
    
    (C) Recent Fifth Circuit Cases
    
         The first Fifth Circuit panel to interpret § 666 post-Salinas
    
    decided    United   States   v.     Phillips.265   There,     we   reversed    the
    
    conviction of a parish tax assessor, holding that he was not an
    
    “agent” of St. Helena Parish for purposes of the statute. Thus, the
    
    statute’s jurisdiction did not reach his activity. This has little
    
    bearing on our case, as city councilmen are clearly “agents” under
    
    the statute.266
    
    
    Jurisdiction 571 (1994). Second, the Supreme Court in Salinas
    declined to avoid the constitutional question because it considered
    it a greater disservice to “rewrite language enacted by the
    legislature” than to fail to avoid the issue. Salinas, 522 U.S. at
    59.   This   reasoning   does   not   compel  us    to  reach   the
    constitutionality of § 666 here; if anything, it counsels against
    that. We are not rewriting § 666 – we are faithfully reading the
    language of the statute, and recognizing that in order to question
    the    congressionally-enacted      language,    the    issue    of
    constitutionality must be explicitly before us.
         263
               
    529 U.S. 667
    , 
    120 S. Ct. 1780
    , 
    146 L. Ed. 2d 707
     (2000).
         264
            See id., 529 U.S. at 669-70, 681, 120 S.Ct. at 1782-83,
    1788-89.
         265
               
    219 F.3d 404
     (5th Cir. 2000).
         266
            See United States v. Reyes, 
    239 F.3d 722
     (5th Cir. 2001),
    cert. denied, Maldonado v. United States, 
    533 U.S. 961
    , 
    121 S. Ct. 105
         The two most recent Fifth Circuit § 666 cases demonstrate our
    
    continued commitment to applying § 666 to members of city councils,
    
    like Lipscomb, and support our finding of jurisdiction here.
    
         In United States v. Reyes267 we affirmed the § 666 conviction
    
    of a city councilman for accepting kickbacks on city contracts. We
    
    held that whatever nexus is statutorily required for jurisdiction
    
    under § 666, existed in that case.268
    
         More recently, we decided United States v. Williams269 without
    
    discussing jurisdiction at all. Williams, a former city councilman,
    
    was convicted under § 666 of “aiding and abetting others in the
    
    corrupt solicitation and acceptance of bribery payments”.270 We
    
    affirmed his conviction.
    
    (D) The Bottom Line
    
         Fifth Circuit and Supreme Court precedent alike construe the
    
    jurisdictional reach of § 666 broadly. Federal funds need not be
    
    directly involved in a violation of § 666. The Phillips panel
    
    construed the term “agent” narrowly, and reversed the conviction,
    
    
    2618, 
    150 L. Ed. 2d 772
     (2001); and cert. denied, Reyes v. United
    States, 
    122 S. Ct. 156
    , 
    151 L. Ed. 2d 106
     (2001); United States v.
    Williams, 
    264 F.3d 561
     (5th Cir. 2001).
         267
            
    239 F.3d 722
     (5th Cir. 2001), cert. denied, Maldonado v.
    United States, 
    533 U.S. 961
    , 
    121 S. Ct. 2618
    , 
    150 L. Ed. 2d 772
    (2001); and cert. denied, Reyes v. United States, 
    122 S. Ct. 156
    ,
    
    151 L. Ed. 2d 106
     (2001).
         268
               See id. at 734.
         269
               
    264 F.3d 561
     (5th Cir. 2001).
         270
               Id. at 567.
    
                                      106
    but that is irrelevant to our case, because the term “agent”
    
    plainly includes city council members. The Westmoreland view of §
    
    666   therefore   continues   to   be   the   law   in   this   circuit,   and
    
    precludes us from more narrowly construing the statute here.
    
    Because Lipscomb’s actions satisfy the jurisdictional requirements
    
    found in the language of § 666, we conclude that the district court
    
    had jurisdiction to try Lipscomb under § 666, and turn to the
    
    issues which the parties put before us on the merits.
    
                            III. STEP TWO – MERITS
    
          Before reaching the issues raised by Lipscomb, I must address
    
    the issue of the constitutionality of § 666 – an issue raised not
    
    by the Appellant, but by the opinions of my colleagues on this
    
    panel.    This issue is not properly before us, but because my
    
    colleagues have raised it, I respond.
    
    (A) Constitutionality of § 666
    
          There do exist troubling constitutional issues under the
    
    surface of this case. Whether Congress had the authority it claimed
    
    to enact § 666 under the Spending Clause of the Constitution, U.S.
    
    CONST., art. I, § 8, is a close question.            However, although my
    
    colleagues hold otherwise, it is not our question today. We may
    
    only decide those issues properly before us, and the constitutional
    
    question is not such an issue. It was argued neither at trial nor
    
    on appeal, and there is no legal justification for us to raise it
    
    sua sponte.
    
          (1) Not Argued at Trial
    
                                        107
         The     record    shows   that    despite   mention   of   potential
    
    constitutional issues, Lipscomb never argued at trial that § 666
    
    was unconstitutional as applied to him. Following is discussion of
    
    the four motions by which he made the jurisdictional argument, and
    
    where any constitutional discussion at all (not sufficient to raise
    
    the issue of constitutionality) exists.
    
                 (a) Motion to Dismiss the Indictment or, Alternatively,
                 for an Evidentiary Hearing Requiring the Government to
                 Establish Federal Jurisdiction
    
         On September 3, 1999, Lipscomb filed a Motion to Dismiss the
    
    Indictment or, Alternatively, for an Evidentiary Hearing Requiring
    
    the Government to Establish Federal Jurisdiction.271 It is worth
    
    noting that the title of the Motion shows that it seeks proof of
    
    federal jurisdiction, and does not challenge the constitutionality
    
    of § 666. Moreover, Lipscomb crafts his arguments in support of the
    
    Motion in terms of challenging federal jurisdiction. “In this
    
    case... no sufficient jurisdictional basis is evident.”272 “On its
    
    face, this indictment fails even to allege an appropriate basis for
    
    the exercise of federal jurisdiction....”273
    
         Lipscomb does mention the potential constitutional problems
    
    that could arise if § 666 is applied to his conduct. He goes so far
    
    as to say “[s]ection 666 is being unconstitutionally applied in
    
    
    
         271
               See R. at 60.
         272
               R. at 62.
         273
               R. at 63.
    
                                          108
    this case,” and mentions possible Tenth Amendment consequences of
    
    applying § 666 to Lipscomb’s conduct.274 Moreover, one of Lipscomb’s
    
    attorneys signed the Motion as “Special Counsel for Tenth Amendment
    
    purposes only”.275 However, this discussion arises in the context of
    
    a   challenge    to    jurisdiction,   not   as   a   challenge   to   the
    
    constitutionality of the statute as applied (which would arise
    
    under the Spending Clause, not the Tenth Amendment). Even the
    
    statement “[s]ection 666 is being unconstitutionally applied in
    
    this case”276 stands alone, and is not supported by any argument.
    
         The District Court denied Lipscomb’s motion:
    
                 Came to be considered the motion of the defendants to
                 dismiss the indictment for lack of federal jurisdiction,
                 and after due consideration thereof, as well as a plain
                 reading of the statute, and the briefs and arguments of
                 counsel, this court is of the opinion that the motion
                 should be DENIED.277
    
    Judge Kendall declined to dismiss the indictment because he found
    
    that federal jurisdiction did exist. He neither mentioned nor
    
    considered the constitutionality of § 666. His Order includes the
    
    hand-written addition of the phrase “as well as a plain reading of
    
    the statute,” further supporting the conclusion that his analysis
    
    was a statutory and not a constitutional one.
    
                 (b) Motion for Judgment of Acquittal Pursuant to Rule
    
         274
               Id.
         275
               R. at 66.
         276
               R. at 63.
         277
               Id.
    
                                       109
                   29(A), Following the Government’s Case in Chief
    
           Following the government’s case, Lipscomb moved the District
    
    Court for Judgment of Acquittal.278 Lipscomb argued that some nexus
    
    between the bribe and the federally-funded program must exist in
    
    order    for    there     to    be    jurisdiction,      and    that    here,    no   such
    
    connection exists.279 He couched his argument in terms of “get[ting]
    
    this    case     in   federal        court    properly,”       which     is   clearly   a
    
    jurisdictional concern.280 Later in the colloquy Lipscomb’s attorney
    
    told    Judge    Kendall       that    “666    doesn’t    cover      this”,281   another
    
    argument about the scope of jurisdiction under § 666.
    
           The Government’s response follows the same approach, citing
    
    cases that analyze the jurisdictional reach of § 666, not its
    
    constitutionality.282 The District Court denied the Motion.
    
                   (c) Motion for Judgment of Acquittal Pursuant to Rule
                   29(A), Following the Jury Verdict
    
           On February 8, 2000, following the jury verdict, Lipscomb
    
    again moved the District Court for Judgment of Acquittal.283
    
    He argued that the Government failed to present evidence of a
    
    connection      between        the   alleged   bribes     and    a     federally-funded
    
    
           278
                 See R. Vol. 13 at 32.
           279
                 See id. at 36-9.
           280
                 Id. at 37.
           281
                 Id. at 40.
           282
                 See id. at 41-2.
           283
                 See R. at 556.
    
                                                 110
    program.284 Lipscomb asks the court again to find a failure of
    
    jurisdiction due to the lack of nexus.
    
         The     Government’s    response    cites   case    law   analyzing   the
    
    jurisdictional reach of § 666.285 The Government makes no argument
    
    that § 666 is constitutional as applied, suggesting that it did not
    
    consider a constitutional argument raised. Further, the District
    
    Court’s     denial   of   Lipscomb’s    Motion   makes    no   mention   of   a
    
    constitutional issue.286
    
                 (d) Conditional Motion for Voluntary Surrender Date and
                 Bond Pending Appeal
    
         Lipscomb filed a Conditional Motion for Voluntary Surrender
    
    Date and Bond Pending Appeal on April 26, 2000.287 He sought bond
    
    pending appeal because:
    
                 it is legitimately predictable that the Fifth Circuit in
                 light of the Salinas [sic] opinion and its subsequent
                 interpretation by the other federal circuits will revisit
                 its past positions regarding the necessary connection
                 between the federal funds and the alleged bribes.288
    
    Lipscomb seeks bond because he thinks the Fifth Circuit on appeal
    
    will find a nexus requirement for jurisdiction under § 666. This is
    
    a pure question of statutory interpretation. Nowhere does Lipscomb
    
    seek bond pending appeal because he thinks the Fifth Circuit might
    
    
         284
               See R. at 560.
         285
               See R. at 600, 617-19.
         286
               See R. at 644.
         287
               See R. at 898.
         288
               R. at 901.
    
                                           111
    find § 666 as applied to his conduct unconstitutional. That is
    
    because he never made such an argument.
    
         (2) Not Argued on Appeal
    
         Even assuming arguendo that constitutionality was argued at
    
    trial, it was certainly not preserved on appeal, which is required
    
    if we are to consider it. The record shows that despite mention of
    
    potential constitutional issues, Lipscomb did not argue on appeal
    
    that § 666 was unconstitutional as applied to him.
    
         Lipscomb’s Appellate Brief repeatedly uses the vocabulary of
    
    jurisdiction, not constitutionality, to define his claim. In his
    
    request for oral argument, Lipscomb writes that “[t]his appeal
    
    involves a substantial jurisdictional question,” and never mentions
    
    a constitutional question.289 Moreover, Lipscomb defined the issue
    
    as follows:
    
                     The fact that the City of Dallas received federal funds
                     in excess of $10,000 in a given year does not, without
                     more, establish federal jurisdiction to prosecute a City
                     Councilman for bribery under 18 U.S.C. 666 [sic].290
    
    Constitutionality is not mentioned.
    
         Lipscomb writes that “it is incumbent upon federal courts –
    
    trial      and    appellate   –   to   constantly   examine   the   basis   for
    
    jurisdiction....”291 “A nexus between the expenditure of federal
    
    
         289
               App. Brief at ii.
         290
               Id. at iii, 2, 19 (emphasis added).
         291
            Id. at 19, qtg. Save the Bay, Inc. v. United States Army,
    
    639 F.2d 1100
    , 1102 (5th Cir. 1981).
    
                                            112
    funds   and       the   illicit   conduct,      bribery,   is   inherent   in   the
    
    statutory scheme and consistent with the legislative history.”292 He
    
    goes on to say:
    
                  Federal     jurisdiction was entirely contrived here. The
                  alleged      bribery was unrelated to any expenditure of
                  federal     monies. Accordingly, Federal [sic] jurisdiction
                  did not     and does not exist.293
    
    Lipscomb’s argument is it is a jurisdictional requirement of § 666
    
    that there be some connection between the bribe and the federal
    
    funds.294
    
          Lipscomb concludes his argument on this issue with the words
    
    “[t]he alleged bribery here had no connection to a federally funded
    
    program and, thus, the court below was without subject matter
    
    jurisdiction to proceed.”295 I can imagine no clearer statement that
    
    his   claim       is    jurisdictional,    unless    you   consider   Lipscomb’s
    
    conclusion and plea for relief:
    
                  For the foregoing reasons, the defendant-appellant,
                  ALBERT LOUIS LIPSCOMB, respectfully requests that this
                  Court reverse these convictions and remand the case to
                  the district court with instructions to dismiss the
                  indictment for lack of federal jurisdiction.296
    
          Lipscomb’s Appellate Brief also sheds light on his District
    
    Court arguments, and exposes them as purely jurisdictional, not
    
          292
                App. Brief at 14.
          293
                Id.
          294
                See id. at 20.
          295
                App. Brief at 28.
          296
                Id. at 59 (emphasis added).
    
                                              113
    constitutional. He writes that he “objected to the absence of
    
    federal jurisdiction before, during and after trial.”297 Not once
    
    does he claim to have objected at trial on the basis that the
    
    statute was unconstitutional. Moreover, had he thought that he had
    
    argued constitutionality at trial, we would expect him on appeal to
    
    challenge the District Court’s failure to decide that issue.
    
    Lipscomb makes no such challenge, further showing that he never
    
    made an argument regarding the constitutionality of § 666.
    
         Lipscomb does mention that contrary statutory interpretation
    
    could raise constitutional concerns.298 However, as before the
    
    District Court, this is mere mention of potential constitutional
    
    concerns in the context of a jurisdictional challenge; it is not a
    
    challenge to the constitutionality of § 666. Moreover, Lipscomb
    
    mentions the potential constitutional issue in order to exhort us
    
    to avoid it.299
    
         The      Government’s    Brief         continues   the   dialogue   in
    
    jurisdictional terms.300 It does not defend the constitutionality of
    
    § 666, strongly suggesting the Government did not consider that
    
    issue raised. Appellant’s Reply Brief follows suit.301
    
    
    
         297
               Id.; see also id. at 19.
         298
               See App. Brief at 14, 20, 22-5, 27.
         299
               See id. at 27-8.
         300
               See U.S. Brief at ii, 2, 31, 33-40.
         301
               See App. Reply Brief at i, 1-5, 16-21.
    
                                          114
         (3) No Legal Basis to Reach Constitutional Issue
    
         Despite the urgings of my colleagues to the contrary, no facts
    
    exist to support the contention that Lipscomb ever argued the
    
    constitutionality of § 666, or preserved that issue on appeal.
    
    However, assuming for sake of argument only the allusions to a
    
    potential constitutional issue found in the record are sufficient
    
    to raise the issue and preserve it for appeal, we still may not
    
    decide     the   issue.   There    exists   no    legal   support      for   the
    
    constitutional determinations made by my colleagues today.
    
                 (a) Court of Error
    
         Our jurisdiction is exclusively appellate,302 and we are not
    
    endowed with      any   original   jurisdiction    except   in   aid    of   our
    
    appellate jurisdiction.303 These rules embody the policy that legal
    
    issues should be developed initially before the district courts. As
    
    a panel of this circuit put it, “[g]enerally speaking, we are a
    
    court of errors and appeals.”304 The trial court cannot have erred
    
    as to matters which were not presented to it, nor decided by it.305
    
    This is black letter law.
    
         302
            See Roche v. Evaporated Milk Assn., 
    319 U.S. 21
    , 
    63 S. Ct. 938
    , 
    87 L. Ed. 1185
     (1943); United States v. Mayer, 
    235 U.S. 55
    , 
    35 S. Ct. 16
    , 
    59 L. Ed. 129
     (1914). See also Charles Alan Wright, Law of
    Federal Courts 10 (1983).
         303
            See Whitney v. Dick, 
    202 U.S. 132
    , 
    26 S. Ct. 938
    , 
    50 L. Ed. 963
     (1906); Travis County v. Kind Iron Bridge & Mfg. Co., 
    92 F. 690
    (5th Cir. 1899).
         304
               Gavel v. Lynaugh, 
    835 F.2d 124
    , 125 (5th Cir. 1988).
         305
               See id.
    
                                         115
         Here,      the   district        court    did    not    consider       the
    
    constitutionality     of   §   666.    Thus,   we    have   no   decision    on
    
    constitutionality to review.306 Moreover, it was not error for the
    
    district court not to consider the constitutional issue, because
    
    that issue was never presented to it.
    
         Of course, there are some situations in which appellate courts
    
    have jurisdiction to raise issues on their own.307 For example, if
    
    parties do not raise the issue of jurisdiction, or even if they
    
    contend that the Court of Appeals has jurisdiction, we still must
    
    determine, sua sponte, whether we have jurisdiction in a particular
    
    case.308 However, constitutional questions are not among those which
    
    we can raise sua sponte.
    
                 (b) Issue Not Briefed
    
         Appellant’s brief must contain the “appellant’s contentions
    
    and the reasons for them”.309 Issues that are not clearly designated
    
    in the appellant’s brief are normally deemed abandoned.310 This is
    
         306
             Therefore, even assuming, arguendo, that the parties
    adequately raised the issue of the constitutionality of § 666
    before us on appeal, we are without authority to decide that
    question. Were this question appropriately before us, we would not
    have the power to rule on constitutionality, as both Judge Wiener
    and Judge Smith are so eager to do; we would rather be bound to
    remand the issue to the district court for determination.
         307
               See Charles Alan Wright, Law of Federal Courts 10 (1983).
         308
               See United States v. Garner, 
    749 F.2d 281
     (5th Cir. 1985).
         309
               Fed. R. App. P. 28(a)(9)(A).
         310
            See United States v. Miranda, 
    248 F.3d 434
    , 444 (5th Cir.
    2001), cert. denied, Miranda v. United States, 
    122 S. Ct. 410
    , 151
    
                                          116
    especially      true    in    the   context    of    constitutional    issues.     We
    
    generally do not anticipate constitutional questions, but wait
    
    until      a   case    is    presented   that       requires   a   decision   of    a
    
    constitutional issue.311 There is also established Supreme Court
    
    precedent declining to address constitutional questions not put in
    
    issue by the parties.312
    
         This Circuit held last year that “[c]iting cases that may
    
    contain a useful argument is simply inadequate to preserve that
    
    argument for appeal,”313 in Clyde Bergemann, Inc. v. The Babcock &
    
    Wilcox Co., 
    250 F.3d 955
     (5th Cir. 2001). Bergemann was a creditor
    
    who objected to a financing arrangement between the debtors and a
    
    bank which would let the debtors continue operating. On appeal he
    
    argued, inter alia, that the financing arrangement was a fraudulent
    
    conveyance of assets. However, his brief to the bankruptcy court
    
    referred to that issue only in passing. Although he quoted two
    
    
    
    L.Ed. 2d 312 (2001); and cert. denied, Espinoza v. United States,
    
    122 S. Ct. 823
    , 
    151 L. Ed. 2d 705
     (2002); Fehlhaber v. Fehlhaber, 
    681 F.2d 1015
    , 1030 (5th Cir. 1982).
         311
               See Texas v. Grundstrom, 
    404 F.2d 644
    , 648 (5th Cir. 1968).
         312
             See, for example, Andrews v. Louisville & Nashville
    Railroad Co., 
    406 U.S. 320
    , 324-5, 
    92 S. Ct. 1562
    , 1565, 
    32 L. Ed. 2d 95
     (1972) (“The constitutional issue discussed in the dissent was
    not set forth as a ‘question presented for review’ in the petition
    for   certiorari,   and  therefore   our   [rule]   precludes   our
    consideration of it.”); Mazer v. Stein, 
    347 U.S. 201
    , 206 n.5, 
    74 S. Ct. 460
    , 464 n.5, 
    98 L. Ed. 630
     (1954) (“We do not reach for
    constitutional questions not raised by the parties.”).
         313
                In re Babcock & Wilcox Co., 
    250 F.3d 955
    , 961 (5th Cir.
    2001).
    
                                             117
    cases in that brief, neither quotation identified the issue of
    
    fraudulent conveyance sufficiently for the bankruptcy court to rule
    
    on it, nor was there any discussion of how the theory applied.                  We
    
    held the issue waived.
    
         Here neither party raised the constitutionality of § 666 in
    
    its briefs or arguments before us. Thus, it is beyond the scope of
    
    our review.
    
                (c) Avoidance of Constitutional Questions
    
         Even   assuming     everything     else   away,    and   considering      the
    
    constitutional issue adequately raised, we still have the duty to
    
    decline    to   decide   that   issue    unnecessarily.       It    is   a   well-
    
    established     canon    of   construction     that    federal     courts    avoid
    
    addressing constitutional questions when possible, even those that
    
    are raised by the parties.314 As stated by Justice Brandeis in his
    
    well-known and oft-cited concurring opinion (dissenting in part) in
    
    Ashwander v. TVA, 
    297 U.S. 288
    , 346-47, 
    56 S. Ct. 466
    , 483, 80 L.
    
    Ed. 688 (1936):
    
                The   Court   will   not   anticipate   a   question   of
                constitutional law in advance of the necessity of
                deciding it. It is not the habit of the court to decide
                questions of a constitutional nature unless absolutely
                necessary to a decision of the case. ... The Court will
                not pass upon a constitutional question although properly
                presented by the record, if there is also present some
                other ground upon which the case may be disposed of. ...
                Thus, if a case can be decided on either of two grounds,
                one involving a constitutional question, the other a
                question of statutory construction or general law, the
    
         314
            See Ashwander v. Tennessee Valley Authority, 
    297 U.S. 288
    ,
    
    56 S. Ct. 466
    , 
    88 L. Ed. 688
     (1936) (Brandeis, J., concurring).
    
                                          118
                 Court will decide only the latter.315
    
    The Fifth Circuit has agreed that we will not take a constitutional
    
    question for decision if there is some other legitimate ground on
    
    which the case can be decided.316
    
         Because      this   case   can   legitimately   be   decided   on
    
    jurisdictional grounds (in fact, that is the issue briefed and
    
    argued), we must avoid any constitutional decision.
    
         (4) Conclusion
    
         It is quite likely that a case will someday arise that
    
    squarely challenges the constitutionality of § 666, but this is not
    
    that case. Until that day, we must answer only those questions
    
    before us. Because the constitutionality of § 666 was not argued at
    
    trial or on appeal, and there is no legal justification for our
    
    reaching it, I must respectfully dissent from the entire discussion
    
    of constitutionality found in the opinions of both Judge Wiener and
    
    Judge Smith.317
    
         315
               Id. (internal citations omitted, emphasis added).
         316
               See Grundstrom, 404 F.2d at 648.
         317
             Judge Smith challenges my analysis of whether the
    constitutional issue was raised as “hyper-technical,” and
    “elevat[ing] semantics over substance. While I appreciate the value
    he places on avoiding hyper-technicality, I cannot agree with
    elevating that goal over our requirement that parties raise the
    issues they wish us to decide. I seek no magic words; I wish only
    that the parties would clearly raise those issues they wish us and
    the district court to decide (as our precedent requires). The
    parties here did not meet even this most-light burden on the issue
    of the constitutionality of § 666.
    
         In the same vein, Judge Smith accuses me of invoking the
    
                                      119
    (B) Transfer
    
         I concur in Judge Wiener’s discussion and conclusions on the
    
    transfer issue.
    
                                CONCLUSION
    
         For the foregoing reasons, I concur in part and dissent in
    
    part, but share Judge Wiener’s conclusion that we must reverse
    
    Lipscomb’s conviction, vacate his sentence, and remand for a new
    
    trial.
    
    
    
    
    “rigid form pleading” that was eliminated by the Federal Rules of
    Civil Procedure. This misunderstands my analysis. To the contrary,
    I am not concerned with what the parties raise in the complaints
    and answers that set out in broad brushstrokes the case they intend
    to bring. However, we must (and our precedent shows we do) require
    parties to specifically argue before us and the district court, at
    some point during the adjudication of their dispute, what issues
    they wish decided. The courts are not required to divine what
    issues are before them, nor do they have the power to choose what
    issues they would like to be before them – that is the
    responsibility of the parties.
    
         The conclusions of Judge Wiener and Judge Smith place a burden
    on the trial court to read between the lines of the parties’
    arguments and ascertain what the parties “should have” or “could
    have” argued. That is just not the way our judicial system works.
    The burden lies with the parties to place a case or controversy
    before the court. On the issue of constitutionality, that burden
    was not met here. Requiring judges to act as mindreaders, as Judge
    Wiener and Judge Smith do here, cannot be an acceptable part of our
    judicial system.
    
                                   120
    JERRY E. SMITH, Circuit Judge, dissenting:
    
    
    
           I would reverse the conviction and render a judgment of dis-
    
    missal with prejudice, thereby precluding a retrial of defendant
    
    Albert Lipscomb. Accordingly, I respectfully dissent from the con-
    
    trary result reached by Judge Wiener’s opinion and Judge Duhé’s
    
    partial concurrence, which is to subject this seventy-seven-year-
    
    old defendantSSwho has already served more than half of his ap-
    
    proximately three and one-half-year sentence of incarceration wait-
    
    ing for his appeal to be decidedSSto a new trial under a statute
    
    that has no application to him.
    
           Two of the three judges on this panel are of the view that
    
    Lipscomb properly raised the issue of whether 18 U.S.C. § 666 is
    
    unconstitutional as applied to him. Nonetheless, we fail to decide
    
    that issue because one of the judges declines to address it, leav-
    
    ing the other two judges evenly split on the question.    If we were
    
    to address it, we should easily conclude that Congress has no au-
    
    thority to criminalize Lipscomb’s conduct, and the government had
    
    no authority to subject him to a first trial, let alone a second
    
    one.
    
    
    
                                      I.
    
           Judge Duhé is correct that “[c]onstitutionality is an issue on
    
    the merits, not a jurisdictional one.”     He also accurately states
    
    that a criminal defendant may waive constitutional challenges to a
    statute by failing to argue them.     Although Judge Duhé follows the
    
    proper methodology by looking to Lipscomb’s four trial motions and
    
    his appellate brief for the answer, Judge Duhé errs in applying a
    
    hyper-technical test in reviewing Lipscomb’s arguments, a test
    
    that elevates semantics over substance.
    
         Our inquiry is a relatively easy one:       Has Lipscomb argued
    
    that Congress cannot reach his conduct under the United States
    
    Constitution?   When we focus on the text of Lipscomb’s motions and
    
    briefs, we can have no doubt that the answer is yes.
    
    
    
                                    A.
    
         Judge Duhé argues that Lipscomb’s September 3, 1999, “Motion
    
    To Dismiss the Indictment or, Alternatively, for an Evidentiary
    
    Hearing Requiring the Government To Establish Federal Jurisdiction”
    
    is a motion that “seeks proof of federal jurisdiction, and does not
    
    challenge the constitutionality of § 666.” But the full text shows
    
    that Lipscomb is making a constitutional argument; he just uses the
    
    words “jurisdiction” and “power” interchangeably:
    
              However, in Salinas, the Court squarely left open
         the question whether Section 666 “requires some other
         kind of connection between a bribe and the expenditure of
         federal funds” lest it be applied in some manner which
         would alter or fail to “give proper respect to the
         federal-state balance” of powers [quoting Salinas]. The
         Court found “no serious doubt about the constitutionality
         of Section 666(a)(1)(B) as applied to the facts of this
         case” [quoting Salinas].
    
              In this case, however, no sufficient jurisdictional
         basis is evident . . . .       Any exercise of federal
    
                                    122
    jurisdiction must demonstrate a proper respect for con-
    cepts of dual sovereignty and federalism. On its face,
    this indictment fails even to allege an appropriate basis
    for the exercise of federal jurisdiction and accordingly
    Section 666 is being unconstitutionally applied in this
    case . . . .
    
         The Tenth Amendment . . . provides: [quoting] . . .
    [T]he 'double security' embodied in the concept of fed-
    eralism requires 'a proper balance between the States and
    the Federal Government” [citing Gregory v. Ashcroft, 
    501 U.S. 452
    , 459 (1991)]. The States' constitutional pre-
    rogatives plainly include their “constitutional re-
    sponsibility for the establishment and operation of its
    own government . . . .” Under our federal system, states
    possess the primary authority to define and enforce crim-
    minal law [citing United States v. Lopez, 
    514 U.S. 549
    ,
    561 n.3 (1995)].
    
         Thus, the application of Section 666 in circumstanc-
    es with no evident assertion of a federal interest of-
    fends two state prerogatives: (1) the States' constitu-
    tional responsibility for regulation of electoral govern-
    ment and for the establishment and operation of its own
    government and the qualifications of its officials; and
    (2) the definition and enforcement of criminal law. As
    a constitutional principle, it simply cannot be that
    $10,000.00 in federal funds provided to a major city
    trumps the Tenth Amendment and the prerogatives and re-
    sponsibilities reserved to the States therein. The Tenth
    Amendment, after all, 'was enacted to allay lingering
    concerns about the extent of national power” [citing
    Alden v. Maine, 
    527 U.S. 706
    , 713-14 (1999)]. “When the
    Federal Government asserts authority over a States' [sic]
    most fundamental political processes, its [sic] strikes
    at the heart of the political accountability so essential
    to our liberty and republican form of government” [citing
    Alden; Printz v. United States, 
    521 U.S. 898
     (1997); New
    York v. United States, 
    505 U.S. 144
     (1992)].
    
         The proper state-federal balance is disturbed when
    there is an intrusion upon State prerogatives in
    important areas reserved to the States. This indictment
    fails to identify the federal interest served by this
    exercise   of   federal   jurisdiction   and   therefore
    constitutes an unconstitutional application of Section
    666 . . . . [F]ederal jurisdiction is being exercised in
    
                               123
           a manner that plainly intrudes upon the prerogative of
           the States to define, apply and enforce criminal law, and
           to monitor and oversee the operation of its government.
    
    (Emphasis added.)
    
           If Lipscomb were merely arguing jurisdiction, why would he
    
    five    times      cite       SalinasSSwhich          does     not      even      mention
    
    jurisdictionSSfor         the     proposition          that     §     666      has   been
    
    unconstitutionally applied to him?               Why would he employ a “Special
    
    Counsel for Tenth Amendment purposes only,” and have that counsel
    
    sign the motion?        Why would he twice invoke the Tenth Amendment and
    
    cite the Tenth Amendment cases of Gregory, Printz, and New York v.
    
    United States, as well as Alden’s Tenth Amendment discussion?                         Why
    
    would   he   six   times        argue    that    §    666     abridges      the   states’
    
    constitutional responsibilities and prerogatives?                        Why would he
    
    three times argue that § 666 upsets the constitution’s federal-
    
    state balance of powers?          Why would he three times state that § 666
    
    is being unconstitutionally applied to him?
    
           Judge Duhé sidesteps all of this and, instead, notes that the
    
    motion’s        title         mentions       federal           jurisdiction,         not
    
    constitutionality,        and     Lipscomb      uses    the    word     “jurisdiction”
    
    throughout his argument.            Since when do we accord one word such
    
    talismanic power that its mere presence or absence in a motion or
    
    brief can negate all remaining arguments?                    Since when do we forbid
    
    a defendant from raising two pointsSSboth constitutionality and
    
    jurisdictionSSin        one   motion?      The       Federal    Rules    of    Procedure
    
    
                                              124
    eliminated just the type of rigid form pleading that Judge Duhé
    
    invokes today.
    
         Lipscomb’s motion is less than polished, and his interchange
    
    of “jurisdiction” and “power” is clumsy. As Judge Wiener explains,
    
    sometimes Lipscomb uses “jurisdiction” to refer to a federal
    
    court’s subject matter jurisdiction, and sometimes he uses “juris-
    
    diction” to refer to the persons and acts over which Congress may
    
    legislate.   But any confusion is easily eliminated:    Substitute
    
    “federal power” or “congressional power” every time Lipscomb says
    
    “jurisdiction” in his motion, and the motion’s meaning remains the
    
    same.   But substitute “subject matter jurisdiction” or “federal
    
    court jurisdiction,” and parts of the motion become nonsensical.
    
         For example, the final paragraph makes no sense when “federal
    
    court jurisdiction” is used:
    
              The proper state-federal balance is disturbed when
         there is an intrusion upon State prerogatives in
         important areas reserved to the States. This indictment
         fails to identify the federal interest served by this
         exercise of [federal court jurisdiction] and therefore
         constitutes an unconstitutional application of Section
         666 . . . . [Federal court jurisdiction] is being
         exercised in a manner that plainly intrudes upon the
         prerogative of the States to define, apply and enforce
         criminal law, and to monitor and oversee the operation of
         its government.
    
    But this paragraph reads perfectly well when “congressional power”
    
    is filled in.
    
         Lipscomb’s lack of artfulness should not doom his appeal, es-
    
    pecially given that the Supreme Court and our circuit often have
    
    
    
                                    125
    been guilty of the same offense of conflating “jurisdiction” and
    
    “power.”   In United States v. Cotton, 
    122 S. Ct. 1781
     (2002), the
    
    Court acknowledged that it has sometimes employed a “somewhat ex-
    
    pansive    notion    of   jurisdiction”        that   covered    both     general
    
    constitutional      questions    and     the   concept    of    subject    matter
    
    jurisdiction.       Id.   at   1784-85    (internal      quotations     omitted).
    
    Recently, the en banc court of this circuit reheard United States
    
    v. Longoria, 
    259 F.3d 363
     (5th Cir.), vacated for rehearing en
    
    banc, 
    262 F.3d 455
     (5th Cir. 2001), to undo the confusion generated
    
    by our loose use of the term “jurisdiction.”              Lipscomb should not
    
    be held to a higher standard of legal diction than are the judges
    
    and Justices of this court and the Supreme Court.
    
         Judge Duhé and I also read Lipscomb’s February 8, 2000, motion
    
    for judgment of acquittal quite differently.              Lipscomb made, inter
    
    alia, the following arguments:
    
              As applied to Lipscomb, 18 U.S.C. § 666 is
         unconstitutional. No evidence was introduced that any of
         the funds given to Lipscomb can be connected to “a threat
         to the integrity and proper function of a federal pro-
         gram.” None of the federal funds was shown to relate to
         the taxicab industry. At no time did any of the votes
         alleged in the indictment impinge upon the use, distribu-
         tion, diversion or application of any federal funds.
         Congress intended to protect federal and the integrity of
         those funds.
    
    (Emphasis added.)
    
         Lipscomb flatly states that § 666 is unconstitutional as ap-
    
    plied to him, and he follows with a constitutional argument from
    
    Salinas.   The Salinas Court explained that because the crime “was
    
                                           126
    a threat to the integrity and proper operation of the federal
    
    program[,    w]hatever   might   be     said    about   §   666(a)(1)(B)’s
    
    application in other cases, the application of § 666(a)(1)(B) to
    
    Salinas did not extend federal power beyond its proper bounds.”
    
    Salinas v. United States, 
    522 U.S. 52
    , 61 (1997).           Lipscomb argues
    
    the inverseSSbecause his crime did not threaten the integrity and
    
    proper operation of a federal program, the application of § 666 to
    
    him is not constitutional.
    
         Judge Duhé recharacterizes this argument as a challenge to the
    
    jurisdictional reach of § 666; Lipscomb, he concludes, actually is
    
    asserting that § 666 requires a nexus between federal funds and the
    
    bribery.    Judge Duhé does not explain why, if this is so, Lipscomb
    
    failed to place this argument under heading B of his motionSS“The
    
    Government has failed to establish the jurisdictional prerequisite
    
    for each substantive count.”
    
         Nor does Judge Duhé explain why Lipscomb would support this
    
    argument by quoting from the same passage in Salinas that held,
    
    “The text of § 666(a)(1)(B) is unambiguous . . . [and] does not
    
    require the Government to prove federal funds were involved in the
    
    bribery transaction.”     Salinas, 522 U.S. at 60.          Instead, Judge
    
    Duhé notes that neither the government nor the district court
    
    mentioned the constitutional issue.            Just because the district
    
    court and the government may have misunderstood Lipscomb’s claim,
    
    however, does not mean he failed to present it.
    
    
                                      127
                                        B.
    
          Lipscomb devotes ten pages of his appellate brief to the
    
    constitutional issue.    Even though Lipscomb admits that “[i]t is
    
    not a jurisdictional requirement of [§] 666 that the alleged bribe
    
    actually affect federal funds,” Judge Duhé insists that Lipscomb is
    
    making only a jurisdictional argument. More incredibly, Judge Duhé
    
    claims Lipscomb “never mentions a constitutional question,” even
    
    though Lipscomb states, “there must be some connection between the
    
    bribe and the expenditure of federal funds.      Otherwise, the reach
    
    of § 666 intrudes well beyond the scope of federal authority into
    
    areas of state responsibility, and serious constitutional questions
    
    are presented.”   (Emphasis added.)
    
          Lipscomb further notes that the Salinas Court
    
          left open the question whether Section 666 “requires some
          other kind of connection between a bribe and the
          expenditure of federal funds” lest it be applied in some
          manner which would alter or fail to “give respect to the
          federal-state balance” of powers [citation]. “Whatever
          might be said about [§] 666(a)(1)(B)'s application in
          other cases, the application of Section 666(a)(1)(B) to
          Salinas did not extend federal power beyond its proper
          bounds.” [citation].
    
          Lipscomb follows with the observation that “[a]ny exercise of
    
    federal jurisdiction must demonstrate a proper respect for concepts
    
    of dual sovereignty and federalism (citing the Tenth Amendment).
    
    The    States'    constitutional     prerogatives   plainly   include
    
    'constitutional responsibility for the establishment and operation
    
    of its own government . . . .      [citing Gregory, 501 U.S. at 462].”
    
    
                                       128
    He adds, “As a constitutional principle, it simply cannot be that
    
    $10,000.00 in federal funds provided to a major city trumps the
    
    Tenth Amendment and the prerogatives and responsibilities reserved
    
    to   the   States”   (referring      also   to   our   “republican       form   of
    
    government”) (emphasis added).
    
          Lipscomb further argues that § 666 is enacted under the
    
    Spending Clause, which has limits.               Beyond those limits, the
    
    “delicate   balance    of   federalism”     is    obliterated,      he   argues.
    
    Finally, Lipscomb notes that a prosecution under § 666 must be
    
    “undergirded by some adequate federal jurisdictional base” to avoid
    
    serious constitutional problems.”
    
          Again, Lipscomb uses the term “jurisdiction” loosely, and he
    
    sometimes makes two arguments under one heading in his brief.
    
    Nonetheless,    he    easily   has    raised     adequately   the    requisite
    
    constitutional arguments.
    
    
    
                                          II.
    
          Despite the caption of this opinion as a dissent, this part II
    
    is not a dissent, because there is no majority decision, on this
    
    issue, from which to dissent.         Judge Wiener opines that § 666 is
    
    constitutional as applied, and I conclude, to the contrary, that
    
    the statute is unconstitutional as applied.              But Judge Duhé de-
    
    clines to address this issue, even in the alternative, despite that
    
    it is law of the case, under the majority holding of two judges,
    
    
                                          129
    that the issue is properly raised and preserved.
    
         So, although a majority of this court holds that Lipscomb pro-
    
    perly raised and preserved this constitutional challenge, and al-
    
    though this challenge, if decided, could lead to Lipscomb’s im-
    
    mediate release with no possibility of retrial, we do not rule on
    
    it. The government had no authority to try Lipscomb the first time
    
    around;   instead   of   announcing     that   fact   and   ending   these
    
    proceedings, we compound the error by forcing Lipscomb to undergo
    
    a second illegitimate trial.
    
         The full absurdity of today’s decision comes to light when we
    
    imagine the future of this case.      If Lipscomb is convicted a second
    
    time, he presumably will appeal (if he lives that long; he is
    
    elderly and too ill to be incarcerated in prison).          In his second
    
    appeal, Lipscomb could argue the same constitutional claim before
    
    this same courtSSperhaps even before this same panelSSand this time,
    
    because he was careful to omit the word “jurisdiction” from his
    
    brief, he could be acquitted and told that the government never had
    
    the power to try or detain him in the first case.           As I explain
    
    below, this should be our decision today.
    
    
    
                                       A.
    
         As Judge Wiener explains, Westmoreland’s broad construction of
    
    § 666 continues to be the law in this circuit, so we are precluded
    
    from construing the statute to avoid a constitutional question. We
    
    
    
                                     130
    must, perforce, examine Lipscomb’s constitutional challenge to the
    
    statute as applied.
    
          Congress enacted § 666 under the Spending Clause.318 Phillips,
    
    219 F.3d at 414.     It is well recognized that Congress may use its
    
    spending power to regulate the states indirectly through the use of
    
    conditional grants. E.g., 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW
    
    § 5-6, at 833 (3d ed. 2000).        The power to regulate indirectly is
    
    nevertheless a limited one, as explained in South Dakota v. Dole,
    
    
    483 U.S. 203
    , 207-08 (1987).
    
          Dole involved a statute conditioning a small portion of each
    
    state’s federal highway aid on the state’s establishing a minimum
    
    drinking age.    Id. at 205.    The Court upheld the condition based on
    
    Congress’s authority under the Spending Clause to “condition”
    
    states’ access to federal funds.        Id. at 206.     The Court held that
    
    when Congress chooses to go beyond specific enumerated powers and
    
    to use its spending power “to further broad policy objectives by
    
    conditioning receipt of federal monies upon compliance with federal
    
    statutory and administrative directives,” it must meet four condi-
    
    tions, the failure to meet any of which might render a statute un-
    
    constitutionally broad:       (1) The power must be used in pursuit of
    
    the general welfare; (2) Congress must state any conditions unam-
    
    biguously; (3) conditions must be related to the federal interest
    
    
          318
             U.S. CONST. Art. I, § 8 (“Congress shall have Power to lay and collect
    Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common
    Defense and general Welfare of the United States . . . .”).
    
                                         131
    in particular national projects or programs; and (4) conditions
    
    must not violate other independent constitutional restrictions on
    
    government activity.       Id. at 207-08.319
    
          The    Dole     test     is    inappropriate        to   analyze      the
    
    constitutionality of § 666, however, because the section does not
    
    qualify as a conditional-grant statute.          First, § 666 does not un-
    
    ambiguously state that certain conditions attach to the receipt of
    
    any   particular    federal   grants.       Second,   a   condition    statute
    
    generally requires a state’s compliance with federal regulatory or
    
    administrative directives in exchange for receipt of federal funds.
    
    Va. Dep’t of Educ. v. Riley, 
    106 F.3d 559
    , 570-72 (4th Cir. 1997)
    
    (en banc) (plurality opinion).
    
          Section 666, however, neither requires an act of compliance
    
    nor applies directly to the recipient governments, as did the stat-
    
    ute in Oklahoma v. United States Civil Serv. Comm’n, 
    330 U.S. 127
    
    (1947).320   Instead, § 666 applies directly to individuals; as the
    
    
          319
             At least one court has concluded that use of § 666 to prosecute crimes
    with no federal nexus violates the Dole test’s third condition. See United
    States v. McCormack, 
    31 F. Supp. 2d 176
     (D. Mass. 1998) (finding the statute
    unconstitutional as applied where a defendant had bribed a local police officer
    to prevent that officer’s further investigation into a state crime, where the
    entity that received federal funds was the officer’s employing police
    department).
          320
             In Oklahoma, the statute at issue placed “Hatch Act” limitations on any
    officer or employee of any state or local agency whose principal employment was
    in connection with any activity that was financed in whole or in part by loans
    or grants made by the federal government. The condition on the state appears to
    have been that either it would agree to fire any individual who, after an inves-
    tigation by the federal civil service commission, was found to have violated the
    statute, or the commission in the future would be authorized to withhold, from
    the state, an amount equal to twice that employee’s salary. The Dole Court cited
                                                                   (continued...)
    
                                          132
    court in United States v. Cantor, 
    897 F. Supp. 110
    , 113 (S.D.N.Y.
    
    1995), stated persuasively, § 666 does not impose any conditions at
    
    all, much less conditions related to federal interests, on particu-
    
    lar national projects or programs:          “18 U.S.C. § 666 does not im-
    
    pose a condition on the receipt of federal funds.                 The statute
    
    neither requires a state’s compliance with federal regulatory or
    
    administrative directives, nor prevents state action.” Id. There-
    
    fore, § 666 cannot be classified as a conditional grant to the
    
    states,321 and, correspondingly, Dole cannot be applied to analyze
    
    its constitutionality.322
    
    
    
    
          320
                (...continued)
    Oklahoma as an example of the federal government’s conditioning receipt of fed-
    eral funds on compliance by the recipient with federal statutory and adminis-
    trative objectives. Dole, 483 U.S. at 206-07.
          321
             But see United States v. McCormack, 
    31 F. Supp. 2d 176
     (D. Mass. 1998),
    which suggests that § 666 is a “condition” statute because the recipient can
    avoid the statute’s application to its officials by not accepting federal funds
    of $10,000 or more. The McCormack court argued further that § 666 sets out fed-
    eral requirements for recipient governments and prescribes negative consequences
    if those requirements are not followed. I disagree. A mere grant of money can-
    not be called a condition, and Dole requires not just a condition, but an
    explicitly stated condition. Section 666 fails this requirement.
    
          322
              If the Dole test were applicable, it would require a holding that § 666
    is unconstitutional as applied, because the third requirement of the Dole
    testSSthat “conditions must (among other requirements) bear some relationship to
    the federal spending,” New York v. United States, 
    505 U.S. 144
    , 167 (1992)SSis
    not met. The only relationship the government can manage to muster between Lips-
    comb’s violation of state criminal law and federal spending is that Yellow Cab’s
    taxis sometimes go to a city airport that receives federal dollars for
    improvements. This connection is so tenuous as to be no connection at all; were
    it enough to satisfy the Dole test, then “the spending power could render
    academic the Constitution’s other grants and limits of federal authority.” Id.
    
                                          133
                                          B.
    
           Recognizing that Dole does not answer the question, we turn
    
    elsewhere for constitutional grounding. In Salinas, the Court held
    
    § 666 constitutional as applied, addressing constitutionality only
    
    briefly:
    
           [T]here is no serious doubt about the constitutionality
           of § 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 Fed-
           eral 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
           § 666(a)(1)(B)’s application in other cases, the
           application of § 666(a)(1)(B) to Salinas did not extend
           federal power beyond its proper bounds. See Westfall v.
           United States, 
    274 U.S. 256
    , 259 (1927).
    
    Salinas, 522 U.S. at 60-61.      Unfortunately, the Court did not re-
    
    veal    the   framework   it   used   in    concluding   that   §   666   was
    
    constitutionally applied in Salinas, nor did it say what test
    
    should be used in determining whether other applications of the
    
    statute are constitutional.       We conduct our own inquiry, because
    
    this case, unlike Salinas, does not involve any readily apparent
    
    connection to federal funds or programs.
    
           As I have said, the fact that § 666 is not a direct exercise
    
    of the spending power does not doom its constitutionality.                The
    
    Constitution gives Congress the power “To make all Laws which shall
    
    be necessary and proper for carrying into Execution the foregoing
    
    powers, and all other Powers vested by this Constitution in the
    
    Government of the United States, or in any Department or Officer
    
    
                                          134
    thereof.”    U.S. CONST. art. I, § 8.       Thus, to determine whether the
    
    application of § 666 to Lipscomb’s acceptance of bribes by a local
    
    taxi company is constitutional, we must decide whether prosecuting
    
    such behavior is “necessary and proper” to carrying out Congress’s
    
    spending power.323
    
    
    
                                           1.
    
          We examine the relevant legislative history to discover why
    
    Congress thought that § 666 was necessary and for what purposes it
    
    deemed the statute proper, for although Congress is not the final
    
    judge of what is necessary and proper to carry out its powers, it
    
    is likely to have an informed opinion on the matter.              Such opinion
    
    is particularly persuasive to the extent that it finds legislation
    
    is necessary and proper only in limited circumstances, because, in
    
    such cases, we need not worry that Congress’s interpretation is
    
    motivated by a desire to expand its power beyond proper bounds.
    
    Thus, when Congress states that legislation passed as necessary and
    
    proper to carry out one of its enumerated powers is actually neces-
    
    sary only in certain circumstances, we should be hesitant to con-
    
    
    
          323
              Since the early days of the Republic, the Necessary and Proper Clause
    has provided justification for laws necessary for the execution of Congressional
    powers. For example, in McCulloch v. Maryland, 
    17 U.S. 316
     (1819), the Court
    held that the enactment of a law establishing a national bank was necessary and
    proper to carrying into execution the spending power, the commerce power, the
    taxing power, the power to coin money, and the war power. Chief Justice Marshall
    described the reach of the clause as follows: “Let the end be legitimate, let
    it be within the scope of the constitution, and all means which are appropriate,
    which are plainly adapted to that end, which are not prohibited, but consist with
    the letter and spirit of the constitution, are constitutional.” Id.
    
                                          135
    clude that the Necessary and Proper Clause permits the legislation
    
    to reach further than Congress felt necessary or proper to carry
    
    out its delegated powers.
    
         Courts have recognized the particular relevance of the legis-
    
    lative history of § 666 in casesSSlike thisSSin which that history
    
    shows Congress’s limited goals in drafting a broadly worded stat-
    
    ute. The legislative history of the act shows that Congress passed
    
    § 666 because it was concerned with its inability to protect fed-
    
    eral funds once they are transferred from the federal government to
    
    states, local governments, and agencies.    Section 666 “is designed
    
    to create new offenses to augment the ability of the United States
    
    to vindicate significant acts of theft, fraud, and bribery involv-
    
    ing Federal monies that are disbursed to private organizations or
    
    State and local governments pursuant to a Federal program.”      1984
    
    U.S.C.C.A.N. at 3510 (emphasis added).     Congress also stated that
    
    “the purpose of this section [is] to protect the integrity of the
    
    vast sums of money distributed through Federal programs from theft,
    
    fraud, and undue influence by bribery.”     Id. at 3511.
    
         In Salinas, the Court noted that § 666 was enacted in response
    
    to specific difficulties the federal government had encountered un-
    
    der preceding statutes in prosecuting the theft of federal funds by
    
    non-federal employees.   The Court explained:
    
         Before § 666 was enacted, the federal criminal code con-
         tained a single, general bribery provision codified at 18
         U.S.C. § 201. Section 201 by its terms applied only to
         “public official[s],” which the statute defined as “offi-
    
                                    136
          cer[s] or employee[s] or person[s] acting for or on be-
          half of the United States . . . .” § 201(a). The Courts
          of Appeals divided over whether state and local employees
          could be considered “public officials” under § 201(a)
          . . . . § 666(a)(1)(B) was designed to extend federal
          bribery prohibitions to bribes offered to state and local
          officials employed by agencies receiving federal funds.
          The facts and reasoning of [United States v.] Del Toro,
          [
    513 F.2d 656
    , 661-62 (2d Cir. 1975)], give particular
          instruction in this respect. In that case, the Second
          Circuit held that a city employee was not a “public offi-
          cial” under § 201(a) even though federal funds would
          eventually cover 100% of the costs and 80% of the sala-
          ries of the program he administered. 513 F.2d, at 662.
          Because the program had not yet entered a formal request
          for federal funding, the Second Circuit reasoned,
          “[t]here were no existing committed federal funds for the
          purpose.” Ibid. The enactment of § 666 forecloses this
          type of limitation.
    
    Salinas, 522 U.S. at 58-59.        Moreover, in United States v. Zwick,
    
    
    199 F.3d 672
    , 684 (3d Cir. 1999), the court explained that under a
    
    separate statute criminalizing the theft of federal property, 18
    
    U.S.C. § 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.[324]
    
    Furthermore, the Senate Report states that the intent of § 666 is
    
    “to reach thefts and bribery in situations of the types involved in
    
    the Del Toro, Hinton, and Mosley cases cited herein[.]”            S. REP. NO.
    
    98-225, 369-370, 1984 U.S.C.C.A.N. at 3511.             The court in Zwick
    
    
    
          324
              Based on this legislative history, the Zwick court concluded that
    “[t]he goal [of § 666] 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.” Zwick, 199 F.3d at 684.
    
                                         137
    noted that the corrupt transactions in these three cases all plain-
    
    ly implicated federal interests.       Zwick, 199 F.3d at 684.
    
         In Del Toro, the defendants conspired to bribe Pedro Morales,
    
    the Assistant Administrator of the Harlem-East Harlem Model Cities
    
    Program, for which the United States Department of Housing and Ur-
    
    ban Development (“HUD”) paid 100% of the cost of the program and
    
    80% of its salaries. Because Morales was a city employee, however,
    
    the court concluded that, notwithstanding that he was administering
    
    a HUD program, he was not a “public official” for purposes of § 201
    
    and therefore could not be prosecuted.       Id.
    
         Similarly, in United States v. Hinton, 
    683 F.2d 195
    , 198-200
    
    (7th Cir. 1982), aff’d sub nom. Dixson v. United States, 
    465 U.S. 482
     (1984), the defendants were officials of a non-profit corpora-
    
    tion that administered a HUD program and had discretion in the dis-
    
    tribution of HUD funds.   The court found that they were “public of-
    
    ficials for purposes of § 201 because they exercised considerable
    
    discretion in the distribution of federal funds.       Id. at 198-200.
    
    The Supreme Court affirmed but noted that, to be a “public offi-
    
    cial” under § 201(a), “an individual must possess some degree of
    
    responsibility for carrying out a federal program or policy . . . .
    
    Individuals who work for block grant recipients and business people
    
    who provide recipients with goods and services cannot be said to be
    
    public officials under section 201(a) unless they assume some du-
    
    ties of an official nature.”     Dixson v. United States, 
    465 U.S. 138
    482, 499-500 (1984).
    
          In United States v. Mosley, 
    659 F.2d 812
    , 816 (7th Cir. 1981),
    
    the defendant, an Illinois state employee, was convicted of receiv-
    
    ing bribes while evaluating applicants for jobs under a federally-
    
    funded program.      Here again, the defendant was covered by § 201,
    
    because he exercised discretion in the administration of federal
    
    funds.      In Zwick, the court concluded that the inclusion of these
    
    cases as examples of conduct that would be covered by § 666 showed
    
    that Congress intended that the statute would be applied only in
    
    corruption cases impacting federal interests.325
    
          Although I do not agree that the plain language of § 666 al-
    
    lows prosecution only where the charged corrupt activity has impact
    
    on a federal interest, the fact that Congress did not find it ne-
    
    cessary that § 666 be applied in cases not involving federal funds
    
    or programs is highly relevant to the issue of whether the stat-
    
    ute’s application to local corruption not involving federal funds
    
    is “necessary and proper” to execute the spending power.                  Armed
    
    with knowledge of Congress’s purpose in enacting § 666, I examine
    
    whether the statute’s employment hereSSto prosecute a city coun-
    
          325
             See Zwick, 199 F.3d at 685 (holding that “nothing in the legislative
    history suggests that Congress intended to go well beyond the examples in Del
    Toro, Hinton, and Mosley to make § 666 applicable when no federal interest is im-
    plicated by certain offense conduct.”).       The Zwick court also noted that
    “[a]nother comment in the Senate 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.” Id. The court quoted the Senate Report:
    “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 crime.” Id. (quoting S. REP. NO.
    98-225, at 370, 1984 U.S.C.C.A.N. at 3511).
    
                                          139
    cilmember for accepting bribes in return for pursuing local taxi
    
    regulations beneficial to a local taxi companySSis “necessary and
    
    proper for carrying into execution” the spending power.                In other
    
    words, what are the minimum factors that must be present to make a
    
    prosecution under § 666 “necessary and proper” under the spending
    
    power?
    
           I am aware of no court that has dealt with the issue of what
    
    uses of § 666 are necessary and proper to effect the spending pow-
    
    er.    Of no help is United States v. Suarez, 
    263 F.3d 468
     (6th Cir.
    
    2001).326    The Second and Third Circuits have narrowly interpreted
    
    §     666,   however,    for   the    express    purpose     of   avoiding     a
    
    constitutional question.          Their views on what limitations are
    
    necessary to keep § 666 within the realm of constitutionality are
    
    therefore useful. In Zwick, the court interpreted § 666 to require
    
    
           326
             Suarez advances the position of neither side in the instant case.
    There, the panel majority reluctantly upheld the conviction:
    
                 Were we writing on a clean slate, I like [the dissent],
                 might well agree that proper application of 18 U.S.C. §
                 666 requires a minimal nexus between the alleged
                 criminal activity and the federal funding received
                 pursuant to that statute. We are not, however[;] the
                 well established law of this Circuit [binds us].
    
    Suarez, 263 F.3d at 489. In Suarez, only the dissent analyzed the constitutional
    issue and Supreme Court precedent, and the dissent concluded that the statute was
    unconstitutional as applied:
    
                 To sustain Suarez’s conviction would make § 666 a
                 generalized anti-corruption statute under the spending
                 power.   The best reading of the Fischer and Salinas
                 cases seems to be that the Supreme Court does not want
                 this interpretation to take hold.
    
    Id.   The dissenting judge voted to remand for development of the record on
    whether there was a nexus between the crime and the federal program.
    
                                          140
    a   relationship    between     the   prohibited   conduct     and   a   federal
    
    interest,    because    doing    otherwise    would    raise   constitutional
    
    problems:
    
                Interpreting § 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. 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 § 666 to
                offense conduct, absent evidence of any
                federal interest, would appear to be an
                unconstitutional exercise of power under the
                Spending Clause.
    
    Zwick, 199 F.3d at 687 (footnote omitted).            The court thus rejected
    
    the government’s position that no connection between the bribery
    
    and the federal funds was necessary beyond proof that the agency in
    
    question had received federal funds in excess of $10,000.                 To do
    
    otherwise, the court reasoned, would eviscerate significant fed-
    
    eral-state boundaries by turning § 666 into a general anti-corrup-
    
    tion statute, an intention not expressed by Congress.                    Id. at
    
    686.327
    
          In the pre-Salinas case of United States v. Foley, 
    73 F.3d 484
    , 493 (2d Cir. 1996), the court held that the conduct prosecuted
    
    under § 666 must be “shown in some way to touch upon federal
    
          327
              Although the court in Zwick seems to have applied a Dole analysis to
    the issue, the court’s reasoning that a federal interest must be present to avoid
    a constitutional question is persuasive, as well, in analyzing § 666’s constitu-
    tionality under the Necessary and Proper Clause.
    
                                           141
    funds.”    The court also held that the local government or agency
    
    whose transaction involves $5,000 or more and at which the cor-
    
    ruption is aimed must itself receive at least $10,000 in federal
    
    funds.    Id.
    
         The court re-evaluated Foley post-Salinas in United States v.
    
    Santopietro, 
    166 F.3d 88
     (2d Cir. 1999), recognizing that Salinas
    
    had made plain that the corruption need not have a value of $5,000
    
    to the local government on which the corruption is practiced.    In-
    
    stead, there only must be the receipt of at least $10,000 of feder-
    
    al funds and a corrupt transaction valued at $5,000 or more by any
    
    of the partiesSSthe local government, the party paying the bribe,
    
    or the bribe recipient.   Thus, the Santopietro court reversed and
    
    held that the defendants could be convicted under § 666.        Even
    
    though the bribery at issue did not result in a loss of $5,000 or
    
    more to the town, the statutory requirement that a transaction of
    
    at least $5,000 be involved was plainly satisfied by the fact that
    
    the total bribe was $25,000.   Id. at 92-93.
    
         Santopietro, however, did not retreat from Foley’s requirement
    
    of “at least some connection between the bribe and a risk to the
    
    integrity of the federal funded [sic] program,” because “nothing in
    
    Salinas disturbs such a requirement.”   Id. at 93.   The court held
    
    that a federal connection sufficient to satisfy § 666 existed where
    
    real estate developers had made corrupt payments to the mayor, the
    
    Republican town chairman, and the president of the board of alder-
    
    
                                    142
    men to secure their influence in landing city development contracts
    
    that were substantially funded by HUD dollars.              Id.   The court held
    
    that the evidence
    
          satisfies the requirements of Foley, undisturbed by Sali-
          nas, that the transaction sought to be influenced had
          some connection with a federal program. Indeed, 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.
    
    Id. (quoting Salinas 522 U.S. at 60-61) (citation omitted) (alter-
    
    ation in original).
    
          The court made plain that there was a direct connection be-
    
    tween the bribery and the federally-funded programs and that “this
    
    is not a case where the transactions sought to be influenced con-
    
    cerned one department of a city and the requisite $10,000 of fed-
    
    eral funds were received by a totally unrelated department.”                   Id.
    
    at 93-94.    The court stated that “even after Salinas, [the undis-
    
    turbed requirements of] Foley would not permit the Government to
    
    use § 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.328
    
          The reasoning of the Second and Third Circuits is persuasive.
    
    
    
          328
             But see United States v. Jennings, 
    160 F.3d 1006
    , 1012 (4th Cir. 1998)
    (interpreting § 666, without examining its constitutionality, to require no nexus
    between bribes and federal funding); United States v. Dakota, 
    197 F.3d 821
     (6th
    Cir. 1999) (same).
    
                                          143
    It is a tautology to say that for legislation to be necessary and
    
    proper for effecting the spending power, it must be related to that
    
    power in some way.     In other words, prohibiting activity that is
    
    unrelated to federal spending or programs cannot be necessary to
    
    execute the spending power.
    
         This is not to say that only activity that directly affects
    
    federal funds may be prohibited.           Salinas made evident that the
    
    spending power can be rendered ineffectual not only where the in-
    
    tegrity of federal funds is compromised, but also where the in-
    
    tegrity of programs funded by those federal dollars is assaulted.
    
    Thus, in Salinas the Court found that § 666 did not “extend federal
    
    power beyond its proper bounds,” id. at 61, where the statute was
    
    used to prosecute a state officer who had allowed himself to be
    
    bribed to influence his management of a federally funded program,
    
    even though no federal funds actually were diverted.           In Zwick, the
    
    court held that “a highly attenuated implication of a federal in-
    
    terest will suffice for purposes of § 666.”329
    
    
         329
             The court provided examples of attenuated connections that would be
    sufficient to allow prosecution under § 666:
    
               We can conceive of several ways in which the government
               could prove a federal interest in a § 666 [sic] 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 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
                                                                  (continued...)
    
                                         144
                                            2.
    
         The government goes far beyond the holding of Salinas and ar-
    
    gues that for a prosecution to be proper under § 666, no rela-
    
    tionship at all is required between federal funds or programs and
    
    local corruption.         The government argues that because funds are
    
    fungible, and the receipt of federal funds for any project frees a
    
    state to spend more funds on other projects, no more is required
    
    for a prosecution under § 666 than that a local government receive
    
    at least $10,000 in federal funds annually.
    
         Although this is, strictly speaking, a correct textual inter-
    
    pretation of § 666, the statute obviously does not satisfy consti-
    
    tutional requirements when used in this manner; it cannot be neces-
    
    sary and proper to executing the spending power for the government
    
    to prosecute local crimes that have no relationship whatsoever to
    
    federal funds and programs.
    
         Any argument that it is “necessary” to protect the spending
    
    power by passing legislation that regulates conduct totally unre-
    
    lated to federal spending is meritless on its face. Accepting this
    
    proposition would allow § 666 to become a general federal police
    
    power statute that criminalizes corruption in all local governments
    
    and private agencies receiving federal funds.
    
    
         329
               (...continued)
                  interest, as the Supreme Court found it did in Salinas,
                  where federal funds were being provided to house federal
                  prisoners in local prisons.
    
    Zwick, 199 F.3d at 687.
    
                                            145
          Such a general police power is denied the federal government
    
    by constitutional design, for it is among those powers, reserved to
    
    the states, that constitute the heart of state sovereignty.330             Fur-
    
    thermore, states have the primary authority to define and enforce
    
    criminal law,331 United States v. Lopez, 
    514 U.S. 549
    , 561 n.3
    
    (1995), and the “double security” embodied in the concept of feder-
    
    alism requires “a proper balance between the States and the Federal
    
    Government,” Gregory, 501 U.S. at 459.              Central to that balance,
    
    and to state sovereignty, is each state’s prerogative over the
    
    “constitutional responsibility for the establishment and operation
    
    of its own government . . . .”           Id. at 462.
    
          Congress may pass laws criminalizing conduct that is already
    
    proscribed by the states, but this “change in the sensitive rela-
    
    tion between federal and state criminal jurisdiction”332 must be
    
    
    
          330
             See, e.g., United States v. Morrison, 
    529 U.S. 598
    , 618 n.8 (2000); New
    York v. United States, 
    505 U.S. 144
    , 155 (1992); Gregory v. Ashcroft, 
    501 U.S. 452
    , 457 (1991).
          331
                As the Court said in United States v. Lopez, 
    514 U.S. 549
    , 561 n.3
    (1995):
    
                  Under our federal system, the “‘states possess primary
                  authority for defining and enforcing the criminal law.’”
                  Brecht v. Abrahamson, 
    507 U.S. 619
    , 635 (1993) (quoting
                  Engle v. Isaac, 
    456 U.S. 107
    , 128 (1982)); see also
                  Screws v. United States, 
    325 U.S. 91
    , 109 (1945)
                  (plurality opinion) (“Our national government is one of
                  delegated powers alone. Under our federal system, the
                  administration of criminal justice rests with the states
                  except as Congress, acting within the scope of those
                  delegated powers, has created offenses against the
                  United States.”).
          332
             United States v. Enmons, 
    410 U.S. 396
    , 411-12 (1973) (quoting United
    States v. Bass, 
    404 U.S. 336
    , 349 (1971)).
    
                                            146
    made under the powers delegated to the federal government by the
    
    Constitution.        If adopted, the government’s argument that it is
    
    necessary and proper, under the Spending Clause, for the federal
    
    government to root out all local corruption whenever more than
    
    $10,000 of federal funds is received by a local government would
    
    cause a massive shift in the “balance between the States and the
    
    Federal      Government”     that   is   contrary    to   basic    concepts   of
    
    federalism and the Tenth Amendment.333
    
                  This power cannot be said to be necessary and proper to
    
    carrying into execution the spending power, because the means are
    
    not appropriate, are well beyond “the scope of the constitution,”
    
    are inconsistent “with the letter and spirit of the constitution,”
    
    and thus are unconstitutional. McCulloch v. Maryland, 
    17 U.S. 316
    ,
    
    421 (1819).334      Moreover, the government’s argument that no connec-
    
    tion need be shown between federal funds or programs and the local
    
    corruption prosecuted under § 666 confuses a connection to a fed-
    
    
    
          333
              See U.S. CONST. amend. 10 (“The powers not delegated to the United
    States by the Constitution, nor prohibited by it to the States, are reserved to
    the States respectively, or to the people.”).
          334
                See also Zwick, 199 F.3d at 686:
    
                  If we adopted the government’s interpretation that § 666
                  requires no connection between the offense conduct and
                  federal funds or programming, § 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.
    
                                             147
    eral interest in federally-funded programs with the federal gov-
    
    ernment’s generalized interest in everything that occurs within its
    
    borders.
    
          The government argues that the United States has an interest
    
    in the honesty of all officials, local and federal, and this is as-
    
    suredly so.    The government has a similar interest in a great many
    
    things that are, however, beyond its power to regulate directly.
    
    For example, members of Congress profess sincere interest in a
    
    variety of problemsSSfrom reducing crime to encouraging the sta-
    
    bility of marriageSSyet Congress has no more power directly to
    
    criminalize local burglaries than it does to regulate marriage di-
    
    rectly.     In both cases, if the government wishes to pursue its in-
    
    terest, it must do so through targeted spending and conditional
    
    grants of federal funds.335
    
          It is this conflation of generalized federal interests with a
    
    federal interest in a program (i.e., a connection to federal fund-
    
    ing) that prompts the government to argue that any generalized in-
    
    terest of the United States suffices to allow federal criminaliza-
    
    tion of local matters, so long as some insignificant amount of fed-
    
    eral funds are given to the locality.          Such an analysis turns the
    
    accepted understanding of the Necessary and Proper Clause on its
    
    head and, in effect, asserts that because Congress may pursue the
    
    
    
          335
             For instance, the government may provide funds to put more local police
    officers on the streets or may reform federal welfare spending in an effort to
    create incentives for families to stay together.
    
                                          148
    general welfare through the Spending Clause, all laws that are ne-
    
    cessary and proper to the general welfare must be considered con-
    
    stitutional under the Spending Clause.336           This argument, if fol-
    
    lowed, would overturn the accepted meaning of the Spending and the
    
    General Welfare Clauses that has existed for nearly two centuries.
    
    See generally 1 TRIBE, supra, § 5-6, at 831-34 (3d ed. 2000).
    
    
    
                                          3.
    
           The government argues, alternatively, that if a connection is
    
    required between federal funding or programs and the charged cor-
    
    ruption, such connection is present in this case.           The federal con-
    
    nection that the government asserts, however, is exceedingly tenu-
    
    ous.     The government avers that a federal connection existed be-
    
    tween Lipscomb’s acts of corruption and federal funds because
    
           Lipscomb voted to seek and disburse federal money on im-
           provements to Love Field airport. Thus, the federal gov-
           ernment had an interest in the success of the airport, a
           center of interstate travel. It is common sense that an
           airport depends in part for its success on the taxicab
           service provided for passengers. On the flip side, taxi-
           cabs depend in part for their success on the viability of
           airports, which provide fertile ground for fares.
    
                If merely the airportSSrather than the city as a
           wholeSSis seen as the analog of the jail in Salinas, that
           case’s holding must extend to this one. Lipscomb, like
           the jailer, was partly responsible for managing a feder-
           ally-funded entity, the airport. The airport in turn
    
    
           336
             Using this reasoning, the government could as easily argue that under
    the Commerce Clause, conduct may be criminalized wherever it is committed by one
    who participates in interstate commerce, rather than only where there is some
    link between the conduct and interstate commerce. In fact, this reasoning would
    allow federal police power under numerous clauses of the Constitution.
    
                                          149
         provided business to, and needed the business of, taxi-
         cabs (including Richards’ taxicabs) for its successSSjust
         as the jail had a direct relationship with the welfare of
         the prisoner who paid the bribes. And just as the pre-
         ferential treatment given to the prisoner was “a threat
         to the integrity and proper operation of the federal pro-
         gram,” Salinas, 522 U.S. at 61, so the preferential
         treatment of Richards was a threat to the integrity of
         the airport-funding program.
    
         The government’s “cabs go to the airport” theory is feeble at
    
    best.   The government may as well argue that because the United
    
    States funds medical research at Dallas hospitals, and researchers
    
    sometimes take taxis, especially to airports to fly to conferences,
    
    there is a sufficient nexus between taxis and federal funds.     Or,
    
    the government could aver that federal funds go to pay welfare ben-
    
    efits and, because welfare recipients often cannot afford cars,
    
    they may take taxis to the grocery store to use their food stamps,
    
    and thus federal prosecution of cases of local bribery affecting
    
    taxi regulations is necessary to protect the spending power.      In
    
    sum, if the government’s posited connection between the federal
    
    funds and the corruption is sufficient to provide nexus, any con-
    
    nection at all will do.
    
         The facts of this case reveal no substantial relationship to
    
    federal funds or programs, whereas in Salinas there were three
    
    direct connections between federal funds and the corrupt activity.
    
    First, the prisoner paying the bribes was a federal prisoner.    Sec-
    
    ond, the county jail in which the prisoner was housed had been con-
    
    structed substantially with federal funds. Third, the prisoner was
    
    
    
                                    150
    in the jail as part of a federal program in which the county was
    
    paid per diem for each federal prisoner it housed.
    
          Here, to the contrary, Richards, who was the person paying the
    
    bribes, had no federal status or connection. Neither the taxis nor
    
    the city regulation of the taxi industry was funded by federal
    
    funds in any way.      Finally, there was no federal program relating
    
    to taxi regulation, nor was the integrity of any federally funded
    
    program affected by the payment of Lipscomb to vote for certain
    
    taxi regulations.
    
          Thus, the connection between federal funds and the prosecuted
    
    activity here is nothing like the direct connections between feder-
    
    ally funded programs and corrupt activity in Salinas.                 It is far
    
    less substantial than even the most attenuated connections that the
    
    Third Circuit imagined might suffice to avoid constitutional ques-
    
    tions in Zwick.337     Under the specific facts of this case, the con
    
    
          337
             The “highly attenuated implication of a federal interest” that Zwick
    imagined would provide a “sufficient federal connection” to satisfy the
    requirements of § 666 was a far less attenuated federal interest than is the one
    the government asserts here. The Zwick court
    
                conceive[d] of several ways in which the government
                could prove a federal interest in § 666 . . . . If, for
                example, in a given year, the greater part of a
                township’s budget came from federal funds, bribery of a
                township agent for any purpose might be said to impli-
                cate federal interests.    Absent that situation, the
                offense conduct would have to somehow implicate a par-
                ticular 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.
    
    Zwick, 199 F.3d at 687. The court cited further examples, including Santopietro,
    holding that bribes paid by real estate developers in search of development con-
                                                                  (continued...)
    
                                          151
    nection to federal funds is insufficient, as a matter of law, to
    
    support a conclusion that the § 666 prosecution was necessary and
    
    proper to protect federal funding of Love Field or the city
    
    generally.338
    
    
    
                                             4.
    
          The government alternatively posits that, because the City of
    
    Dallas received a sizeable amount of federal funds in real dollars,
    
    it was proper for Lipscomb’s bribery to be federally prosecuted.
    
    The government points out that in 1998, the city accepted over $56
    
    million in federal funds. This, it argues, is a significant amount
    
    that warrants the federal prosecution of a local official even for
    
    
          337
                (...continued)
    tracts with city agencies that were overseeing HUD programs met the federal nexus
    requirement of § 666. Zwick also cited Frega, in which a district court con-
    cluded that bribery of state judges did not meet the requisite federal interest,
    but hypothesized that a sufficient federal connection could exist in different
    circumstances, such as if the state courts received federal funds for the purpose
    of appointing habeas counsel and the bribes paid affected the appointment of par-
    ticular habeas counsel. Id. at 687-88.
    
                Although these indeed are examples of federal connections that are
    somewhat attenuated, nevertheless the federal interest in each example is plain,
    as is the necessity of protecting it against corruption so that Congress may
    properly execute its spending power, free of the danger that federally funded
    programs will be corrupted and perverted. The same cannot be said of Lipscomb’s
    prosecution, for no federal program was, in any way, affected by his corruption.
          338
              Moreover, this post hoc argumentSSthat the integrity of federal funding
    at the airport was endangered by Lipscomb’s taxicab corruptionSSwas never charged
    in the indictment or argued to the jury. Instead, the jury instructions merely
    stated:
    
                   It is also not necessary that the $10,000 in federal
                   assistance be directly involved in or traced to the
                   allegedly corrupt acts charged in the Indictment. All
                   that is necessary is that the City of Dallas received in
                   excess of $10,000 from the federal government during a
                   one-year period.
    
                                             152
    mere local corruption.
    
         The government contends that the receipt of this large amount
    
    of federal money would make the prosecution of Lipscomb pass muster
    
    even under Zwick.   This is plainly incorrect.   Zwick stated that if
    
    “the 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.”     Zwick, 199 F.3d at 687 (emphasis
    
    added).   The city received over $56 million in 1998SSadmittedly a
    
    significant amount.      Because its 1988 budget was $1.6 billion,
    
    however, federal funds made up only 3.5% of the City’s budget.
    
         This is nowhere near the example given in Zwick, where a fed-
    
    eral interest could arise if the “greater part of a township’s bud-
    
    get” came from federal funds.     Indeed, if federal funding of as
    
    little as 3.5% of a city’s budget allows prosecution of a city of-
    
    ficial, then the fact that every state and most cities receive more
    
    than $10,000 in federal funds each year is alone enough to allow
    
    the federalization of local corruption cases.        This cannot be
    
    necessary and proper for executing the spending power.
    
    
    
                                      5.
    
         The government further contends that Lipscomb was not just any
    
    city employee and that as a city councilman he “was one of fifteen
    
    people responsible for running the City of Dallas.” The government
    
    then argues that high officials, such as Lipscomb, always should be
    
    
                                     153
    liable for prosecution under § 666, because high officials make de-
    
    cisions on the disposition of both local and federal funds, and
    
    therefore dishonesty in the disposition of local funds is a proper
    
    cause of worry to the United States.339
    
                The   government      contends    that    such    prosecution     is
    
    necessary, because otherwise corrupt officials would be left in
    
    place to administer federal funds in the same corrupt fashion that
    
    they administer local matters.              While this argument has some
    
    initial appeal, it ultimately has no merit.
    
                First, it seems unlikely that, had the state prosecutor
    
    been given the fruits of the Lipscomb investigation, he would have
    
    declined to prosecute.       The charges against Lipscomb were serious,
    
    the evidence was compelling, and Lipscomb was a high-profile public
    
    servantSSall factors that strongly argue for state prosecution.
    
                Second, even if one thinks that states sometimes do not
    
    prosecute local crimes where federal prosecutors might do so, it
    
    does not follow that allowing double prosecution of local crimes
    
    would deter corruption involving federal funds and programs.                 In-
    
    stead, allowing the double prosecution of local, but not federal,
    
    
          339
              Santopietro, 166 F.3d at 94 n.3, also raised this question, but did not
    answer it:
    
                We need not consider whether Santopietro’s role as
                mayorSSthe chief executive officer of the city and hence
                the officer ultimately responsible for all city depart-
                mentsSSwould render the statute applicable to corrupt
                payments received by him for any transaction involving
                the city, even though the federal funds were received
                for a program entirely unrelated to the program in
                connection with which the corrupt payments were made.
    
                                          154
    corruption might tend to cause dishonest local officials to abuse
    
    federal dollars rather than local funds.
    
               Before § 666 was enacted, local embezzlement was covered
    
    by local penalties, and federal embezzlement was covered by federal
    
    penalties, with only small overlap.             Thus, before the advent of
    
    § 666, a rational local official would simply weigh the rewards of
    
    embezzling local or federal funds against the risk of getting
    
    caught and the probable penalty carried by each crime.                 He then
    
    would commit those acts of embezzlement with the best ratio of
    
    payoff-to-punishment.         Because      of   the   severity   of    federal
    
    penalties, the most rational acts of embezzlement often would be
    
    local.
    
               If § 666 is used to prosecute purely local acts of
    
    corruption, however, this calculus changes substantially.              Federal
    
    acts of corruption still carry the same ratios of reward-to-
    
    punishment, but local crimes of corruption now qualify as both
    
    federal and local crimes. Thus, federal embezzlement would be more
    
    rewarding at the margins than would be local embezzlement.                As a
    
    result, rather than protecting federal funds and programs, § 666,
    
    if   applied   to   purely   local   crimes,    should   actually     cause   an
    
    increase in the criminal misuse of federal funds; accordingly, it
    
    cannot be said that prosecution of local crimes under § 666 is
    
    necessary and proper to carry into execution the spending power,
    
    and the application of § 666 to Lipscomb on the facts of this case
    
    is, accordingly, unconstitutional.
    
                                         155
                                         III.
    
                The panel majority errs in deciding the question of
    
    venue.      The majority teaches that it is better to force the
    
    government    and      defendant    to   have   a   biased   trial    than   to
    
    inconvenience them with a five-hour drive or a one-hour flight.
    
    Because this directly contradicts the plain text of our past
    
    precedents, and all common sense, I respectfully dissent.
    
                “The trial court has broad discretion in determining
    
    whether a transfer is warranted.”340 “[A]bsent a showing of illicit
    
    motivation, the transfer may be granted within the trial court’s
    
    discretion unless the defendant shows that a transfer would be
    
    prejudicial.”     Osum, 943 F.2d at 1399. Lipscomb makes two attempts
    
    to show prejudice; both are meritless.              First, Lipscomb asserts
    
    that if he had been tried in Dallas, he would have had more blacks
    
    in his jury pool, and black jurors would have been more likely to
    
    acquit him, a black defendant.           Besides the fact that a criminal
    
    defendant has no right to jury or venire of “any particular
    
    composition,” Taylor v. Louisiana, 
    419 U.S. 522
    , 538 (1975); United
    
    States v. Sanchez, 
    508 F.2d 388
    , 395 (5th Cir. 1995), there is a
    
    not a hint of an indication that the district court transferred the
    
    case to alter the jury pool’s racial composition, see United States
    
    v. McKinney, 
    53 F.3d 664
    , 673 (5th Cir. 1995).
    
    
          340
              United States v. Osum, 
    943 F.2d 1394
     (5th Cir. 1991); accord United
    States v. Kaufman, 
    858 F.2d 994
    , 1006 (5th Cir. 1988); United States v. Weddell,
    
    800 F.2d 1404
    , 1406 (5th Cir. 1986).
    
                                          156
                 Lipscomb     next    argues    that   Amarillo   was   inconvenient
    
    because it    “is 300 miles from Dallas,” and the “defendant and all
    
    of the witnesses resided in Dallas and every defense attorney
    
    practiced there.”         This cannot rise to the necessary level of
    
    prejudice.     We repeatedly have held that so long as the district
    
    court has some “valid reason for changing venue,” “travel and
    
    lodging expenses for lawyers and witnesses do not constitute
    
    prejudice sufficient to overcome a district court’s determination
    
    regarding the place of trial.”             United States v. Kaufman, 
    858 F.2d 994
    , 1006 (5th Cir. 1988).           In Kaufmann, we held that a district
    
    court’s concern “that if it held trial in Austin, then [its] docket
    
    in Waco would have to be completely ignored” constituted such a
    
    valid reason and outweighed the “only minor inconvenience” of a 102
    
    mile transfer.      Kaufmann, 858 F.2d at 1006.          If docket management
    
    constitutes a valid reason for transfer, then surely a court’s
    
    conviction that it cannot provide a fair trial does.
    
                 Directly on point is United States v. Alvarado, 
    647 F.2d 537
     (5th Cir. Unit A June 1981).            We affirmed a sua sponte decision
    
    to transfer a case to a venue 231 miles away based on pretrial pub-
    
    licity.       We   held    that    the     alleged   prejudicial    effects   of
    
    “additional travel and lodging expenses [for the defendants] and
    
    their attorneys in addition to the expenses that became necessary
    
    in order to subpoena crucial witnesses . . . do not rise to the
    
    level necessary to prove the trial judge abused his discretion by
    
    
                                             157
    transferring venue so as to avoid an unfair trial from a great deal
    
    of publicity.”     Id. at 539.
    
                The majority seems to argue that Lipscomb’s case is
    
    different because 300 miles is really far.             But Kaufmann makes no
    
    allowance for distance within a district.              What’s more, Kaufmann
    
    relies on United States v. Fagan, 
    821 F.2d 1002
    , 1008 (5th Cir.
    
    1987), for its holding.         In Fagan, a FED. R. CRIM. P. 21 case, we
    
    affirmed the      refusal to transfer from the Southern District of
    
    Texas to the Eastern District of Louisiana. We noted “that holding
    
    trial in Houston, rather than Louisiana, made it more disruptive to
    
    [the defendant], his witnesses, and his attorney” and may have cost
    
    him the representation of a second attorney, but this was not
    
    enough to mandate transfer.         Id. at 1008.     If the 348-mile distance
    
    in Fagan was not prejudicial as a matter of law, then the 300 mile
    
    distance in this case certainly is not.
    
                Today’s     holding     has    the   potential    to   inject    great
    
    uncertainty into the trial process and actually to increase the
    
    number of unfair trials.       Luckily, future district courts will not
    
    be bound by it.        The majority’s venue ruling plainly contradicts
    
    Alvarado,   and   it    is   well   established     that     “[w]hen   two   panel
    
    opinions appear in conflict, it is the earlier which controls.”
    
    Harvey v. Blake, 
    913 F.2d 226
    , 228 (5th Cir. 1990).                But, the fact
    
    that today’s holding will not be binding does not make it any less
    
    in error.
    
    
                                              158
    I respectfully dissent.
    
    
    
    
                         159