1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v.

IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - -X
BASIM OMAR SABRI, Petitioner :
:
: :
No. 03-44

UNITED STATES.

- - - - - - - - - - - - - - - -X
Washington, D.C.
Wednesday, March 3, 2004
The above-entitled matter came on for oral

argument before 10:01 a.m. APPEARANCES:

the Supreme Court of the United States at

ANDREW S. BIRRELL, ESQ., Minneapolis, Minnesota; on behalf
of the Petitioner.
MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General,
Department of Justice, Washington, D.C.; on behalf of
the Respondent.

1 Alderson Reporting Company, Inc.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S
PAGE

ANDREW S. BIRRELL, ESQ. On behalf of the Petitioner MICHAEL R. DREEBEN, ESQ. On behalf of the Respondent REBUTTAL ARGUMENT OF ANDREW S. BIRRELL, ESQ. On behalf of the Petitioner 37 16 3

2 Alderson Reporting Company, Inc.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR.

P R O C E E D I N G S
(10:01 a.m.) CHIEF JUSTICE REHNQUIST: We'll hear argument

now in No. 03-44, Basim Omar Sabri v. the United States.
Mr. Birrell.
ORAL ARGUMENT OF ANDREW S. BIRRELL
ON BEHALF OF THE PETITIONER
BIRRELL: Mr. Chief Justice, and may it

please the Court:
Section 666(a)(2) of title 18 is

unconstitutional on its face because it never requires the
jury to find an element that the Constitution always
language allows local a

requires. violation

The statute's to be proved

unambiguous with

entirely

conduct
deeply

unrelated to Federal

spending.

It thus intrudes

into an area the Court has recognized States possess primary authority.
QUESTION: there, that in some

as one in which the

Yet there's no doubt, Mr. Birrell, is
circumstances the statute could be

constitutionally applied?
MR. BIRRELL: 66(a)(2) -Your Honor, There are no circumstances where

666(a)(2) could be because the the --

constitutionally applied,
the statute never
between the

because a

requires

that

jury find

connection

Federal spending and the offense conduct.

In the same way

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that

there were

possibly

circumstances

in Lopez

where

there might have been an

adequate Federal connection, but

because the jury is not required to find it, there are not
any circumstances where the statute could be

constitutional.
QUESTION: Why -- why can't it be constitutional
I know the Government doesn't

under the Commerce Clause? rely on -any

that, but respondent can be supported here on any
ground. Why -why isn't this a commercial

transaction as -- as, you know, our -- our Commerce Clause
law is? So long as the transaction is commercial, we will
We will accept Congress'

assume it's interstate commerce. judgment on that.
Why isn't it a bribe somebody? does.
MR. First BIRRELL: A

commercial transaction when for whatever the

you

Money for --

favor he

couple things,

Your

Honor.

of all, there is

not a requirement that interstate

commerce nexus be proved in the statute.
QUESTION: it's commercial, our long as That's not cases -necessary. So long as
so

our recent

cases, say

it's commercial, we'll accept

Congress' judgment

that it's interstate.
MR. commerce -BIRRELL: Well, if Congress could create

Commerce Clause jurisdiction

everywhere that

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it could spend money, then -­
QUESTION: money. No, no, not everywhere it could spend
One

Everywhere there is a commercial transaction. for example, held that the Commerce

of our cases, be

loan-sharking could
it was a

the

covered under

Clause because

commercial transaction, just the bribery here, but

as illegal as could be

-- as the

if that

covered by

Commerce Clause, why can't this?
MR. BIRRELL: Because without -without a

showing that in each case

there was a connection

between

interstate commerce and the transaction -­
QUESTION: QUESTION: too? MR. BIRRELL: QUESTION: I'm sorry, Your Honor?
it true whenever the Feds
to
That's not what our cases require. Is that true of the drug statutes

I mean, is

prosecute a person for a determine there was

drug transaction, a jury has

a connection between these

drugs and

interstate commerce?
I've never heard of that requirement that -­

that the -- that the jury would have to determine whatever
facts are necessary even -for the statute to be constitutional

even though that's not an element of the offense.
or someplace? Where does it

Does that come out of a case come from?

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MR. BIRRELL: understanding that

Well, unless -- unless in every instance

there was
was an

there

effect on interstate commerce, then -­ QUESTION: I mean, there might be instances

where there's no effect on you know, that So -that

interstate commerce, a home -­
will be an issue, homegrown

marijuana.

suppose there is some Suppose it didn't. it.

drug somewhere that

has no effect. thing. these void We

There could be such a
mean in all

can imagine

But does that

other cases that because the

Congress --

that the

statute is

jury hasn't

found -- I'd

be repeating

myself.

You answer.
MR. BIRRELL: I -- I think that it is different
-- is a regulatory power
Clause

because the

Commerce Clause is

that permits Congress power is -- is

to regulate.

The Spending

a different sort

of power.

It does not

make that -­
QUESTION: And you say here Congress does not

rely on the Spending Clause because it -- it makes conduct
criminal against an individual.
MR. BIRRELL: I believe that Congress passed
I believe

under

the Spending

Clause

power.

that's what they intended to do. QUESTION: in the To spend for court below

All the -­
the general welfare was
and that combined with

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Necessary and Proper.
MR. BIRRELL: QUESTION: taken below, and I That's right, Your Honor.
And that's think most the position that was

of the courts

of appeals

went on that same ground.
MR. BIRRELL: court that has looked It's my understanding at this has that every
Congress
under

said that

attempted to pass

this --

this particular statute

the Spending Clause.
QUESTION: Does -does it matter what they

intended to pass it under? under another -- under not be enough?
MR. BIRRELL: could -they could

I mean, if they have the power
would that

another head, would --

That is

true, Your Honor.

They
if

-- the

statute could

be upheld

Congress has the power to do it on any basis.
QUESTION: Spending Clause that they Federal didn't could The justification sounds like a

justification, not by They

doesn't it,

that the

a lesser

means safeguard

these

funds? work.

tried

narrower statutes trying to

and they
to

But what

they were

do was

safeguard the integrity of the money that they were giving
to these units by not having corrupt operations. Isn't

that the case?
MR. BIRRELL: That -- that's what they said they

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were trying integrity

to

do. -or

They were -or

trying

to regulate integrity

the
of

of

police

the

organizations, agencies, and that receive Federal funds.

local and State That's what

governments

they said they

were trying to do.
QUESTION: And why is that not satisfactory?
It's not satisfactory because the
any connection between the

MR. BIRRELL: statute doesn't

require

spending -- Federal spending and the criminal conduct.
QUESTION: Suppose that, just to use an analogy

in the private sphere, a major corporation has a choice of
two subcontractors and in lots of one subcontractor is and kickbacks, known for

engaging

bribery

et cetera.

It's confident that it's got auditors that will be able to
protect it in this instance. were the CEO of the But don't you think if you

corporation, you'd rather

prefer -­

rather deal with the subcontractor

that was always clean?

It's just a common sense business judgment, and that's all
the Government is doing here.
MR. BIRRELL: doing here, Your Honor. is to criminalize That's not what the Government is

What the Government is doing here
local conduct. They're

purely

criminalizing conduct that has no spending.
QUESTION: Well,

relation to any Federal

it has

relation

because

it

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wants to

give its

funds to

those entities

that it

has

confidence in with respect to all of their operations.
MR. BIRRELL: giving money or not Well, it can make a choice about
conduct.
its

without of ways

criminalizing that it

Congress has

a number

can protect

Federal money.

It can protect it

under Commerce Clause,
the States
Claims Act,

Property Clause, not to do -- to do

giving money, relying on to do, False

what they need

conditional spending. QUESTION: council that takes the

There's -­
They really say if we find a city

takes money and -- from us, the city council
us for some of its programs here.

money for

There's a corrupt that person. councils to Why? know

city councilman.

We want

to prosecute
members of
tolerate

Because we want council -that we're not going

to

corruption on behalf

of the agency that's

giving out our

money, whether in the particular money or not. Now -- now,

instance it involved our
isn't that sufficient

why

connection?
MR. BIRRELL: it may be to do, Because, Your Honor, there is -­

that what -- that is what

the Government wants

but the question is whether the Government has the

power to do that.
QUESTION: That's true, but why doesn't it?
It doesn't have the power to do

MR. BIRRELL:

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that

because there's not

an element in

the statute that

requires there be a connection spending and

proved between the Federal
There may be one, but

the wrongful conduct.

the jury is not required to find one.
QUESTION: Suppose the Federal Government had

recast the statute and said no State can get -- what's the
limit unless -it $10,000 agrees or more to from the Federal Government
the same
Would
It's a

criminalize

and impose

penalty set forth

here for any

State corruption. spending power?

that be constitutional under the condition to the grant.
MR. BIRRELL: QUESTION: it? It

It might be if -­
unquestionably would be, wouldn't
It's -­

It's take it or leave it. MR. BIRRELL: QUESTION: --

Assuming it wasn't -­
it's connected to the to it. That grant. It
be

has

some

remote connection

ought to

enough.

It just seems very strange to me that the Federal
would be able to compel but it the State to impose
so in

Government such

criminal penalties,

cannot itself do

connection with its spending.
MR. BIRRELL: In -in Your Honor's

hypothetical, it other than

might be coercive, unduly I don't see a

coercive, but
with your

that,

problem

hypothetical.

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But there's a -- the -- the Court -- this -- the
said that Congress can attach conditions to
But
never

money provided

that the four Dole here.

factors are met. This Court has

that is not what's occurring said that Congress can use

the Spending Clause

power to
this

create a criminal law statute. is -­
QUESTION:

And the danger with

Well, have we ever said it can't?
Well, only inferentially by Dole.

MR. BIRRELL:

So the question is never square with -­
QUESTION: I think it's kind of hard to read

Dole for that proposition.
I may have You missed your bring a facial response to an facial earlier
Why
we

-- you a

challenge. What if

we entertain it as an

challenge?

as-applied challenge? the elements

Do you

say the
are

Government cannot prove

that you think

necessary and thereby obtain a conviction?
MR. BIRRELL: facial I -- I say that because we -- we properly
has no

challenge a

the statute the

element

requiring

connection

between

Federal

spending -­ QUESTION: I don't -we don't normally

entertain facial challenges that. If it could be

to statutes on a

ground like

applied properly in

an individual

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case, why would we entertain the broader challenge?
MR. BIRRELL: applied in any case. This statute cannot be properly

It's always unconstitutional because
The statute is like -­
because that it there lacks was the the

it lacks this connection element. QUESTION: requirement connection. MR. BIRRELL: Yes. of a You jury say

finding

Well,

there

are

two
the

concepts, both that

there's not an

element and that

jury doesn't need to find it. the statute in Lopez.
QUESTION:

This statute is --

is like

Well, what if -- what if Congress had
commerce is involved here and did

found that interstate

not provide for an individual

jury finding in every case,

would your argument be the same?
MR. BIRRELL: I don't know, Your Honor, but

Congress didn't make that finding.
QUESTION: It's a very candid answer.

(Laughter.)
QUESTION: Where -where does this -- I I'm not sure. from? mean,

I've asked you this before, but this jury finding thing

Where does
quite

come

It's

interesting.
But Congress -but a where -I mean, the suppose Patent that

passed

statute

under

Clause

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criminalizing certain conduct in respect to patent, and at
the border there does or might be an -- a question fall within the But Patent of whether it
Clause, that
from

does not

particular criminal behavior. that fact that you'd have

I wouldn't jump

a legal argument

it's outside
jury

the Patent Clause to the conclusion that therefore a has to find in every patent crime -- a jury has

to find

that it is within the clause. question for emphasizing from?
MR. BIRRELL: Honor's Patent Clause the Court would the judge,

I'd have thought that was a
jury. So you've do you been

not the

the contrary idea,

and where

get it

Well, in the -- in the -- in Your
hypothetical, that is a Congress would This is case where
-- an
is a

-- or the

have a -this

enumerated

regulatory

power.

different thing.

Now -­ Well, it has the Commerce Clause

QUESTION: power.

I -- I don't understand You not just said just -there --

your reliance on Lopez.
was bad, whether or
it was not

just as Lopez -- was

Lopez was

bad because

commerce, which is whether it's

a judgment that this Court not, but once it

will make,

commerce or

is commerce,

you're in a different ball park. assume it's interstate commerce,

Once it is commerce, we
and that explains, you

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know,

a

whole bunch So

of

our cases,

such

as our do with

loan­
this

sharking cases. case.

Lopez has

nothing to

Lopez was not commerce.
Now, you -you may argue that -loan-sharking is, that bribery
but I'm not

is not

commerce although

sure how strong an argument that is.
MR. BIRRELL: the way I read This case is like Lopez because

Lopez -- I mean,

I understand your point

about whether the conduct in Lopez was commerce conduct or
not, but that when the way I'm reading you're on the Lopez is that the fringes point is
power,
a -­

-- the

of the

commerce power in that case, an element where the was

that there needs to be find in each the exercised

jury would between

case that power of

there

a connection

Congress and the conduct. So in our case -­ QUESTION: You think there is such a -- such a

connection with loan-sharking, good, old, local, you know,
break-your-knees loan-sharking. It's not -not an

interstate thing.
MR. BIRRELL: that -- that the accept that.
QUESTION: That's United States v. Perez. We
Well, you've -you've told me

Court has said that there is, and I -- I

took a very expansive view of the Commerce Clause.

And it

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was pretty but

much of a local transaction in -- in the case,
pointed out, you know, the ripple effect

the Court

that all commercial transactions have.
MR. BIRRELL: that I think that if Well, I would return to the Congress can create my point
Commerce
is

Clause

jurisdiction

by spending

money

and Congress

entitled to spend money under the Constitution anywhere it
deems it important for the general welfare, then what
general

would naturally

follow, it

seems to

me, is the

police power that Government.

the Constitution denies to

the Federal

It seems to me to be an

inescapable chain of

reasoning that will get us there.
QUESTION: Have any local law enforcement

offices complained about the Federal presence?
MR. BIRRELL: record about it, and There -I don't there's nothing in have anything to the

offer

outside the record of it. the local governments invasion of their

But the -- the question whether
to an
not

or government agents consent of authority is --

area

is

dispositive.
QUESTION: invasion of their Question whether they regard it as an
authority or rather a legitimate

endeavor by the Federal Government to protect its money.
MR. BIRRELL: Well, the -- the statute doesn't

require the Federal Government to be acting to protect its

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money.

There -- there is

not any requirement money.

that this
private
be an
and 12
is
the

money be the Government's

For example, a

citizen offers a -- a bribe agent of a -- a corporation. months later and for the given to an

to an agent.

It could

The offer is refused

first time more than $10,000 the agent's business,

unrelated part of for.

business the agent works crime committed.

Then we now have a Federal
any requirement between the in the
Federal

There's not

statute that money and the

there be

a connection And

offense conduct.

furthermore, there's

not any requirement that the jury find it.
QUESTION: Would you like to reserve the balance

of your time, Mr. Birrell?
MR. BIRRELL: time, Your Honor.
QUESTION: Very well.
I will reserve the balance of my

We'll hear from you, Mr. Dreeben.
ORAL ARGUMENT OF MICHAEL R. DREEBEN
ON BEHALF OF THE RESPONDENT
MR. DREEBEN: Mr. Chief Justice, and may it

please the Court:
The court of appeals correctly held that section
666 does not require proof of a Federal connection between
the offense conduct Federal funds and the federally funded program the text of or

beyond that which

the statute

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itself requires. QUESTION: Dreeben? statute? MR. DREEBEN: has relied on Mr. Chief Justice, the Necessary and Government
Clause
Under What -what did is the basis, Mr.

what authority

Congress

pass the

Congress'

Proper

authority to

protect its Spending Clause expenditures and

programs in this case.
I recognize that the provide a basis for Commerce Clause could also
to reach transactions

Congress

involving criminal activity that affect commerce, but this
Court in Salinas v. United States, in describing why

section 666 was constitutional, as applied to the facts of
that case, discussed interest in that there was a the legitimate Federal
program that

protecting

particular

corruption had affected

in that case.

And the outgrowth

of section 666 historically is of an effort by Congress to
improve on previously deficient methods of protecting

federally funded programs. QUESTION:

There were -­
does that go? What if -­
Could

How far

what if the Federal Government it make -- could it make it

gave the State $1?

-- it a crime for any person

to bribe any State officer anywhere in any program at all?
You know, the -- really is -- is there no end to the -- to
the scope of Congress' purported protection of its funds?

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MR. DREEBEN: recognized, as County,

Justice Scalia, recently as

I think that this
Jinks v.

last term in

Richland

that analysis

under the

Necessary and
to

Proper Clause is

deferential, tracing

its roots back

McCulloch v. Maryland, but there is an attenuation element
to the analysis. plainly adapted protect. And The law does to the need to be conducive Congress is and

end that

seeking to
and then
of an

in your example of

$1 to a State the

protection hundreds

through

criminalizing of agents,

activities might be

of

thousands

there

attenuation problem. QUESTION: Do you think $10,000 is -- is clearly

-- what's -- what's the -- what's the annual budget of New
York State, do you know, or California?
MR. DREEBEN: Okay. The annual budget of

California is -- at least in 1999, was $242 billion.
QUESTION: $242 billion.
And the Federal Government -­
And because there's $10,000 of

MR. DREEBEN: QUESTION: Federal money, a drop of California

of Federal money in this -- the

sea of -­
can

funds, the

Federal Government

control the whole thing.
MR. DREEBEN: virtual flood. But there's not a drop. There's a

There was -­
No, no. But for the statute to

QUESTION:

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apply, it takes only $10,000.
MR. DREEBEN: It does, Justice Scalia, but

Congress was well aware that every

State is the recipient
There

of billion upon billions of dollars in Federal aid.

is substantial Federal money flowing to all of the States,
and Congress could have dispensed with any dollar

limitation whatsoever with respect to State aid and simply
made a per se finding that Federal money is so infused
programs

into the

State's budgetary

activities, Federal

are so pervasive -­
QUESTION: just -- just --
(Laughter.)
QUESTION: You say it's a big -- a big figure.
How much does it give California? I

I believe you, but -­
MR. DREEBEN: As of -- as of 1999, California

received $35,955,000,000.
QUESTION: But why is California relevant? This

is Minnesota, isn't it?
(Laughter.)
MR. DREEBEN: QUESTION: a hypothetical. Justice Stevens -­
I brought it up as

It was my fault.

Right?

(Laughter.)
MR. DREEBEN: But I have Minnesota too.

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(Laughter.)
MR. DREEBEN: was Minnesota received -and it Minnesota's

$36 billion,

received 4,000,000,496

Federal dollars -­
QUESTION: What about Massachusetts?

(Laughter.)
MR. DREEBEN: Justice Breyer, I only have 30

minutes and there are 50 States.
(Laughter.)
QUESTION: of your Mr. Dreeben, I am concerned about the
the Necessary and Proper

reliance on

Clause and the Spending Clause power here. that Federal funding extends to a

It seems to me
range of

huge

activities, and make -it

why, under your theory, couldn't Congress
law scheme because
see any
so

take over the entire criminal I

affects Federal taxpayers? your theory, and

mean, I don't why

limit to

I'm curious

you're

reluctant to rely on the Commerce Clause. in this case?
MR. DREEBEN: QUESTION:

What's going on

Justice O'Connor -­
Are you trying to overcome the

of Lopez somehow, you out from

get a new

thread of analysis
What's -what's

under that?

happening in this case?
MR. DREEBEN: No. I think there are ample

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avenues

for the

Federal

Government

to legislate,

when

things involve interstate commerce, without worrying about
Lopez.
I believe the Court could a regulation of uphold the statute as
but it was clearly
so
as
The
a very
of

interstate commerce,

not designed with that in mind, and this Court did not regard it, or at least didn't articulate itself

regarding it that way in problem that

Salinas v. United States. trying the to solve was

Congress was problem, not in

particularized there is

generalized problem will

crime

America,

therefore it

affect

federally funded activities.
The was that it problem that would give Congress was trying Federal money to to solve

particular
and there
those
or

entities to -would be crime

to administer Federal programs, that had but the potential because of

to affect

Federal

interests,

deficiencies

perceived deficiencies in prior statutory law, could not be prosecuted.

that crime

In particular, with theft crimes

there was a problem because once title had passed with the
money to the were local entity was no or State longer entity, some courts

saying that and

theft from didn't

the Federal
With
201,
local

Government respect to lower

the

theft statute

apply.

the Federal had

bribery statute, on

18 U.S.C. and

courts

divided

whether State

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officials who were administering Federal programs could be
held accountable as Federal officials.
And to remedy section 666, described as the those deficiencies of prior of appeals I think law,
aptly
and it

court the

it, changed

enforcement paradigm,

said that what Federal monies

we want now is not that we have

to focus on particular
tracing into

difficulty

federally funded entities We want to make sure

or who

is a Federal

official.
to

that the entities

that we fund

carry out Federal way that we are

assistance programs are clean, going to do that is to

and the
draft a

prophylactic statute that ensures that

all agents who are

involved in the authority to conduct business on behalf of
the entity are not engaged in significant acts of theft,

embezzlement, or bribery. It, section 666 therefore, included various that prevent it from limitations in an all-
in all

being

encompassing,

all-devouring

statute that

sweeps

related crimes to the entities that are funded. $5,000 limitation with respect to the

There's a

transactions that

are going to be influenced. that

It's not every traffic ticket
And there is a -- a
$10,000 of Federal

is issued by any State agency. course, that there be

condition, of

money going into the entity.
Of course, there are going to be cases under

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this

statute where it

will be difficult

to articulate a

clear -­
QUESTION: $10,000 annually or is it just a -­

could it be a one-shot deal?
MR. DREEBEN: it's a It's -could be a one-shot deal.
period that spans

$10,000 grant during a 12-month

the offense conduct in question.
And as I was saying -­
QUESTION: way you If -- if the State got -- I mean, the
you got $10,000 last year
to the

read it, just because that next year

doesn't mean act.

you're still subject

It has to be -­
MR. DREEBEN: QUESTION: That's right.
Okay.

-- during the year. That's right.

MR. DREEBEN: has to be -­
QUESTION:

The offense conduct

It says in any

1-year period, but I

-- I assume that that means -­
MR. DREEBEN: Any 1-year period, but there's

another provision in the statute that makes clear that the
period can include time before the offense conduct and

time after the offense conduct, which is naturally read to
mean that provision it has to span was the offense conduct. overcome the And that

designed to

difficulty that

State and local agents would be bribed for activities that

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they would

have the power to

engage in once

the Federal

money was awarded to their agency. Federal money coming into the engage in corrupt conduct.
QUESTION: Government could I assume this

And in anticipation of

entity, the officials could

means that the Federal
federally robbery or
has

also criminalize against a

burglary committed

private individual who

received Federal funds, who has received a Federal subsidy
in one way or another. MR. limits. at DREEBEN: Right?
Yes, Justice Scalia, within

I think that there could be a -- a the Court a might say that if

point in time
the Federal robbery

which

Government involves -­

passed

statute

that

said

every

QUESTION: you know.
QUESTION:

I

mean, that's

probably all of

us,

All welfare recipients --
All money -­

MR. DREEBEN: QUESTION: forth?
MR. DREEBEN: ago upheld in United

-- all Medicare beneficiaries, and so

Well, the Court States v. Hall

-- the Court long
a statute that

prevented fraud to veterans. the Federal

and embezzlement directed at

funds going
which

So it

has already upheld statutes in in protecting the

interest

beneficiary's

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use -­
QUESTION: It was limited to the funds, though.
money

It didn't say anything you

-- anybody who gets any

from a veteran is -- is -- you know.
MR. DREEBEN: QUESTION: That's -­
that's what this says. Anybody

And

who -- who bribes any

State official, whether the Federal

funds are at issue or not.
MR. though, DREEBEN: Well, on a this -this statute,
is less

I think rests

generalization that than statutes Honor has

attenuated

and more reasonable of the

that would
described.

take the form

statute Your

This statute basically says if

you have corrupt officials

in the entity that's getting Federal money, we have reason
to worry that have a culture you have poor internal controls, that you

of corruption, that you

have insufficient

mechanisms to root it out, and that the officials that are
engaged in corruption may tomorrow today with in respect to State money

be engaged

corruption with

respect to

Federal money.
QUESTION: funnel money rationale. to the So -- so call -- call this the clean
The agencies are funnels funneling

-- and say,

look, we have

a pretty strong
little

rationale here. bit of

We want clean

funnels because a Federal.

the money going through is

Take that as

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given.
If standard I were to say you're right, Clause is what's the
What

where

the Spending used there?

at issue?

words would be

And

the reason that

this is
a

difficult at the

moment for me is

because this is not

condition imposed upon spending. State, we'll give you the is really a Federal law

You're not saying to the
this

transport money if you -protecting the --

the spending.

You may be right in this case, say some kind of standard.
Should necessary and we say to it's

but we're going to have to

just

whatever the

would of

be
the

proper

protect

object

spending, which is quite far out because you can spend for
things you should we don't otherwise have the power to do? Or

say something else, or

should we say

we don't

have to reach that here because if in fact the power would
be there under the Commerce Clause anyway, that at least

is good

enough and isn't a stretch of the Spending Clause
proper rationale? What in

where there's a necessary and

your view is the proper way to write those words?
MR. DREEBEN: logical Justice Breyer, I think the most

way to write this opinion

is to rely on the test

that this Court articulated in

1819 through Chief Justice

Marshall with respect to the power under the Necessary and
Proper Clause. Here the enumerated power that's being

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protected is the spending power.

The Necessary and Proper

Clause was long ago construed to give Congress substantial
deference to the end that pass laws so long Congress is as they are to conducive to
and its

trying

achieve

legitimate. QUESTION: The -- the McCulloch language? Let

the end be legitimate -­ MR. DREEBEN: That's -that's correct. That's

correct, Justice Kennedy.
QUESTION: the phrase, Suppose that -- that to -- to take

the clean funnel theory, we thought that that
Commerce Clause. What

theory is best sustained under the

would be the closest case that we could cite in support of
our position if we were writing under the Commerce Clause?
Are there cases in which governmental entities and -their -under that?
MR. DREEBEN: head, Justice specifically course, this I can't think, off the top of my
the integrity of the operations are we ever and

protected

the Commerce

Clause?

Have

talked about

Kennedy, of a Commerce Clause case that was
directed statute activity. at governmental activity. directed any Of
at

is not

specifically directed

governmental

It's

at

fund

recipient, be it So

private, Indian tribe, or rely on

governmental.
Reno v.

the Court could

cases probably like

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Condon in

which the Court upheld a law that dealt with an
the hands of the Government or
And of course, United States
broad view of the Congress'

item in commerce, be it in

in hands of private parties. v. Perez did uphold a very

power to regulate transactional conduct. QUESTION: case, as I recall. MR. DREEBEN: Perez, but of No governmental this case entities in -- in focus on
No governmental entities in that

course,

doesn't

governmental entities as such. -- it of

What it focuses on them is

focuses on them in their capacity as administrators
that are paid out under Federal assistance

funds

programs. that also

It treats them receive Federal

identically to private entities
funds under Federal programs,
mind

which is strong here was Spending

evidence that what

Congress had in

ensuring that its Clause aren't

purposes and goals

under the
within

frustrated

by corruption

whatever entity

it is that happens to be taking the funds

to administer the program.
QUESTION: QUESTION: is it -- is it I think some of our -­
Is the -- is the Spending were the Clause -­

something new or

statutes that
what was the

were inadequate, the

predecessors of 666 --

constitutional heading of authority of 666 -­

that the predecessors

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MR. 641,

DREEBEN: which was

Justice the

Ginsburg,

18

U.S.C.,

Federal theft

statute, was

really a protection of Federal property, and that probably
could be justified under Article I.
18 U.S.C., section statute that primarily officials officials. or who 201 was the Federal bribery
are Federal
Federal
under a variety of enumerated powers

focuses on people who designated to

are

become States

And

this Court

in United

v. Dixson

interpreted the statute to cover State and local officials
who were administering Federal programs because acting on behalf of the to that address that the United States. they were
respect

And with

branch of section 201, although the Court did not
the constitutional question in Dixson, I think
is the

proper grant of authority Proper Clause it, like

to analyze it to the

Necessary and power because

as applied

spending
the

section 666,

criminalizes

activities of non-U.S. persons because they are engaged in
an activity that relates to federally funded programs.
So the theory of protecting through criminal law
the misdeeds of agents that may impair Federal programs or
impair Federal section 666 funds its is not new. What was new about
that

was

removal

of the

impediments

Congress found in effective

the prior law so that it to ensure the

could have an
of its

mechanism

integrity

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programs.
The case that is before the Court today is a

facial challenge to section 666, arguing that it is always
and everywhere unconstitutional. with That submission decision is
in

impossible

to reconcile

this Court's

Salinas v. United applied

States which specifically said in that

that as
was a
was

to the conduct to a

case, where there the

connection

Federal

program,

statute

constitutional as applied.
What that means is that the court of appeals was
clearly correct in holding that section 666 is not

facially unconstitutional. is

It leaves

open whether there

an as-applied constitutional challenge to section 666.

No such challenge was brought in this case, and the United
States made a proffer to the district court indicating how
the particular bribery in this case would have had an

effect on Federal funds and Federal programs, making clear
that no such as-applied challenge would have succeeded.
So the only this case if this its way that petitioner can Court is prepared in to prevail in
say that

notwithstanding that section turns out and can

prior decision

Salinas, holding
applied, it now

666 was

constitutional as 666 is

that section

facially unconstitutional
We submit

never be applied to

anyone anywhere.

that that is incorrect.

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Justice that we

QUESTION:

If

there were

a nexus

requirement

wrote into the statute -- the hypothetical gets a
-- would -- would juries a nexus or could the have
judge

little murky at this point to find that there was

instruct -­
MR. DREEBEN: Judging from the way that this
it
be

Court resolved the Salinas would be a

decision, Justice Kennedy, challenge to

constitutional as-applied the Court. This

resolved by

Court in Salinas

said that
had

the statute was

constitutional as

applied and there

been no jury finding on any nexus requirement.
QUESTION: a nexus requirement, the nexus?
MR. DREEBEN: Kennedy. Just I don't think a case that they like New would,
York v.
can be
But in subsequent trials, if we found
would the juries have to determine

as in

Ferber where the Court held that child pornography outlawed across the board, the statute is not --
QUESTION: MR. Well, but --
It's not invalid

DREEBEN:

on overbreadth

QUESTION: MR.

Yes.
But the Court left open the

DREEBEN:

possibility that there would be as-applied challenges, and
it didn't suggest that those as-applied constitutional

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challenges would raise

jury issues.

They would

instead

raise issues of law for the -­
QUESTION: in the statute says Well, but if Congress in its -- in -­
there must be some connection with

interstate commerce, then certainly it's a jury issue.
And Justice Kennedy's question, it, was that supposing the Court were as I understood

to read in a nexus

requirement, just exactly what Congress might have put in.
You say that would not be a jury question then.
MR. DREEBEN: I am judging, Chief Justice
legal
two
our

Rehnquist, by the way issue in options the open

that this Court resolved the The Court

Salinas case. to it to if it

would have to a

decided, some

contrary sort of

arguments

today, It

read do

in

nexus Third

requirement. Circuits have

could

what is,

the Second we think

and

done,

which

incorrectly,

superimpose on the statute as an implicit element that has
no textual foundation some sort of a Federal nexus.
Now, if the Court did construe section 666 to

require a Federal nexus, that's clearly a jury issue under
United States v. Gaudin. Every element, be it implicit or

explicit, has to be found by the jury.
But alternatively, I understood Justice to be suggesting that to ensure there could be was no Kennedy

a constitutional
unconstitutional

overlay

that

there

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application of

section 666, and if it's treated as a pure
then I think the better reading
question

constitutional question,

of this Court's decisions is of law -­
QUESTION:

that it would be a

Do you think

this Court's decisions

have been consistent on that question?
(Laughter.) MR. DREEBEN: towards consistency. (Laughter.) QUESTION: towards -(Laughter.)
QUESTION: I can -- I can use that in --
Let me write that down. Groping I think they have been groping

(Laughter.)
QUESTION: to the Mr. Dreeben, what answer do you give

dissenting judge in the Eighth Circuit who said it
crime for an auto mechanic to induce him to a

is now a Federal public

high school principal

to hire

teach shop

class by offering free car repair?
MR. DREEBEN: as the Well, so long, Justice elements or more, are met, which it Ginsburg,
that the
probably

statutory valuation involves $5,000

transaction

would, given teacher salaries, then it would be covered by
section 666, and the Government would have discretion to

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prosecute it.

I think

what that illustrates is that

the

broad prophylactic easily to

approach that section 666

takes leads
that seem

the manufacturing

of hypotheticals

attenuated from core Federal interests.
And the choice that Congress had before it was

to draft a statute that would go to that degree of breadth
but eliminate enforcement of believed was impediments that had previously hobbled the
a law or draft a statute which and would Congress
the

both under-inclusive

put to

jury perhaps difficult

and murky issues of

whether there

really was a Federal connection that justified application
of the statute. very important, section 666. Suppose that there is a city council person or a
mayor or some other official some respect -who has responsibilities for
a Federal
engaged
And let me give an example because it's a classic example of the way that we use

in some respects administering

program or Federal funds, and in corruption with respect to Federal programs. to ensure that he

he turns out to be

non-Federal monies and non-
prosecute him
his field of

The Government wants to doesn't begin to widen

operation and harm

the Federal program, but in

the facts

that can actually be proved, there's no connection between
the Federal program and the offense conduct.
Conceivably could a statute be drafted that

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would allow

the

Government to covered?

say

that's the

kind

of
are

Federal nexus that's many, many

Certainly, but there the potential

hypotheticals where

injury to
easy to

Federal interests is

not necessarily going to be

articulate and prove to a jury.
As a matter of discretion, the United -­
QUESTION: assume Who -- whose burden is it? I mean,

we accept your -- your on its face,

proposition that we should
and that future as-

uphold it

at least,

applied challenges will still be allowed. burden of the defendant to that this is

Would it be the
that this
of

establish that --

goes too far,

not reasonable protection

the Federal monetary interest? MR. DREEBEN: question applied, of law, is Yes, Justice the statute should Scalia. If it's a as

unconstitutional have the

then

the defendant But I

burden of Ginsburg's
had

establishing that.

understood Justice

hypothetical to raise drafted a narrower

the question statute

what if Congress some sort

that had

of an

offense nexus element.

Then we'd have to prove it up.
Attorneys Manual does in cases where direct
a

The United States prosecutors to use 666

there's

substantial and you have a

identifiable Federal

interest.

So what

here is a combination of Congress saying we need
to vindicate Federal interests

statute that's adequate

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and prior efforts that goal.

to draft narrower ones

have frustrated
statute. And

We're going to draft a broader executive branch uses its that do, indeed, pose a

then the Federal prosecute cases

discretion to
to

real threat

Federal interests.

Now, that's as a matter of discretion.
of constitutional law, and it's not

It's not as a matter

as a matter of what the statute provides.
QUESTION: Well, then why should we take that

into consideration deciding the question before us?
MR. speaking, to DREEBEN: It's not relevant, strictly
it is

the constitutional

question.

What

relevant to is why it was rational for Congress to draft a
somewhat broader statute of having given the without fearing that, by virtue
State

executive branch

this power,

criminal law would be thoroughly swamped, I believe as one
of the dissenting opinions said.
QUESTION: coming in who is But what if you have a new executive
we

really hot on this

subject and says

want to prosecute every case we can under it?
MR. DREEBEN: statement.
(Laughter.)
QUESTION: hypothetical is the Or an even more realistic
Chicago or
to
Then I'll have to withdraw this

United States Attorney in

New York, who are not

always, shall I say, responsive

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the directives of central

justice, bringing a prosecution

against a political opponent that has really no connection
with a Federal interest. MR. DREEBEN: the only way that we That might happen.
Justice Scalia, I often get uniformity in say that

Federal criminal

law enforcement is from a decision by this Court.
If the Court has no further questions.
QUESTION: Thank you, Mr. Dreeben.
Thank you.
Mr. Birrell, you have 12 minutes

MR. DREEBEN: QUESTION: remaining.

REBUTTAL ARGUMENT OF ANDREW S. BIRRELL
ON BEHALF OF THE PETITIONER
MR. BIRRELL: Thank you, Your Honor.
the discussion about Salinas,

Turning first to Salinas did not

decide the issue presented the statute

in this case.
the

The constitutionality of Court in Salinas.

was not before

Salinas was the Court error

a question of appeared to review

statutory
do was to
the

interpretation. conduct a

What

harmless

because

constitutionality had not not in the

been raised in the and it does

briefs, was
our

cert petition,

not impede

facial challenge.
I think that this -- this -­
QUESTION: You -you think Salinas, had the

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constitutional been raised, would have -- should have come
out the other way.
MR. BIRRELL: I think that if the constitutional
Salinas, it would have come out

issue had been raised in the other way, yes.

I think as well that if I could direct the Court
to page 34 of our brief, that this will respond to is an the

discussion about about the

the element, Lopez.

that this We would

analysis
same

element in

submit the

would apply here.
There are many noncommercial applications of
rights
is the

this statute, for example, bribery regarding civil law. So I don't think the Commerce Clause is --

answer.
Furthermore, in -666(a)(2) doesn't even

require any actual recipient party to the funding

corruption because the third
(a)(2) can -- can

contract under

offer a bribe to an

absolutely incorruptible official and

yet still be charged with a Federal crime.
The -- the Your Honors, is overreaching question in power must have this case,
judicially
is

that Federal

enforceable limits and

this statute

ignores them and

unconstitutional in every instance.
Thank you.
CHIEF JUSTICE REHNQUIST: Thank you, Mr.

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Birrell.
The case is submitted.
(Whereupon, at 10:47 a.m., the case in the

above-entitled matter was submitted.)

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