United States of America, Plaintiff-appellee, v. Virgil M. Copeland, John J. Winders, Defendants-appellants, 143 F.3d 1439 (11th Cir. 1998)

Appellants Virgil M. Copeland and John J. Winders appeal their convictions for accepting and making illegal kickbacks and bribes and for filing false tax returns. We vacate their convictions for bribery under 18 U.S.C. § 666 and § 2, but affirm their convictions on all other counts.

From the early 1980s until 1992, Appellant Virgil M. Copeland served as a manager in the Facilities Operations Division of the Marietta, Georgia, plant of Lockheed Aeronautical Systems Company (Lockheed). Copeland's responsibilities at Lockheed included finding off-site space for Lockheed to lease, arranging for the relocation of transferred Lockheed executives, and choosing contractors to perform building, maintenance, and repair projects.

Appellant John J. Winders was a licensed real estate appraiser and broker who assisted Lockheed in acquiring real estate and off-site lease premises. Winders and Copeland have been friends for over 20 years, and between 1991 and 1994, Winders earned approximately $100,000 in commissions from Lockheed-related business that Copeland referred to him.

Appellants' convictions stem from their involvement in a series of transactions in which Copeland improperly referred work to Winders and agreed on behalf of Lockheed to pay abnormally high commissions to Winders. In return, Winders paid Copeland approximately $15,000. In addition to his dealings with Winders, Copeland accepted payments from Robert Sherwood, a self-employed contractor to whom Copeland awarded several Lockheed construction projects, and William Mann, the owner of several contracting and construction companies that performed work for Lockheed.

Following a jury trial, Copeland was convicted of five counts of accepting kickbacks, in violation of 41 U.S.C. §§ 52-54 (Counts IV-V, VII-IX), five counts of bribery, in violation of 18 U.S.C. § 666 and § 2 (Counts X-XI, XIII-XV), and three counts of filing false tax returns, in violation of 26 U.S.C. § 7206(1) (Counts XVII, XXI-XXII). Winders was convicted under the same statutory provisions of three counts of providing kickbacks (Counts VII-IX), three counts of bribery (Counts XIII-XV), and one count of filing a false tax return (Count XVI).

On appeal, Appellants assert, among other claims, that the Government failed to prove the statutory prerequisites of 18 U.S.C. § 666.¹  We agree, and therefore vacate the Defendants' bribery convictions and remand to the district court for resentencing consistent with this opinion.

The Anti-Bribery Act, 18 U.S.C. § 666, prohibits the unlawful acceptance or offering of anything of value of $5,000 or more, if the person taking the bribe is an agent of an organization subject to the statute.²  18 U.S.C. § 666(a). Whether an organization falls within the scope of the statute is determined pursuant to § 666(b), which provides:

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.

18 U.S.C. § 666(b). In the present case, the Government alleges that Lockheed is an organization within the scope of the statute because it is a prime contractor for the United States Department of Defense. In response, Appellants argue that a quid pro quo contractual relationship does not satisfy the requirements of § 666(b).

In determining whether Lockheed falls within the scope of § 666(b), we must consider the statute's text, legislative history, and purpose. See United States v. Rooney, 986 F.2d 31, 33 (2d Cir. 1993) (citing Dowling v. United States, 473 U.S. 207, 213, 105 S. Ct. 3127, 3131, 87 L. Ed. 2d 152 (1985)). In so doing, we recognize that " [c]ourts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language." Salinas v. United States, --- U.S. ----, ----, 118 S. Ct. 469, 474, 139 L. Ed. 2d 352 (1997) (internal quotations and citations omitted).

Section 666(b) provides that the benefits an organization receives under a federal program can be in the form of "a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." 18 U.S.C. § 666(b) (emphasis added). A straightforward reading of this text indicates that § 666(b) encompasses many situations in which the government receives consideration in return for federal assistance. See United States v. Marmolejo, 89 F.3d 1185, 1189-91 (5th Cir. 1996) (applying § 666 to a county jail that received federal assistance in exchange for housing federal inmates), affirmed in part sub nom. Salinas v. United States, --- U.S. ----, 118 S. Ct. 469, 139 L. Ed. 2d 352 (1997); Rooney, 986 F.2d at 33-35 (holding that a government sponsored loan qualified as a benefit under a federal program, even though the recipient was required to repay the entire loan plus interest).

The scope of § 666, however, is not limitless; the statute clearly indicates that only those contractual relationships constituting some form of "Federal assistance" fall within the scope of the statute. 18 U.S.C. § 666(b); see Rooney, 986 F.2d at 34 (stating that " [t]he statute expressly equates 'benefits' with 'Federal assistance.' "). Thus, organizations engaged in purely commercial transactions with the federal government are not subject to § 666. See United States v. Stewart, 727 F. Supp. 1068, 1072-73 (N.D. Tex. 1989) (holding that defense contractor was not an organization within the scope of § 666 because it was engaged in purely commercial transactions with the government); see also Marmolejo, 89 F.3d at 1190; Rooney, 986 F.2d at 34-35.³ 

Having reached this conclusion based on a plain reading of § 666(b), we normally would not engage in any additional analysis. However, since some circuits have found § 666(b) to be ambiguous on its face, it is worth noting that our conclusion is consistent with the statute's legislative history, which provides in part:

[T]he term 'Federal program involving a grant, a contract, a subsidy, a loan, a guarantee, insurance, or another form of Federal assistance' [is to] 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 or 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.

S. Rep. 98-225 at 370 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3511; see also Stewart, 727 F. Supp. at 1070-71 (citing report). This passage shows that Congress did not intend the statute to apply to the federal government's ordinary commercial transactions.⁴ 

Based on a plain reading of the statute, we conclude that the Government failed to prove that Lockheed is an organization that receives benefits pursuant to a federal program as required by § 666(b). Nothing in the record indicates that Lockheed receives any form of federal assistance or is in anyway engaged in something other than purely commercial transactions with the government. The Government attempts to distinguish defense contracts from other commercial transactions by noting that the government provides Lockheed with detailed specifications for aircraft and that Congress annually appropriates specific sums for aircraft procurement, testing, and research and development. Although these factors make defense contracts unique, they do not show that Lockheed received benefits under a federal program through a contract or any other form of federal assistance. See Stewart, 727 F. Supp. at 1072. Punishing the Appellants' conduct might further the statute's goal of protecting the integrity of federal funds, but it is not the role of this Court to expand the scope of § 666 to encompass such behavior. Id. at 1073 (citing United States v. Bowman, 260 U.S. 94, 102, 43 S. Ct. 39, 42, 67 L. Ed. 149 (1922)).⁵ 

The Government failed to prove that Lockheed is an organization that received, 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. Accordingly, we vacate the Defendants' convictions for bribery under 18 U.S.C. § 666 and § 2, affirm their convictions in all other respects, and remand for resentencing consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.