'Theft or Bribery': The Circuit Split Over the Federal Nexus Element

A defendant can violate the express terms of ' 666 without ever touching federal property. An agent of a covered entity (defined as an organization; a state, local or tribal government; or any agency thereof) that receives more than $10,000 per year in federal 'benefits' (' 666(b)), commits a federal crime if he embezzles or otherwise steals entity-controlled property (' 666(a)(1)(A)), or solicits a bribe regarding entity business (' 666(a)(1)(B)), that is valued at more than $5,000. An outsider who offers a bribe to an agent of a covered entity in connection with business involving $5000 or more likewise commits a federal crime (' 666(a)(2)).

But does the Constitution require prosecutors to prove a direct federal interest in the property stolen or the bribe paid ' and if so, what kind of showing will suffice? At the extremes, can the feds 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'? United States v. Santopietro, 166 F.3d 88, 93 (2d Cir. 1999) (answering no). This is dangerous ground for prosecutors, and potentially fertile ground for defense attorneys, because the answer varies from circuit to circuit, and often divides appellate panels.