UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-8277

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MIKE MOELLER, PETER THOMAS

McRAE, and BILLIE QUICKSALL,

Defendants-Appellees.

Appeals from the United States District Court

for the Western District of Texas

(April 1, 1993)

Before POLITZ, Chief Judge, GOLDBERG and JONES, Circuit Judges.

POLITZ, Chief Judge:

This appeal involves the applicability of 18 U.S.C. § 666 to

the former Texas Federal Inspection Service. The government

a ppeals the dismissal of certain counts of the supersedi n g

indictment against Mike Moeller, Peter Thomas McRae, and Billie B.

Quicksall. We vacate and remand.

Background

McRae and Quicksall were indicted for, inter alia

, improperly

awarding TFIS consulting contracts to codefendants Russell Koontz1 The agreement was entered under the authority of the

Agricultural Marketing Act of 1946, 7 U.S.C. §§ 1621-27, and

applicable Texas law. See Tex. Agric. Code art. 91.001-005.

2 For examp le, disbursement of TFIS funds required joint

approval of the Federal Supervisor and the Texas Commissioner of

Agriculture, or their respective designees.

2 and Robert Boyd as compensation for their soliciting campaign

contributions to support the candidac ies of Moeller or Jim

Hightower for Texas Agriculture Commissioner. Moeller was deputy

commissioner of the Texas Department of Agriculture. McRae was a

Special Assistant to Moeller at TDA until January 1988 when he

became associate director of TF IS. Quicksall held various

managerial positions at TFIS and TDA. All three were indicted for

violations of 18 U.S.C. § 666, theft or bribery concerning programs

receiving federal funds, and 18 U.S.C. § 371, conspiracy to commit

an offense or to defraud the United States.

TFIS was created to perform federal and state inspections of

agricultural products under a co operative agreement between the

Unit ed States Department of Agriculture and the TDA. 1 This

agreement provided for joint supervision o f TFIS by a Federal

Supervising Inspector employed by USDA and a State Administrative

Officer appointed by TDA. 2 The TFIS inspectors were not federal

employees but were licensed to perform federal inspections. They

performed shipping-point inspections where federal/state inspection

certificates were issued, receiving market inspections where

federal inspection certificates were issued, and they also enforced

Texas state produce regulations.3 The Agricultural Marketing Act authorizes collection of

fees to cover the cost of inspection of agricultural products.

7 U.S.C. § 1622(h).

4 Fees for inspections made pursuant to a cooperative

agreement with a state may be "disposed of in accordance with the

terms of such agreement." 7 C.F.R. § 51.44.

5 A terminal market is one from which agricultural products

are shipped out to markets outside the State of Texas. Generally,

inspections at terminal markets were performed by USDA-employed

inspectors.

6 As part of the bribery scheme, the defendants also

arranged for Boyd and Koontz to receive TDA consulting contracts.

The counts of the indictment predicated upon the TDA contracts were not dismissed and are not subjects of this appeal.

3 The agree ment authorized TFIS to charge fees for

s hipping-point inspections, 3 4% of which were remitted to the

Agricultural Marketing Service to offset federal overhead expenses

such as the salary of the federal supervising inspector. 4 For the

relevant years, the fees TFIS remitted to AMS exceeded federal

overhead expenses. Fees not remitted by TFIS to USDA could be used

only for TFIS operating expenses. TFIS sometimes loaned inspectors

to USDA to conduct inspections at terminal markets; 5 TFIS was fully

reimbursed for the cost of these inspectors. All monies collected

by TFIS for enforcement of state regulations were deposited in the

state treasury.

The defendants moved to dismiss those charges of the

ind ictment which predicated violations of 18 U.S.C. § 666, or

conspiracy to violate that statute, upon their actions as TFIS

officials. 6 The district court granted that motion, finding that7 S. Rep. No. 225, 98th Cong., 2d Sess. 369, reprinted in

1984 U.S. Code Cong. & Admin. News 3182, 3510.

4 TFIS did not receive $10,000 in benefits from a federal assistance

program as required by section 666(b). The trial court concluded

that the defendants' misconduct as agents of TFIS was not within

the court's subject matter jurisdiction. The government timely

appealed.

Analysis

In urging tha t the district court erred, the government

advances two theories: (1) TFIS received over $10,000 per year in

federal benefits, or (2) TFIS is a subdivision of TDA, which

indisputably receives the requisite amount of federal funding.

Finding that this matter is readily resolved under the second

postulation we pretermit consideration of the first.

The legislative history of 18 U.S.C. § 666 states that the

statute was "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." 7 Section 666 provides in pertinent part:

(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 therof --

(A) embezzles, steals, obtains by fraud,

or otherwise without authority knowingly8 18 U.S.C. § 666(a) and (b) (emphasis added).

Subsection (c) provides: "This section does not apply to

bona fide salary, wages, fees, or other compensation paid, or

expenses paid or reimbursed, in the usual course of business." The

parties dispute whether subsectio n (c) qualifies either only

subsection (a), only subsection (b), or both (a) and (b). Because

we decide on other grounds, we pretermit this question as well.

5 converts to the use of any per son other

than the rightful owner or intentionally

misapplies, property that --

(i) is valued at $5,000 or

more, and

(ii) is owned by, or is under

the care, custody, or con trol

of such organization,

government, or agency ; or

(B) corruptly solicits or demands for the

benefit of any person, or accepts or agrees to accept, anything of value from

any person, intending to be influenced or

rewarded in connection with any business,

transaction, or series of transactions of

such organization, government, or agency

involving anything of value of $5,000 or

more . . . .

shall be fined under this title, imprisoned not more than

10 years, or both.

(b) The circumstance referred to i n subsection (a) of

this section is that t he organization, government, or

agenc y receives, in any one year period, benefits in

excess of $10,00 0 under a Federal program involving a

grant, contract, subsidy, loan, guarantee, insurance, or

other form of Federal assistance. 8

The government contends that TFIS is a subdivision of TDA and,

for purposes of jurisdiction, we may look to the federal assistance

TDA receives. We find this contention persuasive with a

r efocusing. Taking the words of the statute at face value it is

app arent that for purposes of the conduct proscribed by

section 666(a)(1) the defendant must be an agent of the agency9 There are only two requirements necessary to bring a

defendant within section 666. "First, the defendant must be an

'agent' of a 'government agency' that receives in excess of $10,000

from the federal government within a one-year period." Second, the

defendant must engage in conduct proscribed by section 666(a)(1)(A)

or (B). U nited States v. Simas

, 937 F.2d 459, 463 (9th Cir. 1991).

10 United States v. Westmoreland

, 84 1 F.2d 572, 577 (5th

Cir.), cert

. denied

, 488 U.S. 820 (1988); United States v. Snyder

, 930 F.2d 1090 (5th Cir.), cert

. denied , 112 S.Ct. 380 (1991).

11 United States v. Little , 889 F.2d 1367 (5th Cir. 1989),

cert

. denied , 495 U.S. 933 (1990); Westmoreland

.

12 841 F.2d at 576.

6 receiving federal benefits in excess of $10,000. 9 The critical

inquiry is not the role of the TFIS and whether it interposes a

separate entity shielding any violations of this statute, but the

role of the defendants. Specifically, we must determine whether

the defendants were agents of TDA as they performed their functions

for TFIS, the creation of TDA and the USDA.

We have recognized that in enacting section 666, "Congress has

cast a broad net to encompass local officials who may administer

federal funds, regardless of whether they actually do." 10 Although

the conduct prohibited by section 666 need not actually affect the

federal funds received by the age ncy, 1 1 there must be some nexus

between the criminal conduct and the agency receiving federal

assist ance. In W estmoreland we held that so long as the agency

received $10, 000 per year from a federal assistance program, its

agents are subject to section 666. 12 The particular program

involved in the theft or bribery scheme need not be the recipient13 Little , 889 F.2d at 1369.

14 18 U.S.C. § 666(d)(2).

15 The agreement included among TDA's responsibilities:

Assume responsibility for training and supervising

inspectors in the interpretation and enforcement of such

State regulatory provisions of standardization,

compulsory inspection citrus maturity, citrus color-add,

7 of federal funds. 13

Of critical importance to our inquiry , section 666 defines

"government agency" thusly:

[T]he term "government agency" means a subdivision of the

executive, legislative, judicial, or other branch of

government, including a department, independent

establishment, commission, administration, authority,

board, and bureau, and a corporation or other legal

entity established, and subject to control, by a

government or governments for the execution of a governmental or intergovernmental program. 14

TFIS and TDA are both indisputably "gov ernment agencies" as thus

defined. TFIS is a legal entity established and subject to control

by the federal and Texas state governments for the execution of an

intergovernmental program. TDA is a subdivision of the executive

branch of Texas state government. If in their roles at TFIS, McRae

and Quicksall were agents of TDA, then TDA is a relevant agency for

purposes of section 666(b).

To determine whether TFIS employees were agents of TDA, we

need look no further than the cooperative agreement creating TFIS.

TFIS operated under the joint supervision of USDA a nd TDA. In

enforcing state produce regulations, TFIS performed discretionary

functions on behalf of TDA. 15 TFIS enforced regulations promulgatedor other requirements pertaining to fruits and vegetables

as [TFIS] shall enforce.

Furnish such forms, stationery, licensing applications,

equipment and administrative support as shall be

necessary to faithfully enforce such regulatory programs

of the State as the Commissio ner of Agriculture, Texas

Department of Agriculture, shall request that [TFIS]

enforce.

(Emphasis added.)

16 In 1990, the TDA-USDA cooperative agreement terminated

and was not renewed. USDA entered an agreement with a private

organization, the Fruit and Vegetable Growers and Shippers of

Texas, to carry out TFIS's former functions.

8 by TDA and the funds collected for those regulatory functions were

remitted directly to the stat e treasury. Finally, the agreement

p rovided that upon termination, all remaining funds held by TFIS

would be transferred to any successor inspection service, or if no

successor was created, then "all such funds or property w ould

revert to [TDA] for its use or disposition." 1 6 We find that for

purposes of section 666, McRae and Quicksall, in their positions at

TFIS, were agents of TDA -- an agency that receives more than

$10,000 per year in benefits from federal assistance programs.

Moeller's alleged conspiracy with them is also covered by

section 666.

The order of the district court dismissing Counts Five, Seven,

Eight, and a part of Count One of the superseding indictment is

VACATED and the matter is REMANDED for further proceedings.