REVISED DECEMBER 12, 2002

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30888

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ANDERSON S. JACKSON, III; BILLY RAY DEW,

Defendants-Appellants.

Appeal from the United States District Court

For the Western District of Louisiana

November 18, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Anderson S. Jackson III and Billy Ray Dew appeal their

convictions on eleven counts of conspiracy to violate and violation

of 18 U.S.C. § 666, for theft by fraud and bribery. Jackson was

director of the Department of Community Affairs (DCA) for the City

of Monroe, Louisiana, which operates city golf courses, parks, the

museum, civic center, and other recreational venues for the City of

Monroe. The jury found that Jackson received kickbacks for

awarding construction and repair contracts for the DCA to codefendant Billy Ray Dew, owner of two construction businesses, and

to other contractors as well. Finding insufficient evidence that1 The statute requires 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). The “organization, government,

or agency” m entioned in subsection 666(b) denotes the

“organization, or

. . . local

. . . government, or any agency

thereof” referred to in subsection 666(a) of which Jackson was an

agent.

2 the DCA or the City of Monroe received over $10,000 per year in

federal funding as required to satisfy a statutory element of the

o ffense, we vacate the judgments of conviction and the sentences

and remand for entry of a judgment of acquittal.

I.

One element of the offense of conviction is that the

organization, government, or agency of which Jackson was an agent

received, in any one year period, over $10,000 in benefits from a

Federal program. 1 Defendants raise a number of issues regarding

the alleged federal character of the funds received by the DCA, one

of which is a jurisdictional question.

We examine the question of jurisdiction as a threshold matter.

To confer subject matter jurisdiction upon a federal court, an

indictment need only charge a defendant with an offense against the

United States in language similar to that used by the relevant

statute. U nited States v. Desurra

, 865 F.2d 651, 654 (5 th Cir.

1989). The indictment sufficiently invoked the district court’s

jurisdiction, alleging violations of 18 U.S.C. § 666, including the

allegation that the City of Monroe received federal funds in excess

of $10,000 for each calendar year at issue. The district court had

jurisdiction over the case because a violation of federal law was2 Defendants also argue the lack of a nexus between the offense

conduct and the federal funds as a constitutional challenge to §

666 as applied. We will “not grasp a constitutional question for

decision even though properly presented, if there is also present

some other legitimate ground upon which the case can be decided.”

State of Texas v. Grundst rom , 404 F.2d 644, 648 (5 t h Cir. 1968).

We do not reach the constitutional question in this case because,

as explained in this part, we find the insufficiency of the

evidence dispositive of this appeal.

3 cha rged, i d.

, regardless of the sufficiency of the Government’s

proof.

II.

Defendants contend that the Government failed to prove: that

the City received federal benefits in excess of $10,000; that

federal funds were present in the accounts from which Jackson made

disbursements; or any nexus between the federal funding and the

offense conduct. 2 In a challenge to the sufficiency of the

evidence, we view the evidence in a light most favorable to the

verdict, to determine whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable

doubt. U nited States v. Greer

, 137 F.3d 247, 249 (5 th Cir.), cert.

denied , 524 U.S. 920, 118 S. Ct. 2305, 141 L. Ed. 2d 164 (1998).

A. Federal Sources

.

We first consider the sufficiency of the Government’s evidence

that the entity of which Jackson was an agent received over $10,000

per year of federal funds. The Government offered evidence of

funding received by the City of Monroe for the Louisiana Folk Life

Festival. Billy Gene Pearson, Director of Administration for the

City, testified that, for the City’s fiscal year ended April 30,

1997, the DCA received $12,900 from the National Endowment for the3 Pearson testified about his review of City financial records

without introducing any documents. 4 R. 16-17. A defense witness,

Dr. Michael Luster testified about his review of official audit

rep orts for the City, admitting that the reports show $12,900

labeled “National Endowment for the Arts Folklife Festival

. . .

revenue recognized and expended” for fiscal year 1997 and “National

Endowment for the Humanities p ass-through programs" reported as

$10,090 for fiscal year 1998. 11 R. 1600-06. (The Government has

provided no evidence to clarify the ambiguity about whether those

documents reported that the $12,900 was from the National Endowment

for the Arts (NEA), as Luster read them, or from NEH, as Pearson

testified.) Regardless of how the financial reports are worded,

however, as explained below, the record does not contain sufficient

evidence from which a reasonable jury could find beyond a

reasonable doubt that the City received such funds from either NEA

or NEH.

4 Dr. Luster testified that from 1996 through 1998 the Festival

received no federal funding; it received funding from the Louisiana

Division of the Arts (DOA), the Louisiana Endowment for the

Humanities (LEH), Northeast Louisiana Arts Council (NELAC), the

City, the Convention and Visitors’ Bureau, and no other public

entities. 11 R. 1558-62, 1611.

5 Documentary evidence supporting Dr. Luster’s testimony shows

the following funding to the City:

$ 3,800 used from NEH-to- NELAC grant to compensate artists

(per Dr. Luster’s Final Descriptive Report, ex. D-1334;

se e also ex. D-1337, showing $3,800 as “endowment

payments previously requested” on request for additional

advance from NEH-to-NELAC grant);

4 Humanities (NEH), and, for fiscal year ended April 30, 1998,

$10,090 from the same source.

No grant documents in evidence substantiate receipts from the

NEH of those amounts, however. 3 Dr. Michael Luster, Director of

the Louisiana Folklife Festival, testified that the City received

grants from only state and local entities. 4 The documentary

evidence substantiated Luster’s testimony and demonstrated

unequivocally that the $12,900 funding came from the Northeast

Louisiana Arts Council (NELAC), and that other grants were from the

state or local agencies. 5 No corroboration of any receipt of$12,900 req uested from NELAC endowment of $16,700 from NEH

(shown as “endowment now requested” on ex. D-1337);

$ 9,750 Louisiana State Arts Council, Division of the Arts

(DOA) grant # FY97155 of July 1996 (ex. D-1339);

$10,000 LEH grant # 96-415-024 dated August 20, 1996 (ex. D1340);

$10,000 LEH grant # 97-415-074 dated July 8, 1997 (ex. D1342);

DOA grant # FY98058, am ount unspecified (ex. D-1341, August

1997 transmittal letter)

$14,350 DOA grant # FY99053 of July 1998 (ex. D-1343); and

$11,500 LEH grant # 98-415-139 dated July 14, 1998 (ex. D1344).

6 11 R. 1605-07, 1611.

7 S ee ex. D-1342 (LEH grant agreement # 97-415-074 of July 8,

1997 providing $10,000 for 1997 Folklife Festival). If the grant

was funded in July 1997, the receipt would have been in the City’s

fiscal year ending in 1998, matching the time frame of the $10,090

receipt Pearson mentioned.

8 Dr. Luster testified that some of those state and local

contributors to the City were themselves grantees of federal funds

from NEH and NEA. Dr. Luster also testified that the DOA, which

5 $10,090 is apparent from the documents. Dr. Luster testified that

the amount was in error, that $10,000 was the correct amount, and

that the grant was from the Louisiana Endowment for the Humanities

(LEH)

— not NEH. 6 One of defendants’ exhibits would suggest such

a receipt of $10,000 from LEH in calendar year 1997. 7 The

Government concedes that the alleged federal funding was not

received by the City directly but by Louisiana agencies for further

distribution to local or regional a rts projects meeting the

criteria established by NEH or the National Endowment for the Arts

(NEA).

The record supports an inference that the City received some

funding indirectly from those federal sources via local and state

agencies. 8 Specifically concerning Pearson’s testimony that theoperates under the Lieutenant Governor’s Office, is related to NEA,

because it receives a portion of its operating expense from NEA.

Below the DOA is the local organization, NELAC, a nonprofit

organization which also receives grant funding. 11 R. 1564-66; s ee

also ex. D-1340, letter awarding an LEH grant referencing “federal

funds”; exs. D-1334, D-1335, and D-1337, showing federal grant to

NELAC as resource for the Festival.

9 Dr. Luster testified that NELAC received the federal grant,

and in turn awarded the City a grant for the same amount, probably

the “same dollars.” 11 R. 1602. NELAC got a direct grant from NEA

(#94-5533-0159) in the amount of $16,700 (ex. D-1335), of which Dr.

Luster succeeded in drawing down a part in 1995 ($3 ,800) for the

1995 Festival; he then drew down the balance, $12,900, for the 1996

Festival. 11 R. 1570. S ee also ex. D-1339 (budget showing

$12,900.00 as “NEA FolkArts grant”); ex. D-1334 (Dr. Luster’s

report, explaining use of $3,800 grant funds awarded to NELAC to

defray 1995 Festival expenses).

10 LEH grant agreement # 97-415-074 mentions NEH, in a

req uirement that the grantee recognize in all publicity that the

program “is funded under a grant from the Louisiana Endowment for

the Humanities, the state affiliate of the National Endowment for

the Humanities.” Ex. D-1342. Even assuming as we do that this

proclaimed affiliation provides sufficient evidence to permit an

inference of some NEH financial support, it does not suggest how

much NEH support was included.

6 DCA received $12,900 from NEH, the record contains eviden ce that

this funding, although actually channeled through NELAC, did have

f ederal origins. 9 Assuming Pearson’s testimony about $10,090 of

NEH funds corresponds to the 1997 LEH grant agreement for $10,000,

we will further assume for purposes of this analysis that the

record will support an inference that some of that LEH grant had

federal origins as well. 10

B. Minimum Per-Year Amounts.

The questions then become how much of the grants from local or

state agencies were of federal origin, and when such funds were

received. The evidence is insufficient if it shows only that the

City received some federal funds; the statute requires proof that11 The counts are charged to have occurred over various periods

between January 1997 and October 31, 1998.

7 the organization or agency received federal benefits “in excess of

$10,000” per year. 18 U.S.C. § 666(b). The one-year period may be

any continuous twelve-month period that includes the commission of

the offense. 18 U.S.C. § 666(d)(5). This is an exact numeric

minimum per year that must be supported by record evidence.

The indictment charged this monetary element for the calendar

y ears 1997 and 1998. 11 The Government in its case in chief

attempted to show the requisite receipts with the testimony of

Pearson, and argues that a finding of more than $10,000 in federal

funds per calendar year is also supported by defendants’ exhibits.

1. Pearson’s Testimony — Fiscal Years.

Even with the assistan ce of evidence suggesting an indirect

federal receipt in the amount of $12,900, the amount Pearson

mentioned, the record does not support a jury finding that the

$12,900 receipt occurred in calendar year 1997 or 1998. Pearson’s

testimony was only that the receipt occurred in the City’s fiscal

year ending in 1997 — a period that straddles calendar years 1996

and 1997 and does not suggest a specifi c calendar year. Other

evidence does suggest a calendar year, however. Dr. Luster stated

that the City received $12,900 for the 1996 Festival from NELAC,

which funding originated with a NEA grant to NELAC on September 27,

1994. Through Dr. Luster’s efforts, NEA’s federal grant to NELAC

was modified to extend its availability through September 14, 1996,12 Ex. D-1336; 11 R. 1570; s ee also ex. D-1334, Dr. Luster’s

Final Descriptive Report (providing Festival dates).

13 Assuming that the $10,090 Pearson mentioned corresponds to

the $10,000 LEH grant agreement of 1997, ex. D-1348, and further

assuming some NEH financial support for this grant, see supra notes

7 & 10, we still have no evidence whatsoever to suggest how much of

such grant comprised federal funds nor evidence demonstrating how

much of the grant moneys were recei ved in the calendar years at

issue. (Other evidence reveals that not every payment of grant

funds was received in the same calendar year as the grant

agreement. Compare

, e.g. , 8/20/96 letter awarding grant #96-415-

024 (ex. D-1340) with LEH letter of 6/13/97 enclosing final payment

for the grant (ex. D-1346)).

8 the day of the 1996 Festival. 12 A NELAC report to NEA shows $12,900

as the “federal share of outlays” during the period from 5/1/95 to

9/14/96 (ex. D-1338). This evidence cannot support a jury finding

that the $12,900 was received in 1997.

With no evidence to sustain a finding beyond a reasonable

doubt that the $12,900 receipt of indirect federal funds occurred

in one of the calendar years charged , or that the other receipt

Pearson mentioned ($10,090 13 ) occurred at all, we cannot sustain the

guilty verdict based on Pearson’s testimony. S ee United States v.

Barrera

, 547 F.2d 1250, 1255 (5 th Cir. 1977) (holding that acquittal

must be granted when the evidence, viewed in the light most

favorable to the Government, is such that a reasonably minded jury

must have a reasonable doubt as to the existence of the essential

elements of the crime charged).

2. Defendants’ Exhibits — Calendar Years 1997 and 1998.

The alternative support the Government offers for the verdict

is Defendants’ evidence. The City received a total of $10,027 for

1997 via the following checks:14 An LEH letter of 6/13/97 enclosed the $7,590 “final payment

f or mini-grant 96-415-024" (ex. D-1346); s ee also 8/20/96 letter

awarding grant (ex. D-1340).

15 The City did not receive the remainder of this grant in 1997.

See $2,560 LEH check dated 10/28/96 enclosed with a 10/28/96 LEH

letter remitting “initial regrant payment” for proposal #96-415-024

for the 1996 Festival (ex. D-1345).

It is not apparent why the two checks for grant #96-415-024

total $10,150 rather than $10,000.

16 To reach a calendar-year total exceeding $10,000, with the

benefit of the $7,590 described above, more than $2,410 (99% of the

check amount) would be needed from another federal source for that

year. No evidence fills this gap. (For the reasons discussed

supra note 13, the LEH grant dated 1997 provides insufficient

evidence to fill that gap.)

9

$7,590 LEH check dated June 13, 1997 (ex. D-1346); and

$2,437 State of Louisiana, Department of Treasury check

dated July 17, 1997 (ex. D-1348).

The $7,590 check of June 1997 was part of LEH Grant #96-415-

024 in the amount of $10,000 for the Festival. 14 We find sufficient

evidence tha t this payment of $7,590 constituted federal funds,

because the LEH letter of August 20, 1996, awarding the grant

refers to the award as “This grant of federal funds.” Ex. D-1340.

A reasonable jury might have inferred f rom that phraseology that

the entirety of the grant was of federal origin, including every

dollar of the $7,590 check received in June 1997. 15

Our next question is therefore what portion of the $2,437

check of July 1997 was of federal origin. To show more than

$10,000 of federal funding for the calendar year, the Government

would have to prove that virtually all of the $2,437 received was

of federal origin. 16 The $2,437 check was part of DOA grant #17 The check references an “Office of Cultural Development Arts

Grant,” and invoice no. FY97155-2. Ex. D-1348. The first payment

on this grant was remitted to the City via an 11/13/96 check, and

so does not co unt for the 1997 calendar year. S ee 11/13/96

Department of Treasury che ck for $7,313 referencing invoice no.

FY97155-1 (ex. D-1347 ); see also 7/2/96 and 8/2/96 letters

explaining and awarding the grant (ex. D-1339).

18 The grant agreement for D OA grant # FY97155 requires the

“statement ‘SUPPORTED BY A GRANT FROM THE [NEA], THE LOUISIANA

STATE ARTS COUNCIL, AND THE LOUISIANA [DOA], OFFICE OF CULTURAL

DEVELOPMENT, DEPA RTMENT OF CULTURE, RECREATION AND TOURISM’ [to]

. . . appear in close proximity to the na me of the grantee

organization in ALL [publicity].” Ex. D-1339. Additionally, Dr.

Luster testified that the DOA receives a portion of its operating

expense from NEA and a portion from the State. 11 R. 1565-66.

19 S ee ex. D -1344 (including LEH letter transmitting to Dr.

Luster $2,900 as “first installment payment for your 1998 regrant,”

10 FY97155. 17 S ome underlying federal (NEH) suppor t for DOA grant #

FY97155 is apparent from the evidence, but the evidence suggests

multiple sources of support. 18 Even considering this evidence most

favorably to support the verdict, we find it insufficient to permit

an infere nce beyond a reasonable doubt of how much of the $2,437

check from the State was of federal origin. Accordingly, the

evidence is insufficient to bring the total federal funds for 1997

to more than $10,000.

For calendar year 1998, the Government suggests that a total

of $11,5 00 in federal funds was received by the City from the

following two documents in evidence:

$2,900 enclosed as “regrant payment” for the 1998

Festival per August 3, 1998, letter from LEH, re proposal

#98-415-139 (ex. D-1344); and

$8,600 check of December 21, 1998, from LEH (ex. D-1349).

Both these payments were part of the July 14, 1998, LEH grant #98-

415-139 agreement for $11,500 to the City for the 1998 Festival. 19payment request for $8,600 in 1998 out of total $11,500 LEH grant,

and LEH grant agreement of July 14, 1998 for $11,500).

11 The Government conceded in brief that LEH receives funds from NEH

as well as from the State of Louisiana and corporate and individual

donors, effectively admitting that a LEH grant contai ns some

federal as well as some non-federal funds.

To suggest that the foregoing receipts satisfy the statute,

the Government also argues that the federal o rganizations retain

control over “pass-through funds,” either through the grant

agreements (such as requiring NEA approval for a regrant to

programs around the state) or by statutory prov isions requiring

accountability or adherence to certain criteria. Assuming without

deciding that the level of federal control means that the funds so

distributed retained their character as federal funds, we m ust

still find evidence in the record to supp ort a jury finding that

over $10,000 per year of such pass-through funds had federal

origins.

The Government provides not a single record reference to

suggest how much of the $11, 500 was of federal origin. Federal

control cannot supply the missing element of a certain minimum

dollar amount. It is not sufficient that the Louisiana State Arts

Council, LEH, or NELAC strives to comply with the requirements of

N EH and NEA or federal law. Nor is evidence that LEH is

“affili ated with” NEH probative of the extent of financial

d ependence. We do not have to examine the level of federal

“strings attached” to these grants, because no thresh old showing12

has been made that the minimum amount of federal funds was passed

through the state agency to the City.

III.

Our extensive review of the record reveals a dearth of

evidence to support the essential element that the City received

more than $10,000 per year in federal funds. To meet its burden of

presenting evidence from which a jury might properly find this

element proved beyond a reasonable doubt, the Government must

present more than a mere scintilla of evidence; it must produce

e vidence which, if believed, affords a substantial basis in f act

from which the defendant's guilt can be inferred. U nited States v.

James

, 510 F.2d 546, 552 (5 th Cir.), cert. denied

, 423 U.S. 855, 96

S. Ct. 105, 46 L. Ed. 2d 81 (1975). Viewing the evidence in a

light most favorabl e to the Government, we conclude that a

reasonably minded jury would necessarily have a r easonable doubt

that over $10,000 of federal funding was received by the City in

1997 and 1998 as alleged in the indictment.

Accordingly, we vacate the judgment convicting Jackson and Dew

and remand the matter for entry of a judgment of acquittal.

VACATED; REMANDED.