In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1918

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DOMINICK OWENS, 

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cr-00775-1—Blanche M. Manning, Judge.

ARGUED SEPTEMBER 11, 2012—DECIDED OCTOBER 11, 2012

Before BAUER, POSNER, and WOOD, Circuit Judges.

BAUER, Circuit Judge. A jury convicted Dominick Owens,

a City of Chicago zoning inspector, of two counts of

federal program bribery, 18 U.S.C. § 666(a)(1)(B), for

accepting two $600 bribes in exchange for issuing certificates of occupancy for four newly constructed homes. On

appeal, Owens challenges the sufficiency of the evidence

regarding whether the issuance of the certificates of

occupancy had a value of $5,000 or more as required by
2 No. 12-1918

§ 666(a)(1)(B). Because we find there was insufficient

evidence from which a jury could find guilt beyond

a reasonable doubt on this element, we reverse.

I. BACKGROUND

Dominick Owens was a zoning inspector for the City

of Chicago’s Zoning Department. The Zoning Department was responsible for enforcing the City’s zoning

ordinance, reviewing and approving architectural plans

for the construction of new single-family homes, and

inspecting newly constructed homes. After an inspection, if a newly constructed home complied with the

zoning ordinance and a zoning inspector was satisfied

that it was “safe to occupy,” the Zoning Department

issued a certificate of occupancy certifying that the

home was “ready to be lived in and used.” Under the

zoning ordinance, a building may not be occupied unless

a certificate of occupancy has been issued.

Christoir McPhillip, the government cooperator in this

case, was an acquaintance of Owens and an “expediter”—someone who performs the “legwork” of the

zoning process on behalf of developers, contractors,

and members of the public by making appointments,

completing paperwork, and attending meetings with

Zoning Department employees. Prior to the bribes at

issue in this case, McPhillip had paid Owens bribes for

the expedited issuance of certificates of occupancy on

at least eight occasions.

In the summer of 2006, McPhillip became a confidential

informant for the FBI and recorded phone calls and two
No. 12-1918 3

meetings with Owens that led to the charges in this

case. On July 10, 2006, McPhillip called Owens and said

that he needed certificates of occupancy for two singlefamily homes. After learning the addresses of the

two homes, Owens created computer records indicating

that both homes had passed inspection; neither home,

however, was ever inspected. The next day, after several

recorded phone calls, McPhillip and Owens met on the

side of a road, and McPhillip paid Owens $600 in

cash. Owens acknowledged after his arrest that he

accepted the money on July 11 “in exchange for issuing

quick certificates of occupancy” and “expediting the

process for [McPhillip].”

Just over a week later, the same scenario played out

again. On July 19, 2006, McPhillip called Owens regarding two different single-family residences and once

again said he needed expedited certificates of occupancy.

Owens and McPhillip met in Owens’ driveway the following day, and Owens again accepted $600 in cash

from McPhillip; Owens admitted receiving this money

from McPhillip after his arrest. No Zoning Department

records indicate that Owens ever inspected either of

the homes.

After Owens issued the certificates of occupancy for

the four homes, McPhillip and the FBI each retained

copies of the originals. The Zoning Department also kept

copies of the certificates of occupancy and maintained

computer records documenting the issuance of the certificates because it often receives requests for copies from

homeowners, banks, and contractors. The applications
4 No. 12-1918

for the certificates of occupancy for the four homes

indicate that the estimated value of the construction

work performed on each of the homes ranged from

$180,000 to $250,000. In July 2006, mortgages were obtained on each of the four homes, with notes ranging

from $200,000 to over $600,000 per home.

On September 21, 2009, Owens was arrested. He

waived indictment and was charged by information on

December 30, 2009, with two counts of federal program

bribery in violation of 18 U.S.C. § 666(a)(1)(B). The first

count charges Owens with accepting the July 11 bribe

for the issuance of two certificates of occupancy; the

second count charges him with accepting the July 20

bribe for the second pair of certificates. The jury

convicted Owens on both counts, and the district court

sentenced Owens to a term of imprisonment of twelve

months and one day.

II. DISCUSSION

On appeal, Owens argues that there was insufficient

evidence to support the jury’s verdict. In considering a

challenge to the sufficiency of the evidence to sustain a

conviction, we may reverse the conviction only if no

rational trier of fact, viewing the evidence in the light

most favorable to the Government, could have found

the defendant’s guilt beyond a reasonable doubt. United

States v. Gorman, 613 F.3d 711, 715 (7th Cir. 2010).

The federal program bribery statute, as relevant

here, prohibits agents of federally funded entities from
No. 12-1918 5

Because we find that the Government’s evidence was insuf- 1

ficient to meet its burden, we need not reach Owens’ arguments regarding the evidence he elicited at trial that he

contends established that the certificates of occupancy had

little or no value.

soliciting or accepting “anything of value . . . intending to

be influenced . . . in connection with any business, transaction, or series of transactions . . . involving any thing

of value of $5,000 or more[.]” 18 U.S.C. § 666(a)(1)(B).

Owens concedes that the Government proved all but

one element of § 666(a)(1)(B); his sole challenge is to

the sufficiency of the evidence regarding the requirement that the “business” or “transaction” sought to be

influenced involved a “thing of value of $5,000 or more[.]”

In United States v. Robinson, 663 F.3d 265 (7th Cir. 2011),

we said that this element of § 666(a) means that “the

subject matter of the bribe must be valued at $5,000 or

more; the bribe itself need only be ‘anything of value.’ ”

Id. at 271 (citing United States v. Duvall, 846 F.2d 966, 976

(5th Cir. 1988)). Owens contends that there was insufficient evidence that the value of the subject matter of

the bribes in this case—identified in the information as

the issuance of the four certificates of occupancy—met

the $5,000 threshold and that the evidence instead suggested that the certificates were invalid and worthless.

1

The Government admits that the issuance of the certificates of occupancy in this case “does not have an easilyquantified exact dollar value.” Section 666(a) is ambiguous on the question of how to measure value,

and we and other circuits have adopted a variety of
6 No. 12-1918

approaches to determine the value of the subject matter

of a bribe when it is an intangible benefit or its value

is difficult to quantify. The easiest and most obvious

way is by looking at how much someone in the market

was willing to pay for the benefit and an official was

willing to take to provide the benefit—the value of the

bribe. This means that the bribe amount “may suffice

as a proxy for value; at least it provides a floor for the

valuation question.” Robinson, 663 F.3d at 275; see also

United States v. Townsend, 630 F.3d 1003, 1012 (11th

Cir. 2011) (“[T]he value of an intangible in the black

market of corruption is set at the monetary value of

what a willing bribe-giver gives and what a willing bribetaker takes in exchange for the intangible.”); United

States v. Marmolejo, 89 F.3d 1185, 1194 (5th Cir. 1996)

(arriving at an estimate of the value of conjugal visits

obtained through the bribery of prison officials “in

the same way an appraiser would value an asset—by

looking at how much a person in the market would

be willing to pay for them”) (citation omitted). This

method of valuation does not help the Government

meet its burden in this case; Owens’ acceptance of two

$600 bribes in exchange for the issuance of the certificates falls far short of the $5,000 threshold.

Another approach to valuing the subject matter of

the bribe is by looking to the value of the benefit the bribegiver will receive if the bribe is successful. In United

States v. Curescu, 674 F.3d 735 (7th Cir. 2012), for

example, a developer had used an unlicensed plumber

to add plumbing to four newly constructed residential

units. A plumbing inspector discovered the violation
No. 12-1918 7

and told the developer that he had to redo the plumbing

using a licensed plumber. Id. at 738. Rather than

removing the old plumbing and replacing it using a

licensed plumber, a different plumbing inspector was

bribed to certify falsely that a licensed plumber had

completed the plumbing in the four units, which allowed

the illegal plumbing to remain. Id. Thus, the value of the

false certification was the money the developer did not

have to spend redoing the plumbing, an amount that

exceeded $5,000. Id. at 743; see also Robinson, 663 F.3d

at 267, 276 (approving of the use of the “estimated value

of an illicit ‘license’ to sell cocaine” as a measure of

value in a case in which a cocaine-trafficker attempted

to bribe a police officer to “get the heat off” his drugselling operation). This method of valuation is not

limited to the bribe-giver; courts may also consider the

value of the benefit to related parties “with an immediate interest in the transaction.” See United States v.

Hines, 541 F.3d 833, 837 (8th Cir. 2008).

Recognizing that the bribe amount in this case would

not take it over the statutory threshold, the Government relied on the benefit-of-the-bribe approach at trial.

In doing so, the Government offered evidence it believed established the value of the certificates of occupancy from the perspectives of the developers and

homeowners of the four homes for which Owens issued

the certificates. The Government presented mortgage

documents showing that the homeowners received mortgages with notes ranging from $200,000 to over $600,000

to purchase the four homes, and zoning documents

indicating that the construction costs for each home
8 No. 12-1918

were estimated to be between $180,000 and $250,000.

According to the Government, the mortgage values and

construction costs for the homes, “coupled with the fact

that homes could not be occupied without certificates,”

permits “the reasonable inference that the certificates

involved something valued at $5,000 or more.” We disagree.

To understand why the Government’s evidence failed,

we must look more closely at the “subject matter” of the

bribes at issue in this case. The information identifies “the

issuance of the certificates of occupancy” for the four

properties as the “thing of value of $5,000 or more,” and

that is what the Government argued at trial and maintains on appeal. It cannot be that simple, though, as

anyone who complies with the Board of Zoning procedures and has a home that passes inspection can receive

a certificate of occupancy for free. Obtaining the issuance

of the certificates through greasing a palm rather than

through legitimate means must therefore create value

in some other way. Perhaps, as the Government suggests,

it is obtaining a certificate without an inspection.

This could be valuable in at least two ways. First and

most obviously, if the home’s construction was defective and the home would not pass inspection, paying

a bribe and avoiding an inspection would save the cost

of performing repairs. Alternatively, a home could be

free of zoning violations, but a developer or homeowner

places a premium on expediting the issuance of a

certificate due to a pressing need to sell or occupy the

home or obtain a mortgage with favorable and timesensitive terms. The problem for the Government, though,
No. 12-1918 9

is that it failed to present any evidence of either of these

situations in this case, or of any situation in which

the issuance of the certificates as a result of the bribes

benefitted the developers or homeowners in some way

that the issuance of the certificates through legitimate

means would not have. Cf. Curescu, 674 F.3d at 741;

Hines, 541 F.3d at 837 (finding evidence sufficient to

sustain conviction under § 666(a)(1)(B) where an execution deputy in the sheriff’s office was paid bribes “to

effectuate [his] timely performance of [his] official

duties involving court orders of eviction” where

property owners, landlords, and lawyers testified that

“a landlord or property owner loses a substantial amount

in market value, rent and mortgage payments, and/or

property damage every day a defaulting tenant or mortgagee is in possession of the property”); United States v.

Zwick, 199 F.3d 672, 690-91 (3d Cir. 1999) (noting that the

$5,000 threshold was met because, inter alia, the bribegivers “would have lost $10,000 had they not received

[the permits for which they paid the bribe] in a timely

manner”), abrogated on other grounds by Sabri v. United

States, 541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).

Perhaps recognizing the problem it has in relying on

the value of the issuance of the certificates alone to

meet its burden, the Government selectively cites

language from § 666(a)(1)(B) and contends that it did

not need to prove that the issuance of the certificates

was worth more than $5,000, “but only that the issuance

of the certificates involved anything valued at $5,000 or

more.” Thus, the Government argues, because the

issuance of the certificates “involved something” worth
10 No. 12-1918

The Government also argued at trial that the issuance of 2

the certificates of occupancy “involved” the “corruption of

[Owens’] core functions” as a zoning inspector, and therefore

that the jury should consider his salary of over $70,000 a year

in valuing the issuance of the certificates. The Government

wisely chose not to focus on this argument on appeal. Although

we gave cursory approval to the use of evidence of police

officers’ salaries (in addition to other evidence of value) in

Robinson, 663 F.3d at 275-76, here the Government admits

Owens’ salary is “a step removed from the individual transaction” underlying the bribes. We accordingly reject this argument because permitting the salary evidence to push the

bribes in question over the $5,000 threshold without a clearer

relationship to the subject matter of the bribe would read

the requirement out of the statute whenever an official

charged under § 666(a)(1)(B) earned a salary greater than $5,000.

more than $5,000—the mortgages on the homes and the

construction costs—it met the statutory threshold.

We reject this overly expansive interpretation of

§ 666(a)(1)(B). Such a broad reading of “involving” would

render the $5,000 threshold meaningless, and we have

clearly said that § 666(a) requires that “the subject matter

of the bribe”—not something to which the subject matter

of the bribe is tangentially related—“must be valued

at $5,000 or more.” See Robinson, 663 F.3d at 271. Because

the Government failed to put forth any evidence

linking the mortgages and the construction costs to

the value of the issuance of the certificates, it failed to

prove that the subject matter of the bribes in question

here met the statutory threshold.2
No. 12-1918 11

III. CONCLUSION

For the foregoing reasons, we REVERSE the judgment

of the district court.

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