FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GEORGE GARRIDO, AKA Jorge

Arturo Garrido,

Defendant-Appellant.

No. 06-50717

D.C. No.

CR-04-01594-SVW-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALBERT T. ROBLES, AKA

Albert Tzareih Robles; Alberto

Del Tzareih,

Defendant-Appellant.

No. 06-50718

D.C. No.

CR-04-01594-SVW-1

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

November 15, 2010—Pasadena, California
2 UNITED STATES V. GARRIDO

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

Filed April 15, 2013

Before: Harry Pregerson, John T. Noonan,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Pregerson

SUMMARY

*

Criminal Law

The panel reversed Albert Robles’s and George Garrido’s

honest services fraud convictions, reversed Robles’s money

laundering convictions, and affirmed Robles’s bribery

convictions in a case that arose out of events that took place

while Robles was Treasurer of the City of South Gate,

California.

Robles and Garrido, a local businessman and friend of

Robles, were implicated in two schemes to award city

contracts to particular companies while reaping substantial

benefits for themselves.

The panel reversed Robles’s 18 U.S.C. § 1346 honest

services fraud convictions with respect to Counts 1 through

11, 13 through 15, 17, and 23 through 25, and Garrido’s

§ 1346 honest services fraud conviction with respect to

Counts 23 through 25 because, under Skilling v. United

States, 130 S. Ct. 2896 (2010), the jury instructions
UNITED STATES V. GARRIDO 3

erroneously permitted convictions on the unconstitutional

theory of a failure to disclose a conflict of interest.

The panel reversed Robles’s § 1346 honest services fraud

convictions with respect to Counts 16, 22, and 27 and

Garrido’s honest services fraud convictions with respect to

Counts 22 and 27, and acquitted Robles on Counts 16, 22,

and 27, and acquitted Garrido on Counts 22 and 27 because

these counts are based on Skilling’s unconstitutional theory of

a failure to disclose a conflict of interest in a state disclosure

form, and because there is insufficient evidence to support

Counts 16 and 27.

The panel reversed Robles’s 18 U.S.C. § 1957 money

laundering convictions with respect to Counts 18 through 21

because they are predicated on the flawed honest services

fraud convictions. 

The panel affirmed Robles’s 18 U.S.C. § 666 bribery

convictions with respect to Counts 33 through 37 because

§ 666 convictions do not require the defendant to be

influenced in an official act. 

COUNSEL

Karen L. Landau, Oakland, California; Dennis P. Riordan,

Riordan & Horgan, San Francisco, California, for

Defendants-Appellants.

Elana Shavit Artson, Assistant United States Attorney, Los

Angeles, California, for Plaintiff-Appellee.
4 UNITED STATES V. GARRIDO

OPINION

PREGERSON, Circuit Judge:

Albert T. Robles (“Robles”) appeals his convictions for

honest services mail and wire fraud (18 U.S.C. §§ 1341,

1343, 1346), money laundering (18 U.S.C. § 1957), and

bribery (18 U.S.C. § 666). George Garrido (“Garrido”)

appeals his convictions for honest services mail fraud

(18 U.S.C. §§ 1341, 1346). We have jurisdiction under

28 U.S.C. § 1291.

After Robles and Garrido were convicted and sentenced,

and while their cases were on appeal, the Supreme Court in

Skilling v. United States, 130 S. Ct. 2896 (2010), narrowed

the scope of 18 U.S.C. § 1346 to include only honest services

fraud based on bribery and kickback schemes. Id. at 2933.

The Court prohibited prosecutions (such as those in this case)

based on a failure to disclose a conflict of interest as

unconstitutionally vague. Id. at 2932. In light of Skilling, we

reverse Robles’s and Garrido’s honest services fraud

convictions and reverse Robles’s money laundering

convictions. We affirm Robles’s bribery convictions under

18 U.S.C. § 666 because such convictions do not require the

defendant to be engaged in an official act. Accordingly, we

remand for further proceedings consistent with this opinion.

I.

Following a jury trial, Robles was convicted of twentyone counts of honest services mail and wire fraud (Counts

1–11, 13–17, 22–25, 27); four counts of money laundering

(Counts 18–21); and five counts of bribery (Counts 33–37).
UNITED STATES V. GARRIDO 5

Garrido was convicted of five counts of honest services mail

fraud (22–25, 27).

Robles’s and Garrido’s convictions arose out of a series

of events that took place while Robles was Treasurer of the

City of South Gate, California. Robles was elected Treasurer

in 1997 and reelected in 2001. He had previously served as

Mayor and as an elected member of the South Gate City

Council. Garrido was a local businessman and friend of

Robles’s. Robles and Garrido were implicated in two

schemes to award citycontracts to particular companies while

reaping substantial benefits for themselves.

A. Sewer Repair and Housing Project Schemes

(Counts 1–21)

The first scheme, charged against Robles alone, involved

two corporate entities: the Southland Companies, comprised

of several housing development corporations, and PSOMAS,

an engineering consulting firm. The Southland Companies

were developing housing projects in South Gate, and

PSOMAS was interested in sewer repair contracts in South

Gate.

The indictment alleged that Robles used his influence as

Treasurer to induce the Southland Companies and PSOMAS

into hiring Robles’s friend Edward Espinoza (“Espinoza”) as

a consultant; directed the city council to award contracts to

the two companies; and concealed or failed to disclose that
6 UNITED STATES V. GARRIDO

 The indictment alleged that the Southland Companies and PSOMAS 1

paid over $2 million from city contracts to Espinoza or his companies.

Espinoza in turn was alleged to have paid over $1.4 million to Robles’s

family and friends.

 In 2002, elected officials in California had a duty to disclose the source 2

of gifts in excess of $50 on Form 700. See Cal. Gov’t Code § 89503 (f)

(providing that the gift limit is adjusted every odd-numbered year). A

“gift” is “any payment that confers a personal benefit on the recipient, to

the extent that consideration of equal or greater value is not received . . . .”

Id. § 82028(a). A “gift” does not include campaign contributions. Id.

§ 82028(b)(4). “Contribution” is defined as “a payment . . . except to the

extent that full and adequate consideration is received, unless it is clear

from the surrounding circumstances that it is not made for political

portions of the city’s money paid to those companies was

funneled to Robles and to Robles’s friends and family.1

Counts 1 through 11 alleged that checks were mailed

from the City of South Gate to PSOMAS and from PSOMAS

to EM Ventures, a company that Espinoza owned and used to

receive money from individuals and entities who did business

with the City of South Gate. Counts 13 through 15 and 17

charged that wire transfers were made from three Southland

housing development projects to Espinoza, EM Ventures, and

ETE & Associates, a financial advisory firm that Espinoza

owned and used to receive money from individuals and

entities who did business with the City of South Gate.

Count 16 specifically alleged that Robles failed to

disclose in a 2002 California Form 700, Statement of

Economic Interests, that he received from Espinoza a $65,000

platinum membership in the Anthony Robbins Foundation, a

self-help motivational organization, and that Robles caused

that Form 700 “to be transmitted in interstate commerce by

wire communications” by faxing it to Sacramento.2
UNITED STATES V. GARRIDO 7

purposes.” Id. § 82015(a). A payment “made at the behest of a candidate

is a contribution to the candidate unless . . . [i]t is clear from the

surrounding circumstances that the payment was made for purposes

unrelated to his or her candidacy for elective office.” Id.

§ 82015(b)(2)(B). One type of payment that is presumed to be for

purposes unrelated to a candidate’s candidacy for elective office is a

payment “made principally for personal purposes,” which “may be

considered a gift.” Id. § 82015(b)(2)(B)(I).

 In January 2000, Klistoff bought a personal computer and computer 3

software for Robles. In October and November 2000, Klistoff wrote two

checks to Pyramid Press for Citizens for Good Government. Also in

November 2000, Klistoff made a partial payment for a telephone

switchboard system for Robles. In February 2001, Klistoff paid for

copying expenses for Robles. Klistoff made all of these payments at

Robles’s request.

Counts 18 through 21 charged Robles under 18 U.S.C.

§ 1957 with money laundering. Those counts alleged that

Robles used the money gained from the honest services fraud

to purchase property in Mexico and for a platinum

membership in the Anthony Robbins Foundation.

B. Waste-Hauling Contract Scheme (Counts 22–37)

The second scheme, charged against both Robles and

Garrido, alleged that Robles, while he was Treasurer, caused

the City of South Gate to award improperly a waste-hauling

contract to Michael Klistoff’s (“Klistoff”) waste company,

Klistoff & Sons.

Garrido and Klistoff had been friends for several years

before Garrido introduced Klistoff to Robles. In 1999, at

Robles’s request, Klistoff began making campaign

contributions and gifts to Robles and Robles’s general 3
8 UNITED STATES V. GARRIDO

 A general purpose committee is a committee that: (1) receives 4

contributions totaling $1,000 or more in a calendar year, and is “formed

or exists primarily to support or oppose more than one candidate or ballot

measure”; (2) makes independent expenditures of more than $1,000 per

calendar year; or (3) makes contributions totaling $10,000 in a calendar

year at the behest of candidates or committees. Cal. Gov’t Code

§§ 82027.5, 82013(a)–(c).

purpose committee, Citizens for Good Government. Klistoff 4

agreed to make these contributions because he knew Robles

had influence in South Gate and Klistoff was hoping to gain

access to future waste-hauling contracts.

About ten days before the March 2001 election, Robles

asked the then-current waste-hauling company for South

Gate, Waste Management, whose contract with the city was

set to expire in eight months, to pay $15,000 worth of

printing bills that Robles was about to incur. Waste

Management declined to pay the bills because it was too late

to report them as a campaign contribution. After Robles was

reelected Treasurer, Robles told Waste Management that they

were not his friends and that, as far as Robles was concerned,

Waste Management was “out of town.” Robles told Waste

Management to go away quietly or he would hurt the

company in other cities.

In 2001, Klistoff told Garrido that he wanted Klistoff &

Sons to be awarded South Gate’s ten-year waste-hauling

contract, worth about $48 million. Garrido agreed to help

Klistoff get the contract on the conditions that: (1) Klistoff

hired Garrido as a consultant for $350,000 per year for the

duration of the ten-year waste-hauling contract, and

(2) Garrido’s recycling business would be cut in on the

contract if it was awarded to Klistoff & Sons.
UNITED STATES V. GARRIDO 9

 Advising Klistoff to retain Garubo and paying Garubo’s consultant fees 5

were the only services Garrido provided Klistoff even though Klistoff

agreed to pay Garrido $350,000 per year for the life of the ten-year wastehauling contract. Between 2002 and 2003, Klistoff made five payments

Robles met with Klistoff before South Gate sent out its

request for proposals for the waste-hauling contract. Robles

showed Klistoff the draft request for proposals, which called

for one company to perform residential services and three

companies to perform commercial waste-hauling services.

Klistoff suggested to Robles that one company could perform

both waste-hauling services. The final request for proposals

incorporated Klistoff’s suggestion and called for a single

company to perform both the residential and commercial

services. Klistoff & Sons submitted its bid for the wastehauling contract in June 2001.

In July 2001, Robles assigned his friend, Louis Moret, to

work on the city’s waste-hauling contract as the facilitator for

the bidding process. Moret presented the staff

recommendation for the contract to the city council and

attended the meeting when the city council voted to award the

contract. Robles told Moret that “he had a horse in the race”

and that horse was Klistoff & Sons. Robles was concerned

about Klistoff’s ability to make a persuasive presentation to

the contract selection committee, so he asked Moret to

recommend a consultant to help Klistoff & Sons prepare its

oral presentation in support of its bid. Moret recommended

Ray Garubo (“Garubo”) as a consultant. Shortly thereafter,

Garrido contacted Klistoff and advised him to hire Garubo as

a consultant to help Klistoff & Sons make an effective and

convincing presentation to city officials. Klistoff retained

Garubo as a consultant, but Garrido paid Garubo’s consulting

fees.5
10 UNITED STATES V. GARRIDO

to Garrido of $87,500 each, for a total of $437,500. Klistoff did not make

any further payments to Garrido.

Klistoff received information that no competing company

was given. Robles showed Klistoff the other competing

companies’ bids, even though the bids were supposed to be

confidential. Moreover, at Robles’s request, Moret provided

Robles and Garubo with a copy of the confidential questions

that the selection committee would ask the bidders to answer

during oral presentations. None of the other bidders were

provided with these confidential questions in advance of their

oral presentations.

After the oral presentations, the selection committee

voted to recommend that South Gate engage in exclusive

negotiations with Klistoff & Sons. The vote was in part

based on Klistoff’s oral presentation. The city council

approved the selection committee’s recommendation and

ultimately awarded the $48 million waste-hauling contract to

Klistoff & Sons.

Counts 22 through 25 and 27 charged Robles and Garrido

with honest services mail fraud in connection with the wastehauling contract scheme. Count 22 is based on California

Form 700, Statement of Economic Interests, for calendar year

2000 in which Robles failed to disclose the payments

received from Klistoff for a computer, software, and a

telephone switchboard system. See supra note 3. The Form

700 was mailed. Counts 23 through 25 are based on three

checks from Garrido’s business, GWS Nursery and Supplies,

Inc., received by Garubo for assisting Klistoff & Sons in its

efforts to obtain the waste-hauling contract with South Gate.
UNITED STATES V. GARRIDO 11

Count 27 refers to a California Form 700, Statement of

Economic Interests, for calendar year 2001, in which Robles

failed to disclose copying services paid for by Klistoff on

Robles’s behalf.

Counts 33 through 37 were charged against Robles alone.

Robles was charged under 18 U.S.C. § 666 with accepting

bribes from Klistoff in connection with the waste-hauling

contract.

C. Indictment and Trial

The government filed the original indictment against

Robles, Klistoff, and Espinoza in November 2004. It filed a

First Superseding Indictment in December 2004, alleging

forty counts against those same defendants. On March 10,

2005, Espinoza pled guilty to four counts of the First

Superseding Indictment. On March 24, 2005, the government

filed the Second Superseding Indictment against Robles,

Klistoff, and Garrido. In June 2005, after Klistoff entered

into a plea agreement, the government filed a redacted

Second Superseding Indictment which deleted Klistoff as a

named defendant in the caption. The redacted Second

Superseding Indictment charged Robles with twenty-one

counts of honest services mail and wire fraud, four counts of

money laundering, and five counts of bribery. Garrido was

charged with five counts of honest services mail fraud.

A jury convicted Robles and Garrido on all counts alleged

in the redacted Second Superseding Indictment. The district

court sentenced Robles to ten years in prison, fines, and

restitution. Garrido was sentenced to fifty-one months in

prison, fines, and restitution. Robles and Garrido timely

appealed.
12 UNITED STATES V. GARRIDO

 The indictment alleged that South Gate’s public officials’ “duty of 6

honest services included the following obligations: (a) to act as trustees for

the citizens, and in the best interests of the public, without pursuing their

own personal interests; (b) to conduct election campaigning and fundraising activities openly and free from fraud and dishonesty; (c) to refrain

from taking official action on any matter in which they might have a direct

or indirect financial interest without first disclosing any such interest to

the public; and (d) to abide by the laws of the United States, the laws of

the State of California, and the laws of the City of South Gate.”

II.

A. Robles’s and Garrido’s 18 U.S.C. § 1346 Honest

Services Fraud Convictions

Robles was convicted of honest services mail and wire

fraud on Counts 1 through 11, 13 through 17, 22 through 25,

and 27. Garrido was convicted of honest services mail fraud

on Counts 22 through 25, and 27. Honest services mail and

wire fraud cases “rel[y] on the idea that ‘a public official acts

as trustee for the citizens and the State . . . and thus owes the

normal fiduciary duties of a trustee, e.g., honesty and loyalty

to them.’” United States v. Kincaid-Chauncey, 556 F.3d 6

923, 939 (9th Cir. 2009) (quoting United States v. Silvano,

812 F.2d 754, 759 (1st Cir. 1987)).

1. Honest Services Fraud Before and After

Skilling

Before 1987, the government prosecuted honest services

fraud cases under 18 U.S.C. §§ 1341 (mail fraud) and 1343

(wire fraud). United States v. Weyhrauch, 548 F.3d 1237,

1243 (9th Cir. 2008), vacated and remanded on other

grounds, 130 S. Ct. 2971 (2010); United States v. Bruno,

809 F.2d 1097, 1099, 1104–05 (5th Cir. 1987). Sections 1341
UNITED STATES V. GARRIDO 13

and 1343 “criminalize the use of the mails or wires in

furtherance of ‘any scheme or artifice to defraud, or for

obtaining money or property by means of false or fraudulent

pretenses, representations, or promises.’” Skilling v. United

States, 130 S. Ct. 2896, 2908 n.1 (2010) (quoting §§ 1341 and

1343).

Although those statutes prohibit the use of the mails or

wire services to perpetrate fraudulent schemes to deprive

others of “money or property,” our court and other courts

interpreted the statutes to apply to the deprivation of the

public’s “intangible rights” to public officials’ honest

services. United States v. Milovanovic, 678 F.3d 713, 720

(9th Cir. 2012) (en banc); Weyhrauch, 548 F.3d at 1243; see

also Bruno, 809 F.2d at 1105 (stating citizens “may be

defrauded of nonpecuniary interests” such as the “honest

services of [their] public officials”); United States v. Gray,

790 F.2d 1290, 1295 (6th Cir. 1986) (explaining “the

‘intangible rights’ theory is anchored upon the defendant’s

misuse of his public office for personal profit”); United States

v. Keane, 522 F.2d 534, 549 (7th Cir. 1975) (noting “the mail

fraud statute in this circuit has been used . . . to prosecute

public officials for . . . depriving their constituents of their

right to loyal, faithful and honest public service”); United

States v. States, 488 F.2d 761, 765 (8th Cir. 1973) (holding a

fraudulent scheme may “deceive and defraud the public . . .

of certain intangible political and civil rights”).

In 1987, however, the Supreme Court held that § 1341

was limited to protecting property rights, and suggested that

“[i]f Congress desires to go further, it must speak more

clearly than it has.” McNally v. United States, 483 U.S. 350,

360 (1987). Congress responded by inserting § 1346 into the

federal criminal code the following year. Skilling, 130 S. Ct.
14 UNITED STATES V. GARRIDO

at 2927; see also Act of Nov. 18, 1988, Pub. L. 100-690,

102 Stat. 4181, 4508 (1988) (codified at 18 U.S.C. § 1346).

By enacting § 1346, Congress “meant to reinstate the body of

pre-McNally honest services law.” Skilling, 130 S. Ct. at

2929 (citation and internal quotation marks omitted). Section

1346 “defines the term ‘scheme or artifice to defraud’” for

the purposes of honest services mail and wire fraud “to

include ‘a scheme or artifice to deprive another of the

intangible right of honest services.’” Id. at 2908 n.1 (quoting

§ 1346).

Following the enactment of § 1346, courts around the

country interpreted the statute to encompass various types of

schemes and to make criminal a wide variety of acts. See,

e.g., Weyhrauch, 548 F.3d 1243–44 (listing cases); United

States v. Walker, 490 F.3d 1282, 1297 (11th Cir. 2007)

(noting that “[t]he scope of conduct covered by the honest

services mail fraud statute is extremely broad”). But see

United States v. Brumley, 116 F.3d 728, 734 (5th Cir. 1997)

(holding violation of § 1346 requires that “a state official

breached a duty respecting the provision of services owed to

the official’s employer under state law”). The Ninth Circuit

recognized two theories of honest services fraud: (1) bribery

and (2) failure to disclose a material conflict of interest.

Kincaid-Chauncey, 556 F.3d at 942. The prosecution of

Robles and Garrido proceeded under that framework.

After Robles’s and Garrido’s trial, the Supreme Court

granted certiorari in the Fifth Circuit case United States v.

Skilling, 554 F.3d 529 (5th Cir 2009), to determine whether

a public official may be convicted of honest services fraud for

failing to disclose material information. See Skilling v.

United States, 130 S. Ct. 393 (2009).
UNITED STATES V. GARRIDO 15

 Following the Supreme Court’s decision in Skilling, the parties filed 7

supplemental briefs addressing the impact of that case on the issues raised

in this appeal.

In deciding Skilling, the Supreme Court limited the reach

of § 1346. The Court held that § 1346 criminalizes only

bribery and kickback schemes, not failures to disclose a

conflict of interest. Skilling, 130 S. Ct. at 2933. Thus, by

limiting § 1346 to bribery and kickback schemes, and

prohibiting § 1346 prosecutions based on a failure to disclose

a conflict of interest, Skilling changed the applicable analysis

that applies to the present appeal. The question after Skilling 7

is whether Robles and Garrido were indicted, tried, and

convicted of honest services fraud based on a proper bribery

or kickback theory, or whether they were indicted, tried, and

convicted on the unconstitutional undisclosed conflict of

interest theory.

2. The Impact of Skilling 

On appeal, the parties have submitted changing arguments

as to whether Robles and Garrido were charged with schemes

involving bribery and kickbacks or involving undisclosed

conflicts of interest. Before Skilling, Robles and Garrido

argued that the government’s case was founded only on a

bribery theory, and that the government’s evidence was

insufficient to support their convictions. The government

disagreed, insisting that its case was rooted in Robles’s

failure to disclose a conflict of interest. In support of its

contention, the government highlighted the district court’s

finding that the indictment, viewed as a whole, alleged a

scheme based on an undisclosed conflict of interest.
16 UNITED STATES V. GARRIDO

After Skilling, however, the parties traded positions.

Robles and Garrido now argue that the indictment, and the

convictions resulting from it, alleged only a failure to disclose

a conflict of interest. On the other hand, the government now

argues that the indictment is based on bribery and kickbacks.

The government also argues that the district court’s

instructions on the failure to disclose theory, while erroneous,

did not affect Robles’s and Garrido’s substantial rights

because the schemes alleged in the indictment “involved both

bribes and kickbacks.”

3. Standard of Review

“[C]onstitutional error occurs when a jury is instructed on

alternative theories of guilt and returns a general verdict that

may rest on a legally invalid theory.” Skilling, 130 S. Ct. at

2934 (citing Yates v. United States, 354 U.S. 298 (1957)).

“Any omission or misstatement of an element of an offense

in the jury instructions is constitutional error and, therefore,

requires reversal unless we find the error ‘harmless beyond a

reasonable doubt.’” United States v. Kilbride, 584 F.3d 1240,

1247 (9th Cir. 2009) (quoting Chapman v. California,

386 U.S. 18, 24 (1967)). Where there was no objection at

trial, however, we review jury instructions for plain error. Id.

“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s

attention.” Fed. R. Crim. P. 52(b). “To notice error under

Rule 52(b), we must find that (1) there is ‘error’; (2) it was

‘plain’; and (3) the error affected ‘substantial rights.’” United

States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004) (quoting

United States v. Olano, 507 U.S. 725, 732–35 (1993)). Even

if these three conditions are met, the court may reverse the

district court only if the error “‘seriously affects the fairness,
UNITED STATES V. GARRIDO 17

integrity or public reputation of judicial proceedings.’” Id.

(quoting Olano, 507 U.S. at 736).

4. The Jury Instructions on Undisclosed Conflicts

of Interest were Erroneous and the Error was

Plain

The parties agree that the first two prongs of the plain

error test are satisfied. An error is plain if it is clearly

inconsistent with established law at the time of appellate

consideration. Johnson v. United States, 520 U.S. 461, 468

(1997); see also Henderson v. United States, 133 S. Ct. 1121,

1130 (2013) (holding “whether a legal question was settled or

unsettled at the time of trial, ‘it is enough that an error be

‘plain’ at the time of appellate consideration.’” (quoting

Johnson, 520 U.S. at 468)).

The court instructed the jury on the mail and wire fraud

counts as follows:

In order for defendants Robles and Garrido to

be found guilty of [mail or wire fraud], the

government must prove each of the following

four elements beyond a reasonable doubt:

First, the defendant knowingly made up or

participated in a scheme or plan to deprive the

City of South Gate and its citizens of their

right to the honest services of their elected

officials . . . . Secondly, the defendant acted

with the intent to defraud, that is, the intent to

deprive the City of South Gate and its citizens

of their right to the honest services of their

elected officials . . . . Third, the defendant
18 UNITED STATES V. GARRIDO

used a material falsehood or omitted material

information . . . . Fourth, the defendant used,

or caused someone to use, the mails [or a wire

communication] in interstate commerce to

carry out or attempt to carry out the scheme or

plan.

Trial Tr. 1922–1925, July 26, 2005.

The court defined the intent to defraud the public of

honest services as follows:

Public officials and public employees

inherently owe a duty to the public to act in

the public’s best interest. If, instead, the

official acts or makes his decision based on

the official’s own personal interests, such as

accepting a bribe, taking a kickback, or

receiving a benefit from an undisclosed

conflict of interest, the official has defrauded

the public of the official’s honest services

even though the city may not suffer any

monetary loss in the transaction.

Trial Tr. 1925–26, July 26, 2005 (emphasis added).

Thus, the jury instructions improperly allowed a

conviction where “the official acts or makes his decision

based on the official’s own personal interests, such as

accepting a bribe, taking a kickback, or receiving a benefit

from an undisclosed conflict of interest . . . .” Trial Tr. 1925,

July 26, 2005 (emphasis added). Because the district court’s

instructions permitted the jury to convict Robles and Garrido
UNITED STATES V. GARRIDO 19

on Skilling’s now unconstitutional failure to disclose theory,

there was error and the error was plain.

5. The Error Affected the Appellants’ Substantial

Rights

An error affects substantial rightsif there is “a reasonable

probability that the error affected the outcome of the trial.”

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010). To

determine if the error affected the outcome of the trial, “we

consider ‘all circumstances at trial including the strength of

the evidence against [the] defendant.’” United States v.

Chambers, 918 F.2d 1455, 1459 (9th Cir. 1990) (alteration in

original) (quoting United States v. Wagner, 834 F.2d 1474,

1485 (9th Cir. 1987)). We “review the jury instructions as a

whole,” not only the erroneous instructions. KincaidChauncey, 556 F.3d at 946. We may also examine the

arguments made by the parties. See Chapman, 386 U.S. at 25

(noting that the prosecutor’s argument repeatedly relied on an

error of law).

After reviewing the trial record as a whole, we conclude

that there is a reasonable probability that the jury convicted

Robles and Garrido of honest services fraud based on their

failure to disclose a conflict of interest. Because of the

emphasis on the conflict of interest theory in the jury

instructions and in the closing arguments, we find that the

error affected the Appellants’ substantial rights.
20 UNITED STATES V. GARRIDO

 The indictment lists several state and local disclosure laws pertaining 8

to public officials. It also alleges schemes involving failures to disclose

various conflicts of interest, including Robles’s failure to disclose at least

$65,000 in financial benefits (i.e. a platinum membership in the Anthony

Robbins Foundation) that he received from Espinoza; Robles’s failure to

disclose to the city council the financial benefit he and his friends and

family would receive from the Southland Companies and PSOMAS city

contracts; Robles’s failure to disclose the financial benefit his friend

Garrido would receive from the contract granted by the city to Klistoff &

Sons; and Robles’s failure to report Klistoff’s access to the confidential

interview questions and confidential bids.

a. The Indictment

We find the indictment ambiguous at best. It arguably

encompasses both theories of honest services fraud: (1)

bribery and kickbacks, and (2) a failure to disclose a conflict

of interest. The vast majority of the allegations appear to

support only an undisclosed conflict of interest.8

Nevertheless, because the indictment could be read to at least

imply a bribery or kickback scheme, it is not possible to

conclude on the basis of the indictment alone which theory or

theories the jury may have embraced in rendering a guilty

verdict on the § 1346 honest services charges.

b. The Jury Instructions

The district court’s § 1346 jury instructions included only

a single reference to bribery and kickbacks in its example of

schemes that could amount to honest services fraud

(“accepting a bribe, taking a kickback, or receiving a benefit

from an undisclosed conflict of interest”). The overwhelming

weight of the instructions support only the undisclosed

conflict of interest theory, rather than a bribery or kickback

theory. The transcript of the jury instructions devoted nine
UNITED STATES V. GARRIDO 21

 McNair lists the following cases in support of its holding that § 666 9

does not require a quid pro quo:

United States v. Abbey, 560 F.3d 513, 520 (6th Cir.),

cert. denied, 130 S. Ct. 739, 175 L. Ed. 2d 520 (2009)

(stating “the text says nothing of a quid pro quo

requirement to sustain a conviction” and “while a quid

pro quo of money for a specific legislative act is

sufficient to violate [§ 666(a)(1)(B) or (a)(2)], it is not

necessary”) (quotation marks omitted); United States v.

Gee, 432 F.3d 713, 714-15 (7th Cir. 2005) (holding that

“[a] quid pro quo of money for a specific legislative

act” is not necessary under § 666(a)(1)(B) and that an

exchange of money for the official’s “influence” was

enough); United States v. Agostino, 132 F.3d 1183,

1190 (7th Cir. 1997) (“We decline to import an

additional, specific quid pro quo requirement into the

elements of § 666(a)(2).”); but see United States v.

Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)

(concluding the “corrupt intent” element in § 666

requires the government to prove a quid pro quo, but

stating the “quid pro quo requirement is satisfied so

pages to state and local laws governing a public official’s

duty to disclose various contributions, gifts, and conflicts of

interest.

In contrast to the detailed discussion of the failure to

disclose theory, the district court did not define either

“bribery” or “kickback” in the § 1346 context. Although

bribery was defined in the 18 U.S.C. § 666 jury instructions,

§ 666 does not require a jury to find a specific quid pro quo.

See United States v. McNair, 605 F.3d 1152, 1187–89 (11th

Cir. 2010) (concluding that § 666 does not require a specific

quid pro quo); see also id. at 1189 (collecting cases from

other circuits which hold that § 666 does not require a quid

pro quo). A quid pro quo in bribery is the “specific intent to

9
22 UNITED STATES V. GARRIDO

long as the evidence shows a ‘course of conduct of

favors and gifts flowing to a public official in exchange

for a pattern of official actions favorable to the donor’”

and “the intended exchange in bribery can be ‘this for

these’ or ‘these for these,’ not just ‘this for that’”

(citations omitted).

McNair, 605 F.3d at 1189 (alterations in original).

 Robles was convicted on a separate substantive count of bribery in 10

violation of 18 U.S.C. § 666. However, proving bribery under § 666 does

not necessarily prove bribery under § 1346 honest services fraud because

the government must prove at least an implied quid pro quo to prove

bribery under § 1346, but the government does not need to prove a quid

pro quo under § 666 bribery. Thus, if the government did not prove a quid

pro quo, the jury could not have convicted Robles of bribery under § 1346

honest services fraud, but the jury could still have convicted Robles of

bribery under § 666. Therefore, we cannot extrapolate from Robles’s

§ 666 bribery conviction that the jury convicted Robles of § 1346 honest

services fraud on a bribery theory (as opposed to an undisclosed conflict

of interest theory). Cf. United States v. Wilkes, 662 F.3d 524, 544 (9th

Cir. 2011) (holding that the jury’s conviction of Wilkes on a separate

substantive count of bribery under another statute, 18 U.S.C. § 201,

“confirms beyond any reasonable doubt that the jury would have

convicted” Wilkes under § 1346 honest services fraud on a bribery theory

because § 201, like § 1346 bribery, requires proof of a quid pro quo).

give or receive something of value in exchange for an official

act.” United States v. Sun-Diamond Growers of California,

526 U.S. 398, 404–05 (1999). Section 1346 honest services

convictions on a bribery theory, on the other hand, require at

least an implied quid pro quo. Kincaid-Chauncey, 556 F.3d 10

at 943; see Section III.A. below for further discussion. 

There is evidence in the record that could support a

bribery or kickback conviction. Appellants do not dispute

that payments and in-kind contributions were made to

Robles’s family and friends, including Garrido. For example,
UNITED STATES V. GARRIDO 23

Espinoza testified that Robles instructed him to funnel well

over half of the proceeds of his city contract to Robles’s

sister-in-law. Nevertheless, it is impossible to conclude that

the jury convicted Robles and Garrido based on their

participation in either a bribery or a kickback scheme instead

of based on Skilling’s unconstitutional failure to disclose a

conflict of interest.

c. The Closing Arguments

The prosecutor’s closing argument leaves little doubt that

its case focused almost entirely on a failure to disclose theory.

The prosecutor repeatedly invoked the public’s right to know

when its public officials stand to benefit from expenditures of

public funds. Although the prosecutor referred to financial

arrangements between Robles and certain contractors (e.g. the

Southland Companies, PSOMAS, and Klistoff & Sons), the

prosecutor did not argue that they were the building blocks of

a bribery or kickback scheme. Rather, such financial

arrangements were consistently offered to show that Robles

had conflicts of interest which were never disclosed to the

voters or to other officials of the City of South Gate. Thus,

the prosecutor’s closing argument strongly suggests that the

case was presented to the jury as a failure to disclose a

conflict of interest, which is precisely what the Supreme

Court found unconstitutional in Skilling.

Similarly, the transcript from Robles’s closing argument

suggests he believed he was fighting undisclosed conflict of

interest charges. His closing argument focused almost

entirely on whether he had a duty to disclose the payments,

whether the payments fell within the ambit of state or local

conflict of interest provisions, and whether the payments

were political “contributions” (which were not required to be
24 UNITED STATES V. GARRIDO

disclosed on Robles’s personal conflict of interest Form 700)

or whether they were “gifts” (which had to be disclosed).

The indictment, the jury instructions, and the closing

arguments at trial were permeated with the prohibited failure

to disclose theory. Upholding the convictions where neither

the government nor the Appellants argued their cases on a

constitutionally valid theory constitutes a miscarriage of

justice which would “seriously affect[] the fairness, integrity

or public reputation of judicial proceedings.” Marcus, 130 S.

Ct. at 2164. Thus, Appellants have met their burden under

the plain error standard of review to show that there was a

reasonable probability that the instructional error affected the

outcome of the trial and that the error seriously affected the

fairness, integrity or public reputation of judicial proceedings.

Therefore, we reverse Robles’s honest services mail and

wire fraud convictions and reverse Garrido’s honest services

mail fraud convictions. Furthermore, Counts 16, 22, and 27

fail for additional reasons, which we turn to now.

B. Robles’s § 1346 Honest Services Conviction on

Count 16 and Robles’s and Garrido’s § 1346

Honest Services Convictions on Counts 22 and 27

Robles’s § 1346 conviction on Count 16 and Robles’s and

Garrido’s § 1346 convictions on Counts 22 and 27 were each

based on a failure to disclose a conflict of interest in a

California Form 700, Statement of Economic Interests,

disclosure form. Pursuant to Skilling, failure to disclose a

conflict of interest in a state disclosure form cannot support

a § 1346 honest services conviction. See Section II.A. above.
UNITED STATES V. GARRIDO 25

Moreover, as the government concedes, there is

insufficient evidence to support the convictions on Counts 16

and 27 under any theory. Count 16 alleged that Robles failed

to disclose that he received from Espinoza a $65,000

platinum membership in the Anthony Robbins Foundation.

Purely intrastate telephone calls fall outside the reach of wire

fraud under § 1343. United States v. Izydore, 167 F.3d 213,

219–20 (5th Cir. 1999). Because the form was faxed from

South Gate, California to Sacramento, California, the

government concedes that we should reverse Robles’s

conviction on Count 16 because the government never proved

that the form traveled in interstate commerce.

Count 27 refers to a California Form 700 signed by

Robles on April 2, 2002 for calendar year 2001, in which

Robles failed to disclose a gift of copying services received

from Klistoff. The government also concedes that we should

reverse the Count 27 conviction because there was

insufficient evidence that the copying services were gifts.

Because these convictions cannot be upheld post-Skilling,

we reverse Robles’s conviction on Count 16 and Robles’s and

Garrido’s convictions on Counts 22 and 27.

C. Robles’s § 1957 Money Laundering Convictions

Because we reverse Robles’s § 1346 honest services mail

and wire fraud convictions, his convictions on Counts 18

through 21 for money laundering under 18 U.S.C. § 1957

must also be reversed. Convictions under § 1957 require the

government to prove that the offender “engage[d] or

attempt[ed] to engage in a monetary transaction in criminally

derived property . . . derived from specified unlawful

activity.” 18 U.S.C. § 1957(a). The indictment alleged that
26 UNITED STATES V. GARRIDO

 The Indictment charged Robles with “corruptly accept[ing] and 11

agree[ing] to accept . . . payments for goods and services and campaign

contributions from Michael Klistoff and All City Services, intending to be

influenced and rewarded in connection with a transaction of [a local

government] . . . namely, the awarding of a multiple-year refuse collection

and recycling contract in South Gate worth approximately $48 million.”

 The South Gate Municipal Code provides that “[t]he primary function 12

of the city treasurer is to disburse monies on demand which have been

properly audited and approved, such that once the proper procedures have

been followed, the duty of the city treasurer to disburse the funds is

the “criminally derived property” was money derived from

Robles’s honest services fraud. Accordingly, because the

§ 1346 honest services convictions were constitutionally

defective under Skilling, so too were the § 1957 convictions.

III.

A. Robles’s 18 U.S.C. § 666 Bribery Convictions

(Counts 33–37)

Counts 33 through 37 charged Robles alone with bribery

in violation of 18 U.S.C. § 666 in connection with the wastehauling contract. Robles contends that § 666 requires a quid 11

pro quo—a specific intent to receive a bribe in exchange for

an official act. Robles argues that there was insufficient

evidence to convict him of bribery under § 666 because there

is no evidence that he intended to be, or even could have

been, influenced in his performance of one of his official

duties. Robles claimsthat, as Treasurer of South Gate, he did

not have the authority to approve the waste-hauling contract;

rather that authority was vested in the city council.

Moreover, as Treasurer, he was required to disburse monies

properly approved by the city.12
UNITED STATES V. GARRIDO 27

mandatory and not discretionary.” South Gate Municipal Code

§ 1.05.050(A) (emphasis added). The treasurer is also responsible for

receiving cash receipts and depositing them into the appropriate city

account. Id. at § 1.05.050(B). This duty is not a “policy decision,” but is

instead “administrative and ministerial.” Id.

“‘Claims of insufficient evidence are reviewed de novo.’”

United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008)

(quoting United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th

Cir. 2004)). There is sufficient evidence if, “after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

Section 666 concerns bribery in connection with state and

local entities receiving federal funds. An official violates

§ 666 if the official “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 an entity (in this case, the City of

South Gate), if the exchange involves at least $5,000 and the

entity receives federal funds in excess of $10,000. 18 U.S.C.

§ 666(a)(1)(B), (b). The purpose of the statute is to “protect

federal funds by preserving the integrity of the entities that

receive the federal funds.” United States v. Simas, 937 F.2d

459, 463 (9th Cir. 1991) (citing United States v.

Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988)).

Robles’s argument that § 666 requires an official act

“confuses influence with [the] power to act unilaterally.”

United States v. Gee, 432 F.3d 713, 715 (7th Cir. 2005). A

jury could reasonably find that Robles intended to be
28 UNITED STATES V. GARRIDO

influenced in connection with the city’s award of the wastehauling contract even though the authority to award the

contract was not part of Robles’s official duties. The

government presented evidence that Robles showed Klistoff

a draft request for proposals for the contract, and that the final

request for proposals incorporated Klistoff’s suggestion that

the waste-hauling contract award one company both

residential and commercial waste-hauling services. Robles

assigned his friend Moret to work as facilitator for the

bidding process for the waste-hauling contract. Robles

further instructed Moret that his “horse in the race” was

Klistoff & Sons. During the selection process, Robles

communicated with Moret frequently and Moret told Robles

information that was not available to the public. Robles

requested that Moret recommend a consultant to assist

Klistoff & Sons in its presentation for the bid, but he did not

request assistance for any other bidders. Klistoff & Sons

hired the recommended consultant. Robles showed Klistoff

the other companies’ competing bids, even though the

information was confidential during the bidding process.

Moret provided Robles and Klistoff & Son’s consultant the

confidential questions the selection committee would ask the

bidders in advance of the presentations, an advantage no other

bidder received. Thus, there was ample evidence that Robles

accepted bribes from Klistoff with the intention to be

influenced in connection with the waste-hauling contract.

Robles indeed used his considerable influence exclusively for

Klistoff’s benefit. Klistoff & Sons was awarded the contract

despite not being the lowest bidder.

In support of his argument that § 666 requires the

government to prove that Robles intended to be influenced in

connection with an official act as treasurer, Robles urges the

court to adopt the standards articulated in United States v.
UNITED STATES V. GARRIDO 29

Sun-Diamond Growers of California, 526 U.S. 398 (1999).

We find Sun-Diamond inapposite. Sun-Diamond concerned

a separate federal statute, 18 U.S.C. § 201, and the reasoning

for requiring an official act under § 201 is inapplicable to

§ 666. Section 201(b) defines bribery as the act of giving,

offering, or promising something of value in order “to

influence any official act” or receiving something of value in

return for “being influenced in the performance of any

official act.” 18 U.S.C. § 201(b)(1)(A), (2)(A); SunDiamond, 526 U.S. at 404. The term “official act” is

expressly and broadly defined in § 201 as “any decision or

action on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or which

may by law be brought before any public official, in such

official’s official capacity, or in such official’s place of trust

or profit.” 18 U.S.C. § 201(a)(3). Bribery under § 201(b),

therefore, expressly requires “a quid pro quo—a specific

intent to give or receive something of value in exchange for

an official act.” Sun-Diamond, 526 U.S. at 404–05.

Importantly, Sun-Diamond was primarily concerned with

limiting the scope of illegal gratuities under § 201(c). Id. at

405–14. Because § 201(c) criminalizes the giving of

“anything of value,” with no threshold monetary requirement,

underlying Sun-Diamond was a need to distinguish between

illegal gratuities and “token gifts” given “by reason of the

recipient’s mere tenure in office.” Id. at 406, 408. Thus,

requiring an official act under § 201(c) was necessary

because “a contrary holding would criminalize a wide array

of presumptively legal gift giving, like giving officials a hat

or a hot dog.” United States v. Abbey, 560 F.3d 513, 521 (6th

Cir. 2009) (discussing the reasoning in Sun-Diamond). Under

§ 201(c), an official act is therefore the “limiting principle”
30 UNITED STATES V. GARRIDO

 Robles cites to several cases from the Second Circuit in support of his 13

argument that § 666 requires a quid pro quo, an exchange for a specific

official act. Most of our sister circuits, however, have rejected the

argument that § 666 requires a quid pro quo. See McNair, 605 F.3d at

1187–88; Abbey, 560 F.3d at 520–21; Gee, 432 F.3d at 714–15; see also

United States v. Boender, 649 F.3d 650, 654 (7th Cir. 2011) (noting that

the Seventh Circuit “like most others, does not require a specific quid pro

quo” under § 666); supra n.9. Moreover, it is possible for a court to

require a quid pro quo but not require that the exchange be for a specific

official act. See United States v. Redzic, 627 F.3d 683, 692 (8th Cir. 2010)

that distinguishes “an illegal gratuity from a legal one.”

United States v. Ganim, 510 F.3d 134, 146 (2d Cir. 2007).

Section 666, on the other hand, makes no mention of an

“official act” or a requirement that anything be given in

exchange or return for an official act. Section 666 does not

define or even use the term “official act.” Section 666

“sweeps more broadly than either §§ 201(b) or (c).” McNair,

605 F.3d at 1191. Because the plain language of § 666 does

not use the term “official act,” we must not insert that term

into our reading of the statute. Id. at 1192 (noting that

defendants failed “to show that the statutory language

criminalizes innocent behavior”). Moreover, the need for a

“limiting principle” to distinguish between illegal and legal

gratuities, as expressed in Sun-Diamond, is “not relevant [to

violations of § 666] because § 666 contains both a corrupt

intent requirement and a requirement that the illegal gift or

bribe be worth over $5,000.” Abbey, 560 F.3d at 521. Thus,

we decline to adopt § 201’s official act requirement for § 666.

In so holding, we join our sister circuits, the Third, Sixth,

Seventh, and Eleventh Circuits, who have all held § 666 does

not require that a bribe be given or received with the intent to

influence the public official in an official act. See United 13
UNITED STATES V. GARRIDO 31

(stating “the government must present evidence of a quid pro quo, but an

illegal bribe may be paid with the intent to influence a general course of

conduct”).

States v. Andrews, 681 F.3d 509, 529-530 (3d Cir. 2012)

(holding that for a conviction under § 666, Harris “did not

have to possess actual authority over the business,

transaction, or series of transactions, that Andrews sought to

influence[;] [r]ather, the Government had to prove only that

Andrews intended, by offering a bribe to Harris, to influence

the sewer contract” (citation omitted)); McNair, 605 F.3d at

1191 (explaining § 666 “requires only that money be given

with intent to influence or reward a government agent ‘in

connection with any business, transaction, or series of

transactions,’” and “does not say ‘official act’”); Abbey,

560 F.3d at 515, 519–21 (affirming § 666 conviction where

the government asserted that “Abbey used his influence and

position to assist Rizzo with several land developments” but

“did not introduce any evidence establishing that . . . Rizzo

and Abbey had an express agreement for a specific official

act to be done in return for Rizzo’s gift”); Gee, 432 F.3d at

715 (affirming § 666 conviction where a jury could find that

“money . . . was exchanged for George’s influence” in

directing contracts towards the organization, because even

though George did not have the power to award the contracts

“George had plentyof clout and used it to [the organization’s]

benefit”).

Although Second Circuit cases refer to bribery in

connection with an official act, the Second Circuit has not

squarely held that official acts or duties are required for a
32 UNITED STATES V. GARRIDO

 In Ganim, the Second Circuit “presume[d] that the same standard for 14

proving a quid pro quo exists under both 18 U.S.C. § 666 and § 201(b)(1),

as neither party ha[d] argued that there is, or should be, any difference

. . . .” Ganim, 510 F.3d at 148 n.7.

§ 666 conviction. In United States v. Ford, the court stated 14

that the defendant “accepted [free media] services ‘intending

to be influenced’ in her official duties.” 435 F.3d 204, 212

(2nd Cir. 2006) (emphasis added). The primary focus of

Ford, however, was addressing whether the jury was properly

instructed that the “recipient [of the bribe] must have

accepted the thing of value while ‘intending to be

influenced.’” Id. at 212–14. Although Ford suggests that the

word “corruptly” in § 666 implies a breach of some official

duty, id. at 211, the Eleventh Circuit has interpreted the word

“corruptly” to mean “dishonestly seeking an illegal goal or a

legal goal illegally.” McNair, 605 F.3d at 1188. We agree

with the Eleventh Circuit that “[t]he requirement of a

‘corrupt’ intent in § 666 . . . narrow[s] the conduct that

violates § 666 but does not impose a specific quid pro quo

requirement.” Id. at 1188.

In United States v. Bonito, the Second Circuit upheld a

jury instruction which “made clear that the corrupt

agreement, offer or payment must precede the official act to

be influenced or rewarded.” 57 F.3d 167, 171 (2nd Cir. 1995)

(emphasis added). Bonito assumes “official duties” are

appropriate in a jury instruction, but the court had no

occasion to address the issue because that particular term was

not in dispute. Id. at 171–74. Further, the court’s affirmance

of Bonito’s § 666 conviction suggests that the court did not

require that the public official have actual authority over the

business Bonito sought to influence—there, the purchase of

Bonito’s property. Rather, much like Robles did here, the
UNITED STATES V. GARRIDO 33

 It may simply be the case that in referring to “official duties,” the 15

Second Circuit “was not positing an additional element to the statutory

definition of the crime, but instead was explaining the sine qua non of a

violation of § 666.” United States v. Agostino, 132 F.3d 1183, 1190 (7th

Cir. 1997) (explaining that although a prior Seventh Circuit case referred

to a “‘quid pro quo’” as being an “‘essential element’” of § 666, the

“elements of the offense remain those that are set forth in the statutory

language” (citation omitted)). As a practical matter, most bribery cases

“involve an identifiable and particularized official act, but that is not

required to convict” under § 666. McNair, 605 F.3d at 1188; Gee,

432 F.3d at 714 (“A quid pro quo of money for a specific legislative act

is sufficient to violate [18 U.S.C. § 666], but it is not necessary.”).

public official Bonito bribed “undertook a range of activities

that inhered to Bonito’s financial benefit” which included

setting up meetings for Bonito, becoming involved in

negotiations for the purchase of Bonito’s property, and

contacting officials “to push the deal through.” Id. at 170,

174. There was no evidence that demonstrated that the public

official alone could approve the purchase of Bonito’s

property. Id. at 173–74; see also United States v. Bahel,

662 F.3d 610, 637–38 (2d Cir. 2011) (discussing Ford and

Bonito).15

For the foregoing reasons, we are not persuaded by

Robles’s arguments. We hold that § 666 does not require that

Robles intended to be influenced in an official act. We thus

affirm Robles’s § 666 bribery convictions.

IV.

IN SUM:

We REVERSE Robles’s § 1346 honest services fraud

convictions with respect to Counts 1 through 11, 13 through
34 UNITED STATES V. GARRIDO

15, 17, and 23 through 25, and Garrido’s § 1346 honest

services fraud convictions with respect to Counts 23 through

25 because, under Skilling, the jury instructions erroneously

permitted convictions on the unconstitutional theory of a

failure to disclose a conflict of interest.

We REVERSE Robles’s § 1346 honest services fraud

convictions with respect to Counts 16, 22, and 27 and

Garrido’s § 1346 honest services fraud convictions with

respect to Counts 22 and 27, and ACQUIT Robles on Counts

16, 22, and 27 and ACQUIT Garrido on Counts 22 and 27

because these counts are based on Skilling’s unconstitutional

theory of a failure to disclose a conflict of interest in a state

disclosure form, and because there is insufficient evidence to

support Counts 16 and 27.

We REVERSE Robles’s § 1957 money laundering

convictions with respect to Counts 18 through 21 because

they are predicated on the flawed honest services fraud

convictions.

We AFFIRM Robles’s § 666 bribery convictions with

respect to Counts 33 through 37 because § 666 convictions do

not require the defendant intended to be influenced in an

official act.

We REMAND this case to the District Court for further

proceedings consistent with this opinion.

Thus, United States v. Garrido, No. 06-50717, is

REVERSED and REMANDED; and United States v.

Robles, No. 06-50718, is REVERSED in part, AFFIRMED

in part, and REMANDED.