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The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2685

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Curley Hines, *

*

Appellant. *

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Submitted: March 13, 2008

 Filed: September 8, 2008

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Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.

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WOLLMAN, Circuit Judge.

Curley Hines, a deputy sheriff in St. Louis County, Missouri, was convicted on

ten counts of accepting bribes in violation of 18 U.S.C. § 666(a)(1)(B), one count of

aiding another deputy to do the same, and one count of conspiracy. He was sentenced

by the district court1

 to 33 months’ imprisonment and now appeals, raising three

issues: that a violation of § 666 requires a nexus between the federal funds and the

offense charged; that the transactions charged within each count did not reach the
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minimum amount required under the statute; and that his conspiracy conviction

violated Wharton’s Rule. We affirm.

I. Background

The jury found that Hines, an execution deputy whose official duties included

enforcing court orders of evictions and collecting or seizing property in execution of

court judgments, was involved in a longstanding practice among the execution

deputies in the St. Louis County Sheriff’s Office of accepting small cash payments

from various moving companies and property owners for the deputies’ performance

of their eviction-related duties. The owner of one moving company testified that his

business had made payments to Hines for more than twenty years; another testified

that his business made payments in the amount of ten percent of his invoice for each

eviction. Representatives of a real estate firm testified that the firm paid Hines $100

for each eviction he performed for it. The payments were made to facilitate the

deputies’ timely and cooperative performance of their duties, which included

scheduling the evictions and providing the color of authority at the eviction site.

II. Analysis

Section 666 of Title 18 of the United States Code sets forth the circumstances

that must exist to form the basis of a charge of theft or bribery concerning programs

receiving federal funds. One of these circumstances is that the organization,

government, or agency receive benefits in excess of $10,000 under the federal

program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form

of federal assistance. 18 U.S.C. § 666(b). The record reveals that the jurisdictional

amount was satisfied for each of the years covered by the indictment.
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A.

Hines argues that the government failed to establish a nexus between the federal

funds establishing jurisdiction under § 666(b) and the activity for which he was

indicted under § 666(a). We rejected a similar contention in United States v. Sabri,

326 F.3d 937 (8th Cir. 2003), a position that the Supreme Court affirmed in Sabri v.

United States, 541 U.S. 600 (2004). Reviewing a facial challenge to § 666 on the

basis that it failed to require such a nexus, the Supreme Court “readily dispose[d] of

this position that, to qualify as a valid exercise of Article I power, the statute must

require proof of connection with federal money as an element of the offense.” Sabri,

541 U.S. at 605. Instead, the Court stated that Congress’s inclusion of jurisdictional

amounts creates a sufficient nexus to constitute a valid enactment under the Necessary

and Proper Clause. Id. at. at 605-06.

The facts in Sabri arguably evidenced a connection between federal funds and

the defendant’s criminal activities, as Sabri had bribed a city councilman who was in

a position to administer funds and whose agencies received federal funds. Hines thus

raises an as-applied challenge, contesting the rationality of applying § 666 to him in

particular. He argues that he was not entrusted with the disbursements of any money,

federal or otherwise; his dealings were purely local and could not jeopardize in any

significant manner the integrity of federal programs; and the federal monies given to

St. Louis County did not reach his department.

Hines’s as-applied challenge fails, for the plain language of the statute does not

require, as an element to be proved beyond a reasonable doubt, a nexus between the

activity that constitutes a violation and federal funds. See Sabri, 326 F.3d at 940-45.

The Supreme Court upheld our interpretation of § 666 as Congress’s attempt to

preserve the integrity of federal funds by lessening the burden of federal prosecutors

to prove what may be an impossible-to-trace, but very real, impact of local corruption

on federal funds. See Sabri, 541 U.S. at 606-07. That legitimate purpose and
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Congress’s rational means of achieving it by eschewing a nexus requirement in the

offense would be undermined if defendants such as Hines could require the

government to establish such a nexus. See Gonzales v. Raich, 545 U.S. 1, 3 (2005)

(stating, in the context of legislation enacted pursuant to the Commerce Clause, that

“where the class of activities is regulated and that class is within the reach of federal

power, the courts have no power to excise, as trivial, individual instances of the class”

(internal quotation and alteration omitted)). Thus, we reiterate our position on this

issue and also point to those post-Sabri decisions that have declined to require any

connection between federal funds and the activity that constitutes a violation of § 666.

See, e.g., United States v. Caro-Muniz, 406 F.3d 22 (1st Cir. 2005); United States v.

Kranovich, 401 F.3d 1107 (9th Cir. 2005); United States v. Spano, 401 F.3d 837 (7th

Cir. 2005); United States v. Mirikitani, 380 F.3d 1223 (9th Cir. 2004).

B.

Hines also argues that the evidence is insufficient to show that the minimum

jurisdictional amount required by § 666 was met for each count of his conviction. The

relevant language of that statute provides that an agent of a state or local government

violates the statute if he

corruptly solicits or demands for the benefit of any person, or accepts or

agrees to accept, anything of value from any person, intending to be

influenced or rewarded in connection with any business, transaction, or

series of transactions of such organization, government, or agency

involving any thing of value of $5,000 or more . . . .

§ 666(a)(1)(B) (emphasis added).

Hines argues that the “thing of value” must be worth $5,000 or more to either

the briber or the bribee, and thus the money judgments and foreclosed property values

should not be considered in calculating that value. Our decision in United States v.
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Zimmerman, 509 F.3d 920, 926 (8th Cir. 2007), forecloses that contention. The plain

language of the statute does not require a restricted, technical interpretation that would

prevent the consideration of the “thing’s” value to other parties with an immediate

interest in the transaction.

The relevant jury instruction identified the “judgment(s) or order(s) of eviction”

as the transaction to be considered and permitted the jury to “consider the value to St.

Louis County or to the private entities or individuals or both.” The bribery payments

were made in order to effectuate Hines’s and his colleagues’ timely performance of

their official duties involving court orders of eviction. The evidence adduced at trial

showed that these orders of eviction and their associated money judgments were worth

substantial amounts of money to the property owners and landlords to whom they

were awarded. One of the property owners involved and at least two lawyers

experienced in landlord-tenant issues 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.

Thus, those losses grow ever larger in the absence of the timely cooperation of the

execution deputies in enforcing the eviction notices obtained as the result of the

nonpayment of rental and mortgage obligations. Without recounting the details of the

monetary value of the eviction transactions, we agree with the government that its

evidence satisfied the $5,000 threshold in each of the charged counts.

For the first time on appeal, Hines argues that the government’s indictment

failed to use the correct units of prosecution for each count. Specifically, he argues

that the government should not be permitted to aggregate multiple payments within

a single count unless the count includes all such charged transactions within the

defendant’s scheme. We reject this contention and hold that § 666 that permits the

government to aggregate multiple transactions in single count to reach the $5,000

minimum as long as they were part of a single plan or scheme. See, e.g., United States

v. Cruzado-Laureano, 404 F.3d 470, 484 (1st Cir. 2005) (permitting aggregation in the
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context of § 666(a)(1)(A), the “theft” prong of the statute); United States v. Yashar,

166 F.3d 873, 876 (7th Cir. 1999); United States v. Valentine, 63 F.3d 459, 466 (6th

Cir. 1995). The series of transactions so charged must fall within a one-year period

wherein the government agency or organization received $10,000 or more in federal

funds. See 18 U.S.C. § 666(d)(5); Valentine, 63 F.3d at 463. Significant longstanding

schemes that extend for longer than one year, such as the one that took place in the St.

Louis County Sheriff’s Office, may be charged in multiple counts so long as the

$5,000 requirement is met in each one-year time period. In this case, each count

aggregated the transactions that took place in a single day. 

Although Hines argues that the government’s indictment in this case is

multiplicitous, and thus arbitrarily divides a single crime into multiple counts, we

express no opinion with respect to the issue because Hines failed to object to the

indictment and was not prejudiced by any error. The danger of multiplicitous

indictments is that the defendant may be exposed to multiple sentences for a single

crime. Because Hines’s sentences run concurrently, however, the length of his

imprisonment was not increased by any multiplicitous convictions. See United States

v. Lemons, 941 F.2d 309, 319 (5th Cir. 1991) (“Even if a defendant waives his right

to assert a multiplicity claim, he may still object to multiple sentences . . . but only if

the sentences are not to be served concurrently.” (internal quotations and alterations

omitted)).

C.

Hines argues that his conviction for the conspiracy count violates Wharton’s

Rule because he and the only other party to the agreement were briber and bribee.

Because Hines did not raise this argument below, our review of this issue is for plain

error only.
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We conclude that Wharton’s Rule does not apply in this case. Wharton’s Rule,

which operates as a narrow exception to the general principle that a conspiracy and

its underlying substantive offense do not merge, applies when there is a “general

congruence of the [conspiracy] agreement and the completed substantive offense.”

Iannelli v. United States, 420 U.S. 770, 781-82. This “general congruence” exists

when “[t]he parties to the agreement are the only persons who participate in

commission of the substantive offense, . . . the immediate consequences of the crime

rest on the parties themselves rather than on society at large,” and when “the

agreement that attends the substantive offense does not appear likely to pose the

distinct kinds of threats to society that the law of conspiracy seeks to avert.” Id. at

782-83. The purpose of § 666, to protect the integrity of federal funds, indicates that

“the immediate consequences” of the behavior it proscribes rest on society at large.

Furthermore, the behavior implicated in this case was self-perpetuating in the way of

a conspiracy and implicated more entities than just those who exchanged money. The

underlying offense of bribery was part of a coercive system on the part of the deputies

of St. Louis County to implicate movers and property owners who sought to enforce

their evictions.

The judgment is affirmed.

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