1 

United States Court of Appeals 

for the Fifth Circuit 

No. 21-11157 

United States of America, 

Plaintiff—Appellee, 

versus

Ruel M. Hamilton, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:19-CR-83 

Before King, Elrod, and Southwick, Circuit Judges.

Per Curiam:

The petition for panel rehearing is DENIED. At the request of one 

of its members, the court was polled on whether to rehear this case en banc, 

and a majority did not vote in favor of rehearing (Fed. R. App. P. 35 and 

5th Cir. R. 35).

In the en banc poll, seven judges voted in favor of rehearing (Richman, 

Jones, Smith, Graves, Higginson, Ho, and Oldham), and nine judges voted 

against rehearing (Stewart, Elrod, Southwick, Haynes, Willett, Duncan, 

Engelhardt, Wilson, and Douglas).

United States Court of Appeals 

Fifth Circuit 

FILED 

February 17, 2023 

Lyle W. Cayce 

Clerk 

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Jennifer Walker Elrod, Circuit Judge, joined by Willett, 

Duncan, and Wilson, Circuit Judges, concurring in the denial of 

rehearing en banc: 

This case was about statutory interpretation and jury instructions—

not the First Amendment. In considering Defendant Ruel Hamilton’s appeal 

from his conviction under 18 U.S.C. § 666(a)(2), the unanimous panel explained that the jury was not instructed that a quid pro quo was required for 

conviction. United States v. Hamilton, 46 F.4th 389, 398–99 (5th Cir. 2022). 

The statute requires such an instruction. It is for that reason alone that Hamilton must be tried again. True, we also recognized that First Amendment 

problems “lurk[ed] . . . beneath the surface” of the statutory-interpretation 

question. Id. at 398 n.3. But we explicitly declined to address those problems. 

Id. Even so, the dissenting opinion construes our unremarkable decision as 

having “turned the First Amendment on its head.” Post at 6. Respectfully, 

that conjures up a constitutional problem where none exists. 

As is clear from the record, the district court did not address whether 

§ 666 might violate the First Amendment. At oral argument, Hamilton’s 

counsel eschewed any reliance on the First Amendment. And the panel opinion mentions the First Amendment only twice: to note the district court said 

nothing on the subject, and to explain that the panel was saying nothing on 

the subject. Hamilton, 46 F.4th at 393, 398 n.3. In short, the dissenting opinion’s focus on the First Amendment is misplaced. And so although that opinion laments several of our court’s recent decisions, there is no need to address the First Amendment cases invoked by the dissenting opinion—or the 

dissenting judge’s separate opinions in those cases. Post at 4, 5 n.1, 6 (citing 

Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022) (Opinion of Ho, J.), 

vacated on rehearing en banc, 52 F.4th 265 (5th Cir. 2022); Zimmerman v. City 

of Austin, 888 F.3d 163, 164 (5th Cir. 2018) (Ho, J., dissenting from denial of 

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rehearing en banc); Stringer v. Whitley, 942 F.3d 715, 725 (5th Cir. 2019) (Ho, 

J., concurring)); see also Villareal, 44 F.4th at 478 (Ho, J., concurring). 

In addition, I write to correct two errors made by the dissenting opinion. First, it contends that the jury actually was instructed on the quid pro quo

requirement. That is wrong. Over Hamilton’s objection, the district court 

declined to instruct the jury that a quid pro quo was required for conviction 

under the § 666 charge, later explaining its belief that § 666 “does not require 

quid pro quo bribery” and that the relevant law does “not distinguish between 

bribes and gratuities as the basis for conviction.” If the experienced district 

court crafted the instructions not to convey a quid-pro-quo requirement, we 

struggle to see how those instructions could have clearly conveyed that requirement to lay jurors. See Hamilton, 46 F.4th at 398–99. 

Second, the panel opinion makes no finding of fact on whether there 

actually was a quid pro quo here. In suggesting otherwise, the dissenting opinion mistakes the panel opinion’s summation of Hamilton’s position for a resolution of disputed facts. Compare post at 11, with Hamilton, 46 F.4th at 393. 

Regardless, it is irrelevant that the Government may have offered evidence 

from which the jury could have found a quid pro quo. What matters is whether 

the jury did in fact make such a finding. It did not. Thus, the conviction must 

be vacated. 

The dissenting opinion’s concerns about the possibility of corruption 

in local government do not transform this case from one about statutory interpretation to one about the First Amendment. Neither do those concerns 

override the simple fact that the district court did not instruct the jury that a 

quid pro quo was required to convict Hamilton under 18 U.S.C. § 666(a)(2). 

Accordingly, I concur in the court’s decision to not rehear this case en banc.

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James C. Ho, Circuit Judge, dissenting from denial of rehearing en banc:

Imagine the following two fact patterns. 

Person A is a real estate developer who gives tens of thousands of 

dollars to a city council member for the purpose of subsidizing the member’s 

personal consumption, not political advocacy. He uses unrecorded cash 

transactions to evade detection. And in return, the council member uses her 

office to pursue certain government actions worth millions to the developer. 

Person B is a citizen who donates a few hundred dollars to a candidate 

for city council, for the purpose of supporting political advocacy, not personal 

consumption. There’s no evidence of any quid pro quo agreement. There’s 

no evidence the donor will benefit in any way from making the donation. In 

fact, there’s no evidence the donor has ever even met or communicated with 

the candidate—let alone entered into any corrupt arrangement of any kind. 

Now imagine that I ask you to pick which person has engaged in 

constitutionally protected activity—and which person has committed a 

crime. 

I imagine you’d say that Person B engaged in constitutionally 

protected activity—and Person A committed a crime. 

But you’d be wrong. At least in our circuit. 

 Five years ago, we upheld a city ordinance forbidding political 

contributions of more than $350 to a candidate’s campaign for city council. 

We rejected a First Amendment challenge to that ordinance. We did so 

despite the fact that the Supreme Court held a $300 contribution limit for 

Vermont state senate candidates an unconstitutional restriction on political 

advocacy under the First Amendment in Randall v. Sorrell, 548 U.S. 230 

(2006). See Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018). We 

then denied rehearing en banc. See Zimmerman v. City of Austin, 888 F.3d 

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163 (5th Cir. 2018); see also id. at 164 (Ho, J., dissenting from denial of 

rehearing en banc). 

 Now fast forward to this case. The United States prosecuted Ruel 

Hamilton under, inter alia, 18 U.S.C. § 666, which targets corruption in 

federally-funded programs. The prosecution presented substantial evidence 

that Hamilton had engaged in quid pro quo arrangements with two members 

of a city council. He gave one over $30,000 for her own personal 

consumption, not political advocacy, and in exchange, she supported his 

pursuit of tax credits worth millions of dollars. He wrote another member a 

$7,000 check after that member said he needed $6,200 to pay his mother’s 

personal expenses, and in return, the member promised to place a voter 

initiative that Hamilton supported on the agenda of the next city council 

meeting. 

A jury convicted Hamilton. But the panel overturned the convictions, 

citing among other things “a hoard of constitutional problems” and “First 

Amendment . . . concerns.” United States v. Hamilton, 46 F.4th 389, 398 n.3 

(5th Cir. 2022). And today, our court denies rehearing en banc.1

So, to sum up the law of our circuit: 

There’s zero evidence of corruption by Person B. But we’ll deem him 

a criminal anyway. And we’ll justify it by applying a presumption of 

corruption, not innocence—notwithstanding the First Amendment. But see 

1

 This is not due to any reticence on our court about en banc rehearing. To the 

contrary, we recently reheard another case en banc involving the First Amendment. See 

Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022), vacated on rehearing en banc, 52 

F.4th 265 (5th Cir. 2022). See also Oliver v. Arnold, 19 F.4th 843 (5th Cir. 2021) (seven 

votes in favor of rehearing en banc); Doe v. Mckesson, 947 F.3d 874 (5th Cir. 2020) (eight 

votes in favor of rehearing en banc). 

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Stringer v. Whitley, 942 F.3d 715, 725 (5th Cir. 2019) (Ho, J., concurring) (“in 

our legal system, we presume innocence—not corruption”). 

Meanwhile, there’s ample affirmative evidence of corruption by 

Person A. But we’ll ignore his criminal actions. In fact, we’ll invoke the First 

Amendment to justify overturning his criminal convictions. 

This is backwards. Our circuit has turned the First Amendment on its 

head. I dissent from the denial of rehearing en banc. 

I. 

Federal law criminalizes corruption in federally-funded programs. It 

makes it a crime to “corruptly give[], offer[], or agree[] to give anything of 

value to any person, with intent to influence or reward an agent [of a local 

government] in connection with any business, transaction, or series of 

transactions of such [local government] involving anything of value of $5,000 

or more.” 18 U.S.C. § 666(a)(2). 

A jury convicted Hamilton of two counts under § 666(a)(2). But the 

panel overturned his convictions. In doing so, the panel decided an issue of 

first impression for our circuit: Does § 666(a)(2) criminalize only quid pro 

quo bribery? Or does it additionally criminalize gratuities to local officials 

even in the absence of reciprocity—a quid without a quo? 

The panel endorsed the former view—§ 666 applies only to quid pro 

quo bribery. In doing so, the panel noted that it was putting our circuit on the 

short end of a “lopsided split” on this issue—joining the First Circuit against 

the Second, Sixth, Seventh, Eighth, and Eleventh Circuits. 46 F.4th at 396. 

What’s more, the panel placed us on the short end of an admitted 

circuit split in an area of obvious public concern—public corruption. And it 

did so based on, among other things, “a hoard of constitutional problems” 

and “First Amendment . . . concerns.” Id. at 398 n.3. 

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All of this should’ve been more than sufficient to warrant en banc 

review. 

But what’s worse, it was entirely unnecessary for the panel to wade 

into the circuit split, because this case could have easily been affirmed on the 

basis of quid pro quo corruption. After all: The district court instructed the 

jury on quid pro quo corruption. The parties litigated this case as a quid pro

quo corruption case throughout the proceedings below. The prosecution 

presented ample evidence to support a quid pro quo conviction. And the jury 

convicted accordingly. 

So there was no need to take sides in this split. We could have, and 

should have, affirmed the convictions regardless. 

A. 

The panel claimed that the district court instructed the jury that it did 

not need to find evidence of quid pro quo corruption. It also theorized that the 

prosecution presented insufficient evidence of quid pro quo corruption. I 

respectfully disagree with the panel on both fronts. 

1. The panel’s primary theory for reversing the § 666(a)(2) 

convictions was error in the jury instructions. 

Specifically, the panel complained that the district court “told the jury 

that neither a quid-pro-quo exchange nor any ‘official act’ by the 

councilmembers was required.” 46 F.4th at 393. “The district court 

believed that § 666 criminalized mere gratuities and did not require a quid pro 

quo.” Id. at 394. So “the jury instruction . . . did not convey” that “§ 666 

does, in fact, require a quo; a quid alone will not suffice.” Id. “Thus, 

Hamilton’s convictions must be vacated.” Id. 

But just read what the jury was instructed: Under § 666, the 

prosecution must show that Hamilton 

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entered into a corrupt agreement to provide things of value 

with the intent to influence or reward the person for whom the 

influence or reward was intended on any question or matter 

which may be then or would thereafter be pending before that 

person, whether or not that person actually acted in accordance 

with the agreement. . . . It is sufficient if the thing of value is 

given with the intent that the agent of the local government will 

exercise particular kinds of influence as specific opportunities 

arise. 

So the district court instructed the jury to determine whether 

Hamilton had entered into a “corrupt agreement” to provide a “thing of 

value”—the quid. The jury also had to determine whether Hamilton acted 

“with the intent” to receive in return the official’s “influence” on matters 

“pending before” them “as specific opportunities arise”—the quo. 

2. Moreover, the United States presented compelling evidence 

that Hamilton engaged in quid pro quo corruption with two members of the 

Dallas City Council—Carolyn Davis and Dwaine Caraway. 

Hamilton gave over $30,000 to Davis—not as campaign contributions 

given to support First Amendment-protected activity, but as bribes meant to 

line her pockets for personal consumption. In exchange, Davis leveraged her 

position as Chair of the Dallas Housing Committee to support Hamilton’s 

tax credit application, which would have netted him millions of dollars. 

Specifically, Hamilton wrote $14,500 worth of checks, purportedly to 

support a non-profit organization, but that was in fact secretly funneled to 

Davis for her personal use. The United States also presented evidence that 

Hamilton gave Davis an additional $21,000 in cash to avoid a paper trail. In 

one exchange, Davis waited in Hamilton’s car as he withdrew $5,000 from 

an ATM, as evidenced by video camera footage from the ATM. Hamilton 

also made other cash withdrawals that were followed by recorded telephone 

conversations referring to cash payments that he made to Davis. 

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In return, Davis took multiple official actions to favor Hamilton. She 

(1) leveraged her influence as the Chair of the Dallas Housing Committee to 

advocate for Hamilton’s Royal Crest project to receive state tax credits worth 

at least $3.8 million, even though the project wasn’t in her district, (2) voted 

in favor of the project, (3) moved to adopt the Housing Committee’s 

recommendation before the City Council, and (4) agreed to lobby the 

relevant state agency in her official capacity. 

Hamilton also gave Caraway a $7,000 check after Caraway made clear 

that he needed $6,200 to pay his mother’s personal expenses. In return, 

Caraway agreed to place a voter initiative that Hamilton favored on the 

agenda of the next city council meeting. 

3. The panel contends that the prosecution failed to press a quid 

pro quo theory in district court, and did so only for the first time on appeal. 

See id. at 399 (“[T]he government proceeded on a gratuity theory and only 

now says that it could have won either way.”). 

But Hamilton repeatedly argued during pre-trial briefing (and in all 

capital letters to boot) that “THIS CASE IS ABOUT BRIBERY, NOT 

GRATUITIES.” He also noted the prosecution “seems to agree that this 

case is about bribery, not gratuities.” 

And the United States not only presented ample record evidence of 

the quo—it repeatedly referenced the quo during closing argument. As the 

prosecution explained: “It’s illegal for the public official to ask [for money], 

if the public official is doing that with intent to be rewarded for their action, 

and it’s darn sure illegal to pay it if the intent is to . . . influence that public 

official when you have business before them. . . . Hamilton is giving things of 

value to Ms. Davis for official support on his developments; . . . they’re 

working together. . . . This Defendant provided a number of things of value 

to Ms. Davis in return for her official support. . . . You saw . . . a $7,000 check 

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to get [Caraway] to talk to the Mayor and help in the future. . . . Davis was 

soliciting checks . . . from [Hamilton] in her official capacity for something in 

return.” 

And in response to his motion for judgment of acquittal, the 

prosecution stated that Hamilton was charged and convicted “of bribing 

Davis in return for her official action on Hamilton’s Royal Crest project” and 

“of bribing Caraway in return for Caraway’s official action in getting a 

referendum . . . on the council agenda and in return for future action with 

regard to Hamilton’s real estate developments in Caraway’s district.” 

The district court likewise thought that the case was about quid pro quo

bribery, and found the evidence sufficient to establish quid pro quo bribery. 

See United States v. Hamilton, 2021 WL 5178463, at *6 (N.D. Tex. Nov. 8, 

2021) (“Sufficient evidence was presented at trial to establish that Hamilton 

and Davis had an agreement in which Hamilton provided things of value in 

exchange for Davis exercising her influence over his LIHTC projects pending 

before the City Council and Dallas City Housing Committee.”). 

B. 

The panel’s remaining theories for reversal likewise hold no water. 

1. The panel intimated that there was no quid pro quo here because 

Hamilton “received nothing tangible in return.” 46 F.4th at 391. The panel 

reasoned that the tax credits he sought “were offered not by the City of 

Dallas, but by the Texas Department of Housing and Community affairs (a 

state agency).” Id. The city council merely voted “to ‘recommend’ a slate 

of projects to the state agency for these tax credits.” Id. “Alas, the state 

agency did not grant any low-income-housing tax credits to any of the realestate projects the City Council recommended.” Id. As the panel put it, “§ 

666 does, in fact, require a quo; a quid alone will not suffice.” Id. at 394. 

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But I have difficulty with the panel’s suggestion that there’s no quid 

pro quo here simply because Davis ultimately failed to deliver on her end of 

the bargain when a state agency refused to go along. A simple hypothetical 

should suffice: If I bribe every member of the House of Representatives to 

send a bill I favor to the Senate, and the Senate then fails to pass my bill, am 

I innocent of quid pro quo bribery, just because the Senate didn’t approve the 

legislation? Of course not. 

2. The panel also credited Hamilton’s argument that he was just 

“helping a friend out.” Id. at 393. 

But there’s no need for a jury—or our court—to be so credulous. 

Hamilton didn’t present, and certainly doesn’t identify, any record evidence 

of an actual preexisting friendship with these officials. Nor does he present 

any evidence of a pattern of such generous gift giving to any of his real friends. 

So the jury was entitled to doubt Hamilton’s “friendship” narrative. 

Indeed, imagine if it were otherwise. If the panel is right that a jury is not 

entitled to convict under these facts, then we would presumably be required 

to reverse every bribery conviction, so long as the defendant utters (without 

proof) that he’s just “helping a friend.” (Meanwhile, a $350 donation to a 

candidate who actually is a friend—somehow that’s corrupt under 

Zimmerman?) 

C. 

The panel decision is difficult to defend. But a concurring opinion 

today tries to do so. So I offer a few brief thoughts in response. 

1. The concurring opinion curiously claims that the panel opinion 

didn’t actually raise any First Amendment concerns. To quote the 

concurring opinion, “[t]his case was about statutory interpretation and jury 

instructions—not the First Amendment.” Ante, at 2. 

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But just read what the panel opinion said: 

Lurking just beneath the surface is a hoard of constitutional 

problems raised by a broad reading of § 666. See Antonin Scalia 

& Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 247 (2012) (“A statute should be interpreted in a way 

that avoids placing its constitutionality in doubt.”). Treating § 

666 as though it covers all sorts of interactions with local public 

officials raises First Amendment, federalism, and due-process 

concerns. . . . We need not reach those issues in this case 

because we can construe the text in a way that comports with 

the Constitution. 

46 F.4th at 398 n.3. 

 In other words, the panel opinion expressly invoked “a hoard of 

constitutional problems” “[l]urking just beneath the surface” to justify its 

interpretation of § 666 and reversal of Hamilton’s convictions. Id. It did so 

explicitly to “avoid[] placing its constitutionality in doubt.” Id. (quotations 

omitted). It specifically leads off with “First Amendment . . . concerns.” Id. 

And it concludes that its interpretation “comports with the Constitution.” 

Id.

Perhaps the concurring opinion regrets the language of the panel 

opinion. But it cannot erase it. 

I would take the panel at its word. It included this language because 

the panel believes what it says—it believes the convictions present “First 

Amendment concerns.” I simply disagree. The First Amendment protects 

political advocacy, not corruption. So we should have affirmed. But the 

panel reached the opposite conclusion. And our court now denies rehearing 

en banc. 

Accordingly, I see no way to escape the conclusion that, by leaving 

intact our court’s First Amendment analysis in both Zimmerman and 

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Hamilton (while displaying no such reticence in other First Amendment 

cases), we are turning the First Amendment upside down. 

2. The concurrence contends that I have misread the jury 

instructions. Ante, at 3. To support this charge, however, the concurrence 

does not invoke the jury instructions themselves—which I quote verbatim, 

supra, at 7–8, but goes unmentioned in the concurrence and panel opinion. 

Instead, the concurrence quotes other statements made by the district 

court, in another proceeding, away from the jury. But the issue is not what 

the district court may have thought at one time or another. The issue is what 

the district court instructed the jury. 

I would read the jury instructions by reading the jury instructions.2

3. Finally, the concurrence tries to reassure the public that 

Hamilton may be “tried again.” Ante, at 2. It even acknowledges that “the 

Government may have offered evidence from which the jury could have 

found a quid pro quo.” Id. at 3. 

But that’s exactly why we should’ve just affirmed the convictions. As 

the government’s rehearing petition states: “No error exists here because, 

based on precedent and consistent with this Circuit’s pattern charge, the 

charge as a whole required a quid pro quo.” But “even assuming charge error, 

2

 Alternatively, the concurrence focuses on what the jury instructions don’t say. It 

contends that, “[o]ver Hamilton’s objection, the district court declined to instruct the jury 

that a quid pro quo was required.” Ante, at 3. But that’s only because the jury instructions 

already required a quid pro quo, as I’ve already explained. See supra, at 7–8. So the 

instructions were already “clear” enough on this point, as reflected in the transcript of the 

charge conference on June 23, 2021. Indeed, the government repeatedly reaffirmed 

throughout that § 666 prohibits bribes, not gratuities: “The statute in § 666 allows 

anything of value to be a bribe. . . . For example, giving someone a job could be a bribe.” 

The concurrence also suggests that we defer to “the experienced district court.” 

Ante, at 3. But I would’ve affirmed. It’s the concurrence that demands reversal. 

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the government’s prosecution theory and the trial evidence overwhelmingly 

confirm the requisite quid-pro-quo exchange—rendering any error 

harmless.” 

Retrial is neither legally necessary, nor a good use of public resources. 

* * * 

There was no need for the panel to put us on the short end of a 

lopsided circuit split. We should have affirmed the convictions regardless. 

But even worse, our circuit is getting the First Amendment backwards 

in case after case. The freedom of speech guaranteed to every citizen 

protects political advocacy—not corruption. 

I dissent from the denial of rehearing en banc. 

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