United States Court of Appeals

For the First Circuit

Nos. 23-1115

23-1116 

23-1138 

23-1139

UNITED STATES OF AMERICA,

Appellee, Cross-Appellant,

v.

DAVID DEQUATTRO; CEDRIC CROMWELL,

Defendants-Appellants, Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Barron, Chief Judge,

Kayatta and Gelpí, Circuit Judges.

Martin G. Weinberg, with whom Kimberly Homan and Michael 

Pabian were on brief, for appellant, cross-appellee David 

DeQuattro.

Robert F. Hennessy, with whom Schnipper Hennessy, PC was on 

brief, for appellant, cross-appellee Cedric Cromwell.

Karen L. Eisenstadt, Assistant U.S. Attorney, with whom 

Joshua S. Levy, Acting U.S. Attorney, was on brief, for appellee, 

cross-appellant. 

September 27, 2024
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BARRON, Chief Judge. In 2020, a federal grand jury 

indicted David DeQuattro, an architect with Robinson Green Beretta

Corp. ("RGB"), and Cedric Cromwell, Chairman of the Mashpee 

Wampanoag Tribal Council ("Council") and President of the Mashpee

Wampanoag Gaming Authority ("Gaming Authority"). They were 

charged with various federal offenses based on Cromwell allegedly 

soliciting, and DeQuattro allegedly giving in return, checks and 

other things of value to protect a contract between RGB and the 

Gaming Authority to build a casino on Mashpee Wampanoag Tribeowned land. 

Following a jury trial in the United States District 

Court for the District of Massachusetts, DeQuattro was convicted 

of one count of federal-program bribery, in violation of 18 U.S.C.

§ 666(a)(2), while Cromwell was convicted of two counts of federal 

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

jurors also found Cromwell guilty of three counts of Hobbs Act 

extortion and one count of conspiracy to commit Hobbs Act 

extortion. The District Court entered a judgment of acquittal on 

those Hobbs Act-related counts because it determined that the Hobbs 

Act did not clearly abrogate tribal immunity.

In these consolidated appeals, DeQuattro and Cromwell 

challenge their § 666 convictions, and the government challenges 

the judgment of acquittal. We reverse both the § 666 convictions

and the judgment of acquittal. 
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I.

A.

18 U.S.C. § 666 provides:

(a) Whoever, if the circumstance described in 

subsection (b) of this section exists--

(1) being an agent of an organization, or of 

a State, local, or Indian tribal government, 

or any agency thereof-- . . .

(B) 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; or 

(2) corruptly gives, offers, or agrees to give 

anything of value to any person, with intent 

to influence or reward an agent of an 

organization or of a State, local or Indian 

tribal government, or any agency thereof, in 

connection with any business, transaction, or 

series of transactions of such organization, 

government, or agency involving anything of 

value of $5,000 or more;

shall be fined under this title, imprisoned 

not more than 10 years, or both (emphasis 

added). 

Subsection (b) sets forth the jurisdictional element of 

§ 666 by establishing the link that must be shown between the 

corrupt conduct described in subsection (a) and federal-program 

financial assistance. Subsection (b) provides: "The circumstance 

referred to in subsection (a) of this section is that the

organization, government, or agency receives, in any one year 

period, benefits in excess of $10,000 under a Federal program 
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involving a grant, contract, subsidy, loan, guarantee, insurance, 

or other form of Federal assistance." Id.

The Hobbs Act provides:

Whoever in any way or degree obstructs, 

delays, or affects commerce or the movement of 

any article or commodity in commerce, by 

robbery or extortion or attempts or conspires 

so to do, or commits or threatens physical 

violence to any person or property in 

furtherance of a plan or purpose to do 

anything in violation of this section shall be 

fined under this title or imprisoned not more 

than twenty years, or both. 

18 U.S.C. § 1951(a). The Act defines "extortion" as "the obtaining 

of property from another, with his consent, induced by wrongful 

use of actual or threatened force, violence, or fear, or under 

color of official right." Id. § 1951(b)(2).

B.

The superseding indictment charged DeQuattro and 

Cromwell in Count One with conspiracy to violate § 666(a) in 

violation of 18 U.S.C. § 371. The indictment also charged

DeQuattro in Counts Four and Five with violating § 666(a)(2), and 

Cromwell in Counts Two and Three with violating § 666(a)(1)(b).

The § 666 counts pertained to Cromwell allegedly either soliciting

or accepting from DeQuattro various "things of value" -- including 

payment for overnight lodging in a Boston hotel, gym equipment for 

his residence, and checks totaling tens of thousands of 
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dollars -- in return for Cromwell protecting the contract between 

RGB and the Gaming Authority from being terminated. 

The superseding indictment also charged Cromwell, based 

on his role in the same alleged scheme to protect the RGB contract, 

with Hobbs Act-related offenses. Specifically, the superseding 

indictment charged him with four counts of Hobbs Act extortion, in 

violation of 18 U.S.C. § 1951 (Counts Seven, Eight, Nine, and Ten),

and one count of conspiracy to commit Hobbs Act extortion, in 

violation of 18 U.S.C. § 1951 (Count Six).1

The jury acquitted DeQuattro and Cromwell of Count One's 

§ 666-based conspiracy charges. The jury also acquitted DeQuattro 

of the substantive § 666 charges in Count Four, all but a portion 

of the substantive § 666 charges in Count Five, and Cromwell of 

the Hobbs Act charges in Count Nine. The jury found DeQuattro 

guilty of one portion of the substantive § 666 charges in Count 

Five, and Cromwell guilty of the substantive § 666 charges in 

Counts Two and Three, one count of conspiracy to commit Hobbs Act 

extortion (Count Six), and three counts of Hobbs Act extortion 

(Counts Seven, Eight, and Ten). 

Following the verdict, DeQuattro and Cromwell each moved 

for judgment of acquittal under Federal Rule of Criminal Procedure 

1 The superseding indictment also charged Cromwell with filing

false tax returns in violation of 26 U.S.C. § 7206(1). Those 

counts were severed and a trial on them has been stayed pending 

the resolution of this appeal. 
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29(a), after having earlier moved for judgment of acquittal at 

both the close of all the evidence and the close of the 

government's case. DeQuattro and Cromwell based their respective 

Rule 29 motions concerning the § 666 counts in part on the ground 

that the evidence did not suffice to show the intent to engage in 

a corrupt quid-pro-quo exchange about the RGB contract. DeQuattro 

and Cromwell also based their motions as to these charges on the 

ground that the evidence did not suffice to satisfy § 666's 

jurisdictional element. They did so by arguing that the RGB 

contract was "business" only of the Gaming Authority and that, 

unlike the Tribe, the Gaming Authority had not received the 

requisite federal benefits described in subsection (b). Finally, 

Cromwell argued in his motion for a judgment of acquittal as to 

the Hobbs Act-related charges that (1) "the evidence failed to 

establish that [he] was a public official"; and (2) there was 

"insufficient evidence of a corrupt quid pro quo." 

At a consolidated hearing that concerned both the Rule 

29 motions and sentencing, the District Court denied DeQuattro's 

motion for judgment of acquittal in full but granted Cromwell's 

motion in part. More specifically, the District Court denied 

Cromwell's motion with respect to his § 666 convictions but granted 

it on tribal immunity grounds as to the Hobbs Act convictions. 

The District Court then sentenced DeQuattro to a one-year 

probationary term with home confinement for his single § 666 
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conviction and Cromwell to 36 months' imprisonment for his multiple 

convictions under § 666. The District Court also ordered DeQuattro 

and Cromwell to pay restitution in the amount of $140,707.79 and 

$209,678.54, respectively. Their appeals, and the government's 

cross-appeal, followed and were then consolidated. 

II.

DeQuattro and Cromwell base their challenge to their 

§ 666 convictions on the same two, distinct 

insufficiency-of-the-evidence grounds that they advanced below.

We focus here solely on the ground that they contend concerns 

§ 666's jurisdictional element, as we conclude, based on this 

ground alone, that their § 666 convictions must be reversed. 

United States v. Green, 797 F.2d 855, 856 n.1 (10th Cir. 1986). 

A.

In ruling that the evidence sufficed to satisfy the 

jurisdictional element, the District Court reasoned as follows: 

"Congress intended [§ 666] to extend to affiliates of the tribes 

themselves, and [the Gaming Authority] was clearly that kind of 

affiliate." Moreover, the District Court determined, the record 

sufficed to show that the Tribe had received the kind of 

federal-program assistance that subsection (b) describes.

The District Court did not explain what made the Gaming 

Authority "that kind of affiliate," however. Nor did the District 

Court explain why the Gaming Authority being such an "affiliate"
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sufficed to show that the allegedly corrupt conduct charged in the 

§ 666 counts occurred "in connection with" the "business" of the 

Tribe rather than only the Gaming Authority. As a result, the 

District Court did not explain what exactly in the record sufficed 

to show that only the Tribe -- and not the Gaming Authority 

itself -- had to have received the financial assistance that 

subsection (b) describes for the jurisdictional element to be 

satisfied. 

Because this sufficiency challenge is preserved, our 

review is de novo. See United States v. Millán-Machuca, 991 F.3d 

7, 17 (1st Cir. 2021). In undertaking that review, "the relevant 

question is whether, 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." United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

Before diving into the merits of the challenge, we pause

to clarify one point. DeQuattro and Cromwell frame the challenge 

as if it concerns § 666's jurisdictional element. We do not see 

why it does.

Wholly independent of the jurisdictional element set 

forth in subsection (b) of § 666, subsection (a)(1) and subsection 

(a)(2) of the measure set forth numerous substantive elements. 

One such element is that the "agent" of an entity that § 666 
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covers -- whether an "Indian tribal government" or an "agency" of 

such a government -- be engaged in the prohibited bribery "in 

connection with any business . . . of such organization, 

government, or agency." 18 U.S.C. § 666(a)(1) (emphasis added).

This substantive element ensures that the bribery is 

tied to the entity that receives the federal-program assistance, 

while the jurisdictional element merely ensures that the entity 

that is tied to the corrupt conduct has received that assistance. 

Thus, the jurisdictional element comes into play only if that 

substantive element is satisfied. 

Against this backdrop, it is significant that DeQuattro 

and Cromwell are contending, without dispute by the government, 

that the sole "agent" of a covered entity involved in the alleged 

bribery was Cromwell acting as Chairman of the Tribal Council in 

his role as "agent" of the Tribe (an "Indian tribal government")

and not as President of the Gaming Authority in his role as "agent" 

of the Gaming Authority (a mere "agency" of that "government").2 

It is significant, too, that DeQuattro and Cromwell are then 

further contending, again without dispute by the government, that

2 Counts Two and Three of the superseding indictment charged 

Cromwell with "being an agent of an Indian tribal government, or 

any agency thereof, namely, the Mashpee Wampanoag Tribe, corruptly 

solicit[ing] . . . ." Similarly, Counts Four and Five charged 

Dequattro with corruptly giving, offering and agreeing to give 

"anything of value to any person, with intent to influence and 

reward an agent of an Indian tribal government, or any agency 

thereof, namely, the Mashpee Wampanoag Tribe" (emphasis added).
- 10 -

the only "business" that occurred "in connection with" the alleged

corrupt conduct involving Cromwell as the Tribe's "agent" was the 

RGB contract.3 The result is that DeQuattro and Cromwell are 

necessarily contending that the evidence does not suffice to show 

that the allegedly corrupt conduct occurred "in connection with" 

the "business" of the entity of which the person involved in that 

conduct is an agent. DeQuattro and Cromwell's challenge therefore 

necessarily targets this "business"-related substantive element 

described above rather than the jurisdictional element itself. 

This feature of the challenge, we hasten to emphasize, 

does not do anything to undermine it. The challenge still plainly 

has merit, just as DeQuattro and Cromwell contend it does, if the 

evidence does not suffice to show that the RGB contract was 

"business" of the Tribe. In that event, as we have explained, the 

evidence then would fail to satisfy a necessary element of the 

offense, even though that element is substantive rather than

jurisdictional.

3 Consistent with the government's position on appeal that 

the "business" that the alleged corrupt conduct occurred "in 

connection with" was solely the RGB contract, the jury was 

instructed that the jurors had to find the contract "constituted 

business of the Mashpee Wampanoag Tribe" to find the defendants 

guilty of the charged § 666 offenses. See United States v. Burhoe, 

871 F.3d 1, 21 n.17 (1st Cir. 2017) (holding that an "alternative 

legal theory" that the government waived by not objecting to a 

jury instruction that foreclosed it was "not available to the 

government" as a ground for defending the verdict from a 

sufficiency challenge on appeal).
- 11 -

Although the government also appears to treat the 

challenge as if it concerns the jurisdictional element, it 

recognizes that, in substance, the challenge turns on whether the 

evidence suffices to show that the RGB contract is "business" of 

the Tribe. Indeed, the government makes no argument that the 

convictions can stand if the evidence does not so suffice. We 

therefore proceed to assess whether the evidence suffices to show 

that the RGB contract is "business" of the Tribe, first by laying 

out DeQuattro and Cromwell's case that the evidence does not do 

so, then by reviewing the evidence that the government identifies 

in arguing that the evidence does, and, finally, by explaining why 

we agree with DeQuattro and Cromwell rather than the government. 

B.

DeQuattro and Cromwell emphasize that the RGB contract

provides no basis in and of itself for finding that the contract 

was "business" of the Tribe. They point out, as the record makes 

evident, that the contract was between RGB and the Gaming 

Authority, not RGB and the Tribe itself. They further contend 

that nothing in the record indicates that, even though the Tribe 

was not a party to the RGB contract, the relationship between the 

two entities makes the contract the Tribe's "business."

DeQuattro and Cromwell point out that the record makes 

clear that the Gaming Authority is a "legally separate" entity 

from the Tribe. They also point out that, under § 666, the Gaming 
- 12 -

Authority is (unlike the Tribe itself, which is an "Indian tribal 

government") an "agency" of that government. As such, it is a 

separately enumerated and defined category of entity under § 666.

18 U.S.C. § 666(a)(1), (d)(2). 

DeQuattro and Cromwell do not focus solely, however, on 

the formal distinction between the two entities and thus on the 

fact that the Gaming Authority, as an incorporated entity, has

both a separate legal personality and an independent statutory 

status from the Tribe. They also point to the fact that the record 

establishes that a third-party entity -- and so not the 

Tribe -- provided all the funding for the Gaming Authority save 

for, at most, an unspecified amount of in-kind support that the 

Tribe provided to the Gaming Authority.4 Additionally, they 

emphasize that the Tribe created the Gaming Authority to ensure 

that the Tribe would not be liable for the Gaming Authority's 

gambling-related activities. They note, too, that the record 

establishes that the RGB contract itself was structured to ensure 

4 In opposing DeQuattro's and Cromwell's motions for judgment 

of acquittal, the government did submit bank records showing a 

single transfer of funds from the Tribe to the Gaming Authority. 

However, the government did not seek at any time to admit these 

records into evidence, nor does the government rely on this 

evidence on appeal. Indeed, the government in its briefs to us 

only seeks to dispute DeQuattro's and Cromwell's description of 

the Gaming Authority as being funded entirely by a third-party 

entity by pointing to some evidence in the record of in-kind 

funding by the Tribe. 
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that it would not give rise to any such liability on the part of 

the Tribe.

For these reasons, DeQuattro and Cromwell contend that 

the record does not suffice to show that any of the Tribe's 

funds -- and thus any of the Tribe's federal-program funds -- would 

be put at risk by the Gaming Authority's RGB contract. They thus 

contend that it would conflict with the congressional purpose to 

"protect the integrity of the vast sums of money distributed 

through Federal programs from . . . undue influence by bribery," 

Sabri v. United States, 541 U.S. 600, 606 (2004) (quoting S. Rep. 

No. 98-225, at 370 (1983)), to conclude that the evidence suffices 

to show that the RGB contract is the Tribe's "business." Such a 

conclusion, DeQuattro and Cromwell contend, would mean that the 

allegedly corrupt conduct would violate § 666 even though "the 

entity that alone had a business transaction that could have been 

impacted by an illegal bribe" -- the Gaming Authority -- "received 

no federal program benefit," and the "entity that alone received 

federal benefits" -- the Tribe -- "had no business transaction 

with [DeQuattro or Cromwell] at all that related to the alleged 

payment of a thing of value to Cromwell." 

DeQuattro and Cromwell do not rely, however, only on 

what they call the "legal independence" of the Gaming Authority in 

advancing this sufficiency challenge. They also argue that the

challenge draws support from the other ways in which the record 
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establishes that the Gaming Authority operated independently from 

the Tribe. 

Here, DeQuattro and Cromwell direct our attention to the 

evidence that establishes that the Gaming Authority "exercised a 

number of independent powers and a strong measure of independence 

with respect to its financial affairs, including ownership of 'all 

Gaming Enterprise Assets other than any interest in real property,' 

as well as the 'full power of acquisition, disposition or 

encumbrance' of such assets." They then also direct our attention

to the evidence that establishes that (1) the Gaming Authority 

"had the explicit power 'to hire, fire, discipline or appoint 

employees, contractors, consultants, attorneys and accountants or 

other agents of the Authority, prescribe their duties and 

compensation, and indemnify the same,'" and (2) the ordinance 

creating the Gaming Authority granted it "'the exclusive power to 

do any and all things necessary or desirable in connection with 

the development, design, financing, construction, equipping, 

leasing, operation, management . . . , maintenance, and promotion 

of the Gaming Facilities and the operation or conduct of the Gaming 

Enterprise'" (emphasis in original).

Finally, DeQuattro and Cromwell contend that their

position draws support from two Eleventh Circuit rulings, United 

States v. McLean, 802 F.3d 1228 (11th Cir. 2015) and United States

v. Doran, 854 F.3d 1312 (11th Cir. 2017). In finding the evidence 
- 15 -

insufficient to satisfy the jurisdictional element of § 666 in 

each of those cases, the defendants here argue, the Eleventh 

Circuit treated an entity that had not itself received the 

requisite federal-program assistance as being independent of the 

entity that created it, even though the subordinate entity in each 

instance had even more ties to its creator than the Gaming 

Authority has to the Tribe. 

C.

In responding to this sufficiency challenge, the 

government acknowledges that the Tribe was not a party to the RGB 

contract. The government nonetheless contends that the record 

suffices to show that the Gaming Authority and the Tribe were 

intertwined to an extent that permits a rational juror to find 

beyond a reasonable doubt that the contract between RGB and the 

Gaming Authority "constituted any 'business' of the Tribe." 

The government relies in part on the evidence in the 

record that shows that "the Tribe in 2004 adopted a constitution 

that enumerates the Tribal Council's powers, including the powers 

to 'establish procedures and ordinances for the conduct of all 

tribal government business operations' and 'create or provide by 

ordinance for the creation of organizations . . . for any lawful 

purpose'" (alteration in original). The government also relies on 

the evidence in the record that shows that "[i]n 2012, under 

Cromwell's leadership, the Council invoked those powers to 
- 16 -

establish by ordinance the Gaming Authority as a 'wholly owned' 

subsidiary of the Tribe to 'act as an arm and an instrumentality 

of the Tribe.'" 

The government further asserts that the evidence 

suffices to show that the "Tribe is the Authority's 'sole member 

and owner' in perpetuity, the Authority possesses only those powers 

devolved to it from the Council, and should the Council ever 

dissolve the Authority, its assets revert to the Tribe." The 

government goes on to highlight two additional features of the 

record: (1) the tribal ordinance that creates the Gaming Authority 

"invests the Authority with the Tribe's sovereign immunity but 

states that any waiver of immunity by the Authority is not a waiver 

by the Tribe"; and (2) under that ordinance the "Authority operates 

through a board, the membership of which the Council controls: the 

Chairman of the Tribe is automatically the President of the board; 

the Treasurer of the Tribe is automatically the Treasurer;" and 

"the Council may appoint up to three additional members to the 

board, one of whom must be another Council member." 

These aspects of the record do suffice to show that the 

two entities share significant ties. We are not persuaded, though,

that the ties suffice to show that the RGB contract is "business" 

of the Tribe rather than only of the Gaming Authority itself.
- 17 -

1.

Notably, the government is not arguing that the RGB 

contract is the Tribe's "business" just because the Gaming 

Authority, as a tribal "agency" for purposes of § 666, is a 

creature of the Tribe, in the sense that the Tribe created it and 

can terminate it. The government's choice not to advance such an 

argument is understandable. 

Section 666 defines an "agency" as "a subdivision of the 

executive, legislative, judicial, or other branch of government, 

including a department, independent establishment, commission, 

administration, authority, board, and bureau, and a corporation or 

other legal entity established, and subject to control, by a 

government or governments for the execution of a governmental or 

intergovernmental program." 18 U.S.C. § 666(d)(2) (emphasis 

added). The text of § 666 thus makes plain that an "Indian tribal 

government" and an "agency thereof" are distinct entities --

notwithstanding that the former in some respects controls the 

latter -- for purposes of assessing whether the required amount of 

federal-program funding had been received by the entity whose 

"business" "involv[ed]" the relevant "thing of value." Id.

§ 666(a)(1), (a)(1)(B), (a)(2); see Bailey v. United States, 516 

U.S. 137, 146 (1995) ("We assume that Congress used [different] 

terms because it intended each term to have a particular, 

nonsuperfluous meaning."); see also Hernández-Miranda v. Empresas 
- 18 -

Díaz Massó, Inc., 651 F.3d 167, 170 (1st Cir. 2011) ("Questions of 

statutory interpretation are questions of law."); Transamerica 

Leasing, Inc. v. La Republica de Venezuela, 200 F.3d 843, 847-48

(D.C. Cir. 2000) (noting, in the context of the Foreign Sovereign 

Immunities Act of 1976, that a government instrumentality "is 

presumed to have legal status separate from that of the sovereign" 

that created it and therefore, absent certain exceptions, the 

sovereign is "not amenable to suit based upon the acts of such an 

instrumentality"). As a result, the text of § 666 makes clear 

that we cannot simply assume that the two entities are one and the 

same, such that the "business" of one is necessarily the "business" 

of the other.

That said, the government is right that, "[a]s a matter 

of logic, a parent entity could choose to conduct some piece of 

'business' through a subsidiary while still considering it the 

parent's 'business' -- i.e., something can be both the subsidiary's 

'business' and the parent's 'business'" (emphasis in original). 

For example, both entities may be signatories to a single contract 

with a third party. There also are circumstances in the corporate 

context in which the conduct -- or, if you will, the 

"business" -- of one corporate entity may be attributed to another. 

See, e.g., Liberty Mut. Ins. Co. v. Enjay Chem. Co., 316 A.2d 219, 

222-23 (Del. Super. Ct. 1974) (principal-agent); Wallace ex rel. 
- 19 -

Cencom Cable Income Partners II, Inc. v. Wood, 752 A.2d 1175, 1184

(Del. Ch. 1999) (alter ego). 

As we noted above, however, the government does not 

suggest -- nor could it -- that the Tribe was a party to the RGB 

contract. In addition, the government asks us not to look to 

commercial-law concepts to decide whether the RGB contract is 

"business" of the Tribe under § 666. Nor does the government

suggest that the RGB contract would in any way make the Tribe 

liable for any of the Gaming Authority's contract-related 

activities. Thus, although there are legal tests for attributing 

a subsidiary's commercial conduct to its corporate parent for 

purposes of assigning liability, the government does not suggest 

that the application of any of those tests is relevant here. Cf.

Transamerica Leasing, Inc., 200 F.3d at 847-48 (noting that the 

presumption of corporate separateness under the Foreign Sovereign 

Immunities Act of 1976 can be overcome "where a corporate entity 

is so extensively controlled by its owner that a relationship of 

principal and agent is created" or "where recognition of the 

instrumentality as an entity apart from the state 'would work fraud 

or injustice'" (quoting First Nat'l City Bank v. Banco Para El 

Comercio Exterior de Cuba, 462 U.S. 611, 629 (1983))).5

5 We note that although in the context of the Foreign Sovereign 

Immunities Act of 1976 a government instrumentality that has a 

separate legal status from that of the sovereign that created it 
- 20 -

What, then, is the basis for the government's position 

that, due to the ties between the Gaming Authority and the Tribe 

described above, a rational juror could find beyond a reasonable 

doubt on this record that the RGB contract is the Tribe's 

"business"? According to the government, the case is, at least in 

part, that the evidence suffices to show that the Gaming Authority 

is an "arm" of the Tribe, in the sense that the term "arm" is used 

to describe an agency or instrumentality of a sovereign entitled 

to claim the sovereign's immunity from suit. And, indeed, the 

government invokes one of our "arm of the Tribe" cases as support 

for the contention: Ninigret Dev. Corp. v. Narragansett Indian 

Wetuomuck Hous. Auth., 207 F.3d 21 (1st Cir. 2000). As we will 

next explain, however, we are not persuaded, because we do not see 

how the mere fact that the Gaming Authority qualifies as an "arm" 

is treated as the sovereign "where a corporate entity is so 

extensively controlled by its owner that a relationship of 

principal and agent is created," Transamerica Leasing, 200 F.3d at 

848 (quoting Banco, 462 U.S. at 629), the text of § 666 

specifically defines a "government agency" as an entity 

"established, and subject to control, by a government or 

governments for the execution of a governmental or 

intergovernmental program," id. § 666(d)(2) (emphasis added). So, 

there is a question regarding whether the analysis used in the 

context of the Foreign Sovereign Immunities Act of 1976 for 

evaluating how separate sovereigns are from their agencies and 

instrumentalities is applicable here. 
- 21 -

of the Tribe could make its contract with RGB the Tribe's 

"business" for purposes of § 666. 

2.

For starters, we see no reason in principle why a test 

that is designed to determine when an agency or instrumentality of 

a Tribe may claim that sovereign's immunity from suit would be a 

good test for determining when a contract is sufficiently tied to 

an entity that received federal-program funds to make the bribery 

a federal crime under § 666. Certainly nothing in the text of

§ 666 indicates that the ability of such an entity to claim its 

sovereign's immunity from suit bears on whether the bribery was 

"in connection with" the "business" of only that entity and not of 

the sovereign itself. Moreover, the components of the "arm" 

test -- insofar as they are even clear in the context of a 

tribe -- do not easily map on to the concerns that animate the 

requirement in § 666 that the allegedly corrupt conduct must have 

occurred "in connection with" the "business" of the same entity 

whose "agent" was involved in that conduct. Rather, they would 

appear to concern -- at least in key respects -- matters that 

relate only to the reasons for conferring the immunity from suit

itself.

Ninigret itself does nothing to suggest otherwise. In 

holding that a tribal housing authority was an "arm of the Tribe,"

Ninigret simply cited to two Eighth Circuit cases that had held 
- 22 -

the same based on the fact that the subordinate entities in those 

cases had been created by tribal ordinance and as such were "tribal 

agenc[ies]." 207 F.3d at 29 (first citing Dillon v. Yankton Sioux 

Tribe Hous. Auth., 144 F.3d 581, 583-84 (8th Cir. 1998); and then 

citing Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 

668, 670–71 (8th Cir. 1986)). But, of course, no argument is being 

made here -- for good reason, as we have explained -- that the 

contracts of all agencies are "business" of the government that 

created them just because the agencies were created by those 

governments.

It is possible that the government here means to be 

invoking the "arm of the Tribe" test more generally. There is 

authority (though not within our circuit) that has assessed whether 

an entity is an "arm of the Tribe" -- and so entitled to the 

Tribe's immunity from suit -- with reference to a more developed 

set of considerations than merely whether it was created by Tribal 

ordinance. See Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold 

Casino & Resort, 629 F.3d 1173, 1185 n.9, 1187-88 (10th Cir. 2010). 

Those considerations largely overlap with our two-step "arm" test 

for determining a state agency's or instrumentality's entitlement 

to claim a state's sovereign immunity, which we have explicated in 

some detail. Compare Breakthrough, 629 F.3d at 1187-88, with

Grajales v. P.R. Ports Auth., 831 F.3d 11, 17-18 (1st Cir. 2016).

But, even if we were to use those factors as our guide here, we 
- 23 -

still do not see how the fact that the Gaming Authority might 

qualify as an "arm" of the Tribe would suffice to show that the 

Gaming Authority's RGB contract is "business" of the Tribe.

Consider the first step of our multi-step "arm of the 

state" test. Under it, the agency or instrumentality qualifies as 

an "arm" of the state if the state "clearly structured the entity 

to share its sovereignty." Grajales, 831 F.3d at 18 (quoting 

Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & Caribbean 

Cardiovascular Ctr. Corp., 322 F.3d 56, 68 (1st Cir. 2003)). To 

make the assessment, courts then look to a "broad range of 

structural indicators," including "how state law characterizes the 

entity, the nature of the functions performed by the entity, the 

entity's overall fiscal relationship to the [state] . . . , and 

how much control the state exercises over the operations of the 

entity." Id. at 17-18. 

But, insofar as an entity is deemed to be an "arm" based 

only on certain of these factors (such as whether the state has 

characterized the entity as an "arm" or the degree of control that 

the state exercises over the entity), we do not see why the 

entity's status as an "arm" would suffice to show that a contract 

that entity had entered is the state's "business" under § 666. 

The characterization and control factors would seem to provide a 

basis for concluding that any typical state agency would be an 

"arm" of its state. Yet, as we have explained, the government 
- 24 -

does not endorse -- and, in fact, at oral argument 

disclaimed -- the notion that any contract that a state agency

enters is "business" of the state for purposes of § 666. 

Thus, we do not see why it matters in determining whether 

the RGB contract is "business" of the Tribe that the record here 

shows that the Tribe's ordinance establishing the Gaming Authority 

"invests the Authority with the Tribe's sovereign immunity" and 

refers to the Gaming Authority as a "'wholly owned' subsidiary of 

the Tribe to 'act as an arm and an instrumentality of the Tribe.'" 

A typical state agency itself enjoys a state's immunity, may easily 

be described as a "wholly owned subsidiary" of its state, and is 

an "arm" of the state. So, we do not see how any of those factors 

distinguish the Gaming Authority from such an agency. 

True, the record shows that the Tribe's constitution 

empowers the Tribal Council to "'create or provide by ordinance 

for the creation of organizations . . . for any lawful purpose'"

(alteration in original). But, because a contract entered by a 

lawfully created state agency does not for that reason alone 

qualify as "business" of the state, that general grant of authority 

similarly provides no support for deeming the RGB contract that 

the Gaming Authority -- rather than the Tribe -- entered the 

"business" of the Tribe.

The government does point out, as noted above, that the

record shows that the Tribe's constitution gave the Tribal Council 
- 25 -

the authority to "establish procedures and ordinances for the 

conduct of all tribal government business operations." But it is 

not evident that the Gaming Authority was created pursuant to that 

grant of power rather than the grant of power to "'create or 

provide by ordinance for the creation of organizations . . . for 

any lawful purpose'" (alteration in original). And, in any event, 

the Tribe's labeling of the Gaming Authority's operations as 

"tribal government business operations" cannot be dispositive of 

whether the contract is "business" of the Tribe under § 666 if, as 

the government itself rightly contends, what matters under § 666 

is substance rather than form. Cf. Dixson v. United States, 465 

U.S. 482, 494 (1984) ("Federal courts interpreting the federal 

bribery laws . . . generally avoided formal distinctions, such as 

the requirement of a direct contractual bond, that would 

artificially narrow the scope of federal criminal jurisdiction.").

Finally, the fact that the "[Gaming] Authority operates 

through a board, the membership of which the [Tribal] Council 

controls" does not lead to the inference that the RGB contract was 

"business" of the Tribe. That degree of control no doubt bears on 

whether the Gaming Authority is an "arm" of the Tribe for immunity 

purposes. Such control cannot be of similar import for present 

purposes precisely because states typically control who leads

state agencies, however. For good reason, as we have noted, the 
- 26 -

government disavows the view that any contract by a state agency 

is "business" of the state.

Of course, under the first step of the "arm" test, 

factors may matter other than how the sovereign characterizes the 

agency or instrumentality or how much control the sovereign 

exercises over it. As noted above, another factor is the agency 

or instrumentality's "overall fiscal relationship" to the 

sovereign. Grajales, 831 F.3d at 18. 

The government does argue that the Gaming Authority and 

the Tribe are financially related to the extent that "should the 

Council ever dissolve the Authority, its assets revert to the 

Tribe." But, again, the government fails to explain why this fact 

has any bearing on whether the RGB contract is "business" of the 

Tribe, at least when a state similarly presumably recoups the 

"assets" of all its agencies upon their dissolution.

What is more, other factors under the first step of the 

"arm" test seem to cut against finding the Gaming Authority to be 

an "arm" of the Tribe. The test's first step also takes account 

of the entity's "proprietary" function, "separate[] 

incorporat[ion]," and "power to . . . enter contracts in its own 

name and right." Fresenius, 322 F.3d at 62 n.6. But an agency or 

instrumentality of a state that is proprietary, separately 

incorporated, and can enter contracts on its own is less rather 

than more likely to qualify as an "arm." And the record shows 
- 27 -

here that the Gaming Authority was created by the Tribal Council 

to have a proprietary function, to be separately incorporated, and 

to have the power to enter its own contracts. 

There is, we recognize, also a second step of the "arm" 

test. It may be met if there is a "risk that the damages" owed by 

the agency or instrumentality of a sovereign in a suit against it

"will be paid from the [sovereign's] treasury." Id. at 68.

The government makes no argument, however, that the 

Gaming Authority would qualify as an "arm" of the Tribe via this 

step. Nor is it evident (in light of the Gaming Authority's fiscal 

structure and the terms of the RGB contract) that the RGB contract 

could give rise to a liability that the Tribe would owe. So, here, 

too, the invocation of the "arm" test fails to show that the 

evidence suffices to permit a rational juror to find beyond a 

reasonable doubt that -- even though the Tribe is not a party to 

the RGB contract and is not at risk of being liable from it -- the 

RGB contract is "business" of the Tribe.6

6 We do note that our analysis, which has focused on our 

multi-step "arm of the state" test, has not addressed some factors 

other courts have found to be relevant in an "arm of the Tribe" 

analysis -- such as the "preservation of tribal cultural autonomy, 

preservation of tribal self-determination, and promotion of 

commercial dealings between Indians and non-Indians." 

Breakthrough, 629 F.3d at 1188 (quoting Dixon v. Picopa Constr. 

Co., 772 P.2d 1104, 1111 (Ariz. 1989)). But we do not see (nor 

does the government explain) why such considerations, which stem 

from "the policies underlying tribal sovereign immunity," id. at 

1187, would have any bearing on whether "business" of the Gaming 

Authority is also "business" of the Tribe under § 666.
- 28 -

3.

The "arm" test aside, the government does also argue 

that the evidence suffices to show the RGB contract is the Tribe's 

"business" because we should look to substance over form in 

construing § 666. But, beyond the invocation of the "arm" test, 

the government does not explain why consideration of the substance 

of the RGB contract and the Gaming Authority's relationship to the 

Tribe permits a finding that the contract is the Tribe's rather 

than only the Gaming Authority's "business." 

The evidence in the record shows, for example, that the 

Gaming Authority receives almost all its funding from a thirdparty entity and not the Tribe. In addition, as far as the record 

shows, the Gaming Authority entered the RGB contract pursuant to 

the "exclusive" powers that it had been given by the Tribe, rather 

than at the direction of the Tribe.

Consistent with its contention that substance rather 

than form matters, the government does argue -- although it is a 

little difficult to discern the contours of that argument -- that 

§ 666's scope should not "include limitations based on the terms 

of a private contract like the RGB contract." Relatedly, the 

government states that "otherwise, wrongdoers could avoid 

punishment simply by contracting around the definitions provided 

in criminal statutes" (cleaned up). As support for the contention, 

the government cites United States v. Lupton, 620 F.3d 790, 800-
- 29 -

01 (7th Cir. 2010), which held that the contract that stated that 

the defendant there was acting as "an independent contractor and 

not as an officer, employee, or agent of the state" was not 

dispositive of whether he was an "agent" of the state government 

under § 666. 

We are not deferring, however, to the RGB contract's 

formal characterization of the relationship between the Tribe, the 

Gaming Authority, and the construction work contemplated by the 

RGB contract. Rather, in determining that the record does not 

suffice to allow the jury to find, beyond a reasonable doubt, that 

the RGB contract was the "business" of the Tribe, we are doing 

exactly as the government suggests: looking to the substance of 

the RGB contract. 

That look reveals that, on this record, there is no 

plausible basis for concluding that the Tribe would be liable for 

the Gaming Authority's activities in relation to the contract or 

that the Gaming Authority received any funds from the Tribe. After 

all, the record at most shows that the Gaming Authority receives 

some unspecified in-kind support from the Tribe. That makes it 

hard to see how -- in substance -- the RGB contract implicates any 

of the Tribe's funds. And, that being so, it is hard to see how, 

in substance, the RGB contract is "business" of the Tribe itself.

To be sure, the government does argue that the fact that, 

as the defendants assert, the alleged bribery here could not 
- 30 -

"conceivably have impacted even a single federal dollar" is 

irrelevant. The government rightly points out that § 666 does not 

require the government to prove any "connection between the offense 

conduct and a case-specific federal interest." United States v. 

Cianci, 378 F.3d 71, 97 (1st Cir. 2004). But, as we have explained, 

§ 666 does require proof that the allegedly corrupt soliciting of 

a thing of value by an "agent" of an entity that § 666 covers -- or 

corrupt giving of a thing of value to such an agent -- must have 

occurred "in connection with" the "business" of that same entity. 

And, as we have also explained, § 666 imposes this requirement to 

ensure that, via subsection (b)'s federal-program assistance 

requirement, there is a link between the bribery that § 666 

prohibits and that federal assistance. Indeed, although the U.S. 

Department of Justice's Criminal Resource Manual is not binding on 

us, the defendants note that it states that the intent of Congress 

in enacting the measure was to require "that the agent must have 

illegally obtained cash or property from the [organization, 

government, or] agency that received the necessary Federal 

assistance." U.S. Dep't of Just., Crim. Res. Manual § 1001 

(emphasis added).

Thus, it is concerning that the only "business" of a 

covered entity that the government identifies here "in connection 

with" the alleged bribery is the RGB contract. That agreement was 

struck by an entity that itself received no federal benefits or 
- 31 -

even any funding from the Tribe (save for in-kind financial 

support). It is also an agreement for which the sole entity that 

did receive such assistance bears no liability. The consequence 

is that the things of value allegedly corruptly solicited by or 

given to Cromwell in his role as an "agent" of the Tribe -- whether 

the checks, the overnight lodging, or the gym equipment -- do not 

appear to have come in any sense (even indirectly) from the Tribe

rather than the Gaming Authority itself. Yet, the government is 

not contending that Cromwell was acting in his role as the "agent" 

of the Gaming Authority in engaging in the corrupt conduct with 

the "business" at issue. Rather, it is contending that he was 

acting in his role as the "agent" of the Tribe.

4.

Insofar as the government means to suggest that there is 

analogous precedent that supports its position in this case, we 

also are not persuaded. For example, the government invokes an 

unpublished Ninth Circuit opinion -- United States v. Heslop, 694 

F. App'x 485, 487 (9th Cir. 2017). That case held the 

jurisdictional element of § 666 satisfied in the case of the 

defendant, David Heslop, despite Heslop's argument that the 

stipulated facts did not show that "the business, transactions, or 
- 32 -

series of transactions at issue were those of the Indian tribal 

government." Id. (cleaned up). 

The Ninth Circuit did reject Heslop's argument by 

looking to the "clear substance of the facts" and noting that the 

"Tribe consists of roughly a dozen members, and all the tribal 

entities are interconnected in both theory and practice." Id. 

However, the defendant there "pled guilty to stipulated facts that 

refer either to the Tribe alone, or to both the Tribe and its 

corporate entities together." Id. (emphasis added). Because there 

were no guilty pleas involved here, there is no equivalent 

evidentiary record like the "stipulated facts," id., deemed 

dispositive in that case.

We note, too, that our analysis accords with the Eleventh 

Circuit's in Doran, even though that case did not involve a 

conviction for federal program bribery under § 666(a)(2) and 

instead concerned a conviction for embezzlement under § 666(a)(1). 

See 854 F.3d at 1313. The defendant there was convicted of 

embezzling from an "organization" that had received the requisite 

amount of federal program funds in the relevant period -- namely, 

Florida State University ("FSU"). Id. The defendant argued that 

he was entitled to a judgment of acquittal because the evidence 

sufficed to show at most that the funds had been embezzled from 

the FSU Student Investment Fund ("SIF"), which was a nonprofit 

corporation that FSU had established for charitable and 
- 33 -

educational purposes and had itself "received no federal 

benefits." Id. at 1314. 

The Eleventh Circuit agreed with Doran. Id. at 1315-16.

Relying on McLean, the court determined that the relevant 

"organization" for purposes of the jurisdictional provision, 

§ 666(b), was the SIF and not FSU itself. That was so, Doran

ruled, because the SIF "was the organization that was the subject 

of the embezzlement" and because "[t]he Government [was] mistaken 

in focusing on FSU as the victimized organization and in conflating 

FSU and the SIF." Id. at 1315. The Eleventh Circuit then went on 

to explain that "[d]espite the affiliation of FSU and the SIF, 

there [was] simply no evidence in the record that FSU and the SIF 

are alter egos so as to allow the Court to pierce the SIF's 

corporate veil and to treat FSU and the SIF as one and the same." 

Id.

In so ruling, Doran noted that the SIF had 

characteristics that suggested it was not wholly independent from 

FSU. For example, the SIF's Board of Directors included the Chair 

of the FSU Board of Trustees, the FSU President, and other FSU 

faculty members. But Doran stressed that the SIF's funds "came 

from private donors and not from FSU," the SIF "funneled no money 

to FSU, and FSU funneled no money to it," and the government there 

conceded the point that "the SIF was not the recipient of any 

federal funds." Id. at 1314. Given these facts, Doran explained, 
- 34 -

the "Government ha[d] not demonstrated any federal interest" in 

Doran's alleged wrongdoing. Id. at 1316.

The government does argue that Doran's reliance on the 

Eleventh Circuit's earlier decision in McLean undermines Doran as 

persuasive authority here. The government contends that, in fact,

McLean "never considered whether the parent entity's receipt of 

federal benefits, rather than the subsidiary . . . agency's 

receipt of federal benefits, could trigger § 666 jurisdiction 

because that issue was not appealed."

But Doran held that absent "evidence in the record that 

FSU and the SIF are alter egos so as to allow the Court to pierce 

the SIF's corporate veil and to treat FSU and the SIF as one and 

the same," SIF should be treated as distinct from FSU -- the entity 

that created it -- for purposes of § 666. Id. at 1315. We reach 

a similar conclusion in rejecting the government's arguments that 

the evidence of the ties between the Gaming Authority and the Tribe 

suffices to permit a finding that the RGB contract is the

"business" of the Tribe. 

The government's other attempts to distinguish Doran are 

also unavailing. The government is right that the charge there 

was for § 666 embezzlement and not § 666 bribery. The government 

is also right that the non-profit corporation created by the 

university was "neither a subsidiary nor the university's arm and 

instrumentality" (cleaned up). But § 666 embezzlement must still 
- 35 -

meet the jurisdictional element of § 666,7 and, for the reasons we

have discussed above, we are unpersuaded by the government's "arm" 

of the Tribe contention. 

D.

For all these reasons, we conclude that the § 666 

convictions must be reversed.8

III.

We move on to the government's cross-appeal, in which 

the government argues that the District Court erred in granting 

Cromwell's motion for judgment of acquittal on his Hobbs Act 

convictions. Once again, our review is de novo, see

7 The concurrence in Doran does disagree with part of the 

reasoning in the majority's opinion, stating that the "relevant 

organization here is [FSU], the organization that employed Doran, 

not the [SIF], the student organization he advised that was the 

victim of his embezzlement." 854 F.3d at 1316 (Jill Pryor, J., 

concurring in the judgment). As such, the concurrence concludes, 

"the government needed to prove beyond a reasonable doubt that 

FSU -- not the SIF -- received over $10,000 in qualifying federal 

benefits during the relevant period." Id. However, the 

concurrence relies for this conclusion on text within § 666 that 

is specific to embezzlement -- specifically, that the embezzlement 

must have been of property that "is owned by, or is under the care, 

custody, or control of such organization, government, or 

agency" -- that does not apply to the federal-program bribery 

subsections. 18 U.S.C. § 666(a)(1)(A)(ii) (emphasis added); see

Doran, 854 F.3d at 1320-21 (Pryor, J., concurring in the judgment).

8 Because we conclude that DeQuattro's and Cromwell's federalprogram bribery convictions must be reversed, we also need not 

address the government's cross-appeal of DeQuattro's and 

Cromwell's sentences on these convictions. See United States v. 

Arrieta, 224 F.3d 1076, 1083 n.4 (9th Cir. 2000) ("Because we are 

reversing the conviction[s], we need not reach the remaining 

sentencing issues raised by the parties."). 
- 36 -

Millán-Machuca, 991 F.3d at 17, and "the relevant question is 

whether, 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," 

Woodward, 149 F.3d at 56 (quoting Jackson, 443 U.S. at 319)

(emphasis in original). 

A.

Cromwell's sole conviction for conspiracy to commit 

Hobbs Act extortion is set forth in Count Six. That Count charged 

him with having committed that offense "by obtaining property not 

due to [him], from [RGB], with the consent of DEQUATTRO . . . under 

color of official right." His three convictions for substantive 

Hobbs Act extortion are set forth in Counts Seven, Eight, and Ten. 

Those counts charged him with committing those offenses "by 

obtaining property not due to [him], from [RGB], with the consent 

of DEQUATTRO . . . under color of official right," and are 

predicated, respectively, on a "$10,000 payment on or about 

11/13/15," a "Bowflex Revolution home gym valued at $1,700 on or 

about 8/5/16," and a "$1,849.37 payment on or about 5/18/17 for a 

stay at the Seaport Boston Hotel." 

Although the jury found Cromwell guilty on all these 

counts, the District Court granted his motion for judgment of 

acquittal as to each count on grounds of tribal sovereign immunity, 

owing to his role as Chairman of the Council. The District Court 
- 37 -

explained that the Hobbs Act does not apply to tribal officials 

absent a clear statement in the statute abrogating tribal sovereign

immunity. 

As the government notes, however, we and other circuits 

have long "recognized the United States as a superior sovereign 

from whose suits the tribes enjoy no sovereign immunity." In re 

Grand Jury Proceedings, 744 F.3d 211, 219 (1st Cir. 2014) 

(collecting cases). Thus, the government is plainly right that 

the District Court erred in granting Cromwell's motion for judgment 

of acquittal as to these counts, because there is no tribal 

immunity here that Congress needed to abrogate clearly. 

In fact, Cromwell does not contend otherwise. He argues 

only that we may affirm the District Court's granting of that 

motion on either of two alternative bases.9 See United States v. 

Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992) (noting that we 

"may affirm a district court decision on any ground supported by 

the record"). We address each of those arguments in turn.

B.

We begin with Cromwell's argument that we must affirm 

the District Court's granting of his motion for judgment of 

9 We do not understand Cromwell to have incorporated into his 

arguments defending the judgment of acquittal on the Hobbs Act 

charges either of the arguments that DeQuattro advanced as to the 

appeal of the § 666 convictions regarding the exclusion of a 

defense expert witness or the preclusion of the jury from reaching 

a verdict prior to receiving written instructions.
- 38 -

acquittal as to the Hobbs Act counts because, "in the absence of 

clear evidence of legislative intent to designate Native American 

leaders like Cromwell 'public officials' for purposes of the 'under 

color of official right' prong of Hobbs Act extortion, the rule of 

lenity precludes conviction of Mr. Cromwell on that distinct theory 

of liability" (cleaned up). We disagree.

The rule of lenity only "properly comes into play when, 

at the end of a thorough inquiry, the meaning of a criminal statute 

remains obscure." United States v. O'Neil, 11 F.3d 292, 301 n.10 

(1st Cir. 1993). In other words, "the Court will not interpret a 

federal criminal statute so as to increase the penalty that it 

places on an individual when such an interpretation can be based 

on no more than a guess as to what Congress intended." Ladner v. 

United States, 358 U.S. 169, 178 (1958).

The Hobbs Act broadly applies, however, to "[w]hoever in 

any way or degree obstructs, delays, or affects 

commerce . . . by . . . extortion . . . under color of official 

right." 18 U.S.C. § 1951 (emphasis added). And the Supreme Court 

has construed extortion "under color of official right," id.

§ 1951(b)(2), to be an "offense committed by a public official," 

Evans v. United States, 504 U.S. 255, 260, 261-64 (1992) (emphasis 

added). It therefore follows that the Hobbs Act prohibition at 

issue applies to any public official. 
- 39 -

That being so, the only question that we must resolve is 

whether there is a lenity-triggering ambiguity as to whether 

Cromwell -- having been elected by tribal members to be Chairman 

of the Council and therefore having been an official of that

Tribe's government -- qualifies as a "public official" under the 

Hobbs Act. Id. We see no basis for concluding that there is.

Cromwell plainly holds a position within the Tribe's 

government. Thus, unless there is some reason to doubt that an 

Indian tribal government is the kind of government whose officials

the Hobbs Act covers, there is no basis for doubting that he is a 

"public official," id., and so is covered by that statute, see

United States v. Percoco, 317 F. Supp. 3d 822, 832 (S.D.N.Y. 2018) 

("[O]nly public officials -- that is, persons who hold official 

positions within the government -- are capable of committing the 

substantive offense of extortion under color of official 

right . . . ."); see also United States v. Alexander, 287 F.3d 

811, 820 (9th Cir. 2002) (noting, in a different context, that 

"[t]he word 'official' refers to a person 'holding an office or 

serving in a public position'"); Durflinger v. Artiles, 727 F.2d 

888, 909 (10th Cir. 1984) (noting that Black's Law Dictionary has 

defined "public official" as "the holder of a public office . . .

[whose] position requires the exercise of some portion of the 

sovereign power, whether great or small" (citing Black's Law 

Dictionary (5th ed. 1979))). 
- 40 -

As an initial matter, we see no ambiguity as to whether

an Indian tribal government is a government. See Fletcher v. 

United States, 116 F.3d 1315, 1326-27 (10th Cir. 1997) ("Indian 

tribes are separate sovereigns with the power to regulate their 

internal and social relations, including their form of government 

and tribal membership." (citing Santa Clara Pueblo v. Martinez, 

436 U.S. 49, 62-63 (1978); and United States v. Wheeler, 435 U.S. 

313, 322-23, 322 n.18 (1978))). And, while it is true that the 

Hobbs Act does not expressly refer to Indian tribal governments or 

to the officials serving in them, the Hobbs Act also does not refer 

to any other type of government or government official. See 18 

U.S.C. § 1951. Yet there is no reason to doubt that, in broadly 

referring to "[w]hoever" is acting "under color of official right," 

the Hobbs Act applies to state and local governments and their 

officials generally. Id. § 1951(a), (b)(2) (emphasis added); see

United States v. Boggi, 74 F.3d 470, 475 (3d Cir. 1996) ("[The 

Hobbs Act] applies to extortionate conduct by, among others, 

officials and employees of state and local governments." (quoting 

U.S.S.G. § 2C1.1 cmt. background)). Indeed, as we have noted, the 

Supreme Court has construed that broad language to describe an 

encompassing class of persons that is comprised of "public 

officials" generally. Evans, 504 U.S. at 260, 264. 

This context also is not one in which there is special 

reason to think that Congress would have made express reference to 
- 41 -

officials in Indian tribal governments if it had intended to bring 

them within the ambit of a statute otherwise encompassing 

government officials generally. As we explained above, officials 

in Indian tribal governments enjoy no tribal immunity from criminal 

prosecution by the United States itself. See Grand Jury 

Proceedings, 744 F.3d at 219-20. Furthermore, as the government 

points out, states themselves enjoy sovereign immunity, but not 

even Cromwell suggests that the Hobbs Act has no application to 

state officials just because it fails expressly to mention them or 

their governments. 

In any event, the language that Congress chose to use to 

identify those government officials subject to the Hobbs Act 

"exudes comprehensiveness." Lac du Flambeau Band of Lake Superior 

Chippewa Indians v. Coughlin, 599 U.S. 382, 388 (2023). And that 

is because the measure refers to "[w]hoever" is engaged in the 

prohibited conduct while acting under "color of official right."

18 U.S.C. § 1951(a), (b)(2) (emphasis added). Language of a 

similarly sweeping sort -- and that also makes no express mention 

of Indian tribal governments -- recently has been deemed broad 

enough to "clearly" and "unequivocally" encompass those 

governments along with all others. Coughlin, 599 U.S. at 399. We 

thus do not see how here there is the kind of reason to doubt 

whether this statute encompasses such governments that would 

trigger the rule of lenity. United States v. Musso, 914 F.3d 26, 
- 42 -

32 n.3 (1st Cir. 2019) (quoting Abramski v. United States, 573 

U.S. 169, 188 n.10 (2014)).

C.

Cromwell also argues in the alternative that we "may and 

must affirm the judgments of acquittal below on the additional 

basis of insufficient evidence to establish the quid-pro-quo 

element of Hobbs Act extortion 'under color of official right'" 

(cleaned up). More specifically, Cromwell contends that "in order 

to convict [him] on any [of] the Hobbs Act counts, the government 

was required to prove his intent to effect a quid pro quo in 

exchange for [his] performance of, or agreement to perform, 

specific official acts to 'protect' RGB's casino contract from 

termination." He contends that none of the evidence in the record 

suffices, however, to permit a rational juror to find beyond a 

reasonable doubt that Cromwell had the required intent. We are 

again unpersuaded.

A "quid pro quo" is the giving of "something of 

value" -- the quid -- in exchange "for influence over some official 

conduct of the recipient" -- the quo. United States v. Gracie, 

731 F.3d 1, 3 (1st Cir. 2013). As we have detailed previously:

[T]he requirement of a quid pro quo means 

only[] "that without pretense of any 

entitlement to the payment, a public official 

violates § 1951 if he intends the payor to 

believe that absent payment the official is 

likely to abuse his office and his trust to 

the detriment and injury of the prospective 
- 43 -

payor or to give the prospective payor less 

favorable treatment if the quid pro quo is not 

satisfied."

United States v. Correia, 55 F.4th 12, 35 (1st Cir. 2022) (quoting 

Evans, 504 U.S. at 274 (Kennedy, J., concurring)).

Cromwell argues that none of the evidence is sufficient

to "prove his intent to effect a quid pro quo exchange for [his] 

performance of, or agreement to perform, specific official acts to 

'protect' RGB's casino contract from termination." But "tak[ing] 

the facts and all reasonable inferences therefrom in the light 

most favorable to the jury verdict," United States v. Sasso, 695 

F.3d 25, 27 (1st Cir. 2012), and recognizing that "bribes are 

seldom accompanied by written contracts, receipts or public 

declarations of intentions," United States v. McDonough, 727 F.3d 

143, 153 (1st Cir. 2013), we disagree. See also Evans, 504 U.S. 

at 274 (Kennedy, J., concurring) (stating that an official and 

bribe-payer "need not state the quid pro quo in express terms, for 

otherwise the law's effect could be frustrated by knowing winks 

and nods"); United States v. Blagojevich, 794 F.3d 729, 738 (7th 

Cir. 2015) ("Few politicians say, on or off the record, 'I will 

exchange official act X for payment Y.'").

The government argues that the "quids in this case were 

RGB's payments to Cromwell" (i.e., multiple monetary checks 

ranging from $4,000 - $10,000, the Bowflex, and the Seaport Boston 

Hotel stay), and "the quo in each instance was Cromwell's 
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protection of the RGB [c]ontract." That is, the government 

contends, Cromwell intended for DeQuattro to believe that he had 

to provide, through RGB, monetary checks and other things of value 

to Cromwell so that Cromwell would ensure that the RGB contract 

survived and that the no-cause termination provision of the 

contract would not be utilized to end the contract.

Cromwell does not dispute that RGB made the payments and 

the contract survived; that the Bowflex and Seaport Boston Hotel 

stay were for his personal use; or that the evidence sufficiently 

showed he used all the checks -- except for part of the check paid 

on January 12, 2017, for $4,000 -- solely on personal expenses. 

He contends only that the evidence is not sufficient to show that 

he intended DeQuattro to believe the payments were in exchange for

his protection of the RGB contract (i.e., that the quid was for 

the quo). We disagree.

The record shows that Cromwell requested multiple 

specific things of value from RGB and DeQuattro and acted like he 

was entitled to them (e.g., giving DeQuattro instructions on how

to get him the cash and calling him for updates when one of the 

checks was delayed). These facts undermine Cromwell's contention 

that the evidence is not sufficient to show he intended DeQuattro 

to understand that he was being asked to enter a quid-pro-quo

arrangement.
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The government correctly points out that "though people

may solicit gifts or contributions, they generally do not demand 

them in specific amounts, and $50,000 over sixteen months is not 

a typical token of goodwill." See United States v. Biaggi, 853 

F.2d 89, 99-100 (2d Cir. 1988) (stating that the jury could infer 

from the size of the "gifts" worth "several thousands of 

dollars . . . each year" that they "were not intended simply as 

kindness-of-the-heart gifts" and that the official "was not 

requesting [them] without offering something more than his 

friendship in return"). Indeed, Cromwell's complaint to DeQuattro 

that the Bowflex was used rather than new further reinforces the 

conclusion that the checks and other things of value given were 

not -- as Cromwell contends -- gifts since, as the government 

notes, "adults generally do not complain to gift-givers about the 

quality of their voluntary gifts." 

We recognize that Cromwell sometimes did offer 

noncriminal explanations to DeQuattro for the checks -- including 

that they were to be used as campaign contributions. But the fact 

that Cromwell used most of the checks for personal expenses rather 

than for reasons that he gave DeQuattro could lead a reasonable 

juror to find that Cromwell's explanations were pretextual and 

intended to create plausible deniability should the payments be 

discovered. Furthermore, because of the small size of the Tribe 

and the fact that most members already know each other, campaigning 
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for a Council seat typically costs from a few hundred dollars to 

a couple thousand dollars for an elaborate campaign, making it 

even more unlikely that Cromwell needed multiple $10,000 payments 

for a tribal election campaign. Thus, this evidence cuts against 

Cromwell's contention that he intended to request ordinary gifts, 

rather than quos.

Furthermore, the evidence in the record that Cromwell 

and RGB, both together and independently, took steps to conceal 

the monetary payments cuts against Cromwell's argument that he did 

not intend DeQuattro to believe that there was an impermissible

quid pro quo. The evidence in the record shows that DeQuattro and 

Cromwell agreed to funnel the money through personal checks and 

shell companies; Cromwell had his close friend withdraw the funds 

for him in multiple treasurer's checks (mostly structured to be 

less than $10,000 each); and RGB reimbursed DeQuattro through 

"bonuses" and one-time salary increases that did not match the 

amounts DeQuattro had given Cromwell. In short, "the extent to 

which the parties went to conceal their bribes is powerful evidence 

of their corrupt intent." United States v. McNair, 605 F.3d 1152, 

1197 (11th Cir. 2010). Indeed, that such steps were taken to 

conceal the monetary payments further undermines Cromwell's 

explanation that the payments were "borne of friendship between 

Cromwell and DeQuattro and/or the desire to promote RGB's interest 

in cultivat[ing] future business opportunities." And Cromwell 
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likewise provides no explanation as to why such steps to conceal 

the payments would be necessary if they were indeed "borne of 

friendship" or being paid "to promote RGB's interest in 

cultivat[ing] future business opportunities." 

"[T]ak[ing] the facts and all reasonable inferences 

therefrom in the light most favorable to the jury verdict," Sasso, 

695 F.3d at 27, we also disagree with Cromwell that none of the 

evidence proves "his intent to effect a quid pro quo in exchange 

for" his protection of the casino contract from termination. The

evidence shows that Cromwell had influence over the fate of the 

RGB contract, and the contract not only provided a large portion 

of RGB's revenue but also had the potential to last for years. 

Moreover, the record shows that RGB had no guarantee of its 

continuation, regardless of its performance on the casino project, 

due to the no-cause termination provision of the contract. Indeed, 

the Gaming Authority board had used a similar provision to push 

out RGB's predecessor in the casino project, and Cromwell was the 

Gaming Authority board member who had "pushed" to bring in RGB to 

replace the predecessor that was pushed out, suggesting that he 

could try to persuade the Gaming Authority board to similarly "push 

out" RGB. 

Also undercutting Cromwell's argument that he did not

intend for the benefits to be given as part of a quid-pro-quo

agreement to protect the RGB contract is the way Cromwell's 
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requests paralleled the life of the RGB contract. Cf. Woodward, 

149 F.3d at 53 (deeming "noteworthy" the "pattern formed by the[] 

amounts" of the payments over time, which increased when the 

official became chair of the relevant committee and ceased when he 

resigned from office). Even though DeQuattro and Cromwell were 

"friends" before the contract, and RGB had previously worked with 

the Tribe on a different project, Cromwell began making these 

requests only after RGB started invoicing on the more valuable 

casino contract. While the project was proceeding apace, Cromwell 

requested $10,000 every few months. Then, a lawsuit was filed by 

certain Taunton residents, and, after an initial adverse ruling, 

the casino project slowed down. Cromwell subsequently scaled back 

his requests, leading to the requests for a Bowflex, a check worth 

$4,000, and the Seaport Boston Hotel stay. Only when it became 

clear the adverse ruling would stand and the contract was no longer 

valuable did the requests from Cromwell cease entirely. So, taken 

"in the light most flattering to the prosecution, together with 

all reasonable inferences favorable" to the verdict, the evidence 

was such that a rational jury could have inferred Cromwell's 

"intent to effect a quid pro quo" for his Hobbs Act convictions. 

United States v. Olbres, 61 F.3d 967, 970, 974 (1st Cir. 1995).

IV.

DeQuattro's and Cromwell's convictions for federalprogram bribery in violation of 18 U.S.C. § 666 are reversed. The 
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District Court's grant of Cromwell's motion for judgment of 

acquittal on his Hobbs Act convictions is reversed, and the case 

is remanded for further proceedings consistent with this opinion.