                     UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                  No. 92-8277



UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellant,


                                    versus


MIKE MOELLER, PETER THOMAS
McRAE, and BILLIE QUICKSALL,
                                                      Defendants-Appellees.




           Appeals from the United States District Court
                 for the Western District of Texas

                             (April 1, 1993)
 Before POLITZ, Chief Judge, GOLDBERG and JONES, Circuit Judges.

POLITZ, Chief Judge:

     This appeal involves the applicability of 18 U.S.C. § 666 to

the former Texas Federal Inspection Service.                 The government

appeals   the    dismissal   of    certain   counts    of   the   superseding

indictment against Mike Moeller, Peter Thomas McRae, and Billie B.

Quicksall.      We vacate and remand.



                                  Background

     McRae and Quicksall were indicted for, inter alia, improperly

awarding TFIS consulting contracts to codefendants Russell Koontz
and Robert Boyd as compensation for their soliciting campaign

contributions      to    support    the    candidacies      of   Moeller       or   Jim

Hightower for Texas Agriculture Commissioner.                  Moeller was deputy

commissioner of the Texas Department of Agriculture.                    McRae was a

Special Assistant to Moeller at TDA until January 1988 when he

became   associate       director    of    TFIS.     Quicksall         held    various

managerial positions at TFIS and TDA.              All three were indicted for

violations of 18 U.S.C. § 666, theft or bribery concerning programs

receiving federal funds, and 18 U.S.C. § 371, conspiracy to commit

an offense or to defraud the United States.

     TFIS was created to perform federal and state inspections of

agricultural products under a cooperative agreement between the

United   States    Department       of    Agriculture    and     the   TDA.1        This

agreement provided for joint supervision of TFIS by a Federal

Supervising Inspector employed by USDA and a State Administrative

Officer appointed by TDA.2           The TFIS inspectors were not federal

employees but were licensed to perform federal inspections.                         They

performed shipping-point inspections where federal/state inspection

certificates      were   issued,     receiving     market      inspections       where

federal inspection certificates were issued, and they also enforced

Texas state produce regulations.

     1
          The agreement was entered under the authority of the
Agricultural Marketing Act of 1946, 7 U.S.C. §§ 1621-27, and
applicable Texas law. See Tex. Agric. Code art. 91.001-005.

     2
          For example, disbursement of TFIS funds required joint
approval of the Federal Supervisor and the Texas Commissioner of
Agriculture, or their respective designees.


                                           2
       The    agreement   authorized         TFIS    to    charge   fees    for

shipping-point inspections,3 4% of which were remitted to the

Agricultural Marketing Service to offset federal overhead expenses

such as the salary of the federal supervising inspector.4              For the

relevant years, the fees TFIS remitted to AMS exceeded federal

overhead expenses.    Fees not remitted by TFIS to USDA could be used

only for TFIS operating expenses. TFIS sometimes loaned inspectors

to USDA to conduct inspections at terminal markets;5 TFIS was fully

reimbursed for the cost of these inspectors.              All monies collected

by TFIS for enforcement of state regulations were deposited in the

state treasury.

       The   defendants   moved   to       dismiss   those   charges   of   the

indictment which predicated violations of 18 U.S.C. § 666, or

conspiracy to violate that statute, upon their actions as TFIS

officials.6    The district court granted that motion, finding that

       3
          The Agricultural Marketing Act authorizes collection of
fees to cover the cost of inspection of agricultural products.
7 U.S.C. § 1622(h).

       4
          Fees for inspections made pursuant to a cooperative
agreement with a state may be "disposed of in accordance with the
terms of such agreement." 7 C.F.R. § 51.44.

   5
          A terminal market is one from which agricultural products
are shipped out to markets outside the State of Texas. Generally,
inspections at terminal markets were performed by USDA-employed
inspectors.

       6
          As part of the bribery scheme, the defendants also
arranged for Boyd and Koontz to receive TDA consulting contracts.
The counts of the indictment predicated upon the TDA contracts were
not dismissed and are not subjects of this appeal.


                                       3
TFIS did not receive $10,000 in benefits from a federal assistance

program as required by section 666(b).     The trial court concluded

that the defendants' misconduct as agents of TFIS was not within

the court's subject matter jurisdiction.       The government timely

appealed.



                               Analysis

     In urging that the district court erred, the government

advances two theories:    (1) TFIS received over $10,000 per year in

federal benefits, or (2) TFIS is a subdivision of TDA, which

indisputably receives the requisite amount of federal funding.

Finding that this matter is readily resolved under the second

postulation we pretermit consideration of the first.

     The legislative history of 18 U.S.C. § 666 states that the

statute was "designed to create new offenses to augment the ability

of the United States to vindicate significant acts of theft, fraud,

and bribery involving Federal monies that are disbursed to private

organizations or State and local governments pursuant to a Federal

program."7    Section 666 provides in pertinent part:

     (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 therof --

                  (A) embezzles, steals, obtains by fraud,
                  or otherwise without authority knowingly

     7
          S. Rep. No. 225, 98th Cong., 2d Sess. 369, reprinted in
1984 U.S. Code Cong. & Admin. News 3182, 3510.


                                   4
                  converts to the use of any person other
                  than the rightful owner or intentionally
                  misapplies, property that --
                       (i) is valued at $5,000 or
                       more, and
                       (ii) is owned by, or is under
                       the care, custody, or control
                       of    such     organization,
                       government, or agency; or

                  (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 anything of value of $5,000 or
                  more . . . .

      shall be fined under this title, imprisoned not more than
      10 years, or both.

      (b) 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 involving a
      grant, contract, subsidy, loan, guarantee, insurance, or
      other form of Federal assistance.8

      The government contends that TFIS is a subdivision of TDA and,

for purposes of jurisdiction, we may look to the federal assistance

TDA   receives.      We   find   this       contention   persuasive   with    a

refocusing.   Taking the words of the statute at face value it is

apparent   that    for    purposes   of       the   conduct   proscribed     by

section 666(a)(1) the defendant must be an agent of the agency

      8
           18 U.S.C. § 666(a) and (b) (emphasis added).

          Subsection (c) provides: "This section does not apply to
bona fide salary, wages, fees, or other compensation paid, or
expenses paid or reimbursed, in the usual course of business." The
parties dispute whether subsection (c) qualifies either only
subsection (a), only subsection (b), or both (a) and (b). Because
we decide on other grounds, we pretermit this question as well.


                                        5
receiving federal benefits in excess of $10,000.9     The critical

inquiry is not the role of the TFIS and whether it interposes a

separate entity shielding any violations of this statute, but the

role of the defendants.   Specifically, we must determine whether

the defendants were agents of TDA as they performed their functions

for TFIS, the creation of TDA and the USDA.

     We have recognized that in enacting section 666, "Congress has

cast a broad net to encompass local officials who may administer

federal funds, regardless of whether they actually do."10   Although

the conduct prohibited by section 666 need not actually affect the

federal funds received by the agency,11 there must be some nexus

between the criminal conduct and the agency receiving federal

assistance.   In Westmoreland we held that so long as the agency

received $10,000 per year from a federal assistance program, its

agents are subject to section 666.12      The particular program

involved in the theft or bribery scheme need not be the recipient

     9
          There are only two requirements necessary to bring a
defendant within section 666. "First, the defendant must be an
'agent' of a 'government agency' that receives in excess of $10,000
from the federal government within a one-year period." Second, the
defendant must engage in conduct proscribed by section 666(a)(1)(A)
or (B). United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991).

     10
          United States v. Westmoreland, 841 F.2d 572, 577 (5th
Cir.), cert. denied, 488 U.S. 820 (1988); United States v. Snyder,
930 F.2d 1090 (5th Cir.), cert. denied, 112 S.Ct. 380 (1991).

     11
          United States v. Little, 889 F.2d 1367 (5th Cir. 1989),
cert. denied, 495 U.S. 933 (1990); Westmoreland.

     12
          841 F.2d at 576.


                                 6
of federal funds.13

     Of critical importance to our inquiry, section 666 defines

"government agency" thusly:

     [T]he term "government agency" means 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.14

TFIS and TDA are both indisputably "government agencies" as thus

defined. TFIS is a legal entity established and subject to control

by the federal and Texas state governments for the execution of an

intergovernmental program.    TDA is a subdivision of the executive

branch of Texas state government.      If in their roles at TFIS, McRae

and Quicksall were agents of TDA, then TDA is a relevant agency for

purposes of section 666(b).

     To determine whether TFIS employees were agents of TDA, we

need look no further than the cooperative agreement creating TFIS.

TFIS operated under the joint supervision of USDA and TDA.          In

enforcing state produce regulations, TFIS performed discretionary

functions on behalf of TDA.15 TFIS enforced regulations promulgated

     13
          Little, 889 F.2d at 1369.

     14
          18 U.S.C. § 666(d)(2).

     15
          The agreement included among TDA's responsibilities:

     Assume responsibility for training and supervising
     inspectors in the interpretation and enforcement of such
     State   regulatory   provisions    of   standardization,
     compulsory inspection citrus maturity, citrus color-add,

                                   7
by TDA and the funds collected for those regulatory functions were

remitted directly to the state treasury.         Finally, the agreement

provided that upon termination, all remaining funds held by TFIS

would be transferred to any successor inspection service, or if no

successor was created, then "all such funds or property would

revert to [TDA] for its use or disposition."16         We find that for

purposes of section 666, McRae and Quicksall, in their positions at

TFIS, were agents of TDA -- an agency that receives more than

$10,000 per year in benefits from federal assistance programs.

Moeller's   alleged   conspiracy   with   them    is   also   covered   by

section 666.

     The order of the district court dismissing Counts Five, Seven,

Eight, and a part of Count One of the superseding indictment is

VACATED and the matter is REMANDED for further proceedings.




     or other requirements pertaining to fruits and vegetables
     as [TFIS] shall enforce.

     Furnish such forms, stationery, licensing applications,
     equipment and administrative support as shall be
     necessary to faithfully enforce such regulatory programs
     of the State as the Commissioner of Agriculture, Texas
     Department of Agriculture, shall request that [TFIS]
     enforce.

(Emphasis added.)

     16
          In 1990, the TDA-USDA cooperative agreement terminated
and was not renewed.   USDA entered an agreement with a private
organization, the Fruit and Vegetable Growers and Shippers of
Texas, to carry out TFIS's former functions.


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