                                                                          [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 96-8404
                           ________________________

                       D. C. Docket No. 1:93-CR-164-1

UNITED STATES OF AMERICA,
                                                        Plaintiff-Appellee,

                                       versus

VIRGIL M. COPELAND,
JOHN J. WINDERS,
                                                        Defendants-Appellants.

                           ________________________

             Appeals from the United States District Court
                  for the Northern District of Georgia
                        _________________________
                             (June 18, 1998)

Before COX, DUBINA and BLACK, Circuit Judges.

BLACK, Circuit Judge:

      Appellants Virgil M. Copeland and John J. Winders appeal their convictions for

accepting and making illegal kickbacks and bribes and for filing false tax returns. We

vacate their convictions for bribery under 18 U.S.C. § 666 and § 2, but affirm their

convictions on all other counts.

                                   I. BACKGROUND




                                          1
      From the early 1980s until 1992, Appellant Virgil M. Copeland served as a

manager in the Facilities Operations Division of the Marietta, Georgia, plant of

Lockheed Aeronautical Systems Company (Lockheed). Copeland's responsibilities

at Lockheed included finding off-site space for Lockheed to lease, arranging for the

relocation of transferred Lockheed executives, and choosing contractors to perform

building, maintenance, and repair projects.

      Appellant John J. Winders was a licensed real estate appraiser and broker who

assisted Lockheed in acquiring real estate and off-site lease premises. Winders and

Copeland have been friends for over 20 years, and between 1991 and 1994, Winders

earned approximately $100,000 in commissions from Lockheed-related business that

Copeland referred to him.

      Appellants' convictions stem from their involvement in a series of transactions

in which Copeland improperly referred work to Winders and agreed on behalf of

Lockheed to pay abnormally high commissions to Winders. In return, Winders paid

Copeland approximately $15,000. In addition to his dealings with Winders, Copeland

accepted payments from Robert Sherwood, a self-employed contractor to whom

Copeland awarded several Lockheed construction projects, and William Mann, the

owner of several contracting and construction companies that performed work for

Lockheed.


                                         2
       Following a jury trial, Copeland was convicted of five counts of accepting

kickbacks, in violation of 41 U.S.C. §§ 52-54 (Counts IV-V, VII-IX), five counts of

bribery, in violation of 18 U.S.C. § 666 and § 2 (Counts X-XI, XIII-XV), and three

counts of filing false tax returns, in violation of 26 U.S.C. § 7206(1) (Counts XVII,

XXI-XXII). Winders was convicted under the same statutory provisions of three

counts of providing kickbacks (Counts VII-IX), three counts of bribery (Counts XIII-

XV), and one count of filing a false tax return (Count XVI).

       On appeal, Appellants assert, among other claims, that the Government failed

to prove the statutory prerequisites of 18 U.S.C. § 666.1 We agree, and therefore

vacate the Defendants' bribery convictions and remand to the district court for

resentencing consistent with this opinion.

                                       II. DISCUSSION

       The Anti-Bribery Act, 18 U.S.C. § 666, prohibits the unlawful acceptance or

offering of anything of value of $5,000 or more, if the person taking the bribe is an



       1
          On appeal, Copeland raises the following additional claims: (1) extrinsic evidence was
improperly introduced into the jury room; (2) his rights under the Speedy Trial Act were violated;
(3) the evidence was insufficient to support the Anti-Kickback Act convictions; and (4) the court
made various errors in sentencing. Winders likewise asserts several additional claims: (1) the
district court improperly failed to sever his trial from Copeland's trial; (2) the evidence was
insufficient to support the Anti-Kickback Act convictions; (3) his due process rights were violated
by an improper amendment to the indictment; (4) the court improperly admitted character evidence;
and (5) the court improperly instructed the jury. After careful consideration of each of these claims,
we affirm the judgment of the district court. See 11th Cir. R. 36-1.

                                                  3
agent of an organization subject to the statute.2 18 U.S.C. § 666(a). Whether an

organization falls within the scope of the statute is determined pursuant to § 666(b),

which 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 involving a grant,
      contract, subsidy, loan, guarantee, insurance, or other form of Federal
      assistance.

18 U.S.C. § 666(b). In the present case, the Government alleges that Lockheed is an

organization within the scope of the statute because it is a prime contractor for the




      2
        Section 666(a) provides:
        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—
            (A) embezzles, steals, obtains by fraud, or otherwise without authority
          knowingly 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; 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.

                                               4
United States Department of Defense. In response, Appellants argue that a quid pro

quo contractual relationship does not satisfy the requirements of § 666(b).

      In determining whether Lockheed falls within the scope of § 666(b), we must

consider the statute's text, legislative history, and purpose. See United States v.

Rooney, 986 F.2d 31, 33 (2d Cir. 1993) (citing Dowling v. United States, 473 U.S.

207, 213, 105 S. Ct. 3127, 3131 (1985)). In so doing, we recognize that “[c]ourts in

applying criminal laws generally must follow the plain and unambiguous meaning of

the statutory language.” Salinas v. United States, __ U.S. __, __, 118 S. Ct. 469, 474

(1997) (internal quotations and citations omitted).

      Section 666(b) provides that the benefits an organization receives under a

federal program can be in the form of “a grant, contract, subsidy, loan, guarantee,

insurance, or other form of Federal assistance.” 18 U.S.C. § 666(b) (emphasis added).

A straightforward reading of this text indicates that § 666(b) encompasses many

situations in which the government receives consideration in return for federal

assistance. See United States v. Marmolejo, 89 F.3d 1185, 1189-91 (5th Cir. 1996)

(applying § 666 to a county jail that received federal assistance in exchange for

housing federal inmates), affirmed in part sub nom. Salinas v. United States, __ U.S.

__, 118 S. Ct. 469 (1997); Rooney, 986 F.2d at 33-35 (holding that a government




                                          5
sponsored loan qualified as a benefit under a federal program, even though the

recipient was required to repay the entire loan plus interest).

       The scope of § 666, however, is not limitless; the statute clearly indicates that

only those contractual relationships constituting some form of “Federal assistance”

fall within the scope of the statute. 18 U.S.C. § 666(b); see Rooney, 986 F.2d at 34

(stating that “[t]he statute expressly equates 'benefits' with 'Federal assistance.'”).

Thus, organizations engaged in purely commercial transactions with the federal

government are not subject to § 666. See United States v. Stewart, 727 F. Supp. 1068,

1072-73 (N.D. Tex. 1989) (holding that defense contractor was not an organization

within the scope of § 666 because it was engaged in purely commercial transactions

with the government); see also Marmolejo, 89 F.3d at 1190; Rooney, 986 F.2d at 34-

35.3


       3
          The Government's contention that the Fifth Circuit's decision in United States v.
Marmolejo, 89 F.3d 1185 (5th Cir. 1996), abrogated the district court's decision in United States v.
Stewart, 727 F. Supp. 1068 (N.D. Tex. 1989), lacks merit. In Marmolejo, the Fifth Circuit concluded
that the “fact that the government received something in return for the assistance it provided” did
not preclude a finding that the county received benefits under a federal program. Marmolejo, 89
F.3d at 1190-91. The Government contends that this finding conflicts with the holding in Stewart.
Stewart, however, turned not on the fact that a quid pro quo relationship existed between the
involved entity and the government, but on the fact that the quid pro quo contractual relationship
was purely commercial in nature and lacked any semblance of federal assistance under a federal
program. Stewart, 727 F. Supp. at 1072. Thus, both Stewart and Marmolejo support the conclusion
that § 666 does not apply to purely commercial transactions. See Rooney, 986 F.2d at 34 (noting
that Stewart is consistent with the view that purely commercial transactions, but not all quid pro quo
relationships, fall outside the scope of § 666(b) since “[Stewart] involved a defense contractor that
supplied custom-made goods to the government, which in essence is a purchase of equipment from
a supplier.”).

                                                  6
       Having reached this conclusion based on a plain reading of § 666(b), we

normally would not engage in any additional analysis. However, since some circuits

have found § 666(b) to be ambiguous on its face, it is worth noting that our conclusion

is consistent with the statute's legislative history, which provides in part:

       [T]he term 'Federal program involving a grant, a contract, a subsidy, a
       loan, a guarantee, insurance, or another form of Federal assistance' [is to]
       be construed broadly, consistent with the purpose of this section to
       protect the integrity of the vast sums of money distributed through
       Federal programs from theft, fraud, and undue influence by bribery.
       However, the concept is not unlimited. The term 'Federal program'
       means that there must exist a specific statutory scheme authorizing the
       Federal assistance in order to promote or achieve certain policy
       objectives. Thus, not every Federal contract or disbursement of funds
       would be covered. For example, if a government agency lawfully
       purchases more than $10,000 in equipment from a supplier, it is not the
       intent of this section to make a theft of $5,000 or more from the supplier
       a Federal crime.

S. Rep. 98-225 at 370 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3511; see also

Stewart, 727 F. Supp. at 1070-71 (citing report). This passage shows that Congress

did not intend the statute to apply to the federal government's ordinary commercial

transactions.4




       4
         The legislative history also makes reference to three previously adjudicated cases to which
Congress intended § 666 to apply. See S. Rep. 98-225 at 370 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3511; see also Stewart, 727 F. Supp. at 1070-71. Although the facts of those
cases do not encompass all the situations to which the statute should apply, none of the cases suggest
ordinary commercial transactions fall within the scope of the statute. Stewart, 727 F. Supp. at 1070-
71; see also Rooney, 986 F.2d at 35.

                                                  7
       Based on a plain reading of the statute, we conclude that the Government failed

to prove that Lockheed is an organization that receives benefits pursuant to a federal

program as required by § 666(b). Nothing in the record indicates that Lockheed

receives any form of federal assistance or is in anyway engaged in something other

than purely commercial transactions with the government. The Government attempts

to distinguish defense contracts from other commercial transactions by noting that the

government provides Lockheed with detailed specifications for aircraft and that

Congress annually appropriates specific sums for aircraft procurement, testing, and

research and development. Although these factors make defense contracts unique,

they do not show that Lockheed received benefits under a federal program through a

contract or any other form of federal assistance. See Stewart, 727 F. Supp. at 1072.

Punishing the Appellants' conduct might further the statute's goal of protecting the

integrity of federal funds, but it is not the role of this Court to expand the scope of

§ 666 to encompass such behavior. Id. at 1073 (citing United States v. Bowman, 260

U.S. 94, 102, 43 S. Ct. 39, 42 (1922).5

                                     III. CONCLUSION

       5
         We note that the Supreme Court's recent decision in Salinas v. United States, __ U.S. __,
118 S. Ct. 469 (1997), does not affect our conclusion in this case. Salinas dealt with the issue of
whether the alleged bribery must affect or involve federal funds. Id. at 473. The Supreme Court
unanimously concluded that the bribery does not need to have a specific impact on federal funds,
so long as the involved organization or governmental agency received federal funding as required
by § 666(b). Id. at 474. Salinas therefore does not address the issue raised by the present case.

                                                8
      The Government failed to prove that Lockheed is an organization that received,

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. Accordingly, we vacate the Defendants' convictions for bribery

under 18 U.S.C. § 666 and § 2, affirm their convictions in all other respects, and

remand for resentencing consistent with this opinion.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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