                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2685
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Curley Hines,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 13, 2008
                                 Filed: September 8, 2008
                                 ___________

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Curley Hines, a deputy sheriff in St. Louis County, Missouri, was convicted on
ten counts of accepting bribes in violation of 18 U.S.C. § 666(a)(1)(B), one count of
aiding another deputy to do the same, and one count of conspiracy. He was sentenced
by the district court1 to 33 months’ imprisonment and now appeals, raising three
issues: that a violation of § 666 requires a nexus between the federal funds and the
offense charged; that the transactions charged within each count did not reach the



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        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
minimum amount required under the statute; and that his conspiracy conviction
violated Wharton’s Rule. We affirm.

                                    I. Background

       The jury found that Hines, an execution deputy whose official duties included
enforcing court orders of evictions and collecting or seizing property in execution of
court judgments, was involved in a longstanding practice among the execution
deputies in the St. Louis County Sheriff’s Office of accepting small cash payments
from various moving companies and property owners for the deputies’ performance
of their eviction-related duties. The owner of one moving company testified that his
business had made payments to Hines for more than twenty years; another testified
that his business made payments in the amount of ten percent of his invoice for each
eviction. Representatives of a real estate firm testified that the firm paid Hines $100
for each eviction he performed for it. The payments were made to facilitate the
deputies’ timely and cooperative performance of their duties, which included
scheduling the evictions and providing the color of authority at the eviction site.

                                     II. Analysis

      Section 666 of Title 18 of the United States Code sets forth the circumstances
that must exist to form the basis of a charge of theft or bribery concerning programs
receiving federal funds. One of these circumstances is that the organization,
government, or agency receive benefits in excess of $10,000 under the federal
program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form
of federal assistance. 18 U.S.C. § 666(b). The record reveals that the jurisdictional
amount was satisfied for each of the years covered by the indictment.




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                                           A.

       Hines argues that the government failed to establish a nexus between the federal
funds establishing jurisdiction under § 666(b) and the activity for which he was
indicted under § 666(a). We rejected a similar contention in United States v. Sabri,
326 F.3d 937 (8th Cir. 2003), a position that the Supreme Court affirmed in Sabri v.
United States, 541 U.S. 600 (2004). Reviewing a facial challenge to § 666 on the
basis that it failed to require such a nexus, the Supreme Court “readily dispose[d] of
this position that, to qualify as a valid exercise of Article I power, the statute must
require proof of connection with federal money as an element of the offense.” Sabri,
541 U.S. at 605. Instead, the Court stated that Congress’s inclusion of jurisdictional
amounts creates a sufficient nexus to constitute a valid enactment under the Necessary
and Proper Clause. Id. at. at 605-06.

       The facts in Sabri arguably evidenced a connection between federal funds and
the defendant’s criminal activities, as Sabri had bribed a city councilman who was in
a position to administer funds and whose agencies received federal funds. Hines thus
raises an as-applied challenge, contesting the rationality of applying § 666 to him in
particular. He argues that he was not entrusted with the disbursements of any money,
federal or otherwise; his dealings were purely local and could not jeopardize in any
significant manner the integrity of federal programs; and the federal monies given to
St. Louis County did not reach his department.

       Hines’s as-applied challenge fails, for the plain language of the statute does not
require, as an element to be proved beyond a reasonable doubt, a nexus between the
activity that constitutes a violation and federal funds. See Sabri, 326 F.3d at 940-45.
The Supreme Court upheld our interpretation of § 666 as Congress’s attempt to
preserve the integrity of federal funds by lessening the burden of federal prosecutors
to prove what may be an impossible-to-trace, but very real, impact of local corruption
on federal funds. See Sabri, 541 U.S. at 606-07. That legitimate purpose and

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Congress’s rational means of achieving it by eschewing a nexus requirement in the
offense would be undermined if defendants such as Hines could require the
government to establish such a nexus. See Gonzales v. Raich, 545 U.S. 1, 3 (2005)
(stating, in the context of legislation enacted pursuant to the Commerce Clause, that
“where the class of activities is regulated and that class is within the reach of federal
power, the courts have no power to excise, as trivial, individual instances of the class”
(internal quotation and alteration omitted)). Thus, we reiterate our position on this
issue and also point to those post-Sabri decisions that have declined to require any
connection between federal funds and the activity that constitutes a violation of § 666.
See, e.g., United States v. Caro-Muniz, 406 F.3d 22 (1st Cir. 2005); United States v.
Kranovich, 401 F.3d 1107 (9th Cir. 2005); United States v. Spano, 401 F.3d 837 (7th
Cir. 2005); United States v. Mirikitani, 380 F.3d 1223 (9th Cir. 2004).

                                           B.

       Hines also argues that the evidence is insufficient to show that the minimum
jurisdictional amount required by § 666 was met for each count of his conviction. The
relevant language of that statute provides that an agent of a state or local government
violates the statute if he

      corruptly solicits or demands for the benefit of any person, or accepts or
      agrees to accept, anything of value from any person, intending to be
      influenced or rewarded in connection with any business, transaction, or
      series of transactions of such organization, government, or agency
      involving any thing of value of $5,000 or more . . . .

§ 666(a)(1)(B) (emphasis added).

       Hines argues that the “thing of value” must be worth $5,000 or more to either
the briber or the bribee, and thus the money judgments and foreclosed property values
should not be considered in calculating that value. Our decision in United States v.

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Zimmerman, 509 F.3d 920, 926 (8th Cir. 2007), forecloses that contention. The plain
language of the statute does not require a restricted, technical interpretation that would
prevent the consideration of the “thing’s” value to other parties with an immediate
interest in the transaction.

       The relevant jury instruction identified the “judgment(s) or order(s) of eviction”
as the transaction to be considered and permitted the jury to “consider the value to St.
Louis County or to the private entities or individuals or both.” The bribery payments
were made in order to effectuate Hines’s and his colleagues’ timely performance of
their official duties involving court orders of eviction. The evidence adduced at trial
showed that these orders of eviction and their associated money judgments were worth
substantial amounts of money to the property owners and landlords to whom they
were awarded. One of the property owners involved and at least two lawyers
experienced in landlord-tenant issues testified that a landlord or property owner loses
a substantial amount in market value, rent and mortgage payments, and/or property
damage every day a defaulting tenant or mortgagee is in possession of the property.
Thus, those losses grow ever larger in the absence of the timely cooperation of the
execution deputies in enforcing the eviction notices obtained as the result of the
nonpayment of rental and mortgage obligations. Without recounting the details of the
monetary value of the eviction transactions, we agree with the government that its
evidence satisfied the $5,000 threshold in each of the charged counts.

       For the first time on appeal, Hines argues that the government’s indictment
failed to use the correct units of prosecution for each count. Specifically, he argues
that the government should not be permitted to aggregate multiple payments within
a single count unless the count includes all such charged transactions within the
defendant’s scheme. We reject this contention and hold that § 666 that permits the
government to aggregate multiple transactions in single count to reach the $5,000
minimum as long as they were part of a single plan or scheme. See, e.g., United States
v. Cruzado-Laureano, 404 F.3d 470, 484 (1st Cir. 2005) (permitting aggregation in the

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context of § 666(a)(1)(A), the “theft” prong of the statute); United States v. Yashar,
166 F.3d 873, 876 (7th Cir. 1999); United States v. Valentine, 63 F.3d 459, 466 (6th
Cir. 1995). The series of transactions so charged must fall within a one-year period
wherein the government agency or organization received $10,000 or more in federal
funds. See 18 U.S.C. § 666(d)(5); Valentine, 63 F.3d at 463. Significant longstanding
schemes that extend for longer than one year, such as the one that took place in the St.
Louis County Sheriff’s Office, may be charged in multiple counts so long as the
$5,000 requirement is met in each one-year time period. In this case, each count
aggregated the transactions that took place in a single day.

       Although Hines argues that the government’s indictment in this case is
multiplicitous, and thus arbitrarily divides a single crime into multiple counts, we
express no opinion with respect to the issue because Hines failed to object to the
indictment and was not prejudiced by any error. The danger of multiplicitous
indictments is that the defendant may be exposed to multiple sentences for a single
crime. Because Hines’s sentences run concurrently, however, the length of his
imprisonment was not increased by any multiplicitous convictions. See United States
v. Lemons, 941 F.2d 309, 319 (5th Cir. 1991) (“Even if a defendant waives his right
to assert a multiplicity claim, he may still object to multiple sentences . . . but only if
the sentences are not to be served concurrently.” (internal quotations and alterations
omitted)).

                                            C.

       Hines argues that his conviction for the conspiracy count violates Wharton’s
Rule because he and the only other party to the agreement were briber and bribee.
Because Hines did not raise this argument below, our review of this issue is for plain
error only.




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       We conclude that Wharton’s Rule does not apply in this case. Wharton’s Rule,
which operates as a narrow exception to the general principle that a conspiracy and
its underlying substantive offense do not merge, applies when there is a “general
congruence of the [conspiracy] agreement and the completed substantive offense.”
Iannelli v. United States, 420 U.S. 770, 781-82. This “general congruence” exists
when “[t]he parties to the agreement are the only persons who participate in
commission of the substantive offense, . . . the immediate consequences of the crime
rest on the parties themselves rather than on society at large,” and when “the
agreement that attends the substantive offense does not appear likely to pose the
distinct kinds of threats to society that the law of conspiracy seeks to avert.” Id. at
782-83. The purpose of § 666, to protect the integrity of federal funds, indicates that
“the immediate consequences” of the behavior it proscribes rest on society at large.
Furthermore, the behavior implicated in this case was self-perpetuating in the way of
a conspiracy and implicated more entities than just those who exchanged money. The
underlying offense of bribery was part of a coercive system on the part of the deputies
of St. Louis County to implicate movers and property owners who sought to enforce
their evictions.

      The judgment is affirmed.
                      ______________________________




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