The White Collar Appeal: Seventh Circuit Refines Section 666 Analysis Following Supreme Court’s Snyder Decision

• Revisiting Section 666 jury instructions that the Supreme Court’s 2024 Snyder decision called into question, the Seventh Circuit affirmed a conviction even as it invited the Committee on Pattern Criminal Jury Instructions to reassess the instruction.
• In United States v. Cui, instructing the jury that offering a thing of value “in connection with” an official act sufficiently conveyed the quid pro quo required for conviction under Section 666.
• Cui has several important takeaways for federal bribery cases charged under Section 666, including the incorporation of McDonnell official-acts analysis, an analysis of the definition of “corruptly,” and the evolving articulation of Section 666 corruption within the Seventh Circuit.

Background

Charles Cui needed a permit for a 30-foot pole sign on a rental property, so he sought out Edward Burke, the longest-serving alderman in Chicago history, for help.  In addition to his position in city government, Burke was a lawyer in private practice, representing clients in property tax appeals before the City.  Cui also had a pending tax appeal, so he decided to “ask [Burke] to represent [Cui] for [the] property tax appeal, which will be a big bite, compar[ed to]” the zoning issue.  Cui already had a lawyer for the tax appeal, so he told that lawyer that he wanted “Edward Burke [to] handle [the] property tax appeal for me, at least for this year[.]  I have [a tax increment financing] deal going with the City, and he is the Chairman of Finance Committee…. I need his help for my zoning etc for my project.  He is a powerful broker in City Hall, and I need him now.  I’ll transfer the case back to you after this year.”  These quotations come directly from emails Cui sent. 

Cui then proceeded to retain Burke for the tax appeal, and when Burke agreed, Cui asked if Burke could help with the permit.  Burke immediately took steps to intercede in Cui’s permit dispute by having his office contact the Commissioner of the Chicago Department of Buildings.  Burke himself then called the Commissioner the next day.  About a week later, Cui and Burke signed an engagement letter for the tax appeal.

A grand jury indicted both Cui and Burke on a series of corruption-related counts.  As to Cui, the charges included offering a bribe to a public official in violation of 18 U.S.C. § 666(a)(2), along with Travel Act violations and false statements under 18 U.S.C. § 1001.

At trial, Cui argued that the district court should instruct the jury that, to convict him of Section 666(a), it had to find that there must be a “quid pro quo[, meaning] an agreement to exchange this for that, to exchange money or something else of value for influence in the future.” (emphases added).  The district court rejected these arguments and instead instructed the jury that it had to find that he “gave, offered, or agreed to give a thing of value to another person … corruptly with the intent to influence or reward an agent of a local government, or any agency thereof, in connection with some business, transaction, or series of transactions of the government.” (emphases added).  Cui also argued for an instruction that “[a] person acts corruptly when that person acts … with the knowledge that giving or offering the thing of value is forbidden.”  The district court declined to give the instruction.

Cui was convicted, and while his posttrial motions were pending, the Supreme Court decided Snyder v. United States, in which it held that Section 666(a) does not criminalize gratuities—only bribes.  603 U.S. 1, 19 (2024).  The district court in Cui’s case, however, held that his conviction did not run afoul of Snyder.

Holdings

The Seventh Circuit affirmed.  Recognizing that Snyder removed gratuities from the reach of Section 666(a), Cui argued that there was no agreement between him and Burke prior to Burke’s outreach to the Building Commissioner (and thus no improper quid pro quo), because Cui did not sign an engagement letter with Burke’s firm until a few days later.  The Seventh Circuit rejected that argument, because the evidence was that Cui and Burke had agreed to have Burke handle the tax appeal before Burke’s call to the Commissioner.  The fact that they signed an engagement letter afterwards was not dispositive of when they reached agreement on the improper quid pro quo. 

The court rejected Cui’s challenge to the jury instruction too.  It held that, even though “it is a fair reading of Snyder to find § 666(a) now requires a corrupt intent to enter into a ‘quid pro quo,’” that does not mean that the district court erred in using “in connection with” instead of “in exchange for.”  “‘In exchange [for],’ ‘in connection with,’ ‘for a specific act,’ and ‘in return [for],] can all sufficiently convey that a quid pro quo is required under § 666(a).”  And as for the definition of “corruptly,” the court held that “[b]ecause bribery is ‘inherently corrupt,’ a person acts ‘corruptly’ when he understands the payment is a bribe.”  As a result, no further explanation along the lines Cui requested was required.

Key Takeaways

The “in connection with” formulation may still be vulnerable to challenge.  The court found no reversible error from the use of “in connection with” on these facts, but it laid down a marker that such language “could be problematic in a case where the evidence might suggest the payment was a gratuity rather than a bribe.”  The court also encouraged the Seventh Circuit Committee responsible for drafting pattern jury instructions to address the issue.  Defendants charged with Section 666 thus should continue to object to “in connection with” and point to evidence that suggests a payment or agreement came only after the official’s agreement to perform an official act.  Defendants may also wish to argue that that jury instructions containing “in connection with” language creates ambiguity that must be resolved in their favor.

Cui reads McDonnell’s definition of “official act” into § 666(a)(2).  Even as it explained that Section 666 does not include “official act” and that “Snyder did not hold that bribery under § 666(a) has an ‘official act’ requirement,” the Seventh Circuit appeared to incorporate such an official-act requirement and the McDonnell definition of that term.  See McDonnell v. United States, 579 U.S. 550 (2016).  That would seem to narrow the statutory language significantly, as Section 666(a)(2) criminalizes the corrupt gift, offer, or agreement “to give anything of value to any person, with the intent to influence or reward any [public official] in connection with any business, transaction, or series of transactions of” a state, local, or tribal government.  That is expansive language that now is circumscribed by McDonnell’s official-act requirement, which is much tighter. 

Corrupt intent is per se willful.  Cui demonstrates that, in bribery cases, defendants who act with corrupt intent are presumed to understand that their conduct is unlawful.  As a result, it would appear that a defendant’s sincere, good-faith belief that the exchange of a thing of value for official action was permitted is not a defense.