police officers, who testify under a grant of immunity.
18 U.S.C. § 666(c) states, however: "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." A plain reading of that section, in my view, prohibits a prosecution under § 666 based on an employee's accepting wages for more hours than she actually worked. In a communication dated March 10, 1993, I raised this concern to counsel for both sides and asked the government to provide some authority to justify the continuance of these charges.
In response to my request, the government cited, inter alia, U.S. v. Stout, 1990 U.S. Dist. LEXIS 12343 (E.D.Pa. 1990), which involved a prosecution under § 666 based on "ghost employees", that is, persons listed on an official payroll who performed no actual work. Provided the other benchmarks of § 666 are met, the statute certainly authorizes the federal prosecution of an employee who invents fictitious workers and collects their "wages" for his/her own use. The government argues that the difference between such "ghost employees" and the defendants in this case is "only one of degree." I disagree. While the exception stated at subsection (c) would not preclude a prosecution involving wages which are clearly not "bona fide", its plain language would prevent making a federal crime out of an employee's working fewer hours than he or she is supposed to work, and the scant case law, which the government has cited fully and ably to the Court, does not support a contrary conclusion.
Nor is a contrary conclusion required by the relevant legislative history. The legislative history of the 1986 amendment to § 666(c) which excepts "bona fide salary, wages, . . ." from the statute's reach is neither extensive nor obvious. The amendment is one of the minor changes in substantive criminal law effected by Pub. L. No. 99-646, which also effected sweeping changes in the Comprehensive Crime Control Act of 1984, the Victims of Crime Act of 1984, and certain lesser changes in the Federal Rules of Criminal Procedure. The sole reference to the amendment of § 666(c) appears to be in H.R. Rep. No. 797, 99th Cong., 2d Sess. 30 (1986), which states:
[This section] of the bill amends 18 USC 666, which deals with theft or bribery concerning programs receiving federal funds. [The section] clarifies that 18 USC 666 covers programs of Indian Tribal governments and Tribal government agencies. In addition, [the section] amends 18 USC 666 to avoid its possible application to acceptable commercial and business practices. (footnote omitted) [It also makes stylistic changes in § 666.]