The opinion of the court was delivered by: LOUIS L. STANTON
The second superseding indictment charges defendant Louis Cantor with violations of 18 U.S.C. § 666 and with conspiracy to violate that statute in violation of 18 U.S.C. § 371.
Cantor seeks an order (1) dismissing the indictment because 18 U.S.C. § 666 is unconstitutional under the Tenth Amendment, the Due Process Clause, and the Ex Post Facto Clause; (2) suppressing Cantor's statements to a government informant; (3) severing his trial on Counts Five and Six from that on Counts One through Four; (4) dismissing Count Four for lack of proper venue; and (5) directing the government to provide certain particulars.
Although he also moved to dismiss portions of the first superseding indictment for failure to allege an essential element of certain offenses charged, and certain counts claimed to be multiplicitous, the second superseding indictment renders those motions moot. (Cantor Reply Mem. at 1.)
18 U.S.C. § 666 states, in pertinent part, that:
(a) Whoever, if the circumstance described in subsection (b) of this section exists --
(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 tribunal 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.
(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. . . .
The six-count indictment states that Cantor, an attorney whose practice included the representation of construction industry clients who conduct business with the New York City Board of Education ("BOE"), (Indictment P 3), violated that statute and 18 U.S.C. § 371 when he facilitated his clients' bribery of a BOE official.
1. Tenth Amendment challenge to 18 U.S.C. § 666
Cantor claims that 18 U.S.C. § 666 is unconstitutional because Congress "did not make clear to the states the conditions for accepting federal funds", namely, "the federalization of almost all local conduct and officials". (Cantor Reply Mem. at 11). He also contends that because courts have concluded that § 666 "neither explicitly nor implicitly requires that the $ 10,000 be directly linked to the program that was the subject of the bribe," United States v. Coyne, 4 F.3d 100, 109-10 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 221, 114 S. Ct. 929 (1994), the statute imposes a condition on states' receipt of federal funds which is unrelated to the federal interest protected by the statute. That condition is the imposition of federal criminal jurisdiction over what would otherwise be purely local bribery schemes.
The parties agree that Congress enacted 18 U.S.C. § 666 pursuant to its spending power. Cantor Mem. at 33; Cantor Reply Mem. at 11; Second Gov't Mem. at 20; see U.S. Const. art. I, § 8, cl. 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence ...