United States Court of Appeals For the First Circuit

Nos. 23-1115 23-1116 23-1138 23-1139 UNITED STATES OF AMERICA,

Appellee, Cross-Appellant,

v.

DAVID DEQUATTRO; CEDRIC CROMWELL,

Defendants-Appellants, Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Barron, Chief Judge, Kayatta and Gelpí, Circuit Judges.

Martin G. Weinberg, with whom Kimberly Homan and Michael Pabian were on brief, for appellant, cross-appellee David DeQuattro. Robert F. Hennessy, with whom Schnipper Hennessy, PC was on brief, for appellant, cross-appellee Cedric Cromwell. Karen L. Eisenstadt, Assistant U.S. Attorney, with whom Joshua S. Levy, Acting U.S. Attorney, was on brief, for appellee, cross-appellant.

September 27, 2024 BARRON, Chief Judge. In 2020, a federal grand jury

indicted David DeQuattro, an architect with Robinson Green Beretta

Corp. ("RGB"), and Cedric Cromwell, Chairman of the Mashpee

Wampanoag Tribal Council ("Council") and President of the Mashpee

Wampanoag Gaming Authority ("Gaming Authority"). They were

charged with various federal offenses based on Cromwell allegedly

soliciting, and DeQuattro allegedly giving in return, checks and

other things of value to protect a contract between RGB and the

Gaming Authority to build a casino on Mashpee Wampanoag Tribe-

owned land.

Following a jury trial in the United States District

Court for the District of Massachusetts, DeQuattro was convicted

of one count of federal-program bribery, in violation of

(a)(2), while Cromwell was convicted of two counts of federal

program bribery, in violation of

(a)(1)(B). The

jurors also found Cromwell guilty of three counts of Hobbs Act

extortion and one count of conspiracy to commit Hobbs Act

extortion. The District Court entered a judgment of acquittal on

those Hobbs Act-related counts because it determined that the Hobbs

Act did not clearly abrogate tribal immunity.

In these consolidated appeals, DeQuattro and Cromwell

challenge their § 666 convictions, and the government challenges

the judgment of acquittal. We reverse both the § 666 convictions

and the judgment of acquittal.

- 2 - I.

A.

provides:

(a) 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-- . . . (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 any thing 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 (emphasis added).

Subsection (b) sets forth the jurisdictional element of

§ 666 by establishing the link that must be shown between the

corrupt conduct described in subsection (a) and federal-program

financial assistance. Subsection (b) 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

- 3 - involving a grant, contract, subsidy, loan, guarantee, insurance,

or other form of Federal assistance." Id.

The Hobbs Act provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(a). The Act defines "extortion" as "the obtaining

of property from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under

color of official right."

§ 1951(b)(2).

B.

The superseding indictment charged DeQuattro and

Cromwell in Count One with conspiracy to violate § 666(a) in

violation of

. The indictment also charged

DeQuattro in Counts Four and Five with violating § 666(a)(2), and

Cromwell in Counts Two and Three with violating § 666(a)(1)(b).

The § 666 counts pertained to Cromwell allegedly either soliciting

or accepting from DeQuattro various "things of value" -- including

payment for overnight lodging in a Boston hotel, gym equipment for

his residence, and checks totaling tens of thousands of

- 4 - dollars -- in return for Cromwell protecting the contract between

RGB and the Gaming Authority from being terminated.

The superseding indictment also charged Cromwell, based

on his role in the same alleged scheme to protect the RGB contract,

with Hobbs Act-related offenses. Specifically, the superseding

indictment charged him with four counts of Hobbs Act extortion, in

violation of

(Counts Seven, Eight, Nine, and Ten),

and one count of conspiracy to commit Hobbs Act extortion, in

violation of

(Count Six).1

The jury acquitted DeQuattro and Cromwell of Count One's

§ 666-based conspiracy charges. The jury also acquitted DeQuattro

of the substantive § 666 charges in Count Four, all but a portion

of the substantive § 666 charges in Count Five, and Cromwell of

the Hobbs Act charges in Count Nine. The jury found DeQuattro

guilty of one portion of the substantive § 666 charges in Count

Five, and Cromwell guilty of the substantive § 666 charges in

Counts Two and Three, one count of conspiracy to commit Hobbs Act

extortion (Count Six), and three counts of Hobbs Act extortion

(Counts Seven, Eight, and Ten).

Following the verdict, DeQuattro and Cromwell each moved

for judgment of acquittal under Federal Rule of Criminal Procedure

1 Thesuperseding indictment also charged Cromwell with filing false tax returns in violation of

(1). Those counts were severed and a trial on them has been stayed pending the resolution of this appeal.

- 5 - 29(a), after having earlier moved for judgment of acquittal at

both the close of all the evidence and the close of the

government's case. DeQuattro and Cromwell based their respective

Rule 29 motions concerning the § 666 counts in part on the ground

that the evidence did not suffice to show the intent to engage in

a corrupt quid-pro-quo exchange about the RGB contract. DeQuattro

and Cromwell also based their motions as to these charges on the

ground that the evidence did not suffice to satisfy § 666's

jurisdictional element. They did so by arguing that the RGB

contract was "business" only of the Gaming Authority and that,

unlike the Tribe, the Gaming Authority had not received the

requisite federal benefits described in subsection (b). Finally,

Cromwell argued in his motion for a judgment of acquittal as to

the Hobbs Act-related charges that (1) "the evidence failed to

establish that [he] was a public official"; and (2) there was

"insufficient evidence of a corrupt quid pro quo."

At a consolidated hearing that concerned both the Rule

29 motions and sentencing, the District Court denied DeQuattro's

motion for judgment of acquittal in full but granted Cromwell's

motion in part. More specifically, the District Court denied

Cromwell's motion with respect to his § 666 convictions but granted

it on tribal immunity grounds as to the Hobbs Act convictions.

The District Court then sentenced DeQuattro to a one-year

probationary term with home confinement for his single § 666

- 6 - conviction and Cromwell to 36 months' imprisonment for his multiple

convictions under § 666. The District Court also ordered DeQuattro

and Cromwell to pay restitution in the amount of $140,707.79 and

$209,678.54, respectively. Their appeals, and the government's

cross-appeal, followed and were then consolidated.

II.

DeQuattro and Cromwell base their challenge to their

§ 666 convictions on the same two, distinct

insufficiency-of-the-evidence grounds that they advanced below.

We focus here solely on the ground that they contend concerns

§ 666's jurisdictional element, as we conclude, based on this

ground alone, that their § 666 convictions must be reversed.

United States v. Green,

, 856 n.1 (10th Cir. 1986).

A.

In ruling that the evidence sufficed to satisfy the

jurisdictional element, the District Court reasoned as follows:

"Congress intended [§ 666] to extend to affiliates of the tribes

themselves, and [the Gaming Authority] was clearly that kind of

affiliate." Moreover, the District Court determined, the record

sufficed to show that the Tribe had received the kind of

federal-program assistance that subsection (b) describes.

The District Court did not explain what made the Gaming

Authority "that kind of affiliate," however. Nor did the District

Court explain why the Gaming Authority being such an "affiliate"

- 7 - sufficed to show that the allegedly corrupt conduct charged in the

§ 666 counts occurred "in connection with" the "business" of the

Tribe rather than only the Gaming Authority. As a result, the

District Court did not explain what exactly in the record sufficed

to show that only the Tribe -- and not the Gaming Authority

itself -- had to have received the financial assistance that

subsection (b) describes for the jurisdictional element to be

satisfied.

Because this sufficiency challenge is preserved, our

review is de novo. See United States v. Millán-Machuca,

, 17 (1st Cir. 2021). In undertaking that review, "the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt." United States v. Woodward,

(1st Cir. 1998)

(quoting Jackson v. Virginia,

(1979)).

Before diving into the merits of the challenge, we pause

to clarify one point. DeQuattro and Cromwell frame the challenge

as if it concerns § 666's jurisdictional element. We do not see

why it does.

Wholly independent of the jurisdictional element set

forth in subsection (b) of § 666, subsection (a)(1) and subsection

(a)(2) of the measure set forth numerous substantive elements.

One such element is that the "agent" of an entity that § 666

- 8 - covers -- whether an "Indian tribal government" or an "agency" of

such a government -- be engaged in the prohibited bribery "in

connection with any business . . . of such organization,

government, or agency."

(a)(1) (emphasis added).

This substantive element ensures that the bribery is

tied to the entity that receives the federal-program assistance,

while the jurisdictional element merely ensures that the entity

that is tied to the corrupt conduct has received that assistance.

Thus, the jurisdictional element comes into play only if that

substantive element is satisfied.

Against this backdrop, it is significant that DeQuattro

and Cromwell are contending, without dispute by the government,

that the sole "agent" of a covered entity involved in the alleged

bribery was Cromwell acting as Chairman of the Tribal Council in

his role as "agent" of the Tribe (an "Indian tribal government")

and not as President of the Gaming Authority in his role as "agent"

of the Gaming Authority (a mere "agency" of that "government").2

It is significant, too, that DeQuattro and Cromwell are then

further contending, again without dispute by the government, that

2 Counts Two and Three of the superseding indictment charged Cromwell with "being an agent of an Indian tribal government, or any agency thereof, namely, the Mashpee Wampanoag Tribe, corruptly solicit[ing] . . . ." Similarly, Counts Four and Five charged Dequattro with corruptly giving, offering and agreeing to give "anything of value to any person, with intent to influence and reward an agent of an Indian tribal government, or any agency thereof, namely, the Mashpee Wampanoag Tribe" (emphasis added).

- 9 - the only "business" that occurred "in connection with" the alleged

corrupt conduct involving Cromwell as the Tribe's "agent" was the

RGB contract.3 The result is that DeQuattro and Cromwell are

necessarily contending that the evidence does not suffice to show

that the allegedly corrupt conduct occurred "in connection with"

the "business" of the entity of which the person involved in that

conduct is an agent. DeQuattro and Cromwell's challenge therefore

necessarily targets this "business"-related substantive element

described above rather than the jurisdictional element itself.

This feature of the challenge, we hasten to emphasize,

does not do anything to undermine it. The challenge still plainly

has merit, just as DeQuattro and Cromwell contend it does, if the

evidence does not suffice to show that the RGB contract was

"business" of the Tribe. In that event, as we have explained, the

evidence then would fail to satisfy a necessary element of the

offense, even though that element is substantive rather than

jurisdictional.

3 Consistent with the government's position on appeal that the "business" that the alleged corrupt conduct occurred "in connection with" was solely the RGB contract, the jury was instructed that the jurors had to find the contract "constituted business of the Mashpee Wampanoag Tribe" to find the defendants guilty of the charged § 666 offenses. See United States v. Burhoe,

, 21 n.17 (1st Cir. 2017) (holding that an "alternative legal theory" that the government waived by not objecting to a jury instruction that foreclosed it was "not available to the government" as a ground for defending the verdict from a sufficiency challenge on appeal).

- 10 - Although the government also appears to treat the

challenge as if it concerns the jurisdictional element, it

recognizes that, in substance, the challenge turns on whether the

evidence suffices to show that the RGB contract is "business" of

the Tribe. Indeed, the government makes no argument that the

convictions can stand if the evidence does not so suffice. We

therefore proceed to assess whether the evidence suffices to show

that the RGB contract is "business" of the Tribe, first by laying

out DeQuattro and Cromwell's case that the evidence does not do

so, then by reviewing the evidence that the government identifies

in arguing that the evidence does, and, finally, by explaining why

we agree with DeQuattro and Cromwell rather than the government.

B.

DeQuattro and Cromwell emphasize that the RGB contract

provides no basis in and of itself for finding that the contract

was "business" of the Tribe. They point out, as the record makes

evident, that the contract was between RGB and the Gaming

Authority, not RGB and the Tribe itself. They further contend

that nothing in the record indicates that, even though the Tribe

was not a party to the RGB contract, the relationship between the

two entities makes the contract the Tribe's "business."

DeQuattro and Cromwell point out that the record makes

clear that the Gaming Authority is a "legally separate" entity

from the Tribe. They also point out that, under § 666, the Gaming

- 11 - Authority is (unlike the Tribe itself, which is an "Indian tribal

government") an "agency" of that government. As such, it is a

separately enumerated and defined category of entity under § 666.

(a)(1), (d)(2).

DeQuattro and Cromwell do not focus solely, however, on

the formal distinction between the two entities and thus on the

fact that the Gaming Authority, as an incorporated entity, has

both a separate legal personality and an independent statutory

status from the Tribe. They also point to the fact that the record

establishes that a third-party entity -- and so not the

Tribe -- provided all the funding for the Gaming Authority save

for, at most, an unspecified amount of in-kind support that the

Tribe provided to the Gaming Authority.4 Additionally, they

emphasize that the Tribe created the Gaming Authority to ensure

that the Tribe would not be liable for the Gaming Authority's

gambling-related activities. They note, too, that the record

establishes that the RGB contract itself was structured to ensure

4 In opposing DeQuattro's and Cromwell's motions for judgment of acquittal, the government did submit bank records showing a single transfer of funds from the Tribe to the Gaming Authority. However, the government did not seek at any time to admit these records into evidence, nor does the government rely on this evidence on appeal. Indeed, the government in its briefs to us only seeks to dispute DeQuattro's and Cromwell's description of the Gaming Authority as being funded entirely by a third-party entity by pointing to some evidence in the record of in-kind funding by the Tribe.

- 12 - that it would not give rise to any such liability on the part of

the Tribe.

For these reasons, DeQuattro and Cromwell contend that

the record does not suffice to show that any of the Tribe's

funds -- and thus any of the Tribe's federal-program funds -- would

be put at risk by the Gaming Authority's RGB contract. They thus

contend that it would conflict with the congressional purpose to

"protect the integrity of the vast sums of money distributed

through Federal programs from . . . undue influence by bribery,"

Sabri v. United States,

(2004) (quoting S. Rep.

No. 98-225, at 370 (1983)), to conclude that the evidence suffices

to show that the RGB contract is the Tribe's "business." Such a

conclusion, DeQuattro and Cromwell contend, would mean that the

allegedly corrupt conduct would violate § 666 even though "the

entity that alone had a business transaction that could have been

impacted by an illegal bribe" -- the Gaming Authority -- "received

no federal program benefit," and the "entity that alone received

federal benefits" -- the Tribe -- "had no business transaction

with [DeQuattro or Cromwell] at all that related to the alleged

payment of a thing of value to Cromwell."

DeQuattro and Cromwell do not rely, however, only on

what they call the "legal independence" of the Gaming Authority in

advancing this sufficiency challenge. They also argue that the

challenge draws support from the other ways in which the record

- 13 - establishes that the Gaming Authority operated independently from

the Tribe.

Here, DeQuattro and Cromwell direct our attention to the

evidence that establishes that the Gaming Authority "exercised a

number of independent powers and a strong measure of independence

with respect to its financial affairs, including ownership of 'all

Gaming Enterprise Assets other than any interest in real property,'

as well as the 'full power of acquisition, disposition or

encumbrance' of such assets." They then also direct our attention

to the evidence that establishes that (1) the Gaming Authority

"had the explicit power 'to hire, fire, discipline or appoint

employees, contractors, consultants, attorneys and accountants or

other agents of the Authority, prescribe their duties and

compensation, and indemnify the same,'" and (2) the ordinance

creating the Gaming Authority granted it "'the exclusive power to

do any and all things necessary or desirable in connection with

the development, design, financing, construction, equipping,

leasing, operation, management . . . , maintenance, and promotion

of the Gaming Facilities and the operation or conduct of the Gaming

Enterprise'" (emphasis in original).

Finally, DeQuattro and Cromwell contend that their

position draws support from two Eleventh Circuit rulings, United

States v. McLean,

(11th Cir. 2015) and United States

v. Doran,

(11th Cir. 2017). In finding the evidence

- 14 - insufficient to satisfy the jurisdictional element of § 666 in

each of those cases, the defendants here argue, the Eleventh

Circuit treated an entity that had not itself received the

requisite federal-program assistance as being independent of the

entity that created it, even though the subordinate entity in each

instance had even more ties to its creator than the Gaming

Authority has to the Tribe.

C.

In responding to this sufficiency challenge, the

government acknowledges that the Tribe was not a party to the RGB

contract. The government nonetheless contends that the record

suffices to show that the Gaming Authority and the Tribe were

intertwined to an extent that permits a rational juror to find

beyond a reasonable doubt that the contract between RGB and the

Gaming Authority "constituted any 'business' of the Tribe."

The government relies in part on the evidence in the

record that shows that "the Tribe in 2004 adopted a constitution

that enumerates the Tribal Council's powers, including the powers

to 'establish procedures and ordinances for the conduct of all

tribal government business operations' and 'create or provide by

ordinance for the creation of organizations . . . for any lawful

purpose'" (alteration in original). The government also relies on

the evidence in the record that shows that "[i]n 2012, under

Cromwell's leadership, the Council invoked those powers to

- 15 - establish by ordinance the Gaming Authority as a 'wholly owned'

subsidiary of the Tribe to 'act as an arm and an instrumentality

of the Tribe.'"

The government further asserts that the evidence

suffices to show that the "Tribe is the Authority's 'sole member

and owner' in perpetuity, the Authority possesses only those powers

devolved to it from the Council, and should the Council ever

dissolve the Authority, its assets revert to the Tribe." The

government goes on to highlight two additional features of the

record: (1) the tribal ordinance that creates the Gaming Authority

"invests the Authority with the Tribe's sovereign immunity but

states that any waiver of immunity by the Authority is not a waiver

by the Tribe"; and (2) under that ordinance the "Authority operates

through a board, the membership of which the Council controls: the

Chairman of the Tribe is automatically the President of the board;

the Treasurer of the Tribe is automatically the Treasurer;" and

"the Council may appoint up to three additional members to the

board, one of whom must be another Council member."

These aspects of the record do suffice to show that the

two entities share significant ties. We are not persuaded, though,

that the ties suffice to show that the RGB contract is "business"

of the Tribe rather than only of the Gaming Authority itself.

- 16 - 1.

Notably, the government is not arguing that the RGB

contract is the Tribe's "business" just because the Gaming

Authority, as a tribal "agency" for purposes of § 666, is a

creature of the Tribe, in the sense that the Tribe created it and

can terminate it. The government's choice not to advance such an

argument is understandable.

Section 666 defines an "agency" as "a subdivision of the

executive, legislative, judicial, or other branch of government,

including a department, independent establishment, commission,

administration, authority, board, and bureau, and a corporation or

other legal entity established, and subject to control, by a

government or governments for the execution of a governmental or

intergovernmental program."

(d)(2) (emphasis

added). The text of § 666 thus makes plain that an "Indian tribal

government" and an "agency thereof" are distinct entities --

notwithstanding that the former in some respects controls the

latter -- for purposes of assessing whether the required amount of

federal-program funding had been received by the entity whose

"business" "involv[ed]" the relevant "thing of value." Id.

§ 666(a)(1), (a)(1)(B), (a)(2); see Bailey v. United States,

(1995) ("We assume that Congress used [different]

terms because it intended each term to have a particular,

nonsuperfluous meaning."); see also Hernández-Miranda v. Empresas

- 17 - Díaz Massó, Inc.,

(1st Cir. 2011) ("Questions of

statutory interpretation are questions of law."); Transamerica

Leasing, Inc. v. La Republica de Venezuela,

(D.C. Cir. 2000) (noting, in the context of the Foreign Sovereign

Immunities Act of 1976, that a government instrumentality "is

presumed to have legal status separate from that of the sovereign"

that created it and therefore, absent certain exceptions, the

sovereign is "not amenable to suit based upon the acts of such an

instrumentality"). As a result, the text of § 666 makes clear

that we cannot simply assume that the two entities are one and the

same, such that the "business" of one is necessarily the "business"

of the other.

That said, the government is right that, "[a]s a matter

of logic, a parent entity could choose to conduct some piece of

'business' through a subsidiary while still considering it the

parent's 'business' -- i.e., something can be both the subsidiary's

'business' and the parent's 'business'" (emphasis in original).

For example, both entities may be signatories to a single contract

with a third party. There also are circumstances in the corporate

context in which the conduct -- or, if you will, the

"business" -- of one corporate entity may be attributed to another.

See, e.g., Liberty Mut. Ins. Co. v. Enjay Chem. Co.,

(Del. Super. Ct. 1974) (principal-agent); Wallace ex rel.

- 18 - Cencom Cable Income Partners II, Inc. v. Wood,

(Del. Ch. 1999) (alter ego).

As we noted above, however, the government does not

suggest -- nor could it -- that the Tribe was a party to the RGB

contract. In addition, the government asks us not to look to

commercial-law concepts to decide whether the RGB contract is

"business" of the Tribe under § 666. Nor does the government

suggest that the RGB contract would in any way make the Tribe

liable for any of the Gaming Authority's contract-related

activities. Thus, although there are legal tests for attributing

a subsidiary's commercial conduct to its corporate parent for

purposes of assigning liability, the government does not suggest

that the application of any of those tests is relevant here. Cf.

Transamerica Leasing, Inc.,

(noting that the

presumption of corporate separateness under the Foreign Sovereign

Immunities Act of 1976 can be overcome "where a corporate entity

is so extensively controlled by its owner that a relationship of

principal and agent is created" or "where recognition of the

instrumentality as an entity apart from the state 'would work fraud

or injustice'" (quoting First Nat'l City Bank v. Banco Para El

Comercio Exterior de Cuba,

(1983))).5

5 We note that although in the context of the Foreign Sovereign Immunities Act of 1976 a government instrumentality that has a separate legal status from that of the sovereign that created it

- 19 - What, then, is the basis for the government's position

that, due to the ties between the Gaming Authority and the Tribe

described above, a rational juror could find beyond a reasonable

doubt on this record that the RGB contract is the Tribe's

"business"? According to the government, the case is, at least in

part, that the evidence suffices to show that the Gaming Authority

is an "arm" of the Tribe, in the sense that the term "arm" is used

to describe an agency or instrumentality of a sovereign entitled

to claim the sovereign's immunity from suit. And, indeed, the

government invokes one of our "arm of the Tribe" cases as support

for the contention: Ninigret Dev. Corp. v. Narragansett Indian

Wetuomuck Hous. Auth.,

(1st Cir. 2000). As we will

next explain, however, we are not persuaded, because we do not see

how the mere fact that the Gaming Authority qualifies as an "arm"

is treated as the sovereign "where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created," Transamerica Leasing,

(quoting Banco,

), the text of § 666 specifically defines a "government agency" as an entity "established, and subject to control, by a government or governments for the execution of a governmental or intergovernmental program," id. § 666(d)(2) (emphasis added). So, there is a question regarding whether the analysis used in the context of the Foreign Sovereign Immunities Act of 1976 for evaluating how separate sovereigns are from their agencies and instrumentalities is applicable here.

- 20 - of the Tribe could make its contract with RGB the Tribe's

"business" for purposes of § 666.

2.

For starters, we see no reason in principle why a test

that is designed to determine when an agency or instrumentality of

a Tribe may claim that sovereign's immunity from suit would be a

good test for determining when a contract is sufficiently tied to

an entity that received federal-program funds to make the bribery

a federal crime under § 666. Certainly nothing in the text of

§ 666 indicates that the ability of such an entity to claim its

sovereign's immunity from suit bears on whether the bribery was

"in connection with" the "business" of only that entity and not of

the sovereign itself. Moreover, the components of the "arm"

test -- insofar as they are even clear in the context of a

tribe -- do not easily map on to the concerns that animate the

requirement in § 666 that the allegedly corrupt conduct must have

occurred "in connection with" the "business" of the same entity

whose "agent" was involved in that conduct. Rather, they would

appear to concern -- at least in key respects -- matters that

relate only to the reasons for conferring the immunity from suit

itself.

Ninigret itself does nothing to suggest otherwise. In

holding that a tribal housing authority was an "arm of the Tribe,"

Ninigret simply cited to two Eighth Circuit cases that had held

- 21 - the same based on the fact that the subordinate entities in those

cases had been created by tribal ordinance and as such were "tribal

agenc[ies]."

(first citing Dillon v. Yankton Sioux

Tribe Hous. Auth.,

(8th Cir. 1998); and then

citing Weeks Constr., Inc. v. Oglala Sioux Hous. Auth.,

, 670–71 (8th Cir. 1986)). But, of course, no argument is being

made here -- for good reason, as we have explained -- that the

contracts of all agencies are "business" of the government that

created them just because the agencies were created by those

governments.

It is possible that the government here means to be

invoking the "arm of the Tribe" test more generally. There is

authority (though not within our circuit) that has assessed whether

an entity is an "arm of the Tribe" -- and so entitled to the

Tribe's immunity from suit -- with reference to a more developed

set of considerations than merely whether it was created by Tribal

ordinance. See Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold

Casino & Resort,

, 1185 n.9, 1187-88 (10th Cir. 2010).

Those considerations largely overlap with our two-step "arm" test

for determining a state agency's or instrumentality's entitlement

to claim a state's sovereign immunity, which we have explicated in

some detail. Compare Breakthrough,

, with

Grajales v. P.R. Ports Auth.,

(1st Cir. 2016).

But, even if we were to use those factors as our guide here, we

- 22 - still do not see how the fact that the Gaming Authority might

qualify as an "arm" of the Tribe would suffice to show that the

Gaming Authority's RGB contract is "business" of the Tribe.

Consider the first step of our multi-step "arm of the

state" test. Under it, the agency or instrumentality qualifies as

an "arm" of the state if the state "clearly structured the entity

to share its sovereignty." Grajales,

(quoting

Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & Caribbean

Cardiovascular Ctr. Corp.,

(1st Cir. 2003)). To

make the assessment, courts then look to a "broad range of

structural indicators," including "how state law characterizes the

entity, the nature of the functions performed by the entity, the

entity's overall fiscal relationship to the [state] . . . , and

how much control the state exercises over the operations of the

entity." Id. at 17-18.

But, insofar as an entity is deemed to be an "arm" based

only on certain of these factors (such as whether the state has

characterized the entity as an "arm" or the degree of control that

the state exercises over the entity), we do not see why the

entity's status as an "arm" would suffice to show that a contract

that entity had entered is the state's "business" under § 666.

The characterization and control factors would seem to provide a

basis for concluding that any typical state agency would be an

"arm" of its state. Yet, as we have explained, the government

- 23 - does not endorse -- and, in fact, at oral argument

disclaimed -- the notion that any contract that a state agency

enters is "business" of the state for purposes of § 666.

Thus, we do not see why it matters in determining whether

the RGB contract is "business" of the Tribe that the record here

shows that the Tribe's ordinance establishing the Gaming Authority

"invests the Authority with the Tribe's sovereign immunity" and

refers to the Gaming Authority as a "'wholly owned' subsidiary of

the Tribe to 'act as an arm and an instrumentality of the Tribe.'"

A typical state agency itself enjoys a state's immunity, may easily

be described as a "wholly owned subsidiary" of its state, and is

an "arm" of the state. So, we do not see how any of those factors

distinguish the Gaming Authority from such an agency.

True, the record shows that the Tribe's constitution

empowers the Tribal Council to "'create or provide by ordinance

for the creation of organizations . . . for any lawful purpose'"

(alteration in original). But, because a contract entered by a

lawfully created state agency does not for that reason alone

qualify as "business" of the state, that general grant of authority

similarly provides no support for deeming the RGB contract that

the Gaming Authority -- rather than the Tribe -- entered the

"business" of the Tribe.

The government does point out, as noted above, that the

record shows that the Tribe's constitution gave the Tribal Council

- 24 - the authority to "establish procedures and ordinances for the

conduct of all tribal government business operations." But it is

not evident that the Gaming Authority was created pursuant to that

grant of power rather than the grant of power to "'create or

provide by ordinance for the creation of organizations . . . for

any lawful purpose'" (alteration in original). And, in any event,

the Tribe's labeling of the Gaming Authority's operations as

"tribal government business operations" cannot be dispositive of

whether the contract is "business" of the Tribe under § 666 if, as

the government itself rightly contends, what matters under § 666

is substance rather than form. Cf. Dixson v. United States,

(1984) ("Federal courts interpreting the federal

bribery laws . . . generally avoided formal distinctions, such as

the requirement of a direct contractual bond, that would

artificially narrow the scope of federal criminal jurisdiction.").

Finally, the fact that the "[Gaming] Authority operates

through a board, the membership of which the [Tribal] Council

controls" does not lead to the inference that the RGB contract was

"business" of the Tribe. That degree of control no doubt bears on

whether the Gaming Authority is an "arm" of the Tribe for immunity

purposes. Such control cannot be of similar import for present

purposes precisely because states typically control who leads

state agencies, however. For good reason, as we have noted, the

- 25 - government disavows the view that any contract by a state agency

is "business" of the state.

Of course, under the first step of the "arm" test,

factors may matter other than how the sovereign characterizes the

agency or instrumentality or how much control the sovereign

exercises over it. As noted above, another factor is the agency

or instrumentality's "overall fiscal relationship" to the

sovereign. Grajales,

.

The government does argue that the Gaming Authority and

the Tribe are financially related to the extent that "should the

Council ever dissolve the Authority, its assets revert to the

Tribe." But, again, the government fails to explain why this fact

has any bearing on whether the RGB contract is "business" of the

Tribe, at least when a state similarly presumably recoups the

"assets" of all its agencies upon their dissolution.

What is more, other factors under the first step of the

"arm" test seem to cut against finding the Gaming Authority to be

an "arm" of the Tribe. The test's first step also takes account

of the entity's "proprietary" function, "separate[]

incorporat[ion]," and "power to . . . enter contracts in its own

name and right." Fresenius,

n.6. But an agency or

instrumentality of a state that is proprietary, separately

incorporated, and can enter contracts on its own is less rather

than more likely to qualify as an "arm." And the record shows

- 26 - here that the Gaming Authority was created by the Tribal Council

to have a proprietary function, to be separately incorporated, and

to have the power to enter its own contracts.

There is, we recognize, also a second step of the "arm"

test. It may be met if there is a "risk that the damages" owed by

the agency or instrumentality of a sovereign in a suit against it

"will be paid from the [sovereign's] treasury."

.

The government makes no argument, however, that the

Gaming Authority would qualify as an "arm" of the Tribe via this

step. Nor is it evident (in light of the Gaming Authority's fiscal

structure and the terms of the RGB contract) that the RGB contract

could give rise to a liability that the Tribe would owe. So, here,

too, the invocation of the "arm" test fails to show that the

evidence suffices to permit a rational juror to find beyond a

reasonable doubt that -- even though the Tribe is not a party to

the RGB contract and is not at risk of being liable from it -- the

RGB contract is "business" of the Tribe.6

6 We do note that our analysis, which has focused on our multi-step "arm of the state" test, has not addressed some factors other courts have found to be relevant in an "arm of the Tribe" analysis -- such as the "preservation of tribal cultural autonomy, preservation of tribal self-determination, and promotion of commercial dealings between Indians and non-Indians." Breakthrough,

(quoting Dixon v. Picopa Constr. Co.,

(Ariz. 1989)). But we do not see (nor does the government explain) why such considerations, which stem from "the policies underlying tribal sovereign immunity,"

, would have any bearing on whether "business" of the Gaming Authority is also "business" of the Tribe under § 666.

- 27 - 3.

The "arm" test aside, the government does also argue

that the evidence suffices to show the RGB contract is the Tribe's

"business" because we should look to substance over form in

construing § 666. But, beyond the invocation of the "arm" test,

the government does not explain why consideration of the substance

of the RGB contract and the Gaming Authority's relationship to the

Tribe permits a finding that the contract is the Tribe's rather

than only the Gaming Authority's "business."

The evidence in the record shows, for example, that the

Gaming Authority receives almost all its funding from a third-

party entity and not the Tribe. In addition, as far as the record

shows, the Gaming Authority entered the RGB contract pursuant to

the "exclusive" powers that it had been given by the Tribe, rather

than at the direction of the Tribe.

Consistent with its contention that substance rather

than form matters, the government does argue -- although it is a

little difficult to discern the contours of that argument -- that

§ 666's scope should not "include limitations based on the terms

of a private contract like the RGB contract." Relatedly, the

government states that "otherwise, wrongdoers could avoid

punishment simply by contracting around the definitions provided

in criminal statutes" (cleaned up). As support for the contention,

the government cites United States v. Lupton,

, 800-

- 28 - 01 (7th Cir. 2010), which held that the contract that stated that

the defendant there was acting as "an independent contractor and

not as an officer, employee, or agent of the state" was not

dispositive of whether he was an "agent" of the state government

under § 666.

We are not deferring, however, to the RGB contract's

formal characterization of the relationship between the Tribe, the

Gaming Authority, and the construction work contemplated by the

RGB contract. Rather, in determining that the record does not

suffice to allow the jury to find, beyond a reasonable doubt, that

the RGB contract was the "business" of the Tribe, we are doing

exactly as the government suggests: looking to the substance of

the RGB contract.

That look reveals that, on this record, there is no

plausible basis for concluding that the Tribe would be liable for

the Gaming Authority's activities in relation to the contract or

that the Gaming Authority received any funds from the Tribe. After

all, the record at most shows that the Gaming Authority receives

some unspecified in-kind support from the Tribe. That makes it

hard to see how -- in substance -- the RGB contract implicates any

of the Tribe's funds. And, that being so, it is hard to see how,

in substance, the RGB contract is "business" of the Tribe itself.

To be sure, the government does argue that the fact that,

as the defendants assert, the alleged bribery here could not

- 29 - "conceivably have impacted even a single federal dollar" is

irrelevant. The government rightly points out that § 666 does not

require the government to prove any "connection between the offense

conduct and a case-specific federal interest." United States v.

Cianci,

(1st Cir. 2004). But, as we have explained,

§ 666 does require proof that the allegedly corrupt soliciting of

a thing of value by an "agent" of an entity that § 666 covers -- or

corrupt giving of a thing of value to such an agent -- must have

occurred "in connection with" the "business" of that same entity.

And, as we have also explained, § 666 imposes this requirement to

ensure that, via subsection (b)'s federal-program assistance

requirement, there is a link between the bribery that § 666

prohibits and that federal assistance. Indeed, although the U.S.

Department of Justice's Criminal Resource Manual is not binding on

us, the defendants note that it states that the intent of Congress

in enacting the measure was to require "that the agent must have

illegally obtained cash or property from the [organization,

government, or] agency that received the necessary Federal

assistance." U.S. Dep't of Just., Crim. Res. Manual § 1001

(emphasis added).

Thus, it is concerning that the only "business" of a

covered entity that the government identifies here "in connection

with" the alleged bribery is the RGB contract. That agreement was

struck by an entity that itself received no federal benefits or

- 30 - even any funding from the Tribe (save for in-kind financial

support). It is also an agreement for which the sole entity that

did receive such assistance bears no liability. The consequence

is that the things of value allegedly corruptly solicited by or

given to Cromwell in his role as an "agent" of the Tribe -- whether

the checks, the overnight lodging, or the gym equipment -- do not

appear to have come in any sense (even indirectly) from the Tribe

rather than the Gaming Authority itself. Yet, the government is

not contending that Cromwell was acting in his role as the "agent"

of the Gaming Authority in engaging in the corrupt conduct with

the "business" at issue. Rather, it is contending that he was

acting in his role as the "agent" of the Tribe.

4.

Insofar as the government means to suggest that there is

analogous precedent that supports its position in this case, we

also are not persuaded. For example, the government invokes an

unpublished Ninth Circuit opinion -- United States v. Heslop,

(9th Cir. 2017). That case held the

jurisdictional element of § 666 satisfied in the case of the

defendant, David Heslop, despite Heslop's argument that the

stipulated facts did not show that "the business, transactions, or

- 31 - series of transactions at issue were those of the Indian tribal

government." Id. (cleaned up).

The Ninth Circuit did reject Heslop's argument by

looking to the "clear substance of the facts" and noting that the

"Tribe consists of roughly a dozen members, and all the tribal

entities are interconnected in both theory and practice." Id.

However, the defendant there "pled guilty to stipulated facts that

refer either to the Tribe alone, or to both the Tribe and its

corporate entities together." Id. (emphasis added). Because there

were no guilty pleas involved here, there is no equivalent

evidentiary record like the "stipulated facts," id., deemed

dispositive in that case.

We note, too, that our analysis accords with the Eleventh

Circuit's in Doran, even though that case did not involve a

conviction for federal program bribery under § 666(a)(2) and

instead concerned a conviction for embezzlement under § 666(a)(1).

See

. The defendant there was convicted of

embezzling from an "organization" that had received the requisite

amount of federal program funds in the relevant period -- namely,

Florida State University ("FSU").

The defendant argued that

he was entitled to a judgment of acquittal because the evidence

sufficed to show at most that the funds had been embezzled from

the FSU Student Investment Fund ("SIF"), which was a nonprofit

corporation that FSU had established for charitable and

- 32 - educational purposes and had itself "received no federal

benefits."

.

The Eleventh Circuit agreed with Doran.

.

Relying on McLean, the court determined that the relevant

"organization" for purposes of the jurisdictional provision,

§ 666(b), was the SIF and not FSU itself. That was so, Doran

ruled, because the SIF "was the organization that was the subject

of the embezzlement" and because "[t]he Government [was] mistaken

in focusing on FSU as the victimized organization and in conflating

FSU and the SIF." Id. at 1315. The Eleventh Circuit then went on

to explain that "[d]espite the affiliation of FSU and the SIF,

there [was] simply no evidence in the record that FSU and the SIF

are alter egos so as to allow the Court to pierce the SIF's

corporate veil and to treat FSU and the SIF as one and the same."

Id.

In so ruling, Doran noted that the SIF had

characteristics that suggested it was not wholly independent from

FSU. For example, the SIF's Board of Directors included the Chair

of the FSU Board of Trustees, the FSU President, and other FSU

faculty members. But Doran stressed that the SIF's funds "came

from private donors and not from FSU," the SIF "funneled no money

to FSU, and FSU funneled no money to it," and the government there

conceded the point that "the SIF was not the recipient of any

federal funds." Id. at 1314. Given these facts, Doran explained,

- 33 - the "Government ha[d] not demonstrated any federal interest" in

Doran's alleged wrongdoing. Id. at 1316.

The government does argue that Doran's reliance on the

Eleventh Circuit's earlier decision in McLean undermines Doran as

persuasive authority here. The government contends that, in fact,

McLean "never considered whether the parent entity's receipt of

federal benefits, rather than the subsidiary . . . agency's

receipt of federal benefits, could trigger § 666 jurisdiction

because that issue was not appealed."

But Doran held that absent "evidence in the record that

FSU and the SIF are alter egos so as to allow the Court to pierce

the SIF's corporate veil and to treat FSU and the SIF as one and

the same," SIF should be treated as distinct from FSU -- the entity

that created it -- for purposes of § 666. Id. at 1315. We reach

a similar conclusion in rejecting the government's arguments that

the evidence of the ties between the Gaming Authority and the Tribe

suffices to permit a finding that the RGB contract is the

"business" of the Tribe.

The government's other attempts to distinguish Doran are

also unavailing. The government is right that the charge there

was for § 666 embezzlement and not § 666 bribery. The government

is also right that the non-profit corporation created by the

university was "neither a subsidiary nor the university's arm and

instrumentality" (cleaned up). But § 666 embezzlement must still

- 34 - meet the jurisdictional element of § 666,7 and, for the reasons we

have discussed above, we are unpersuaded by the government's "arm"

of the Tribe contention.

D.

For all these reasons, we conclude that the § 666

convictions must be reversed.8

III.

We move on to the government's cross-appeal, in which

the government argues that the District Court erred in granting

Cromwell's motion for judgment of acquittal on his Hobbs Act

convictions. Once again, our review is de novo, see

7 The concurrence in Doran does disagree with part of the reasoning in the majority's opinion, stating that the "relevant organization here is [FSU], the organization that employed Doran, not the [SIF], the student organization he advised that was the victim of his embezzlement."

(Jill Pryor, J., concurring in the judgment). As such, the concurrence concludes, "the government needed to prove beyond a reasonable doubt that FSU -- not the SIF -- received over $10,000 in qualifying federal benefits during the relevant period."

However, the concurrence relies for this conclusion on text within § 666 that is specific to embezzlement -- specifically, that the embezzlement must have been of property that "is owned by, or is under the care, custody, or control of such organization, government, or agency" -- that does not apply to the federal-program bribery subsections.

(a)(1)(A)(ii) (emphasis added); see Doran,

(Pryor, J., concurring in the judgment). 8 Becausewe conclude that DeQuattro's and Cromwell's federal- program bribery convictions must be reversed, we also need not address the government's cross-appeal of DeQuattro's and Cromwell's sentences on these convictions. See United States v. Arrieta,

, 1083 n.4 (9th Cir. 2000) ("Because we are reversing the conviction[s], we need not reach the remaining sentencing issues raised by the parties.").

- 35 - Millán-Machuca, 991 F.3d at 17, and "the relevant question is

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,"

Woodward,

(quoting Jackson,

)

(emphasis in original).

A.

Cromwell's sole conviction for conspiracy to commit

Hobbs Act extortion is set forth in Count Six. That Count charged

him with having committed that offense "by obtaining property not

due to [him], from [RGB], with the consent of DEQUATTRO . . . under

color of official right." His three convictions for substantive

Hobbs Act extortion are set forth in Counts Seven, Eight, and Ten.

Those counts charged him with committing those offenses "by

obtaining property not due to [him], from [RGB], with the consent

of DEQUATTRO . . . under color of official right," and are

predicated, respectively, on a "$10,000 payment on or about

11/13/15," a "Bowflex Revolution home gym valued at $1,700 on or

about 8/5/16," and a "$1,849.37 payment on or about 5/18/17 for a

stay at the Seaport Boston Hotel."

Although the jury found Cromwell guilty on all these

counts, the District Court granted his motion for judgment of

acquittal as to each count on grounds of tribal sovereign immunity,

owing to his role as Chairman of the Council. The District Court

- 36 - explained that the Hobbs Act does not apply to tribal officials

absent a clear statement in the statute abrogating tribal sovereign

immunity.

As the government notes, however, we and other circuits

have long "recognized the United States as a superior sovereign

from whose suits the tribes enjoy no sovereign immunity." In re

Grand Jury Proceedings,

(1st Cir. 2014)

(collecting cases). Thus, the government is plainly right that

the District Court erred in granting Cromwell's motion for judgment

of acquittal as to these counts, because there is no tribal

immunity here that Congress needed to abrogate clearly.

In fact, Cromwell does not contend otherwise. He argues

only that we may affirm the District Court's granting of that

motion on either of two alternative bases.9 See United States v.

Arias-Santana,

(1st Cir. 1992) (noting that we

"may affirm a district court decision on any ground supported by

the record"). We address each of those arguments in turn.

B.

We begin with Cromwell's argument that we must affirm

the District Court's granting of his motion for judgment of

9 We do not understand Cromwell to have incorporated into his arguments defending the judgment of acquittal on the Hobbs Act charges either of the arguments that DeQuattro advanced as to the appeal of the § 666 convictions regarding the exclusion of a defense expert witness or the preclusion of the jury from reaching a verdict prior to receiving written instructions.

- 37 - acquittal as to the Hobbs Act counts because, "in the absence of

clear evidence of legislative intent to designate Native American

leaders like Cromwell 'public officials' for purposes of the 'under

color of official right' prong of Hobbs Act extortion, the rule of

lenity precludes conviction of Mr. Cromwell on that distinct theory

of liability" (cleaned up). We disagree.

The rule of lenity only "properly comes into play when,

at the end of a thorough inquiry, the meaning of a criminal statute

remains obscure." United States v. O'Neil,

, 301 n.10

(1st Cir. 1993). In other words, "the Court will not interpret a

federal criminal statute so as to increase the penalty that it

places on an individual when such an interpretation can be based

on no more than a guess as to what Congress intended." Ladner v.

United States,

(1958).

The Hobbs Act broadly applies, however, to "[w]hoever in

any way or degree obstructs, delays, or affects

commerce . . . by . . . extortion . . . under color of official

right."

(emphasis added). And the Supreme Court

has construed extortion "under color of official right,"

§ 1951(b)(2), to be an "offense committed by a public official,"

Evans v. United States,

(1992) (emphasis

added). It therefore follows that the Hobbs Act prohibition at

issue applies to any public official.

- 38 - That being so, the only question that we must resolve is

whether there is a lenity-triggering ambiguity as to whether

Cromwell -- having been elected by tribal members to be Chairman

of the Council and therefore having been an official of that

Tribe's government -- qualifies as a "public official" under the

Hobbs Act.

We see no basis for concluding that there is.

Cromwell plainly holds a position within the Tribe's

government. Thus, unless there is some reason to doubt that an

Indian tribal government is the kind of government whose officials

the Hobbs Act covers, there is no basis for doubting that he is a

"public official,"

and so is covered by that statute, see

United States v. Percoco,

(S.D.N.Y. 2018)

("[O]nly public officials -- that is, persons who hold official

positions within the government -- are capable of committing the

substantive offense of extortion under color of official

right . . . ."); see also United States v. Alexander,

(9th Cir. 2002) (noting, in a different context, that

"[t]he word 'official' refers to a person 'holding an office or

serving in a public position'"); Durflinger v. Artiles,

(10th Cir. 1984) (noting that Black's Law Dictionary has

defined "public official" as "the holder of a public office . . .

[whose] position requires the exercise of some portion of the

sovereign power, whether great or small" (citing Black's Law

Dictionary (5th ed. 1979))).

- 39 - As an initial matter, we see no ambiguity as to whether

an Indian tribal government is a government. See Fletcher v.

United States,

(10th Cir. 1997) ("Indian

tribes are separate sovereigns with the power to regulate their

internal and social relations, including their form of government

and tribal membership." (citing Santa Clara Pueblo v. Martinez,

(1978); and United States v. Wheeler,

, 322 n.18 (1978))). And, while it is true that the

Hobbs Act does not expressly refer to Indian tribal governments or

to the officials serving in them, the Hobbs Act also does not refer

to any other type of government or government official. See

. Yet there is no reason to doubt that, in broadly

referring to "[w]hoever" is acting "under color of official right,"

the Hobbs Act applies to state and local governments and their

officials generally.

§ 1951(a), (b)(2) (emphasis added); see

United States v. Boggi,

(3d Cir. 1996) ("[The

Hobbs Act] applies to extortionate conduct by, among others,

officials and employees of state and local governments." (quoting

U.S.S.G. § 2C1.1 cmt. background)). Indeed, as we have noted, the

Supreme Court has construed that broad language to describe an

encompassing class of persons that is comprised of "public

officials" generally. Evans,

.

This context also is not one in which there is special

reason to think that Congress would have made express reference to

- 40 - officials in Indian tribal governments if it had intended to bring

them within the ambit of a statute otherwise encompassing

government officials generally. As we explained above, officials

in Indian tribal governments enjoy no tribal immunity from criminal

prosecution by the United States itself. See Grand Jury

Proceedings,

. Furthermore, as the government

points out, states themselves enjoy sovereign immunity, but not

even Cromwell suggests that the Hobbs Act has no application to

state officials just because it fails expressly to mention them or

their governments.

In any event, the language that Congress chose to use to

identify those government officials subject to the Hobbs Act

"exudes comprehensiveness." Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Coughlin,

(2023). And that

is because the measure refers to "[w]hoever" is engaged in the

prohibited conduct while acting under "color of official right."

(a), (b)(2) (emphasis added). Language of a

similarly sweeping sort -- and that also makes no express mention

of Indian tribal governments -- recently has been deemed broad

enough to "clearly" and "unequivocally" encompass those

governments along with all others. Coughlin,

. We

thus do not see how here there is the kind of reason to doubt

whether this statute encompasses such governments that would

trigger the rule of lenity. United States v. Musso,

,

- 41 - 32 n.3 (1st Cir. 2019) (quoting Abramski v. United States,

, 188 n.10 (2014)).

C.

Cromwell also argues in the alternative that we "may and

must affirm the judgments of acquittal below on the additional

basis of insufficient evidence to establish the quid-pro-quo

element of Hobbs Act extortion 'under color of official right'"

(cleaned up). More specifically, Cromwell contends that "in order

to convict [him] on any [of] the Hobbs Act counts, the government

was required to prove his intent to effect a quid pro quo in

exchange for [his] performance of, or agreement to perform,

specific official acts to 'protect' RGB's casino contract from

termination." He contends that none of the evidence in the record

suffices, however, to permit a rational juror to find beyond a

reasonable doubt that Cromwell had the required intent. We are

again unpersuaded.

A "quid pro quo" is the giving of "something of

value" -- the quid -- in exchange "for influence over some official

conduct of the recipient" -- the quo. United States v. Gracie,

(1st Cir. 2013). As we have detailed previously:

[T]he requirement of a quid pro quo means only[] "that without pretense of any entitlement to the payment, a public official violates § 1951 if he intends the payor to believe that absent payment the official is likely to abuse his office and his trust to the detriment and injury of the prospective

- 42 - payor or to give the prospective payor less favorable treatment if the quid pro quo is not satisfied."

United States v. Correia,

(1st Cir. 2022) (quoting

Evans,

(Kennedy, J., concurring)).

Cromwell argues that none of the evidence is sufficient

to "prove his intent to effect a quid pro quo exchange for [his]

performance of, or agreement to perform, specific official acts to

'protect' RGB's casino contract from termination." But "tak[ing]

the facts and all reasonable inferences therefrom in the light

most favorable to the jury verdict," United States v. Sasso,

(1st Cir. 2012), and recognizing that "bribes are

seldom accompanied by written contracts, receipts or public

declarations of intentions," United States v. McDonough,

(1st Cir. 2013), we disagree. See also Evans,

(Kennedy, J., concurring) (stating that an official and

bribe-payer "need not state the quid pro quo in express terms, for

otherwise the law's effect could be frustrated by knowing winks

and nods"); United States v. Blagojevich,

(7th

Cir. 2015) ("Few politicians say, on or off the record, 'I will

exchange official act X for payment Y.'").

The government argues that the "quids in this case were

RGB's payments to Cromwell" (i.e., multiple monetary checks

ranging from $4,000 - $10,000, the Bowflex, and the Seaport Boston

Hotel stay), and "the quo in each instance was Cromwell's

- 43 - protection of the RGB [c]ontract." That is, the government

contends, Cromwell intended for DeQuattro to believe that he had

to provide, through RGB, monetary checks and other things of value

to Cromwell so that Cromwell would ensure that the RGB contract

survived and that the no-cause termination provision of the

contract would not be utilized to end the contract.

Cromwell does not dispute that RGB made the payments and

the contract survived; that the Bowflex and Seaport Boston Hotel

stay were for his personal use; or that the evidence sufficiently

showed he used all the checks -- except for part of the check paid

on January 12, 2017, for $4,000 -- solely on personal expenses.

He contends only that the evidence is not sufficient to show that

he intended DeQuattro to believe the payments were in exchange for

his protection of the RGB contract (i.e., that the quid was for

the quo). We disagree.

The record shows that Cromwell requested multiple

specific things of value from RGB and DeQuattro and acted like he

was entitled to them (e.g., giving DeQuattro instructions on how

to get him the cash and calling him for updates when one of the

checks was delayed). These facts undermine Cromwell's contention

that the evidence is not sufficient to show he intended DeQuattro

to understand that he was being asked to enter a quid-pro-quo

arrangement.

- 44 - The government correctly points out that "though people

may solicit gifts or contributions, they generally do not demand

them in specific amounts, and $50,000 over sixteen months is not

a typical token of goodwill." See United States v. Biaggi,

(2d Cir. 1988) (stating that the jury could infer

from the size of the "gifts" worth "several thousands of

dollars . . . each year" that they "were not intended simply as

kindness-of-the-heart gifts" and that the official "was not

requesting [them] without offering something more than his

friendship in return"). Indeed, Cromwell's complaint to DeQuattro

that the Bowflex was used rather than new further reinforces the

conclusion that the checks and other things of value given were

not -- as Cromwell contends -- gifts since, as the government

notes, "adults generally do not complain to gift-givers about the

quality of their voluntary gifts."

We recognize that Cromwell sometimes did offer

noncriminal explanations to DeQuattro for the checks -- including

that they were to be used as campaign contributions. But the fact

that Cromwell used most of the checks for personal expenses rather

than for reasons that he gave DeQuattro could lead a reasonable

juror to find that Cromwell's explanations were pretextual and

intended to create plausible deniability should the payments be

discovered. Furthermore, because of the small size of the Tribe

and the fact that most members already know each other, campaigning

- 45 - for a Council seat typically costs from a few hundred dollars to

a couple thousand dollars for an elaborate campaign, making it

even more unlikely that Cromwell needed multiple $10,000 payments

for a tribal election campaign. Thus, this evidence cuts against

Cromwell's contention that he intended to request ordinary gifts,

rather than quos.

Furthermore, the evidence in the record that Cromwell

and RGB, both together and independently, took steps to conceal

the monetary payments cuts against Cromwell's argument that he did

not intend DeQuattro to believe that there was an impermissible

quid pro quo. The evidence in the record shows that DeQuattro and

Cromwell agreed to funnel the money through personal checks and

shell companies; Cromwell had his close friend withdraw the funds

for him in multiple treasurer's checks (mostly structured to be

less than $10,000 each); and RGB reimbursed DeQuattro through

"bonuses" and one-time salary increases that did not match the

amounts DeQuattro had given Cromwell. In short, "the extent to

which the parties went to conceal their bribes is powerful evidence

of their corrupt intent." United States v. McNair,

(11th Cir. 2010). Indeed, that such steps were taken to

conceal the monetary payments further undermines Cromwell's

explanation that the payments were "borne of friendship between

Cromwell and DeQuattro and/or the desire to promote RGB's interest

in cultivat[ing] future business opportunities." And Cromwell

- 46 - likewise provides no explanation as to why such steps to conceal

the payments would be necessary if they were indeed "borne of

friendship" or being paid "to promote RGB's interest in

cultivat[ing] future business opportunities."

"[T]ak[ing] the facts and all reasonable inferences

therefrom in the light most favorable to the jury verdict," Sasso,

, we also disagree with Cromwell that none of the

evidence proves "his intent to effect a quid pro quo in exchange

for" his protection of the casino contract from termination. The

evidence shows that Cromwell had influence over the fate of the

RGB contract, and the contract not only provided a large portion

of RGB's revenue but also had the potential to last for years.

Moreover, the record shows that RGB had no guarantee of its

continuation, regardless of its performance on the casino project,

due to the no-cause termination provision of the contract. Indeed,

the Gaming Authority board had used a similar provision to push

out RGB's predecessor in the casino project, and Cromwell was the

Gaming Authority board member who had "pushed" to bring in RGB to

replace the predecessor that was pushed out, suggesting that he

could try to persuade the Gaming Authority board to similarly "push

out" RGB.

Also undercutting Cromwell's argument that he did not

intend for the benefits to be given as part of a quid-pro-quo

agreement to protect the RGB contract is the way Cromwell's

- 47 - requests paralleled the life of the RGB contract. Cf. Woodward,

(deeming "noteworthy" the "pattern formed by the[]

amounts" of the payments over time, which increased when the

official became chair of the relevant committee and ceased when he

resigned from office). Even though DeQuattro and Cromwell were

"friends" before the contract, and RGB had previously worked with

the Tribe on a different project, Cromwell began making these

requests only after RGB started invoicing on the more valuable

casino contract. While the project was proceeding apace, Cromwell

requested $10,000 every few months. Then, a lawsuit was filed by

certain Taunton residents, and, after an initial adverse ruling,

the casino project slowed down. Cromwell subsequently scaled back

his requests, leading to the requests for a Bowflex, a check worth

$4,000, and the Seaport Boston Hotel stay. Only when it became

clear the adverse ruling would stand and the contract was no longer

valuable did the requests from Cromwell cease entirely. So, taken

"in the light most flattering to the prosecution, together with

all reasonable inferences favorable" to the verdict, the evidence

was such that a rational jury could have inferred Cromwell's

"intent to effect a quid pro quo" for his Hobbs Act convictions.

United States v. Olbres,

(1st Cir. 1995).

IV.

DeQuattro's and Cromwell's convictions for federal-

program bribery in violation of

are reversed. The

- 48 - District Court's grant of Cromwell's motion for judgment of

acquittal on his Hobbs Act convictions is reversed, and the case

is remanded for further proceedings consistent with this opinion.

- 49 -