Argued: November 8, 2018
On
Appeal from the United States District Court for the Southern
District of New York
On
appeal from a judgment entered after trial in the United
States District Court for the Southern District of New York
(Broderick, J.), defendant Ng Lap Seng, who stands
convicted of paying and conspiring to pay bribes and
gratuities to United Nations officials in violation of 18
U.S.C. §§ 371, 666, and the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-2, 78dd-3, and of
related money laundering, 18 U.S.C. § 1956(a)(2)(A),
(h), argues that (1) the United Nations is not an
"organization" within the meaning of § 666;
(2) the jury was not correctly instructed as to controlling
law, particularly as pertains to bribery in light of
McDonnell v. United States, 136 S.Ct. 2355 (2016);
and (3) the evidence was insufficient, in any event, to
support a guilty verdict.
DANIEL
C. RICHENTHAL, ASSISTANT UNITED STATES ATTORNEY (JANIS M.
ECHENBERG, DOUGLAS S. ZOLKIND, SARAH K. EDDY, ASSISTANT
UNITED STATES ATTORNEYS, ON THE BRIEF), FOR GEOFFREY S.
BERMAN, UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF
NEW YORK, NEW YORK, NEW YORK, FOR APPELLEE.
PAUL
CLEMENT (VIET D. DINH, ERIN E. MURPHY, C. HARKER RHODES IV,
ON THE BRIEF), KIRKLAND & ELLIS LLP, WASHINGTON, D.C.,
FOR DEFENDANT-APPELLANT.
Before: Raggi, Hall, and Sullivan, Circuit Judges.
Reena
Raggi, Circuit Judge.
Defendant
Ng Lap Seng paid two United Nations ("U.N.")
ambassadors-one of whom was for a time also serving as
President of the General Assembly-more than $1 million to
secure a U.N. commitment to use Ng's Macau real estate
development as the site for an annual U.N. conference. Based
on this conduct, Ng now stands convicted after a jury trial
of paying and conspiring to pay bribes and gratuities in
violation of 18 U.S.C. §§ 371, 666, and the Foreign
Corrupt Practices Act ("FCPA"), 15 U.S.C.
§§ 78dd-2, 78dd-3, as well as of related
conspiratorial and substantive money laundering, 18 U.S.C.
§ 1956(a)(2)(A), (h). A judgment, entered on June 7,
2018, in the United States District Court for the Southern
District of New York (Vernon S. Broderick, Judge), orders Ng
to serve concurrent 48-month prison terms on each of six
counts of conviction, [1] to forfeit $1.5 million, to pay a $1
million fine, and to make restitution to the U.N. in the
amount of $302, 977.20.
Ng now
appeals his conviction, arguing that (1) his conduct cannot
have violated § 666 because the U.N. is not an
"organization" within the meaning of that statute;
(2) the jury instructions as to both § 666 and FCPA
bribery were deficient in light of McDonnell v. United
States, 136 S.Ct. 2355 (2016); (3) the evidence was
insufficient as a matter of law to support a guilty verdict
for these crimes; and (4) without valid § 666 and FCPA
predicate counts of conviction, his related money laundering
convictions cannot stand. For the reasons explained in this
opinion, Ng's arguments fail on the merits. Accordingly,
we affirm the judgment of conviction on all counts.
BACKGROUND
I.
Prosecution Evidence at Trial
Because
Ng appeals a judgment of conviction following a jury trial,
we summarize the evidence adduced in the light most favorable
to the prosecution. See United States v. Thompson,
896 F.3d 155, 159 (2d Cir. 2018).
A.
Ng's Convention Center Plan
In
2009-10, Chinese national Ng sought to develop his already
extensive Macau real estate holdings into a
multi-billion-dollar complex that would include hotels,
luxury apartment buildings, and a world-class convention
center. To ensure the reputation of his convention center,
and thereby to enhance the use and value of adjacent real
estate within his complex, Ng sought to have the U.N.
formally designate his center as the permanent site for the
annual convention, or "Expo," of its Office for
South-South Cooperation ("UNOSSC"), an event with
broad attendance throughout the private as well as public
sectors.[2] Toward this end, Ng engaged in a sustained
effort over five years to bribe two U.N. officials: (1)
Francis Lorenzo, a United States citizen serving as the
Dominican Republic's Deputy Ambassador to the U.N.; and
(2) John Ashe, the U.N. Ambassador for Antigua and Barbuda
and, for a time during the bribery scheme, President of the
General Assembly, the second-ranking position within the UN.
B.
Ng Recruits Lorenzo and Ashe
Ng
first met Lorenzo in March 2009, and in December of that year
named him president of South-South News ("SSN"), a
media organization owned by Ng and incorporated in New York.
Lorenzo, who pleaded guilty to bribery and other charges
pursuant to a cooperation agreement with the government,
[3]
testified that he understood that a portion of the $20, 000 a
month that Ng was paying him as SSN salary, as well as other
payments described herein- which, by 2015, totaled over $1
million-were in fact bribes to secure for Ng, not merely
general U.N. support for UNOSSC's use of his Macau
convention center, but a formal documented commitment to do
so. In short, Lorenzo understood that Ng was paying him in
order to procure "an official document from the United
Nations," Trial Tr. at 652, i.e., he wanted
"a contract," id. at 671.
Ng and
Lorenzo agreed that as the first step toward this goal,
Lorenzo would host "working sessions" for other
ambassadors to discuss issues of South-South cooperation.
App'x 1449. The plan was for the sessions to produce a
report making it appear that the attending ambassadors were
urging the U.N. to designate an official UNOSSC meeting
center.
At
Lorenzo's suggestion, Ng recruited Ashe to attend the
first meeting, which was held in China in April 2011. To
induce Ashe's attendance, Ng paid for a vacation trip to
New Orleans by Ashe's family. Ng also promised Ashe
whatever financial assistance he might need if he were to
become President of the U.N. General Assembly. [4] After the China
meeting, at Ashe's request, Ng began funneling $2,
500-$6, 000 per month to Ashe personally, disguised as
payments to Ashe's wife for consulting services provided
to SSN. In fact, as SSN employees testified, Ashe's wife
never performed any such services. Nevertheless, the sham
monthly payments continued through early 2015. Indeed, even
when SSN was reducing expenses in 2014, Lorenzo told Ng that
payments to Ashe's wife should continue because "we
need[] John [Ashe] to continue his support on the
[E]xpo." Trial Tr. at 1258.
C.
Acts in Furtherance of the Expo Scheme
In
return for Ng's payments, Lorenzo and Ashe took various
actions to support UNOSSC designating Ng's convention
center as its permanent Expo site. On appeal, as at trial,
the government highlights four particular acts taken by the
two ambassadors.
1.
Placing Documents in the Official Record of the U.N. General
Assembly Reporting Ambassadorial Support for Ng's
Convention Center Plan
Following
the 2011 working sessions, Ng directed Lorenzo and Ashe to
publicize and inflate ambassadorial support for UNOSSCs use
of Ng's convention center. Toward that end, the
ambassadors drafted and, on March 15, 2012, Ashe signed, a
letter on U.N. letterhead, addressed to the U.N. Secretary
General, reporting that representatives from eight member
nations and various U.N. departments had held
"high-level meetings and working sessions" that
resulted in the launching of a "Global Business
Incubator." App'x 1449.[5] With the assistance of an
unwitting U.N. official, Lorenzo and Ashe then had the letter
made a part of the official General Assembly record
(hereafter "U.N. Document"), a step that could only
be taken by an accredited U.N. ambassador and that allows the
document to be circulated to all member states.[6]
In
December 2012, Ng instructed Lorenzo to revise the March U.N.
Document so that it expressly referenced a permanent Expo
center to be developed by Ng's company, Sun Kian Ip Group
("SKI"). Ashe and Lorenzo achieved this objective
by securing reissuance of the U.N. Document on June 6, 2013,
"for technical reasons." Id. at 1586
(hereafter "Revised U.N. Document"). In fact,
changes to the reissued document went well beyond the
technical. Consistent with Ng's instructions, Ashe and
Lorenzo added two entirely new substantive paragraphs to the
letters, as follows:
In this regard, I am pleased to inform you that in response
to the recommendation, Sun Kian Ip Group of China
has welcomed the initiative and will serve as the
representative for the implementation of the Permanent Expo
and Meeting Centre for the countries of the South. This
is one of the first centres in a network of incubator centres
in a public-private partnership with the support of leading
partner South-South News.
As envisaged, I foresee that this permanent exposition
centre of innovation and excellence will play an
important role, not only in accelerating the development and
deploying of technologies, including through South- South and
triangular cooperation, but also in harnessing the potential
of [information and communication technologies] for
sustainable growth, investment, capacity-building and job
creation, particularly in developing countries.
Id. (emphases added).
2.
UNOSSC's Letter of Support for Ng's Convention Center
Plan
Ng
further directed Lorenzo to obtain a letter from UNOSSC
endorsing a permanent Expo center, characterizing such
support as a "top priority." Id. at 1452.
Lorenzo testified that such a letter from UNOSSC would,
indeed, provide "very significant" support within
the U.N. for Ng's convention center plan. Trial Tr. at
1092. Ng paid Lorenzo $30, 000 per month to secure such a
letter (in addition to the $20, 000 per month already being
paid to him as SSN president), funneling the money through
sham contract payments to a Dominican company operated by
Lorenzo's brother.
The
opportunity for procuring such a letter arose when, for a
time in 2013, Ashe served as President of both the U.N.
General Assembly and the Assembly's High-Level Committee
on South-South Cooperation, which was serviced by UNOSSC,
then headed by Chinese national Yiping Zhou. Taking advantage
of these circumstances, Ashe and Lorenzo proceeded to procure
the demanded UNOSSC commitment letter, creating a paper trail
that made no mention of payments the two men were receiving
from Ng to do so but, rather, suggested that they were
objectively performing their official duties in supporting
Ng's plan.
As the
first step in the charade, on October 10, 2013, Ng sent
Lorenzo a letter congratulating his U.N. leadership on
South-South cooperation; referencing SKI's purported
appointment (as indicated in the Revised U.N. Document) to
implement a "Permanent Expo and Meeting Center for the
countries of the South"; and seeking Lorenzo's
ambassadorial assistance in bringing to the attention of the
President of the General Assembly, i.e., Ashe, and
UNOSSC an attached "master plan and proposal for
implementation" of the center. App'x 1602. The
letter gave Lorenzo an excuse to meet with Ashe and Zhou and,
thereafter, to make a formal request "on behalf of the
Ambassadors" who had attended earlier Expos to give
favorable consideration to the "offer made by
Macao[7] Special Administrative Region of the
People's Republic of China to provide the Global
South-South Development Expo a permanent home."
Id. at 1536-37.
When a
month passed with no action on Lorenzo's request, Ng had
his subordinate threaten to halt future payments to Lorenzo
"unless further progress is made." Id. at
1478. Ten days later, on November 28, 2013, Lorenzo met in
New York with the subordinate, who gave Lorenzo $20, 000 to
pay Ashe as a further inducement for his influencing Zhou to
endorse Ng's permanent Expo plan.[8] After more meetings among
Lorenzo, Ashe, and Zhou, the UNOSSC director provided the
desired letter of support.[9]
The
letter, which was backdated to June 7, 2013-so that it could
be copied to Ashe as if he were still serving as President of
the General Assembly High-Level Committee-was addressed to
both Lorenzo in his ambassadorial capacity and to Ng's
SKI organization. Written on UNOSSC letterhead and signed by
Zhou as UNOSSC director, the letter observed that the Revised
UN. Document "clearly state[s] that Sun Kian Ip Group of
China is tasked to establish the Permanent Expo and Meeting
Centre for the countries of the South," professed
UNOSSCs view that this was "a very welcome
initiative," and expressed its "strong support for
this initiative led by Sun Kian Ip Group with the
coordination of [SSN]." Id. at 1642.
3.
Ashe's March 2014 Trip to Macau
In
March 2014, Ng arranged for Ashe, as General Assembly
President, and accompanying UN. staff and security officers,
to visit Macau for a first-hand inspection of the
almost-completed convention center complex. Ashe agreed to
make the trip only if Ng made a sizable contribution to the
Office of the President of the General Assembly. See
id. at 1493 ("I will not go unless I see the funds
. . . to help fund the PGA office."). On the trip, Ashe
assured Ng of his support for U.N. use of the Macau center in
return for Ng's continued financial support of Ashe's
endeavors as General Assembly President.
Soon
thereafter, Ashe asked Ng to pay the $200, 000 cost of a
concert that Ashe wished to host at the U.N. Lorenzo advised
Ng to make the payment to ensure that Ashe "continues
supporting" a convention center agreement. Trial Tr. at
1310. On June 3, 2014, Ng wired the requested amount to an
account designated by Ashe.
4.
UNOSSC's Expo Commitment and Pro Bono Agreement
On June
13, 2014, approximately ten days after Ng wired Ashe the
requested $200, 000, Zhou sent Lorenzo a letter stating that
"with the support of the President of the General
Assembly"- i.e., Ashe-UNOSSC expected to have a
pro bono agreement drafted in a matter of weeks for
SKI to host the 2015 UNOSSC Expo as well as another global
forum. App'x 1641[10] On December 25, 2014, Ng on behalf of
SKI and Zhou on behalf of UNOSSC did, in fact, sign what was
entitled the "Pro Bono Agreement . . . [f]or the hosting
of the United Nations Global South-South Development Expo and
Permanent Meeting Center and other Mutually Agreed
Events." Id. at 1836-48.[11]
A few
weeks later, on February 2, 2015, Zhou sent a letter to
Lorenzo-identified therein as President of both SSN and
SKI-formally inviting these two entities to host both the
2015 Expo and a 2015 global forum on poverty. Zhou therein
reported that "the President of the . . . General
Assembly, H.E. John Ashe, [had] been calling upon
[Zhou's] office to step up the efforts to support . . .
in particular, the Permanent Expo and Meeting Centre in
Macao," and that UNOSSC "strongly supported]"
such a center by SKI and SSN. Id. at 1525.
D.
The 2015 Expo
In
August 2015, Ng launched his Macau convention center with a
UNOSSC forum attended by UN. ambassadors, as well as other
public- and private-sector officials. Lorenzo prepared an
"outcome document" for circulation within the UN.,
which reported, among other things, participants' call
for the establishment of a permanent convention center for
the Expo. Lorenzo and Ashe then worked to incorporate the
document into a General Assembly resolution, broaching such
action to the then-president of the High-Level Committee on
South-South Cooperation. The plan was abandoned, however,
after Ng's arrest the following month.
II.
Defense Evidence at Trial
The
defense case was limited to offering into evidence financial
records and a U.N. report, and to having a witness testify to
certain of these documents.
III.
Conviction
On July
27, 2017, a jury found Ng guilty on all counts charged. The
district court sentenced Ng on May 11, 2018, to a total of 48
months' imprisonment and a $1 million fine, and ordered
forfeiture of $1.5 million and restitution of $302, 977.20.
Judgment was entered on June 7, 2018. This timely appeal
followed. On June 27, 2018, this Court denied Ng's motion
for bail pending appeal.
DISCUSSION
I.
The § 666 Challenge
Ng
argues that his § 666 convictions cannot stand because
the U.N. is not an "organization" within the
meaning of that statute[12], [13]Ng does not dispute that the
U.N. meets the dictionary definition of the term
"organization."[14] Indeed, he acknowledges that
the "UN is undeniably a public international
organization." Appellant Reply Br. at 4; see
also Appellant Br. at 23-24. Nevertheless, he maintains
that "organization," as used in § 666, must be
construed narrowly to reference only private, and not public,
entities.
A.
Precedent Supports § 666 Prosecution of U.N.
Bribery
In
arguing that § 666 does not reach a public international
organization such as the U.N., Ng confronts a high hurdle:
this court's decision in United States v. Bahel,
662 F.3d 610 (2d Cir. 2011). In that case, this court
affirmed the § 666 conviction of a U.N. official who
corruptly accepted and solicited things of value in return
for influencing the award of U.N. contracts.
Ng
argues that Bahel does not control this appeal
because the defendant there challenged only whether United
States' contributions to the U.N., specified by
international agreement, qualified as federal program
benefits under § 666. He did not ask the court to decide
whether the U.N. was an "organization" under §
666. Perhaps not. But the court's opinion is more
reasonably read to suggest that the matter is beyond, rather
than open to, question. Bahel explains that Congress
having allocated money to the U.N., the United States
"has a legitimate and significant interest in
prohibiting . . . acts of bribery being perpetuated at
the organization," and identifies "no
principled basis on which to distinguish congressional
authorization of the payment [of] U.N. dues from federal
monies flowing to [other] non- governmental
organizations." Id. at 629-30 (internal
quotation marks omitted) (emphases added).
B.
Section 666's Text and Context Warrant Excluding Only
Governments, not Public International Organizations, from the
Word "Organization"
Even
without Bahel, Ng's urged narrow reading of
§ 666 is not persuasive. We review questions of
statutory interpretation de novo, see, e.g., United
States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016), and
here conclude that while "organization," as used in
§ 666, does not include governments or their constituent
parts, it does include nongovernment public international
organizations such as the U.N.
"Statutory
analysis necessarily begins with the plain meaning of a
law's text and, absent ambiguity, will generally end
there." Dobrova v. Holder, 607 F.3d 297, 301
(2d Cir. 2010) (internal quotation marks omitted); see
Salinas v. United States, 522 U.S. 52, 57 (1997)
(stating, in construing § 666, that "[c]ourts in
applying criminal laws generally must follow the plain and
unambiguous meaning of the statutory language" (internal
quotation marks omitted)).
Section
666 specifically defines certain words used in that statute.
For example, the term "State," as used in the
phrase "or of a State, local or Indian tribal
government," is statutorily defined to mean "a
State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United
States." 18 U.S.C. § 666(d)(4). But § 666
provides no statute-specific definition of
"organization." Nevertheless, at the outset of
Title 18, Congress provides a broad general definition of the
word: "As used in this title, the term
'organization' means a person other than an
individual." Id. § 18. Further, the very
first provision of the United States Code generally defines
the word "person": "In determining the meaning
of any Act of Congress, unless the context indicates
otherwise- . . . the word[] 'person' . . . include[s]
corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as
individuals." 1 U.S.C. § 1. Read together, these
two definitional provisions signal that, unless the statutory
context indicates otherwise, the word
"organization," whenever used in Title 18, applies
broadly to all legal "persons," whether large or
small, domestic or international, public or private,
governmental or non- governmental. See Black's
Law Dictionary (10th ed. 2010) (defining "legal" or
"artificial" person as "entity, such as a
corporation, created by law and given certain legal rights
and duties of a human being"); cf. Town of River
Vale v. Orangetown, 403 F.2d 684, 686 (2d Cir. 1968)
(holding that municipal corporation, like any
"corporation," is person within protection of
Fourteenth Amendment).
The
context in which "organization" is used in §
666, however, does signal some definitional narrowing;
specifically, governments and their constituent parts are not
among the legal persons that Congress intended to include
within the word as used in that statute. See generally
United States v. Epskamp, 832 F.3d at 162 ("A
particular statute's plain meaning can best be understood
by looking to the statutory scheme as a whole and placing the
particular provision within the context of that
statute." (internal quotation marks omitted)). This is
evident from the fact that the statute prohibits the
solicitation or payment of bribes not only as to
"organization[s]," but also as to "State,
local, or Indian tribal government[s]" receiving federal
funds. 18 U.S.C. § 666(a)(1), (2). There would be no
need to identify such government entities in § 666 if
they were already among the legal persons covered by the word
"organization." It is a well- established canon of
construction that statutory text should not be construed so
broadly as to render other statutory text superfluous.
See, e.g., Marx v. Gen. Revenue Corp., 568
U.S. 371, 386 (2013); United States v. Valente, 915
F.3d 916, 923 (2d Cir. 2019). Thus, consistent with this
canon, we construe the word "organization" as used
in § 666 to reference any legal person that is
not a government precisely because Congress used
additional language-"or a State, local or Indian tribal
government"-to identify those government entities it
wished to cover by the statute.[15]
Construing
"organization" to mean all legal persons except
governments yields no peculiar result. Indeed, in other
contexts, Congress has so limited the word, while otherwise
maintaining its broad application. See, e.g., 18
U.S.C. § 513(c)(4) (stating with respect to securities
of "State" or "organization" that
"term 'organization' means a legal entity, other
than a government, established or organized for any purpose,
and includes a corporation, company, association, firm,
partnership, joint stock company, foundation, institution,
society, union, or any other association of persons which
operates in or the activities of which affect interstate or
foreign commerce"). Congress's failure in one
statutory provision to impose a limit expressly stated in
another provision can signal its intent not to narrow the
reach of the unmodified word. See, e.g.,
Russello v. United States, 464 U.S. 16, 23 (1983)
("[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion." (internal quotation marks omitted)). But
here, statutory context and the canon against superfluous
construction allow us to identify a limiting intent even
though not explicitly expressed. See generally Burns v.
United States, 501 U.S. 129, 136 (1991) ("An
inference drawn from congressional silence certainly cannot
be credited when it is contrary to all other textual and
contextual evidence of congressional intent.").
Neither
the text nor structure of § 666, however, supports the
still narrower construction of "organization" urged
by Ng. He would have us cabin the word, as used in §
666, to private organizations, excluding from the
statute's protection scores of public international
organizations in which the United States is a member and for
which it is frequently a major financial contributor.
[16]
In addition to the U.N., such organizations include the
International Monetary Fund, the World Health Organization,
the Organization of American States, the International
Committee of the Red Cross, the International Criminal Police
Organization (INTERPOL), and many more. See 22
U.S.C. § 288 (listing more than 80 entities
"designated by executive order as public international
organizations").[17] Such legal persons easily fall within
the broad definition of "organization" established
by 1 U.S.C. § 1 and 18 U.S.C. § 18. And there is no
need to exclude such persons from the word
"organization" as used in § 666 to avoid
rendering other language in the statute superfluous. In the
absence of such a concern, neither statutory text nor purpose
supports construing "organization," as used in
§ 666, to exclude public international organizations.
See Salinas v. United States, 522 U.S. at 56
(stating that § 666 has "expansive, unqualified
language, both as to the bribes forbidden and the
entities covered" (emphasis added)); see also
United States v. Bahel, 662 F.3d at 627 (observing, in
upholding § 666 conviction, that Congress has an
interest in "ensuring that any [federal] money
contributed to the U.N. is responsibly expended and accounted
for").[18]
C.
The U.N. Is Not Excludable from § 666 as a Foreign
Government
Nor can
Ng avoid § 666 culpability by analogizing the U.N. to a
foreign government. The U.N. is not a sovereign entity.
Rather, it is an association of more than 190 independent
sovereigns that have joined in, and agreed to fund, what they
themselves describe as an "Organization . . . based on
the principle of the sovereign equality of all its
members," for the purpose of "maintain[ing]
international peace and security." Charter of the United
Nations, ch. I, art. 1, § 1, art. 2, § 1. Thus,
from a definitional perspective, the U.N. cannot reasonably
be deemed a "foreign government" rather than an
international "organization" under § 666.
This
conclusion finds further support in statutes that refer
separately to "foreign governments" and
"international organizations," even when Congress
chooses to apply the law equally to both. See, e.g.,
10 U.S.C. § 130c (explaining that statutory protection
for sensitive information of foreign governments reaches
information provided by or produced in cooperation with an
international organization as well as a foreign government);
18 U.S.C. § 1116(b)(4)(B) (defining
"internationally protected person" in federal
homicide statute to include representatives, officers,
employees, or agents of United States government, foreign
government, "or international organization").
Whether to apply certain laws equally to foreign governments
and international organizations is, of course, a policy
choice left to Congress. Courts, by contrast, do not make
policy choices in construing statutes. See generally
Husted v. A. Philip Randolph Inst., 138 S.Ct. 1833, 1848
(2018) (observing that "case presents a question of
statutory interpretation, not a question of policy").
Ng
nevertheless argues that the U.N. should be treated as a
government outside the scope of § 666 to avoid the
"international conflict" that could arise because
that statute-by contrast to the FCPA-can apply to "both
the payor and the recipient of a bribe," the
latter of whom may be a foreign government official or
diplomat. Appellant Br. at 22 (emphasis in original). We are
not persuaded. As we observed in Bahel, the law
already provides a comprehensive framework for affording
government officials and diplomats immunity from prosecution.
See United States v. Bahel, 662 F.3d at 623- 26
(discussing Diplomatic Relations Act, 22 U.S.C. § 254d,
the Convention on Privileges and Immunities of the U.N., Feb.
13, 1946, 21 U.S.T. 1418, and the International Organization
Immunities Act, 22 U.S.C. § 288a).[19]
D.
The Federalism Concerns Informing Nixon v. Missouri Municipal
League Are Not Present Here
Ng
maintains that if Congress intended for § 666 to
prohibit bribes pertaining to public, as well as private,
organizations, it was required to say so explicitly. In
support, he cites Nixon v. Missouri Municipal
League, 541 U.S. 125 (2004), wherein the Supreme Court
construed the undefined phrase "any entity" in a
preemption provision of the Telecommunications Act not to
apply to political subdivisions of a state. See 47
U.S.C. § 253(a) ("No State or local statute or
regulation, or other State or local legal requirement, may
prohibit or have the effect of prohibiting the ability of
any entity to provide any interstate or intrastate
telecommunications service" (emphasis added)).
Nixon explained that "[w]hile an
'entity' can be either public or private, there is no
convention of omitting the modifiers 'public and
private' when both are meant to be covered."
Nixon v. Mo. Mun. League, 541 U.S. at 132 (citations
omitted). From this, Ng urges us to conclude from the absence
of such modifiers for the word "organization" in
§ 666 that the word presumptively does not reach both
"public and private" legal persons.
This
argument fails to persuade because Nixon used
"public and private" to distinguish between
government and non- government entities in circumstances
where the animating concern was federalism-i.e., the
constitutional principle for distributing "power as
between the Nation and the States." Staub v. City of
Baxley, 355 U.S. 313, 325-26 (1958). For reasons
explained supra at Section I.B., from the context in
which "organization" is used in § 666, we
construe the word not to include government entities, thereby
removing the federalism concern informing the Nixon
decision.
In
Nixon, a Missouri law stated that "[n]o
political subdivision of this state shall provide or
offer for sale . . . a telecommunications service . . . for
which a certificate of service authority is required."
Missouri Rev. Stat. § 392.410(7) (emphasis added);
see Nixon v. Mo. Mun. League, 541 U.S. at 129. The
Court addressed whether such legislation was preempted by the
Telecommunications Act's reference to "any
entity." 47 U.S.C. § 253(a) (emphasis added).
Nixon concluded that it was not, relying on
Gregory v. Ashcroft, 501 U.S. 452 (1991), which
holds that Congress must speak with particular clarity when
its intent is to constrain traditional state authority to
order its own government. In sum, federalism compelled a
conclusion that, without a "public and private"
modifier, § 253(a)'s use of the term "any
entity" was insufficient to make clear Congress's
intent to preclude state legislation pertaining to its own
political subdivisions. See Nixon v. Mo. Mun.
League, 541 U.S. at 140 (referencing "working
assumption that federal legislation threatening to trench on
the States' arrangements for conducting their own
government should be treated with great skepticism, and read
in a way that preserves a State's chosen ...