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United States v. Seng

United States Court of Appeals, Second Circuit

August 9, 2019

United States of America, Appellee,
v.
Ng Lap Seng, aka David Ng, aka David Ng Lap Seng, Defendant-Appellant, John W. Ashe, Francis Lorenzo, aka Frank Lorenzo, Jeff C. Yin, aka Yin Chuan, Shiwei Yan, Heidi Hong Piao, aka Heidi Park, Defendants.

          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 ...


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