We noted here recently the first signs of an effort among courts of appeal to temper the reach of 18 U.S.C. § 666, long a favorite tool of prosecutors seeking to federalize misdeeds by local and state officials. Now the Eleventh Circuit has joined in, acting to limit the scope of the statute by strictly holding the government to its allegation that a defendant was an "agent of the state" and finding that a state's payment of the defendant's salary and benefits failed to qualify him as its agent, and throwing out his conviction on that theory.
The defendant in United States v. Langston, 2009 WL 2907047 (11th Cir., Dec. 22, 2009), was the executive director of a state school which provided training to Alabama's firefighters and EMT's, called fittingly enough the Fire College. The school was run by the Fire Commission, an agency of the state. Although the Fire Commission employed Langston and paid his salary, the salary was fixed according to a state employee salary schedule and was paid with funds from the state treasury, and Langston's received state employee benefits. In a display of greed so striking that the Court of Appeals characterized the case as "an affront to every decent law-abiding citizen in the State of Alabama," Langston treated the Fire College as his own piggy bank, doling out monies to friends and family, and creating bogus jobs.
A jury convicted Langston of all counts, but the Eleventh Circuit vacated the conviction on each count which charged a Section 666 violation predicated on Langston solely being an agent of Alabama. All of the above indicia of Langston's apparent connections to the state failed to prove his agency; the monies he unlawfully dispensed were, in the court's broad analysis, property of the Fire College, not the state. The Court's ipse dixit reasoning is nicely captured in the spare simplicity of its holding: "Simply because it [the misused Fire College monies] passed through the state treasury to the state [Board of] Education Trust Fund [which funds the Fire College] does not make it state funds sufficient to demonstrate that Langston was an agent of the state." Consistent with this reasoning, other counts of conviction under Section 666 were affirmed because in them Langston was properly identified as an agent of a specific state agency, not of Alabama in general.
Although the absence of close reasoning in the opinion may hinder the ease with which Langston translates to other fact-patterns involving state and local officials, the result does represent one more expression at the appeals court level of the strict interpretation to be afforded Section 666.