Page:United States v. Delgado (19-20697) (2021) Opinion.pdf/15

 “anything of value” in § 666(a)(1)(B) includes “transactions involving intangible items” such as the conjugal visits in that case. Id. at 1191.

Next, we considered whether the transaction involving the conjugal visits reached the $5,000 threshold. We described that “[t]o decide whether a transaction involving intangibles has a value of $5,000 or more, courts should look to traditional valuation methods.” Id. at 1194. Holding that the transaction involving the conjugal visits exceeded $5,000 in value, we explained that “[w]e arrive[d] at this estimate in the same way that an appraiser would value an asset—by looking at how much a person in the market would be willing to pay for them.” Id. Because the prisoner “was willing to pay [the sheriff] $6,000 a month plus $1,000 for each visit,” the transaction “involved something ‘of value of $5,000 or more.’” Id.

To be sure, the bribe amount was probative of the transaction value under the facts of Marmolejo. But there is no rule that the bribe amount is always dispositive of the value of a bribery transaction under § 666(a)(1)(B). Indeed, in Marmolejo we instructed courts to look to “traditional valuation methods”—using the plural—rather than bind them to a single, inflexible method of looking solely at the bribe amount. Our subsequent cases have similarly construed Marmolejo as articulating one possible method of calculating value. See, e.g., United States v. Richard, 775 F.3d 287, 294 (5th Cir. 2014) (“[I]n United States v. Marmolejo we held that the value of § 666’s transactional element may be satisfied by looking to the amount of the bribe. … Thus, because the amount of the bribe here was $5,000, the jury reasonably could have concluded that the transactional element was satisfied.” (emphasis added)).

This is because the utility of looking to the bribe amount will vary depending on the circumstances of the transaction. For example, if we want to ascertain the market value of a “thing of value” exchanged in connection