United States v. Jonathan Pinson

Affirmed in part, vacated in part, and remanded by published per curiam opinion. Judge Diaz wrote a dissenting opinion as to Parts II.A. and IV.

Jonathan Pinson appeals his convictions for conspiracy to participate in a racketeering enterprise under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), government program theft, honest services fraud, mail and wire fraud, money laundering, and making false statements to federal agencies. He argues that there was insufficient evidence for a jury to convict him, and also contends that the district court constructively amended the original indictment, necessitating a new trial.

We conclude that there was insufficient evidence to support Pinson’s . convictions for RICO conspiracy and government program theft, and accordingly vacate those *158convictions and remand for resentencing. In all other respects, we affirm.

I.

A.

This case arises out of Pinson’s various business relationships and ventures from 2006 to 2012, including a diaper business (Supremes, LLC), a real estate development company (Village- at River’s Edge or “VRE”), a consulting business (Noel Group, LLC), and an investment company (Brixstone Group, LLC). During this time, Pinson also served on the Board of Trustees of South Carolina State University (“SCSU”), a state-supported school. The charges focus on Pinson’s involvement with four ventures: (1) SCSU’s homecoming concert; (2) SCSU’s purchase of a luxury resort; (3) Supremes, LLC’s private diaper business; and (4) VRE’s real estate project. We summarize each venture in turn.

1.

The Homecoming Concert

SCSU’s annual homecoming concert had suffered from poor attendance in the past. In mid-2010, one of Pinson’s closest friends, Eric Robinson, introduced him to concert promoter Willie Joy. After discussing promotion of the 2010 Homecoming concert with Robinson and Joy, Pinson contacted his Mend Edwin Givens, who served as SCSU’s General Counsel. Both Givens and Pinson persuaded other University officials to meet with Joy and Robinson about hiring them to promote the 2010 Homecoming concert. Their efforts, however, did not succeed because the University had already selected a promoter for 2010.

In 2011, Pinson and Givens tried again to get SCSU to hire Joy and Robinson and this time, succeeded. Joy and Robinson’s company, W.E. Entertainment, began contract negotiations with SCSU in mid-2011. In August 2011, W.E. Entertainment signed a concert promoter contract with SCSU, where W.E. would receive $12,500 upon signing, $12,500 on the day of the concert, and 40% of concert profits. Givens signed the contract on the University’s behalf.

Joy and Robinson had separately agreed to share any concert profits with Givens and Pinson. Additionally, both Givens and Pinson expected to get a portion of the $12,500 signing payment. Joy refused to share the signing payment, but Robinson gave $500 cash to Givens in an envelope outside a hotel. In September 2011, Pinson texted Robinson with his bank account information, and Robinson went on to transfer $500 to Pinson’s account as well. The concert took place on October 7, but did not generate a profit.

2.

Sportsman’s Retreat

Around this time, SCSU also considered buying a new off-campus retreat facility. Michael Bartley, Chief of Police at SCSU, knew both Pinson and Richard Zahn, a Florida developer who owned a luxury resort in South Carolina called “Sportsman’s Retreat.” After Zahn put Sportsman’s Retreat up for sale, Bartley took various SCSU officials to view the property, including the University President. Bartley also encouraged Pinson to meet with Zahn.

Zahn invited Pinson, Bartley, and others to Florida for entertainment at Zahn’s expense, and afterwards talked to Pinson over the phone about doing various business deals together. Zahn told Pinson he would sell Sportsman’s Retreat for below its appraised value, and discussed how to guide University officials through the sale. Both Bartley and Pinson expected a com*159mission in exchange for helping with the sale; for example, Zahn testified that Pin-son asked him for a Porsche Cayenne. Pinson tried persuading University officials to buy the property but told Bartley that he would recuse himself when the Board of Trustees voted on the matter. Pinson also asked Givens for help in facilitating the transaction, promising him some funds from the sale. On October 31, 2011, at Pinson’s request, Givens sent a letter to Zahn indicating SCSU’s intent to purchase Sportsman’s Retreat. Ultimately, SCSU did not purchase the property.

3.

Supremes, LLC

Outside his involvement in the University, Pinson helped manage a diaper business called Supremes, LLC. The prior owner of the business, Collin Brown, had struggled to make a profit. In 2008, Brown met with Robinson, who eventually introduced him to Pinson and businessmen Robert Williams and Lance Wright. Together, the group planned to relocate the business to Marion County, South Carolina and revitalize it.

To help with the relocation, Pinson met with Marion County officials to obtain a state or federal grant. In exchange for the jobs expected to be brought to the area, the County agreed to help fund the retrofit of an aging commercial building that the County owned, so that it could be used by Supremes, LLC as a diaper factory. In September 2009, the County signed a grant award and performance agreement with Supremes, LLC and the South Carolina Coordinating Council for Economic Development (“CCED”), which provided the money. The grant prohibited using the funds for payroll, manager bonuses, owner repayment, or for compensating state or federal officials. Wright persuaded a colleague named Phillip Mims to serve as project manager for the retrofit. Mims’s job was to receive the invoices from the contractors, and package and submit them to the County.

Mims and Williams testified that they, Pinson, and Wright repeatedly submitted inflated or false invoices to Marion County for work not actually completed. Some of this money went directly to Mims’s company, PDM Management, while other funds were issued to the Noel Group, a company owned by Pinson. Neither PDM Management nor the Noel Group, however, did any significant work on the retrofit. As a result of these false invoices, Marion County (using the grant money it received) sent a $62,100 check to the Noel Group. Pinson in turn sent checks ranging from $5,000 to $10,000 to Mims, Williams, and- Wright from the Noel Group’s bank account.

4.

Village at River’s Edge

Finally, Pinson also helped manage a housing development known as the Village at River’s Edge. In 2006, Pinson and another business partner. had purchased a tract of land for VRE in Columbia, South Carolina. After the other partner sold his interest, Wright and Williams invested in VRE.

VRE soon began talks with the Columbia Housing Authority (“CHA”), a local quasi-governmental agency which provides subsidized housing to low-income residents. CHA had just received a $10 million federal grant from the Department of Housing and Urban Development. In 2010, VRE contracted with CHA to build numerous housing units, 60 of which would be owned by the Authority. Under the contracts, CHA agreed to provide $5.6 million in construction costs and a $381,000 developer’s fee from its federal grant money to VRE. Mims served as a project manager *160for VRE, which also hired a company named SK Builders to actually build the units. VRE submitted a monthly pay application to CHA on a federal housing grant form documenting overall expenses, so that CHA could send VRE payments. VRE, in turn, was required to pay SK Builders for its work.

In 2011, SK Builders started work and began submitting invoices to VRE. Pinson and Mims, on behalf of VRE, submitted numerous pay applications to CHA on the federal form, certifying that VRE had paid subcontractors for their work. Of the funds VRE received from CHA, some were wired to Pinson’s personal account or withheld from SK Builders. After a period of complaints, SK Builders contacted CHA directly and threatened a work-stoppage; when CHA contacted Pinson about the issue, he admitted that he had “juggled” funds and promised to make catch-up payments. Ultimately, CHA began paying SK Builders directly, and while the project was eventually completed, SK Builders was never paid in full.

B.

A grand jury returned an indictment charging Pinson with the following crimes under Title 18 of the United States Code: (1) conspiracy to engage in racketeering (RICO conspiracy) in violation of § 1962(d); (2) theft from government programs in violation of § 666; (3) extortion in violation of § 1951; (4) honest services fraud in violation of § 1346; (5) mail and wire fraud in violation of §§ 1341,1343; (6) money laundering in violation of §§ 1956, 1957; and (7) false statements in violation of § 1001. The government relied on statements and evidence provided by many of Pinson’s colleagues, including Williams, Mims, Zahn, Bartley, and Givens, who testified in exchange for lesser sentences.

During a two-week jury trial, the government presented evidence from these witnesses and University employees, F.B.I. agents, and other government officials, as well as records of Pinson’s financial transactions. The evidence also included records of Pinson’s phone calls and text messages, obtained through a federal wiretap conducted from July to November 2011. Pinson then moved for a judgment of acquittal, which the district court denied. Following four days of deliberations, the jury convicted Pinson on Counts 1 (RICO conspiracy), 2 and 3 (government program theft), 12 and 18 (honest services fraud), 25-34 (mail and wire fraud), 35-41 (money laundering), and 43-46 and 48-50 (false statements). Robinson, Pinson’s co-defendant, was acquitted of all charges. The court sentenced Pinson to sixty months’ imprisonment on each count to run concurrently, and ordered him to pay $340,743.02 in restitution and penalties.1

This appeal followed.

II.

Sufficiency of the Evidence

Pinson first challenges the district court’s denial of his motion fór a judgment of acquittal, a decision we review de novo. United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015). In considering Pinson’s challenge to the jury’s verdict, we view the evidence in the light most favorable to the government. United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014). Through this lens, we must sustain a conviction if the record contains “substantial evidence,” .that is, “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable *161doubt.” United States v. Chittenden, 848 F.3d 188, 195 (4th Cir. 2017) (quoting United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011)). Although this standard presents a “heavy burden,” reversal is appropriate if “the prosecution’s failure is clear.” Id. (quoting Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)).

After reviewing the record, we find sufficient evidence to support Pinson’s convictions for honest services fraud, mail and wire fraud, money laundering, and false statements. We are not so persuaded as to Pinson’s convictions for RICO conspiracy and government program theft, and therefore vacate them.

A.

RICO Conspiracy

We first consider Pinson’s RICO conspiracy conviction. Pursuant to 18 U.S.C. § 1962(d), to prove a RICO conspiracy, evidence must show the existence of a RICO “enterprise” in which the defendant conspired to participate, and that the defendant conspired that a member of the enterprise would perform at least two racketeering acts constituting a “pattern of racketeering activity.” Salinas v. United States, 522 U.S. 52, 62, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997); United States v. Cornell, 780 F.3d 616, 621 (4th Cir. 2015) (quoting United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)). Although such “conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part” of a racketeering act, each conspirator must share “the same criminal objective.” Salinas, 522 U.S. at 63-64, 118 S.Ct. 469.

A RICO enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). It includes not only legal entities but also “any union or group of individuals associated in fact.” 18 U.S.C. § 1961(4). Nevertheless, “an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

To prove “a pattern of racketeering activity,” the evidence “must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Racketeering acts are related if they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Id. at 240, 109 S.Ct. 2893 (internal quotation marks omitted). To constitute or threaten continued criminal activity, racketeering acts may either be closed-ended, i.e., “a closed period of repeated conduct,” or open-ended, i.e., naturally “projecting] into the future with a threat of repetition.” Id. at 241-42, 109 S.Ct. 2893.

Here, we conclude that the evidence did not establish a single conspiracy, a RICO enterprise encompassing all four ventures, or a pattern of racketeering activity. See Salinas, 522 U.S. at 62, 118 S.Ct. 469; Cornell, 780 F.3d at 621. The government’s failure is thus clear, and we vacate Pin-son’s RICO conspiracy conviction. See Chittenden, 848 F.3d at 195.

1.

Pinson and His Associates Did Not Conspire to Commit the Same Crimes

To begin, as noted, a conspiracy consists of “partners in [a] criminal plan” *162who “agree to pursue the same criminal objective.” Salinas, 522 U.S. at 63-64, 118 S.Ct. 469. At best, the evidence here shows two separate conspiracies, one involving the VRE and Supremes ventures and another involving the homecoming concert and Sportsman’s Retreat. In each conspiracy, only two members (including Pinson) conspired to commit the criminal acts, and Pinson is the only member who overlaps both conspiracies. In the VRE venture, Pinson and Mims fraudulently obtained grant funds, but Wright and Williams were mere passive investors. The false invoices involved in the Supremes venture inculpated Wright and Williams along with Pinson and Mims. But the conspiratorial tie between the Supremes and VRE ventures boils down to just two members: Pinson and Mims.

Likewise, the membership of each SCSU-related venture only overlaps by two: Pinson and Givens. To be sure, the homecoming concert also implicated Robinson to some extent by virtue of the kickbacks he gave to Pinson and Givens, and Robinson participated in the Supremes venture by introducing Brown to Pinson, Wright, and Williams. But this innocuous introduction does not draw Robinson into the criminal element of that venture.

Therefore, Pinson is the only member common to all four ventures. As a result, we cannot say that the government proved a single conspiracy in which each conspirator shared “the same criminal objective.” Salinas, 522 U.S. at 63-64, 118 S.Ct. 469. Although conspirators need not know the full scope nor membership of a conspiracy, nor need they participate in all of its activities, they must at least have a “single-mindedness to achieve a particular goal.” United States v. Nunez, 432 F.3d 573, 578 (4th Cir. 2005). On the contrary, the cast of characters here was of at least two minds, if not more.

2.

Pinson and His Associates Did Not Form a RICO Enterprise

For much the same reasons that the evidence in this case is insufficient to prove a single conspiracy, it is also insufficient to prove an association-in-fact enterprise consisting of “a group of persons associated together for a common purpose of engaging in a course of conduct.” Turkette, 452 U.S. at 583, 101 S.Ct. 2524. The purpose of each venture here was to enrich its members, yet any fruits of these ventures accrued only to members of each venture. Any illicit profits did not carry over to the members of the other ventures. Indeed, given the lack of overlapping members between the ventures, any such profits could not carry over.

To be sure, a RICO enterprise need not have a rigid structure and its members may “engage in spurts of activity punctuated by periods of quiescence,” but it must at least consist of “an ongoing organization” that “function[s] as a continuing unit.” Boyle, 556 U.S. at 945, 948, 129 S.Ct. 2237 (quoting Turkette, 452 U.S. at 583, 101 S.Ct. 2524). Quite the reverse, the four ventures here involved different memberships, methods, and motives, and thus lacked the “common purpose” and relationships among its associates necessary to establish a RICO enterprise. Id. at 946, 129 S.Ct. 2237 (quoting Turkette, 452 U.S. at 583, 101 S.Ct. 2524).

3.

The Predicate Racketeering Acts Did Not Form a Pattern of Racketeering Activity

The government similarly failed to prove a pattern of racketeering activity. The lack of conspiratorial overlap among *163the four ventures weighs against a pattern of racketeering activity just as it does a RICO enterprise. Cf. Turkette, 452 U.S. at 588, 101 S.Ct. 2524 (“While the proof used to establish these separate elements may ... coalesce, proof of one does not necessarily establish the other.”). The evidence thus fails to show “that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893.

First, the racketeering acts here lack the requisite relationship to constitute a pattern of racketeering because they do not bear common “distinguishing characteristics” and are instead “isolated events.” H.J. Inc., 492 U.S. at 240, 109 S.Ct. 2893. Their purpose was to enrich Pinson and his associates, yet those very associates were not involved in each venture, much less in each underlying racketeering act. Further, the nature of the racketeering acts varied along the same line separating the conspiracies: in the VRE and Su-premes ventures, the conspirators misappropriated grant funds, while the SCSU-related ventures involved abusing public positions. This dividing line highlights the fact that Pinson was the only common thread among all four ventures.

Second, the racketeering acts neither constituted nor threatened a degree of “continued criminal activity” sufficient to. establish either closed- or open-ended continuity. H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893. The VRE venture lasted around two and a half years, from “July or September of 2009,” J.A. 240,2 when Wright and Williams invested in the project, until November 2011, when Pinson submitted the final pay application and law enforcement sent VRE members target letters and interviewed them. The Supremes venture lasted less than a year, beginning on June 24, 2009, the incorporation date for Su-premes, LLC, and continuing until January 2010, when Pinson drew checks from the Noel Group bank account for Mims, Williams, and Wright. The Sportsman’s Retreat venture also lasted less than a year, beginning in December 2010, when Zahn met SCSU officials in Florida, and ending around October 31, 2011, after Givens sent Zahn the letter of interest. The homecoming concert venture also lasted approximately one year, beginning around June 2010 when Robinson and Pinson met Joy, and concluding on October 7, 2011, the date of the concert.

Thus, even viewing these separate ventures together, they spanned from June 2009 until November 2011, amounting to a period of around two and a half years. These fragmented schemes do not reveal a “scope and persistence” that “pose[s] a special threat to social well-being.” Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir. 1989) (quoting Int’l Data Bank, Ltd. v. Zepkin, 812 F.2d 149, 155 (4th Cir. 1987)). Indeed, we have required much greater closed-ended time periods to establish a pattern of racketeering activity. See, e.g., GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 550-51 (4th Cir. 2001) (holding fraudulent conduct lasting 17 months did not establish closed-ended continuity); Flip Mortg. Corp. v. McElhone, 841 F.2d 531, 538 (4th Cir. 1988) (holding fraudulent acts lasting seven years by single entity against single victim did not establish racketeering pattern).

The government argues Pinson’s position on the SCSU Board establishes open-ended continuity “because bribery and kickback schemes tend to feed on themselves so as to become a pattern.” Appel-lee’s Br. 23 (internal quotation marks omitted). But this argument proves both too much and not enough. It proves too much *164because such a bright-line rule would contravene our careful approach to RICO, which considers “the specific facts of each case.” H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893. In other words, in the government’s view, any person in an authoritative position involved in racketeering, no matter how slight, would inherently present a threat of continued crimes. We cannot accept this position in light of the “caution” we exercise in interpreting RICO. US Airline Pilots Ass’n v. Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010). At the same time, the government’s argument does not prove enough because even if we accepted this proposition, its reasoning would only reach the SCSU-related ventures; it would not apply to the VRE or Supremes ventures.

To be sure, in United States v. Grubb, we held that a state judge’s predicate offenses involving illegal campaign contributions resulting in the election of his candidates of choice presented a continued threat of racketeering as long as the judge was in office. See 11 F.3d 426, 440 (4th Cir. 1993). There, we reasoned that all of the judge’s predicate offenses, including bribery, mail fraud, and witness tampering, “demonstrate[d] a continued effort to use his judicial office to influence elections by illegally raised campaign contributions.” Id. By contrast, here, Pinson’s abuse of his Board seat only extended to two kickback schemes, one of which was entirely unfruitful while the other netted a mere $500. Therefore, this case does not present the same “distinct threat of long-term racketeering activity,” H.J. Inc., 492 U.S. at 242, 109 S.Ct. 2893, we faced in Grubb. In light of the reasons above, we vacate Pinson’s RICO conspiracy conviction on Count 1.

B.

Federal Program Theft

Pinson next challenges his convictions for government theft under 18 U.S.C. § 666. The government argues that Pinson violated the statute twice: first, when he participated in the diaper business venture, Supremes, LLC, which received grant money from Marion County (Count 2), and second, when he participated in the real estate development project, Village at River’s Edge, which received grant money from the Columbia Housing Authority (Count 3). Because the evidence presented at trial, even when construed in the light most favorable to the government, fails to prove necessary elements of the crime in both cases, we also vacate these convictions.

Section 666(a) criminalizes, among other things, the conversion, embezzlement, or intentional misapplication of $5,000 or more by any “agent” of a covered governmental entity or private organization; it also criminalizes actions by any other person who corruptly influences that agent of a covered governmental entity or private organization. 18 U.S.C. § 666(a). To be covered under the statute, a governmental entity or private organization must receive within one year “benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.” Id. § 666(b).

Thus, to convict someone under the statute in this case, the government needed to prove three elements: (1) that the defendant, or somebody the defendant aided and abetted, embezzled, converted, or otherwise fraudulently misapplied at least $5,000 in property under the care and control of an entity; (2) that this person was an “agent” of the entity; and (3) that this entity received over $10,000 of federal “benefits” within one year. Id. Pinson’s appeal on Count 2 concerns the second factor and the definition of “agent,” while *165his appeal on Count 3 concerns the third factor and the definition of “benefits.”

1.

Mims Was Not an “Agent” of a Covered Entity

Turning first to Count 2, Su-premes, LLC signed an agreement with Marion County and the CCED, both state entities. This agreement provided money for Supremes, LLC to retrofit an aging commercial building and generate jobs in the county. Supremes, managed by Pinson and other associates, hired an acquaintance named Phillip Mims to serve as project manager for the retrofitting. Mims’s job was to receive the invoices from the contractors hired by Supremes, package those invoices, and submit them to Marion County. Marion County then submitted these invoices to the CCED and requested payment.

At trial, the government sought to prove that: (1) Marion County was a covered governmental entity because it received over $10,000 in federal funds within one year; (2) Mims acted as an agent of Marion County; (3) Mims fraudulently converted at least $5,000 in funds from Marion County by submitting inflated invoices; and (4) Pinson and Mims aided and abetted each other. The evidence, however, failed to prove that Mims was an agent of Marion County.

Section 666(d) defines “agent” as “a person authorized to act on behalf of another person or a government” and includes “a servant or employee, and a partner, director, officer, manager, and representative.” Our sister circuits have adopted slightly varying definitions of the term based on this language. The broadest definition, adopted by the First, Third, and Eleventh Circuits, includes as an agent any person with authorization to act on behalf of the covered entity in some capacity, regardless of the person’s official title. See United States v. Keen, 676 F.3d 981, 989-91 (11th Cir. 2012) (finding that a defendant was an “agent” for purposes of the statute because he had some authority to act on behalf of the county, even though defendant had little authority over the county’s funds); United States v. Vitillo, 490 F.3d 314, 324 (3d Cir. 2007) (finding independent contractors to be “agents” of covered entity because they had been authorized to manage the project on the entity’s behalf); United States v. Sotomayor-Vazquez, 249 F.3d 1, 9 (1st Cir. 2001) (finding that although employee was “officially a consultant” to the covered entity, evidence showed that he effectively “acted as its executive director”).

The evidence presented at trial, even when viewed in the government’s favor, fails to meet this broad standard. Mims testified that a partner in Supremes, LLC hired him to be “project manager” for the building retrofit. In this capacity, Mims acted solely on behalf of Supremes by receiving and packaging invoices from the company’s contractors and submitting them to Marion County for payment.

The government argues that Mims oversaw construction and managed invoices on the County’s behalf, but this contention is belied by the evidence. Both Brown and Mims testified that Mims oversaw the construction for and reported to Supremes, LLC. In fact, a Marion County official testified that he did not really know who Mims was, and did not claim that Mims had any authority to act on the County’s behalf. Finding a private employee—who merely delivers invoices to a government entity—to be an “agent” of that entity would stretch the definition of the term beyond its breaking point.

The government resists this conclusion by relying heavily on Vitillo, argu*166ing that a person is an “agent” of a government entity for purposes of § 666, even if that person is not actually employed by the government. While this can be true, it is not automatically the case; the person still must have some authority to act on behalf of the government entity. 18 U.S.C. § 666(d). In Vitillo, the entity in question (an airport authority) had hired an independent contractor to serve as its “primary engineer” for three years and delegated to him authority to manage various construction projects. 490 F.3d at 318-19, 322. Similarly, in Sotomayor-Vazquez, a consultant was an “agent” of an entity because he met with outside officials on the'entity's behalf, and involved himself in the entity’s personnel decisions. 249 F.3d at 9.

The evidence in this case proves no such close link between Mims and Marion County. In fact, it suggests the opposite. Mims had no actual or implied authority to act on Marion County’s behalf in any capacity. Because Mims was not an agent of Marion County, his actions could not violate 18 U.S.C. § 666, meaning that Pinson cannot be criminally culpable under the same statute for aiding and abetting Mims. Therefore, we vacate Pinson’s conviction under Count 2.

2.

VRE Did Not Receive a Federal “Benefit”

Regarding Count 3, the government focused on Pinson’s direct embezzlement of funds paid to his real estate development company, VRE. VRE received these funds from the Columbia Housing Authority. The Housing Authority, which had received a federal grant to help provide low-income subsidized housing, gave the funds to VRE for the construction of affordable housing units.

At trial, the government sought to prove that: (1) VRE was a covered government entity since it received over $10,000 in federal “benefits” within one year; (2) Pinson was an agent of VRE; and (3) Pinson misapplied at least $5,000 of VRE’s funds. But because the money VRE received from the federal government is not a “benefit” for purposes of the statute, we find that the government failed to prove a key element of the crime.

While “benefit” is not explicitly defined in the statute, the Supreme Court has defined the term broadly, though not without limits. See Fischer v. United States, 529 U.S. 667, 677, 120 S.Ct. 1780, 146 L.Ed.2d 707 (2000). In Fischer, the Court noted that while a government “benefit” could come in many forms, like a “loan” or “contract” or “grant,” the term did not include certain payments made “in the usual course of business.” Id. at 679, 120 S.Ct. 1780. In coming to this conclusion, the Court referenced § 666’s legislative history, indicating that “[n]ot every Federal contract or disbursement of funds [is] covered.... [I]f a government agency lawfully purchases more than $10,000 in equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from the supplier a Federal crime.” Id. (quoting S. Rep. No. 98-225, at 370 (1984)).

Because any receipt of federal funds could “at some level of generality” be characterized as a benefit, and because the “statute does not employ this broad, almost limitless use of the term,” the Court provided guidelines to distinguish between covered federal payments (“benefits”) and non-covered payments. Id. at 681, 120 S.Ct. 1780. The key question is whether the funds are paid to the entity “for significant and substantial reasons in addition to compensation or reimbursement.” Id. at 679, 120 S.Ct. 1780. To make *167this determination, courts should examine the recipient entity’s “structure, operation, and purpose” as well as “conditions under which the organization receives the federal payments.” Id. at 681,