No. 98-462
In the Supreme Court of the United States
OCTOBER TERM, 1998
FRANCIS H. WOODWARD, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
NINA GOODMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the evidence was sufficient to support petitioner's mail and
wire fraud convictions.
2. Whether the district court properly instructed the jury on the intent
required for conviction on the fraud charges.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-462
FRANCIS H. WOODWARD, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-56a) is reported at 149
F.3d 46.
JURISDICTION
The judgment of the court of appeals was entered on July 20, 1998. The petition
for a writ of certiorari was filed on September 17, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the District
of Massachusetts, petitioner was convicted of mail fraud, in violation of
18 U.S.C. 1341; wire fraud, in violation of 18 U.S.C. 1343; interstate travel
to commit bribery, in violation of 18 U.S.C. 1952; and conspiracy to commit
those offenses, in violation of 18 U.S.C. 371. The district court sentenced
petitioner to six months' imprisonment, to be followed by two years' supervised
release, and imposed a fine of $5000. The court of appeals affirmed. Pet.
App. 1a-56a; Gov't C.A. Br. 3.
1. From January 1977 until April 1992, petitioner was a member of the Massachusetts
House of Representatives. From January 1985 to January 1991, he served as
the House Chair of the state legislature's Joint Committee on Insurance.
Together with the Senate Chair, petitioner supervised the staff of the Insurance
Committee and scheduled all hearings and meetings. He had the authority
to assign bills to the hearing calendar and subsequent executive sessions,
and to take other actions that would help advance bills through the committee.
Petitioner also had considerable influence over the ultimate disposition
of a bill, including the ability both to "carry" a bill through
the legislative process by advocating or leading the debate for the bill,
and to send a bill to "study," which would effectively shelve
it. Pet. App. 2a, 4a & n.1; Gov't C.A. Br. 3-4.
William Sawyer was a lobbyist for the John Hancock Mutual Life Insurance
Company (Hancock), one of the two largest life insurance companies in Massachusetts.
From 1984 to 1992, petitioner accepted approximately $8700 in gratuities
from Sawyer, for which Sawyer was then reimbursed by Hancock. Sawyer's expenditures
on behalf of petitioner consisted mainly of payments for meals, golf outings,
and other entertainment both at conferences-sponsored by the National Conference
of Insurance Legislators (COIL), a national association of state legislators
involved in insurance matters-and in Massachusetts. The gratuities offered
by Hancock to petitioner increased when he ascended to the position of House
Chair of the Insurance Committee. Those gratuities remained at high levels
throughout his chairmanship and through 1991, the year he left his position
as co-chair. In 1992, the year petitioner resigned from office, he received
a mere $16 in gratuities from Hancock. Pet. App. 2a-3a, 5a-8a; Gov't C.A.
Br. 4-8.
During his tenure as House Chair of the Insurance Committee, petitioner
met with Sawyer approximately three times a week when the legislature was
in session. Petitioner consistently took official actions that promoted
the interests of Hancock and the life insurance industry. Insurance Committee
research director Robert Smith stated that petitioner was the most pro-life-insurance-industry
chair during Smith's ten-year tenure. For example, in 1989 a bill opposed
by Hancock would have required mandatory discounts on life insurance for
non-smokers. After the bill received a favorable recommendation from the
Insurance Committee based on the support of the Senate Chair, petitioner
led the opposition to the bill in debate before the full House of Representatives,
ultimately defeating the bill. Petitioner also repeatedly led the Insurance
Committee to support and report favorably bills proposed by the insurance
industry and then pushed those bills through the legislative process. Pet.
App. 8a, 25a; Gov't C.A. Br. 8-11.
Massachusetts law required petitioner to file a yearly Statement of Financial
Interests (SFI) with the Massachusetts State Ethics Commission. Pet. App.
29a-30a; see Mass. Gen. Laws Ann. ch. 268B, § 5 (West 1992 & Supp.
1998). Petitioner was required to disclose on his SFI forms gifts with an
aggregate value greater than $100 that he received from lobbyists or businesses
that had a direct interest in legislation. Petitioner did not disclose any
of the gratuities received from Hancock on his SFI forms for the years 1984
through 1992. Pet. App. 30a; Gov't C.A. Br. 12-15.
After petitioner left the legislature, he asked Sawyer to help him obtain
employment as a lobbyist with Hancock. Sawyer, however, told petitioner
that he lacked the necessary experience for the job. In a conversation with
Smith, petitioner expressed disappointment at Sawyer's unwillingness to
help him. Smith stated that petitioner told him: "After all I did for
Bill Sawyer, you know, I can't believe he's not-he can't get me a job."
Petitioner complained to Smith that "you would think after all the
years and everything I've done I would be treated better than I have been
treated." Petitioner also reported to Smith that he had told Sawyer
that "[i]f he [petitioner] could not get the job himself he'd like
to see his son Brian get the job." Pet. App. 21a-24a; Gov't C.A. Br.
11-12.
2. A federal grand jury returned a 28-count indictment charging petitioner
with conspiracy, in violation of 18 U.S.C. 371; multiple counts of mail
and wire fraud, in violation of 18 U.S.C. 1341, 1343, 1346; and multiple
counts of interstate travel to commit bribery, in violation of 18 U.S.C.
1952. Pet. App. 59a-77a. The mail and wire fraud counts alleged a scheme
to defraud the Commonwealth of Massachusetts and its citizens of their right
to petitioner's honest services as a state legislator.1 The indictment charged
that in furtherance of this scheme, petitioner accepted illegal gratuities
from individuals representing Hancock and the insurance industry trade association,
that he filed false SFI forms in which he unlawfully failed to report his
receipt of those gratuities, and that he repeatedly performed official acts
on behalf of Hancock and the trade association. Pet. App. 10a, 64a-72a.
At trial, the district court instructed the jury that in order to convict
petitioner on the fraud counts, the government was required to prove beyond
a reasonable doubt that petitioner acted with intent to defraud. 10/1/96
Tr. 98-99; Gov't C.A. Br. 40. The court instructed that such intent "means
to act knowingly and with a specific intent to deceive for the purpose either
of causing a loss to another or bringing about gain to one's self or for
both of those purposes." 10/1/96 Tr. 98-99; Gov't C.A. Br. 40-41. Further,
the court stated that to prove intent to defraud the government was required
to show petitioner's "lack of good faith * * * beyond a reasonable
doubt." 10/1/96 Tr. 109-110; Gov't C.A. Br. 41. The district court
warned the jurors that "unattractive or reprehensible" behavior
in the relationship between legislators and lobbyists does not constitute
a violation of federal law. 10/1/96 Tr. 95. "The focus here is on the
intent of the defendant to accept a gratuity, actually to influence his
official duties, to cause him to depart from his duty to act as a disinterested
legislator or legislative decision-maker." Id. at 101. The court also
gave the following instruction:
You may not find that the defendant violated either set of the federal laws,
which I have described to you, if his receipt of the expenditures was solely
part of a routine cultivation of a business or political friendship rather
than an intent on his part to be influenced in his official legislative
duties. If, instead or in addition, there is an intent on the defendant's
part to be influenced in his official legislative duties, then you may find
a violation of either set of federal laws. If there is both the intent to
cultivate a business and political friendship and the intent to be influenced
in official legislative duties, then you may find a violation of the federal
laws.2
Id. at 128; Gov't C.A. Br. 41. The court then reminded the jurors that "you're
not to be concerned with whether or not it is unattractive for lobbyists
and legislators to have a close personal friendship," and cautioned
them that "[p]ayments for entertainment, lodging, golf, sports events
and the like cannot serve as the basis for the federal violations if the
aim is limited to the cultivation of a business or political friendship."
10/1/96 Tr. 128-129; Gov't C.A. Br. 41-42.
The jury found petitioner guilty on the conspiracy count (Count 1), one
mail fraud count (Count 4), one wire fraud count (Count 9), and two Travel
Act counts (Counts 14 and 24),3 and acquitted petitioner on all remaining
counts. Pet. App. 9a & n.4.
3. The court of appeals affirmed. Pet. App. 1a-56a. Petitioner challenged
the sufficiency of the evidence to sustain his fraud convictions, claiming
that the evidence was insufficient to prove that he accepted the gratuities
with the intent to deprive the public of his honest services. Id. at 15a.
The court of appeals rejected that claim, finding that evidence concerning
the circumstances of petitioner's relationship with Sawyer supported the
jury's finding that petitioner "knew what the deal was-that the gratuities
would continue as long as he voted favorably to Hancock's interests-and
that he intended to be influenced by the gratuities." Id. at 19a (citation
omitted). The court noted one instance in which Sawyer departed from a conference
early but left his credit card behind to pay for petitioner's golf and meal
expenses during the remainder of the conference. The court found that that
arrangement was "not consistent with mere friendship as the sole purpose
of the payments, but rather is more consistent with the theory of a gratuity
made because of [petitioner's] potential official actions." Ibid. The
court of appeals further noted that "[t]he same inference can be drawn
from the fact that the expenditures were not mutual but rather operated
in one direction only." Id. at 20a. The court also remarked that the
government presented direct evidence of petitioner's illegal intent, including
his statements to Smith concerning his efforts to persuade Sawyer to assist
him in obtaining employment with Hancock. Id. at 21a-24a. In addition, the
court found that the jury's verdict was supported by evidence of the extent
to which petitioner's discretionary official actions served the interests
of Hancock and the insurance industry. Id. at 24a-29a.
Petitioner also argued that the evidence was insufficient to support his
wire fraud conviction because the telephone call that formed the basis of
that conviction was not made "for the purpose of executing" the
fraudulent scheme. Pet. App. 32a; see 18 U.S.C. 1343. The telephone call
charged in the indictment was placed by a Hancock employee to a hotel in
Orlando, Florida, to reserve a hotel room so that Sawyer could attend a
COIL conference in that city. Pet. App. 33a. The court of appeals held that
"[t]he jury could reasonably have concluded that the call was made
in furtherance of the scheme to defraud." Id. at 34a. The court reasoned
that in order to provide petitioner with illegal gratuities at the COIL
conference, Sawyer needed to secure a hotel room in which to stay during
the conference. Because "[t]he call in question secured that room,"
the court stated, it "played an essential role in the scheme."
Ibid.
Likewise, the court rejected petitioner's argument that the government had
failed to prove that the mailing alleged in the mail fraud count was made
in furtherance of the scheme to defraud. Pet. App. 35a-37a. The use of the
mails on which petitioner's conviction was predicated was Citibank Visa's
mailing of a bill to Sawyer for charges arising from his use of his Visa
card to pay for gratuities given to petitioner. Id. at 35a-36a. Petitioner
claimed that because the mailing took place several weeks after Sawyer purchased
those meals and entertainment for petitioner, the fraudulent scheme "had
already reached fruition by the time the mails were used." Ibid. The
court of appeals disagreed, noting that petitioner mistakenly "assume[d]
a new fraudulent scheme began and ended every time Sawyer used his credit
card to pick up the tab" for petitioner. Id. at 36a. On the contrary,
the court stated, "the evidence supported the conclusion that the fraudulent
scheme in which [petitioner] and Sawyer participated was an ongoing scheme,
lasting for years and involving Sawyer's use of his credit card." Ibid.
The court concluded that it was "a necessary part of the ongoing scheme
that Sawyer pay his bill after receiving it in the mail." Ibid.
Petitioner also argued that the district court erred in instructing the
jury that it could find him guilty on the fraud charges if it found that,
in accepting the gratuities from Sawyer, he intended both to cultivate his
friendship with the lobbyist and to be influenced in his official duties.
Pet. App. 46a-48a. The court of appeals held that the district court's instruction
accorded with its prior decision in United States v. Sawyer, 85 F.3d 713
(1st Cir. 1996) (Pet. App. 48a-51a), rejecting petitioner's suggestion that
Sawyer held that "the formation of a friendship between a lobbyist
and a legislator somehow insulates both from prosecution for honest services
fraud." Id. at 48a. Instead, the court explained, "[a] defendant
may be prosecuted for deprivation of honest services if * * * he is found
to have intended both a lawful and an unlawful purpose to some degree."
Id. at 50a.
The court also rejected petitioner's contention that the district court
should have instructed the jury that it could not convict him if it found
that his illegal intent was "de minimus [sic] or insignificant,"
reasoning that "[t]he criminal law may punish conduct even if its illegal
purpose is incidental to other, legal purposes." Pet. App. 52a. In
any event, the court found "no evidentiary basis" for petitioner's
"implicit contention that he had no more than a de minimus degree of
intent to defraud the public of his honest services." Id. at 53a. Thus,
the court held, any error in the district court's "omission of explicit
'de minimus' language from the jury instructions" was harmless. Ibid.
ARGUMENT
1. Petitioner raises two challenges (Pet. 7-16, 21-25) to the sufficiency
of the evidence to support his mail and wire fraud convictions. Neither
claim warrants this Court's review.
a. First, petitioner argues (Pet. 7-16) that the evidence was insufficient
because the government failed to prove a "direct link" (Pet. 10)
between any particular gratuity provided by Sawyer and a specific official
action that petitioner would not have taken "but for his receipt of
the gratuity." Ibid. Petitioner contends that, to obtain a conviction
for deprivation of honest services under the mail and wire fraud statutes,
18 U.S.C. 1341, 1343, 1346, the government must present evidence satisfying
such a "quid pro quo requirement." Pet. 14.4 Petitioner does not
cite-and we have not found-any decision in conflict with the court of appeals'
decision below. Petitioner relies (Pet. 10-11) on cases in which public
officials were convicted of mail or wire fraud based on evidence of specific
actions taken by the defendants in exchange for bribes. Yet he cites no
decision holding that Section 1346 requires such evidence of a "direct
link * * * between a particular gratuity and resulting favorable action
* * * [that] would not have been taken by the official but for his receipt
of the gratuity." Pet. 10.
In any event, there is no basis for petitioner's claim (Pet. 16) that his
conviction was based merely upon evidence of his "performance of official
acts which by happenstance were favorable to Hancock but which were influenced
by [his] view of the merits and not his receipt of the gratuities."
As the court of appeals correctly held, the jury could infer that petitioner
knew that the gratuities from Sawyer "would continue as long as he
voted favorably to Hancock's interests," and that petitioner "intended
to be influenced by the gratuities" (Pet. App. 19a), as demonstrated
by the evidence that he "repeatedly acted on behalf of Hancock and
the life insurance industry in his capacity as co-chair" of the Insurance
Committee. Id. at 8a. The court of appeals also relied on several other
aspects of the record at trial in holding that sufficient evidence supported
the jury's verdict, including Sawyer's leaving his credit card behind at
a conference to cover petitioner's meals and golf expenses, the fact that
Sawyer covered petitioner's expenses but not vice versa, and the direct
evidence of petitioner's statements to Smith concerning his efforts to persuade
Sawyer to help him (or failing that, his son) to obtain a position with
Hancock as a lobbyist.5 Id. at 19a-24a. In short, as the court of appeals
concluded (id. at 28a), the evidence was sufficient to permit the jury to
infer a "connection between the gratuities and [petitioner's] official
acts."
Petitioner disputes (Pet. 12-13) the court of appeals' further finding that
his failure to disclose the gratuities received from Sawyer on his SFI forms,
as required by state law, supported the jury's inference that petitioner
intended to deprive the public of his honest services. Pet. App. 29a-32a.
Petitioner claims that in that respect the court's decision is in conflict
with the Eighth Circuit's rulings in United States v. Rabbitt, 583 F.2d
1014 (1978), cert. denied, 439 U.S. 1116 (1979), and United States v. McNeive,
536 F.2d 1245 (1976). Neither decision supports his claim.
In Rabbitt, the defendant was a state legislator who, in return for a fee,
aided an architectural firm in obtaining state contracts. 583 F.2d at 1020.
The defendant, however, "did not, in his official capacity, control
the awarding of state contracts to architects," and the evidence did
not demonstrate that he failed to carry out any of his official legislative
duties or that he had an affirmative duty to disclose his interest. Id.
at 1026. The court in Rabbitt acknowledged that "[t]he concept of fraud
upon the public may clearly fall within the ambit of the mail fraud statute
where dishonest conduct by a public official directly implicates the functions
and duties of that official's public office." Id. at 1024 (emphasis
added). Similarly, in McNeive, a plumbing inspector's acceptance of gratuities
for the performance of his duties was held not to violate the mail fraud
statute because the defendant "exercise[d] no discretion in the issuance
of plumbing permits," and he "was not derelict in any of his affirmative
duties as Chief Plumbing Inspector." 536 F.2d at 1246, 1252. The court
also relied on the absence of any attempt by the defendant to conceal his
conduct as "tend[ing] to negate a finding that [he] entertained the
requisite intent to defraud." Id. at 1252.
Here, by contrast, petitioner did exercise significant discretionary control
over the legislative agenda for bills important to the life insurance industry.
Accordingly, the court of appeals properly held that "[w]hen an official
fails to disclose a personal interest in a matter over which she has decision-making
power, the public is deprived of its right either to disinterested decision
making itself or, as the case may be, to full disclosure as to the official's
potential motivation behind an official act." Pet. App. 29a-30a (emphasis
added) (quoting Sawyer, 85 F.3d at 724). Moreover, petitioner had a duty
under state law to disclose the gratuities he received from Sawyer. His
failure to do so, in accordance with McNeive, could support a finding of
petitioner's intent to defraud. In short, petitioner's conviction would
also have been affirmed under the rule of the Eighth Circuit.6
b. Petitioner also renews his contention (Pet. 21-25) that the government
failed to prove that the telephone call and mailing on which his fraud convictions
were based furthered the execution of the fraud. That claim is limited to
the particular facts of this case and was properly considered and rejected
by the court of appeals.
Petitioner suggests (Pet. 23-24) that the fraudulent scheme could have been
carried out in other ways that did not involve the charged telephone call
or mailing. This Court has made clear, however, that the use of the mails
or wires on which a mail fraud or wire fraud conviction is based "need
not be an essential element of the scheme" to defraud; rather, "[i]t
is sufficient for the mailing to be incident to an essential part of the
scheme, or a step in [the] plot." Schmuck v. United States, 489 U.S.
705, 710-711 (1989) (citation and internal quotation marks omitted).
Petitioner also contends (Pet. 24) that the court of appeals' ruling conflicts
with this Court's holdings in Kann v. United States, 323 U.S. 88 (1944);
Parr v. United States, 363 U.S. 370 (1960); and United States v. Maze, 414
U.S. 395 (1974), because the charged mailing occurred only after petitioner
received the gratuities from Sawyer. In Kann, Parr, and Maze, however, the
fraudulent scheme had already "reached fruition" before the charged
mailings took place, so that the mailings "involved little more than
post-fraud accounting among the potential victims of the various schemes."
Schmuck, 489 U.S. at 713, 714; see id. at 712-714 (distinguishing Kann,
Parr, and Maze). In this case, as the court of appeals found (Pet. App.
36a), the mailing of Sawyer's credit card bill advanced an "ongoing
scheme" in which Sawyer repeatedly used his credit card to pay for
gratuities provided to petitioner. Thus, it is clear that the mailing was
a "step in the plot" that furthered the execution of the scheme
to defraud.7
Petitioner's claim (Pet. 21-22) that the mailing and telephone call were
merely "pretexts to invoke federal jurisdiction" over violations
of state law is equally unavailing. As this Court has explained, "[t]he
fact that a scheme may violate state laws does not exclude it from the proscriptions
of the federal mail fraud statute, for Congress 'may forbid any . . . [mailings]
. . . in furtherance of a scheme that it regards as contrary to public policy,
whether it can forbid the scheme or not.'" Parr, 363 U.S. at 389 (quoting
Badders v. United States, 240 U.S. 391, 393 (1916)).
2. Petitioner also contends (Pet. 17-20) that the district court erred in
instructing the jury regarding the requisite intent under the mail and wire
fraud statutes for honest services fraud. He faults the court's instructions
because he claims they permitted him to be convicted without proof of "the
necessary quantum of unlawful intent in the mix." Pet. 18.
In Sawyer, the First Circuit held that, in honest services fraud cases concerning
political corruption, a "jury needs to be told specifically that the
defendant has not * * * committed honest services fraud * * * if his intent
was limited to the cultivation of business or political friendship."
85 F.3d at 741. In accord with Sawyer, the district court instructed the
jury that it could not find petitioner guilty "if his receipt of the
expenditures was solely part of a routine cultivation of a business or political
friendship rather than an intent on his part to be influenced in his official
duties." Pet. App. 51a. The court also instructed the jury that it
could find petitioner guilty on the fraud charges if there was "both
the intent to cultivate a business and political relationship and the intent
to be influenced in official legislative duties." Ibid. (emphasis added).
As the court of appeals correctly observed, that instruction complied for
all relevant purposes with the requirements set forth in Sawyer. Id. at
50a-51a. In his petition to this Court, petitioner fails to cite any court
of appeals decision-in any circuit-that would require a district court to
go beyond Sawyer's requirements and give a "de minimis" intent
instruction in such circumstances. Absent such disagreement among the lower
courts, no further review is warranted by this Court.
In any event, the court of appeals' decision is correct. The court found
that, "even if the instructions were not technically adequate because
they lacked an explicit 'de minimus' instruction, [petitioner] was not prejudiced
thereby." Pet. App. 52a. As explained and recounted above, the evidence
presented at trial more than adequately supported the jury's finding that
petitioner possessed the intent to defraud. There is thus no basis for petitioner's
claim that he accepted gratuities from Sawyer primarily for the lawful purposes
of cultivating business and political friendship and only to a de minimis
extent for the unlawful purpose of allowing his official legislative duties
to be influenced thereby.8
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
NINA GOODMAN
Attorney
DECEMBER 1998
1 The mail and wire fraud statutes, 18 U.S.C. 1341, 1343, proscribe mailings
and wire transmissions in furtherance of "any scheme or artifice to
defraud." In McNally v. United States, 483 U.S. 350 (1987), this Court
held that Section 1341 was "limited in scope to the protection of property
rights" and did not criminalize schemes "designed to deprive individuals,
the people, or the government of intangible rights." Id. at 358, 360.
The following year, Congress enacted 18 U.S.C. 1346, which provides that,
for purposes of the mail fraud and wire fraud statutes, "the term 'scheme
or artifice to defraud' includes a scheme or artifice to deprive another
of the intangible right of honest services." Anti-Drug Abuse Act of
1988, Pub. L. No. 100-690, § 7603(a), 102 Stat. 4508.
2 That instruction was derived from the court of appeals' decision in United
States v. Sawyer, 85 F.3d 713 (1st Cir. 1996), in which William Sawyer-the
same Hancock lobbyist-had appealed his convictions for mail and wire fraud,
as well as interstate travel to commit bribery. The court of appeals reversed
Sawyer's convictions based in part on the district court's failure to instruct
the jury that a lobbyist who provides gratuities to a public official "has
not violated the bribery component of the Travel Act (or committed honest
services fraud) if his intent was limited to the cultivation of business
or political friendship." Id. at 741. The court explained that "[o]nly
if instead or in addition, there is an intent to cause the recipient to
alter her official acts may the jury find" a violation of those federal
statutes. Ibid.
3 The district court granted a post-trial motion for judgment of acquittal
on Count 24, ruling that it was multiplicitous with Count 9. Pet. App. 9a
n.4; Gov't C.A. Br. 3.
4 The issue in this case is distinct from the question presented in United
States v. Sun Diamond Growers, cert. granted, No. 98-131 (Nov. 2, 1998).
In that case, the Court granted certiorari to consider whether "the
requirement in 18 U.S.C. 201(c)(1)(A) that a thing of value be given 'for
or because of any official act' [is] satisfied by a showing that the giving
of a thing of value was motivated by the recipient's official position."
Neither the mail fraud nor the wire fraud statute, 18 U.S.C. 1341, 1343,
contains similar language. Indeed, 18 U.S.C. 1346 broadly defines a "scheme
or artifice to defraud" for purposes of the mail and wire fraud statutes
to include a "scheme or artifice to deprive another of the intangible
right of honest services."
5 This evidence belies petitioner's claim (Pet. 14) that the court of appeals
allowed the government to convict him based solely on a "scorecard"
of his votes on various legislative proposals.
6 There is no basis for petitioner's contention (Pet. 13) that the court
of appeals improperly "collapse[d]" two elements of his fraud
offenses, the intent to deprive the public of his honest services and the
intent to deceive required to make out a "scheme to defraud."
As petitioner acknowledges, the court of appeals specifically stated (Pet.
App. 12a n.6) that the two elements are distinct and must each be satisfied
in order to sustain a fraud conviction based on deprivation of honest services.
Rather than "collapsing" the two elements, the court merely held
that the same evidence supported the jury's findings with respect to both
elements. See id. at 31a.
7 For the same reason, petitioner's reliance (Pet. 25 n.17) on United States
v. Evans, 148 F.3d 477 (5th Cir. 1998), petition for cert. pending, No.
98-7223, is likewise misplaced. The defendant in that case was a parole
officer in Fort Worth, Texas, who accepted bribes from a parolee she supervised
in exchange for concealing his parole violations. Id. at 478-479. The defendant
submitted false travel vouchers for required visits to the parolee's places
of residence and employment that she in fact never made. Id. at 479. After
the vouchers were approved by her supervisor, they were mailed to Austin,
Texas, for processing. Id. at 482-483. The defendant was convicted of mail
fraud based on the mailing of the travel vouchers. The court of appeals
reversed her mail fraud convictions, explaining that "there was nobody
in Austin who might have uncovered the scheme because [the defendant] did
or did not submit travel vouchers," and, therefore, the scheme reached
fruiion once the defendant's supervisor approved the vouchers. Id. at 483.
Because the charged mailings took place after that time, the court held,
they did not further the scheme to defraud the State of its right to the
defendant's honest services. Ibid. Here, in contrast, the credit card mailings
took place during an ongoing course of conduct and assisted in perpetrating
the scheme.
8 Because sufficient evidence existed to support the jury's inference of
petitioner's intent to defraud, he also cannot press his due process claim
that the mail and wire fraud statutes are void for vagueness. Petitioner
may not successfully attack Section 1346 as unconstitutionally vague by
showing that hypothetical situations exist in which application of the statute
would be ambiguous. He can prevail only by demonstrating that the statute
failed to provide clear warning that his own conduct was proscribed. See
Chapman v. United States, 500 U.S. 453, 467 (1991) ("First Amendment
freedoms are not infringed * * * , so the vagueness claim must be evaluated
as the statute is applied to the facts of this case."); United States
v. Mazurie, 419 U.S. 544, 550 (1975) ("[V]agueness challenges to statutes
which do not involve First Amendment freedoms must be examined in the light
of the facts of the case at hand."); Parker v. Levy, 417 U.S. 733,
756 (1974) ("One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.").