No. 98-1165
In the Supreme Court of the United States
OCTOBER TERM, 1998
BRUCE C. BEREANO, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the criminal prohibition against schemes to defraud victims of
"the intangible right of honest services," under 18 U.S.C. 1346,
applies to private persons as well as public officials.
2. Whether the government must show a source in state law for a "right
to honest services" under Section 1346.
3. Whether a defendant must contemplate harm to the victim to be guilty
of mail fraud.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1165
BRUCE C. BEREANO, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-43a) is unpublished, but
the judgment is noted at 161 F.3d 3 (Table). The opinions of the district
court (Pet. App. 44a-47a, 50a-61a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 28, 1998. A petition
for rehearing was denied on October 22, 1998. Pet. App. 64a-65a. The petition
for a writ of certiorari was filed on January 20, 1999. 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 Maryland, petitioner was convicted of seven counts of mail fraud, in
violation of 18 U.S.C. 1341.1 He was sentenced to five years' probation
and fined $20,000. The court of appeals affirmed petitioner's convictions
but remanded for resentencing. Pet. App. 1a-43a.
1. Petitioner was an attorney and a registered Maryland lobbyist. From May
1990 to June 1991, he asked employees of his law firm and various family
members to write checks for political contributions, which were then distributed
to candidates directly or through petitioner's political action committee.
The employees and family members received reimbursements through checks
from petitioner's law firm. Petitioner billed his lobbying clients for those
campaign contributions on a pro rata basis, describing the nominee contribution
expenses as "legislative entertainment." Petitioner's retainer
agreements did not authorize him to bill his clients for such contributions.
Rather, the lobbying clients had agreed to pay petitioner a fixed retainer,
as well as "reasonable and necessary expenses" including "legislative
entertainment," defined by petitioner as meals and entertainment. Pet.
App. 3a-4a.
Petitioner was charged with eight counts of mail fraud under 18 U.S.C. 1341
and 1346. The indictment set out two theories of prosecution. It alleged
that petitioner had engaged in a scheme (1) to defraud clients of money
and property by submitting bills that included false statements of expenses
incurred, and (2) to defraud clients of their right to petitioner's honest
and loyal services. Pet. App. 3a-4a.2
2. Before trial, both petitioner and the government sought rulings in limine
concerning the admissibility of evidence relating to Maryland election laws.
The district court determined that a violation of Maryland election laws
was both unnecessary and insufficient to establish mail fraud violations,
and the court therefore did not allow petitioner to prove and argue his
compliance with those laws. The court, however, permitted the government
to introduce into evidence a letter to a client in which petitioner had
explained the Maryland election laws as he understood them, as well as the
copies of the Maryland election statutes that petitioner had attached to
the letter. The district court instructed the jury that the evidence was
relevant only to petitioner's motive and intent. Pet. App. 4a-5a, 19a-21a,
46a-47a.
At trial, the clients who had been billed for the campaign contributions
testified that they had perceived no fraud either when they paid their bills
or at the time of the trial. They also testified, however, that they had
not authorized petitioner to make political contributions and had not agreed
to pay them. Pet. App. 6a, 11a.
3. The court of appeals affirmed petitioner's convictions in an unpublished
decision. Pet. App. 1a-43a.3
a. The court of appeals first held that the evidence introduced at trial
was sufficient to sustain the mail fraud convictions. Pet. App. 8a-12a.
The court stated that the circuits are divided on the question whether the
mail fraud statute requires proof that the defendant contemplated the prospect
of harm to the victim. Id. at 8a-9a. The court concluded, however, that
it need not resolve the question because "contemplated harm is present
in this case. The contemplated harm is [petitioner's] fraudulent transfer
to his clients of his cost of doing business which cost took the form of
political contributions." Id. at 10a.
Petitioner contended that no contemplated harm was present in this case
because the victims of the scheme had testified that they were satisfied
with petitioner's services. The court of appeals rejected that claim, holding
that the victims' perception was irrelevant to the question whether petitioner
had devised a scheme or had acted with the requisite intent to defraud.
Pet. App. 10a-11a. The court also observed that "while [petitioner's]
clients argue that they were satisfied with [petitioner's] services, they
also testified that they did not authorize and would not have knowingly
paid for the political contributions [petitioner] made." Id. at 11a.
Explaining that "[s]ending a false bill to a third party through the
mails with the necessary criminal intent is a classic violation of the mail
fraud statute," ibid., the court concluded that "the totality
of the evidence presented is sufficient to support a finding that [petitioner]
had a specific intent to defraud, including contemplating harm to his clients,"
id. at 11a-12a.
b. The court of appeals rejected petitioner's claim that 18 U.S.C. 1346,
which defines the term "scheme or artifice to defraud" to include
"a scheme or artifice to deprive another of the intangible right of
honest services," applies only to public officials. The court noted
that "[t]he plain language of the statute does not restrict its application
to public officials." Pet. App. 13a. The court also explained that
Section 1346 was intended to restore the state of the law that had existed
before this Court's decision in McNally v. United States, 483 U.S. 350 (1987).
Pet. App. 14a. The court observed that "[i]n addition to the right
to honest Government, pre-McNally cases held that the intangible rights
covered [by 18 U.S.C. 1341] included an employer's or other principal's
right to the honest, faithful and disinterested services of its employees
or agents." Id. at 13a.
The court also held that the indictment described the alleged offenses with
adequate particularity. Because the indictment described the fiduciary duty
owed by petitioner to his clients, as well as the scheme to bill those clients
for expenses they had not authorized, it sufficiently apprised petitioner
of the charges against him. Pet. App. 16a-18a. The court also found that,
even if the indictment lacked sufficient particularity as to Section 1346,
or there was insufficient evidence to uphold a conviction for mail fraud
under Section 1346 based on a deprivation of honest services, there was
sufficient evidence to sustain a conviction for mail fraud under Section
1341 based on petitioner's scheme to deprive his clients of money or property.
Id. at 18a.
c. The court of appeals rejected petitioner's argument that evidence of
Maryland election laws was improperly admitted at trial. Pet. App. 19a-21a.
It noted that a conviction for mail fraud does not require proof of any
violation of state law. Id. at 19a-20a. The court found, however, that the
district court had properly allowed the government to introduce evidence
concerning those laws in order to establish petitioner's knowledge and intent.
Because "[petitioner's] understanding of the election laws arguably
explains his motive and intent for choosing the particular scheme which
he utilized," the court explained, the contested evidence was "probative
of bad motive or intent as opposed to good faith." Id. at 21a.
The court of appeals also held that the prosecutor's references in closing
argument to the state election laws "were made within the context of
[petitioner] sending the statutes to his clients, allegedly showing what
his understanding of the law was." Pet. App. 20a. The court emphasized
that statements by the prosecutor implying that petitioner had actually
violated the election laws "represented a minor portion of an extensive
argument," and that the district court had instructed the jury that
Maryland election laws were relevant only to petitioner's motive and intent.
Id. at 20a; see also id. at 21a-26a (rejecting claim of prosecutorial misconduct
based on prosecutor's references to state election laws).4
ARGUMENT
Petitioner contends that 18 U.S.C. 1346 applies only to public officials;
that under Section 1346 the victim's right to honest services must be defined
by state law; and that a defendant must contemplate the prospect of harm
to the victim in order to violate the mail fraud statute. Those claims lack
merit and do not warrant this Court's review.
1. As an initial matter, this case would be an inappropriate vehicle for
resolving petitioner's claims regarding the proper application of Section
1346. This case was presented to the jury both on an "honest services"
theory and on the theory that petitioner's scheme defrauded his clients
of money and property. Petitioner correctly notes (Pet. 23 n.19) that a
guilty verdict generally cannot stand when a case is submitted to the jury
on alternative theories and one of the theories is invalid as a matter of
law. See Griffin v. United States, 502 U.S. 46 (1991); Yates v. United States,
354 U.S. 298, 312 (1957). Reversal is not required, however, when the jury's
verdict necessarily encompasses findings as to all elements of the offense
under the valid theory of prosecution. See, e.g., United States v. Perholtz,
842 F.2d 343, 365-367 (D.C. Cir.), cert. denied, 488 U.S. 821 (1988); United
States v. Webster, 639 F.2d 174, 181 (4th Cir.), cert. denied, 454 U.S.
857 (1981); United States v. Dixon, 536 F.2d 1388, 1402 (2d Cir. 1976).
Compare Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (instructional error
is harmless when the findings on which the jury's verdict necessarily rests
are "functionally equivalent" to a finding of guilt under a proper
instruction).
That principle applies here. The gravamen of the "honest services"
theory of prosecution in this case was that petitioner had deprived his
clients of their right to his honest services by billing them for "entertainment
expenses" that he did not incur. Because the jury's verdict necessarily
reflected its determination that petitioner fraudulently deprived his clients
of money, the court of appeals' affirmance of his convictions would be proper
regardless of whether Section 1346 applies to his conduct. See United States
v. Lopez, 100 F.3d 98, 102-104 (9th Cir. 1996), cert. denied, 520 U.S. 1231
(1997); United States v. Pimentel, 83 F.3d 55, 60 (2d Cir. 1996); United
States v. Baker, 78 F.3d 1241, 1247-1248 (7th Cir. 1996), cert. denied,
520 U.S. 1222 (1997).
2. Petitioner contends (Pet. 14-23) that 18 U.S.C. 1346 applies only to
the "services" of public officials or persons with fiduciary duties
to the public. This Court recently denied four petitions for certiorari
(arising from a single court of appeals decision) presenting the same question.
See Frost v. United States, 119 S. Ct. 40 (1998) (No. 97-1549); Turner v.
United States, 119 S. Ct. 41 (1998) (No. 97-8295); Potter v. United States,
119 S. Ct. 41 (1998) (No. 97-8305); Congo v. United States, 119 S. Ct. 41
(1998) (No. 97-8328). There is no reason for a different result here.
a. The text of Section 1346 does not distinguish between public officials
and private actors, like petitioner, who owe a duty of loyalty to clients
or employers. Section 1346 defines the term "scheme or artifice to
defraud," for purposes of the mail fraud statute, to include "a
scheme or artifice to deprive another of the intangible right of honest
services." As the court of appeals recognized, "[t]he plain language
of the statute does not restrict its application to public officials."
Pet. App. 13a.
b. The history of Section 1346 likewise provides no support for petitioner's
position. Before this Court's decision in McNally v. United States, 483
U.S. 350 (1987), the courts of appeals had consistently construed the mail
and wire fraud statutes to apply to schemes intended to deprive citizens
of their right to honest services from public officials. In addition, numerous
pre-McNally cases held that the intangible rights covered by the statute
included the right of a private employer or other principal to the honest
and faithful services of its employees or agents. See, e.g., United States
v. Dial, 757 F.2d 163, 168-170 (7th Cir.), cert. denied, 474 U.S. 838 (1985);
United States v. Lemire, 720 F.2d 1327, 1335-1336 (D.C. Cir. 1983), cert.
denied, 467 U.S. 1226 (1984); United States v. Siegel, 717 F.2d 9, 14 (2d
Cir. 1983); United States v. Bohonus, 628 F.2d 1167, 1171-1172 (9th Cir.),
cert. denied, 447 U.S. 928 (1980); United States v. McCracken, 581 F.2d
719, 722-723 (8th Cir. 1978).5
In McNally, this Court held that the mail fraud statute is "limited
in scope to the protection of property rights." 483 U.S. at 360. The
Court stated that Congress "must speak more clearly than it has"
in order to criminalize a broader range of fraudulent conduct. Ibid. The
following year, Congress amended the federal fraud statutes to add Section
1346. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7603,
102 Stat. 4508. The sponsor of the amendment explained that Section 1346
"restores the mail fraud provision to where that provision was before
the McNally decision." 134 Cong. Rec. 33,297 (1988) (statement of Rep.
Conyers). Because pre-McNally case law had applied the mail fraud statute
to private-sector deprivations of the right to "honest services,"
the history of Section 1346 reinforces the conclusion that such deprivations
are covered by the statute in its current form.6
c. No decision of a court of appeals has held that private-sector frauds
fall outside of Section 1346. As petitioner correctly notes (Pet. 3-4, 14),
some courts of appeals have expressed concern about "defin[ing] the
outer limits of the private sector rights to 'honest services' that are
now protected by § 1346." United States v. Jain, 93 F.3d 436,
442 (8th Cir. 1996), cert. denied, 520 U.S. 1273 (1997); see also Frost,
125 F.3d at 365; United States v. Cochran, 109 F.3d 660, 667 (10th Cir.
1997); United States v. Sun-Diamond Growers of California, 138 F.3d 961,
973 (D.C. Cir.), cert. granted on other grounds, 119 S. Ct. 402 (1998).
Petitioner, however, cites no decision holding that Section 1346 is limited
to schemes involving the services of public officials, and we are aware
of none. Thus, contrary to petitioner's suggestion (Pet. 18-19), there is
no conflict among the circuits on the question presented.
d. Contrary to petitioner's contention (Pet. 21-23), application of Section
1346 to private-sector relationships in general, and to petitioner's conduct
in particular, raises no serious constitutional concerns. Petitioner cannot
succeed in his vagueness challenge (Pet. 21) by demonstrating that hypothetical
situations may exist in which application of the statute would be ambiguous.
Rather, he must show 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.").
Petitioner, who owed a fiduciary duty to his clients, engaged in an intentional
scheme to bill them for campaign contributions that they did not authorize.
Because a "person of ordinary intelligence," Buckley v. Valeo,
424 U.S. 1, 77 (1976) (per curiam), would know that such conduct deprived
the clients of their right to petitioner's honest services, application
of Section 1346 did not violate due process.
There is likewise no merit to petitioner's contention that application of
Section 1346 to private-sector relationships would "violate core principles
of federalism" (Pet. 21) or exceed the authority of Congress (Pet.
22). Because conviction under Section 1346 requires proof that the mails
were used in furtherance of the fraudulent scheme, the statute represents
a permissible exercise of congressional power under the Postal Clause, U.S.
Const. Art. I, § 8, Cl. 7. See Badders v. United States, 240 U.S. 391,
393 (1916); see also Parr v. United States, 363 U.S. 370, 389, 390 (1960).
Petitioner's own conduct, moreover, involved economic transactions subject
to federal regulation under the Commerce Clause.7
3. Petitioner contends (Pet. 23-27) that, in a mail fraud prosecution for
deprivation of "the intangible right of honest services," 18 U.S.C.
1346, the government "must prove a violation of state law establishing
and defining such a 'right.'" Pet. 23. He relies (ibid.) on United
States v. Brumley, 116 F.3d 728 (5th Cir. 1997) (en banc), cert. denied,
118 S. Ct. 625 (1998), for the proposition that "services must be owed
under state law and that the government must prove in a federal prosecution
that they were in fact not delivered." 116 F.3d at 734. That claim
does not warrant review.
Petitioner never advanced any such claim in the courts below. Indeed, in
an opinion rejecting one of petitioner's attacks on the indictment, the
district court noted that petitioner "acknowledges that '[s]tate law
is irrelevant to proving the essential elements of mail fraud.'" Pet.
App. 56a. Nor did he argue on appeal that a state-law right is a necessary
predicate of a Section 1346 violation. Rather, petitioner made a variety
of evidentiary arguments about the government's use of Maryland election
laws and restrictions placed on his response. See, e.g., Pet. C.A. Br. 23-25,
26-27, 29-31. He also argued that the district court constructively amended
the indictment by redacting references to Maryland election laws, id. at
28-29. But petitioner did not claim that Maryland election laws were (or
should have been) in any way relevant in defining the "right of honest
services" that petitioner, a lobbyist, owed to his clients. Nor did
he make the argument (which he now advances in this Court) that the government
had to prove under Section 1346 that petitioner had an obligation defined
by state law to provide honest services to the victims of his fraudulent
scheme.8 Because petitioner never argued in the court of appeals that the
government was required to prove a state-law source of a right to honest
services, this case is not an appropriate vehicle for this Court to review
any such claim. 9
Even if it were properly presented here, petitioner's reliance on United
States v. Brumley, supra, would be misplaced. The defendant in Brumley,
an adjudicative officer within a state agency, accepted payments from lawyers
who practiced before him and acted for those lawyers in his official capacity.
The court of appeals stated that "[u]nder the most natural reading
of the statute, a federal prosecutor must prove that conduct of a state
official breached a duty respecting the provision of services owed to the
official's employer under state law"-i.e., "the official must
act or fail to act contrary to the requirements of his job under state law."
116 F.3d at 734. Because the defendant in Brumley was a state employee,
the court did not have occasion to consider the application of Section 1346
to private-sector defendants. Nor does Brumley's analysis logically apply
in the private sector, where parties generally enter into relationships
governed by express contracts and background duties and do not occupy positions
created by state law.
In any event, a violation of state law is not an element of a mail fraud
offense. See, e.g., United States v. Sawyer, 85 F.3d 713, 726 (1st Cir.
1996); United States v. Bryan, 58 F.3d 933, 940 (4th Cir. 1995); United
States v. Margiotta, 688 F.2d 108, 123-124 (2d Cir. 1982), cert. denied,
461 U.S. 913 (1983); United States v. Von Barta, 635 F.2d 999, 1007 (2d
Cir. 1980), cert. denied, 450 U.S. 998 (1981); United States v. Mandel,
591 F.2d 1347, 1361-1362, aff'd, 602 F.2d 653 (4th Cir. 1979) (en banc),
cert. denied, 445 U.S. 961 (1980); United States v. Bush, 522 F.2d 641,
646 n.6 (7th Cir. 1975), cert. denied, 424 U.S. 977 (1976); United States
v. Edwards, 458 F.2d 875, 880 (5th Cir.), cert. denied, 409 U.S. 891 (1972).10
As the court of appeals correctly recognized, "[s]ending a false bill
to a third party through the mails with the necessary criminal intent is
a classic violation of the mail fraud statute." Pet. App. 11a.
4. Relying on United States v. D'Amato, 39 F.3d 1249 (2d Cir. 1994), petitioner
argues (Pet. 28-30) that the defendant must contemplate the prospect of
harm to the victim in order to be guilty of mail fraud. The court in D'Amato
held that "[m]isrepresentations amounting only to a deceit are insufficient
to maintain a mail or wire fraud prosecution," and that "the deceit
must be coupled with a contemplated harm to the victim." Id. at 1257
(quoting United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987)). Any conflict
between D'Amato and decisions of other circuits (see Pet. 28 & n.22;
Pet. App. 9a-10a & n.5) provides no basis for further review in this
case, however, since petitioner could not prevail even under the D'Amato
standard. As the court of appeals explained, "[t]he contemplated harm
is [petitioner's] fraudulent transfer to his clients of his cost of doing
business which cost took the form of political contributions." Id.
at 10a. The court noted that petitioner's clients "testified that they
did not authorize and would not have knowingly paid for the political contributions
[petitioner] made." Id. at 11a. That petitioner's clients may have
been happy with the overall quality of his representation, and may have
regarded the improper billings as relatively insignificant in comparison
to the value of the services rendered (see Pet. 9-10), does not cast doubt
on the court of appeals' analysis or negate any element of the charged offense.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
DEBORAH WATSON
Attorney
APRIL 1999
1 One mail fraud count was dismissed pursuant to petitioner's motion for
a judgment of acquittal. See Pet. App. 3a n.1.
2 The federal mail fraud statute prohibits the use of the mails in furtherance
of "any scheme or artifice to defraud." 18 U.S.C. 1341. Section
1346 provides that "[f]or the purposes of this chapter, the term 'scheme
or artifice to defraud' includes a scheme or artifice to deprive another
of the intangible right of honest services." 18 U.S.C. 1346.
3 The court of appeals remanded for resentencing, holding that the district
court had relied on impermissible reasons in granting a downward departure
from the Guidelines sentencing range. Pet. App. 34a-41a. That aspect of
the court of appeals' ruling is not at issue in this Court. On remand, petitioner
was sentenced to five months' imprisonment, to be followed by a three-year
term of supervised release. See 12/4/98 Amended Judgment 2-3.
4 The court of appeals also rejected petitioner's claims that the indictment
had been improperly amended (Pet. App. 26a-28a); that the district court
had erred in denying petitioner's motion for individualized voir dire (id.
at 28a-31a); and that the district court had improperly allowed the government
to rely in its closing argument on grand jury testimony that had not been
introduced into evidence (id. at 31a-34a). Petitioner does not press those
claims in this Court. Judge Wilson agreed with the majority's disposition
of all issues except for the prosecutor's use of the grand jury testimony,
but would have reversed petitioner's convictions on that ground. Id. at
41a-43a.
5 Relying on United States v. Gray, 790 F.2d 1290, 1295 (6th Cir. 1986),
rev'd sub nom. McNally v. United States, 483 U.S. 350 (1987), petitioner
claims (Pet. 18-19 & n.13) that pre-McNally case law limited the "intangible
rights" doctrine to schemes involving the services of public officials.
Although the court in Gray suggested that the mail fraud statute, as lower
courts had construed it before McNally, did not apply to schemes by private
fiduciaries to defraud private parties of their right to honest services,
the Sixth Circuit, sitting en banc, subsequently rejected that suggestion.
See United States v. Runnels, 877 F.2d 481, 483-484 (6th Cir. 1989) (en
banc) ("The trial judge, correctly in our opinion, read Gray to have
no effect on the doctrine that the intangible rights theory was 'applicable
to non-public officials where a fiduciary duty is involved.'"). In
United States v. Frost, 125 F.3d 346, 366 (1997), cert. denied, 119 S. Ct.
40, 41 (1998), the Sixth Circuit reviewed the pre-McNally law and concluded
that "private individuals * * * may commit mail fraud by breaching
a fiduciary duty and thereby depriving the person or entity to which the
duty is owed of the intangible right to the honest services of that individual."
6 Petitioner argues (Pet. 21) that the rule of lenity bars application of
Section 1346 to private-sector relationships. The rule of lenity, however,
is a maxim of construction that applies "only if, after seizing everything
from which aid can be derived, [the Court] can make no more than a guess
as to what Congress intended." United States v. Wells, 519 U.S. 482,
499 (1997) (citations, ellipsis, and internal quotation marks omitted).
Here, the text of Section 1346 unambiguously encompasses private-sector
deprivations of the right to honest services, and the statute's history
reinforces that interpretation.
7 There is also no merit in petitioner's suggestion (Pet. 19-20) that Section
1346 should not apply to this case because it involved political campaign
contributions that are closely regulated by the States and "suffused
with First Amendment concerns." Petitioner was not prosecuted for making
political contributions. He was prosecuted for engaging in a scheme to bill
clients for campaign contributions that they did not authorize-conduct that
is wholly unprotected by the First Amendment.
8 In fact, in seeking reversal based on the government's asserted references
to his violations of Maryland election laws, petitioner contended that "[t]hose
improper references have nothing to do with the actual charges, i.e., the
billing of expenses to clients." Pet. C.A. Br. 31; see also Pet. C.A.
Reply Br. 17 (arguing that the government used election laws to prove more
than motive and intent, thus committing error); id. at 26 (arguing that
to establish a "deprivation of honest services under § 1346 *
* * the defendant must have breached intentionally his [fiduciary] duty
with the specific intent to defraud; that is, with the specific intent to
fraudulently cause material harm to his principal"; no mention of any
requirement that the right to "services" be defined under state
law).
9 Petitioner cannot overcome his failure to advance in the court of appeals
his claim that "state law [must be] the source of the 'right' to the
'services' at issue" (Pet. 24) merely by noting that the court of appeals
stated that "[t]his Circuit previously has concluded that a prosecution
for mail fraud does not require the Government to establish proof of any
violation of an underlying state law or regulation." Pet. App. 19a.
While this Court has discretion to consider an issue that was "passed
upon" by the court of appeals, even though not pressed by a party,
United States v. Williams, 504 U.S. 36, 41 (1992), there is no reason to
permit petitioner to benefit from that rule. Petitioner made no effort to
obtain reversal of his conviction on that ground; and the court of appeals
simply restated circuit law (on the irrelevance of state law) as an introduction
to its discussion (and rejection) of the quite different claims petitioner
actually did present. See Pet. App. 19a-21a (rejecting claim that district
court erred in admitting evidence of Maryland election laws); id. at 21a-26a
(rejecting claim of prosecutorial misconduct in purported government argument
that petitioner violated state election laws); id. at 26a-28a (rejecting
claim of constructive amendment of indictment by deleting references to
Maryland election law).
10 Contrary to petitioner's contention (Pet. 10-11, 26-27), the district
court properly excluded evidence intended to show petitioner's compliance
with Maryland election laws. Evidence that petitioner complied with Maryland
election laws would have provided no defense to the charge that he had fraudulently
billed clients for expenses they did not authorize. Evidence concerning
petitioner's understanding of the election laws, however, was properly admitted
for the limited purpose of proving petitioner's intent. As the court of
appeals explained, "[petitioner's] understanding of the election laws
arguably explains his motive and intent for choosing the particular scheme
which he utilized." Pet. App. 21a.