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No. 07-749

 

In the Supreme Court of the United States

CHARLES W. WALKER, SR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
KIRBY A. HELLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. a. Whether the district court clearly erred in finding that petitioner's purportedly race-neutral ex planations for the exercise of his peremptory challenges were pretextual.

b. Whether white males constitute a cognizable class under Batson v. Kentucky, 476 U.S. 79 (1986).

c. Whether peremptory strikes based on "mixed motives" are permissible.

d. Whether the district court abused its discre tion in re-seating the improperly struck jurors.

2. a. Whether a public official defrauds the public of his honest services, in violation of 18 U.S.C. 1341 (2000 & Supp. V 2005) and 18 U.S.C. 1346, when he demands personal benefits from a party in exchange for promises to confer legislative benefits on that party.

b. Whether the government must prove that a state public official has violated duties imposed under state law in order to sustain a mail fraud conviction for deprivation of honest services.

3. Whether petitioner's above-Guidelines sentence is affected by this Court's disposition of Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007).

 

 

 

In the Supreme Court of the United States

No. 07-749

CHARLES W. WALKER, SR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-32) is reported at 490 F.3d 1282. The order of the district court (Pet. App. 35-49) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 6, 2007. A petition for rehearing was denied on September 10, 2007 (Pet. App. 33-34). The petition for a writ of certiorari was filed on December 3, 2007. 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 Southern District of Georgia, petitioner was convicted of multiple counts of mail fraud, in violation of 18 U.S.C. 1341 (2000 & Supp. V 2005) and 18 U.S.C. 1346; two counts of conspiring to commit mail fraud, in violation of 18 U.S.C. 371; and aiding and as sisting the preparation of a false tax return, in violation of 26 U.S.C. 7206(2). He was sentenced to 121 months of imprisonment, to be followed by three years of super vised release. The court of appeals affirmed. Pet. App. 1-32; Judgment 2, 4; Verdict 1, 5.

1. Petitioner was a Georgia state legislator. At the same time he held public office, petitioner published the Augusta Focus, a local newspaper, and owned the CWW Group, Inc., a holding company, as well as Georgia Per sonnel Services, Inc. (Georgia Personnel), an agency that provided temporary workers to hospitals and other companies. Pet. App. 2.

The indictment charged petitioner with engaging in five separate fraudulent schemes.1 Two of the schemes involved petitioner's misuse of his public office. In one such scheme, according to the indictment, petitioner agreed to promote legislation that benefitted Grady Me morial Hospital (Grady) in exchange for the hospital's hiring of workers from Georgia Personnel. In the other, the indictment alleged, petitioner misrepresented his ownership interest in Georgia Personnel and the Augus ta Focus so that he could enter into a contract with the Medical College of Georgia (Medical College), a state entity, in circumvention of Georgia ethics and conflict of interest laws, and that he failed to disclose his owner ship of the companies and his business transactions with the Medical College in financial disclosure forms submit ted to the State. The indictment alleged that such con duct constituted both "money or property" mail fraud, in violation of 18 U.S.C. 1341 (2000 & Supp. V 2005), and "honest services" mail fraud, in violation of 18 U.S.C. 1346. Pet. App. 2-4 & n.3, 21, 26; Indictment 8, 20-34.

2. After making initial disqualifications for cause, the district court randomly selected a pool of 42 prospec tive jurors, 28 of whom constituted the group from which the parties would exercise their peremptory challenges; 8 of whom constituted the pool of alternate jurors; and 6 of whom were available if needed. The 28-person pool consisted of 12 white males, 6 white females, 1 black male, 8 black females, and 1 Indian male; the alternate pool included 4 white males, 2 white females, and 2 black females. Petitioner and his corporate co-defendants exercised all 12 of their peremptory challenges against white males, removing 10 white males from the larger pool and 2 white males from the alternate pool. Pet. App. 6.

The government objected to the defendants' peremp tory challenges, claiming that they were made on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).2 The district court asked defendants' counsel to provide "racially neutral reasons for striking each of those jurors," 5/23/05 Tr. 258, and defense coun sel explained their rationale for each of the initial 10 strikes, id. at 258-269. As to the four jurors at issue here, counsel explained that juror number 160 was struck because he had experience in accounting and the defendants intended to challenge the government's ac counting procedures in the case, id. at 258; juror number 56 was struck because he supervised a large number of employees, id. at 268; juror number 69 was struck be cause of his body language, mannerisms, "and just the way that he looked at us and our client," id. at 266; and juror number 159 was struck because he previously had served on a city council in his small town, id. at 267. The government responded that each of those explanations was pretextual. Pet. App. 7-9.

The district court found that the government had established a prima facie case that the defendants' challenges were based on race.3 It based that finding on the "inference of discrimination" created by the statisti cal improbability that the strikes were not related to race and the "totality of the circumstances." Pet. App. 44. It then reviewed defendants' "race neutral explan ation[s]" to determine whether the reasons were "actual, genuine, true or real reason[s] for the exercise of the peremptory challenges," as opposed to whether they were "good or bad reason[s]." 5/23/05 Tr. 278. It con cluded that the government met its burden of establish ing that the defendants had engaged in purposeful dis crimination in striking juror numbers 160, 69, 159, and 56, but not in striking the six other white males. Pet. App. 46-47; 5/23/05 Tr. 279-282.

As a result, the district court re-seated the four im properly struck jurors and denied defendants' request for four additional peremptory strikes. 5/23/05 Tr. 282- 284. The prosecutor noted that defendants had agreed to dismiss the remaining potential jurors before the par ties exercised their strikes, and the court noted that granting defendants' request would have required "be ginning this jury selection anew," which was "impracti cal, ponderous and unworkable." Id. at 284. The court also stated that, based on the nature of the Batson viola tions, "the dismissal of the venire in this case would have been an ephemeral remedy." Pet. App. 49.

3. At trial, the government presented evidence that, before a legislative session in which measures affecting Grady would be debated, petitioner, in his official capac ity, met with Ed Renford, Grady's chief executive offi cer, and suggested that Grady hire temporary workers from Georgia Personnel. Renford instructed his staff to meet with Georgia Personnel and told a human re sources executive, in petitioner's presence, that "Sena tor Walker would be doing business with us at Grady Hospital and that he could help us with certain legisla tion." Gov't C.A. Br. 33. Renford also instructed the executive "to do business with Senator Walker's com pany and to do it right." Id. at 33-34. The hospital be gan using Georgia Personnel employees before bids were solicited and submitted, and it later permitted Georgia Personnel to resubmit its incomplete and un timely bid. After Georgia Personnel was awarded the contract, petitioner frequently complained that Grady was not using enough of his employees. Despite the hu man resources executive's complaints about the cost of Georgia Personnel's temporary employees, Renford re quired her to provide him with weekly reports docu menting the use of petitioner's workers, but not those of other vendors. Pet. App. 24; Gov't C.A. Br. 33-35.

The government also introduced evidence that peti tioner misrepresented his interest in the Augusta Focus to the Medical College so that the Augusta Focus could enter into contracts with that state entity, in violation of Georgia law restricting state politicians from contract ing with state agencies. The evidence established that, after the Medical College's in-house counsel told peti tioner that the Medical College could not do business with a state official, petitioner told him that his wife owned the newspaper. When informed that the prohibi tion also applied to spouses, petitioner changed his story and implied that the paper's general manager owned it. Petitioner subsequently asked the general manger to sign a letter to the Medical College in which he falsely represented that he owned the Augusta Focus. Peti tioner also failed to disclose his interest in the Augusta Focus and Georgia Personnel and his companies' con tracts with the Medical College in financial disclosure forms submitted to the State. Gov't C.A. Br. 43, 47-49.

The district court instructed the jury on theories of both money-or-property mail fraud under 18 U.S.C. 1341 (2000 & Supp. V 2005) and honest services mail fraud under 18 U.S.C. 1346 for all relevant counts. Jury In structions 9-10. The jury found petitioner guilty on 127 of the 137 counts, acquitting him only of a few of the mail fraud and tax fraud counts. Judgment 1-2; Verdict 3-5, 7. At sentencing, the district court deviated from the advisory Guidelines range of 87 to 108 months of imprisonment and sentenced petitioner to 121 months. Pet. App. 5. Petitioner challenged the application of the advisory Guidelines but did not contest the reasonable ness of the sentence. Gov't C.A. Br. 50.

4. The court of appeals affirmed. Pet. App. 1-32. As to the Batson claims, the court of appeals first rejected petitioner's argument that the district court erred by treating white males as a cognizable group, on the ground that the district court clearly stated that it found purposeful discrimination on the basis of race alone. The court held that the district court did not err in con cluding that the government established a prima facie case of racial discrimination in light of the pattern of strikes and the totality of the circumstances, including petitioner's race and the nature of the charges. Pet. App. 11-13.

The court of appeals then held that the defendants satisfied their burden of asserting race-neutral explana tions for their strikes. As to the final step, the court deferred to the district court's determination that the proffered explanations were pretextual and thus upheld its decision to reject petitioner's four peremptory strikes. Pet. App. 14-16. The court of appeals con cluded:

We have found no other indication in the record that the district court ignored compelling evidence or applied an incorrect legal standard. Nor do we find any evidence that the district court improperly shifted the burden of proof from the government to the Defendants anywhere along the way. In light of the deference owed to the district courts, and most particularly to their credibility findings, we must affirm the decision to award the government these four Batson challenges.

Id. at 16-17.

The court of appeals also affirmed the remedy. Not ing that a district court is accorded significant latitude in fashioning an appropriate remedy for Batson viola tions, the court determined that the district court did not abuse its discretion, especially in light of the practi cal difficulties in granting replacement strikes to defen dants. Pet. App. 17-19.

The court of appeals then considered the defendants' challenges to the sufficiency of the indictment and of the evidence on the scheme involving Grady. It found that the indictment, which tracked the statute and alleged several facts supporting the scheme, was sufficient. In addition, the court held that the evidence sufficiently established that petitioner intended to participate in a scheme to benefit personally from his position as a legis lator by promising that he would help with legislation benefitting Grady "in exchange for" Grady's hiring of temporary workers from Georgia Personnel. Pet. App. 20-25 & n.17.

As to the Medical College scheme, the court rejected the defendants' contention that federalism principles prohibit a conviction for honest-services mail fraud based on violations of non-criminal state ethics laws. The court reasoned that the defendants' convictions were not premised on the violation of state law and that proof of honest services mail fraud does not require a state-law violation. Pet. App. 26-27. It thus concluded that the jury could have found that petitioner "violated the mail fraud statutes by failing to disclose his relation ship with the Medical College without considering the state ethics requirement." Id. at 27.

ARGUMENT

1. Petitioner contends that this Court's review is necessary to clarify the standards governing the applica tion of Batson to a defendant's use of peremptory chal lenges to strike jurors. Petitioner's claims, which are either factbound or not properly presented, do not merit this Court's review.

a. Petitioner first contends (Pet. 14-17) that this Court's review is needed to clarify the standard of ap pellate review of a district court's finding that a defen dant engaged in purposeful discrimination in exercising his peremptory challenges. Specifically, he claims that the court of appeals erred by according "unfettered def erence" (Pet. 17) to the district court's finding that peti tioner engaged in purposeful discrimination against white jurors.

Batson established a three-step process for deter mining whether a prosecutor has discriminated on the basis of race in exercising peremptory challenges. 476 U.S. at 96-98. First, the defendant must make a prima facie showing that the prosecutor has exercised a pe remptory strike on a prohibited basis. Id. at 96-97. To make such a showing, the defendant must establish that the "relevant circumstances raise an inference" of racial discrimination. Id. at 96. Second, if that showing has been made, the government must come forward with a race-neutral explanation for the strike. Id. at 97-98. Third, if the government provides a race-neutral expla nation, "the trial court must * * * decide * * * whether the opponent of the strike has proved purpose ful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam); Batson, 476 U.S. at 98. "[T]he ultimate burden of persuasion regarding racial motiva tion rests with, and never shifts from, the opponent of the strike." Purkett, 514 U.S. at 768.

The "ultimate question of discriminatory intent" is a "pure issue of fact," Hernandez v. New York, 500 U.S. 352, 364 (1991) (plurality opinion), that turns on "whether the trial court finds the prosecutor's race-neu tral explanations to be credible," Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). In turn, "[c]redibility can be measured by, among other factors, the prosecutor's de meanor; by how reasonable, or how improbable, the ex planations are; and by whether the proffered rationale has some basis in accepted trial strategy." Ibid.; Her nandez, 500 U.S. at 365 ("There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge."). Because the trial court is best posi tioned to assess credibility, its determination of that issue receives "great deference on appeal" and is re viewed only for clear error. Id. at 364 (plurality opin ion); see Rice v. Collins, 546 U.S. 333, 338 (2006).

In Georgia v. McCollum, 505 U.S. 42 (1992), the Court held that Batson applies to a defendant's discrimi natory challenges on the basis of race. See id. at 59 ("[T]he Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges."). Noth ing in McCollum suggests that the standard for review ing the district court's ultimate factual findings of dis criminatory intent differs when the defendant's chal lenges are under review. Nor did petitioner argue below that a standard other than the clearly-erroneous test applies when the defendant's strikes are at issue. Pet. C.A. Br. 11. At bottom, petitioner's challenge amounts to a disagreement with the district court's factual find ings that the defendants' race-neutral explanations were pretextual and the court of appeals' application of well- settled principles to the facts of this case. Those factbound claims do not warrant this Court's review.4

b. Petitioner next contends (Pet. 17-20) that the Court should resolve a conflict on whether white males constitute a cognizable group for Batson purposes. This case does not implicate that question.

As the court of appeals noted, "the district court clearly stated that it did not treat white males as a cate gory in of itself. Rather, the court determined that De fendants engaged in intentional discrimination based on race." Pet. App. 12. Although petitioner claims that the court of appeals' statement is clearly erroneous, his fac tual challenge on that score does not warrant this Court's review. And because the court of appeals did not consider whether the Batson principles apply to the purposeful exclusion of white males, this case is an inap propriate vehicle to resolve that question.

In any event, it is unlikely that any conflict still ex ists on the question whether white males are a cogniza ble group, in light of this Court's decision in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), which held that the Equal Protection Clause prohibits peremptory challenges on the basis of gender as well as race. As the court of appeals noted, the cases that petitioner cites for the proposition that race/gender groups are not cogniza ble were decided before J.E.B., Pet. App. 11-12 n.10, and petitioner has not cited any cases decided after J.E.B. that support the position that race/gender groups are not cognizable.

c. Petitioner also argues (Pet. 20-21) that the courts are divided on the question whether "mixed motive" challenges-strikes based on both impermissible factors and race-neutral reasons-are improper. This case is an inappropriate vehicle to consider that question.

Petitioner did not claim in the district court that his strikes were partially based on the impermissible factor of race, but instead relied solely on purportedly race- neutral explanations. Although counsel for petitioner's co-defendants stated in passing that "[e]ven if you were to find that the strikes were motivated by two factors one of which is impermissible just because there is a dual motivation does not make it impermissible," 5/23/05 Tr. 274, defense counsel did not argue, as required when asserting mixed motives for the strike, that they would have struck the same jurors absent the improper motive. See, e.g., Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir.), cert. denied, 537 U.S. 1049 (2002); United States v. Dar den, 70 F.3d 1507, 1531 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996); Howard v. Senkowski, 986 F.2d 24, 30 (2d Cir. 1993). For that reason, neither the district court nor the court of appeals applied a mixed-motive analysis to the defendants' peremptory challenges. This Court should decline to consider the issue in the first instance. See FW/PBS Inc. v. City of Dallas, 493 U.S. 215, 224 (1990) ("It is this Court's practice to decline to review those issues neither pressed nor passed upon below.").

d. Finally, petitioner argues (Pet. 21-24) that this Court's intervention is needed to resolve whether the district court's remedy of re-seating the impermissibly stricken jurors comports with petitioner's Sixth Amend ment rights. Petitioner did not argue below that the remedy infringed his Sixth Amendment rights, and this Court should not consider that claim now.

Moreover, this Court has made clear that, "[i]n light of the variety of jury selection practices followed in our state and federal trial courts," it would "make no at tempt to instruct these courts how best to implement our holding [in Batson]." Batson, 476 U.S. at 99-100 n.24. Nonetheless, it did specify, as one permissible op tion, the remedy ordered here: "disallow[ing] the dis criminatory challenges and resum[ing] selection with the improperly challenged jurors reinstated on the venire." Id. at 100 n.24.

As explained in Koo v. McBride, 124 F.3d 869 (7th Cir. 1997), the "nature of the remedy must be deter mined by the nature and scope of the constitutional vio lation," and "the practicalities of the situation." Id. at 873. Here, the district court properly considered the nature of the violation; whether the remedy would re ward defendants for engaging in unconstitutional con duct; the fact that defendants had agreed that the extra venire members should be dismissed before jury selec tion was completed; and the impracticalities in reconven ing a new venire. Pet. App. 17-19. The court of appeals properly reviewed this factbound decision for abuse of discretion and affirmed.

2. Petitioner also contends (Pet. 24-29) that this Court should grant certiorari to resolve a conflict among the courts of appeals over the appropriate scope of hon est services fraud under 18 U.S.C. 1346.5 Petitioner, however, overstates the differences among the courts of appeals on the scope of Section 1346, and any differ ences that do exist are not properly presented here. Accordingly, this Court's review is not warranted.

a. Petitioner contends (Pet. 27-29) that the courts of appeals disagree on whether, in cases charging public officials with honest services fraud, the government must present evidence of "some form of quid pro quo." Pet. 27. Although courts may vary in their formulations of the required relationship between the conduct under lying the fraud and the defendant's official acts, peti tioner does not point to any case in which a court of ap peals has reversed an honest services fraud conviction where, as in the Grady scheme, a public official demands personal benefits from a party in exchange for confer ring legislative benefits. See Pet. App. 25 n.17 (The evi dence established that petitioner participated in the Grady scheme "to enrich himself by using his legislative position as a bargaining tool."); Pet. App. 25 ("The jury could have inferred that * * * [petitioner] let Grady know that his legislative influence would be forthcoming in exchange for Grady hiring his temp workers."); ibid. (Petitioner communicated his belief that "he was enti tled to the business in exchange for legislative assis tance."). In other words, petitioner's bribery-like con duct in the Grady scheme would satisfy even the most stringent standards of honest services fraud. Accord ingly, petitioner would not benefit from the review of any disagreement among the courts of appeals on this issue.6

b. Petitioner also contends that the courts of appeals disagree over whether "a violation of state law is a pre requisite to commission of the federal offense [of honest services mail fraud]." Pet. 28. Regardless of any such disagreement,7 this case is not a suitable vehicle for its resolution.

As to the Medical College counts, petitioner did not argue below that his conviction was invalid because the government failed to prove a state law violation; to the contrary, he argued that it was invalid on federalism grounds because it was premised on a (non-criminal) state law violation. CWW C.A. Br. 45-49; Gov't C.A. Br. 46-47. The court of appeals rejected that argument on the ground that the honest services fraud conviction for the Medical College counts was not in fact premised on a state law violation. Pet. App. 26-27. Therefore, peti tioner should not be permitted to raise for the first time the opposite argument that the jury should have been required to find a state law violation.

Moreover, the indictment charged and the evidence established that petitioner defrauded the Medical Col lege of money by fraudulently inducing it to enter into contracts with his companies, in violation of 18 U.S.C. 1341 (2000 & Supp. V 2005). Indictment 27-32; Gov't C.A. Br. 48-50. The jury was instructed on both money- or-property mail fraud and honest services mail fraud theories for all of the Medical College counts, Jury In structions 9-10, and the jury returned a general guilty verdict on all of those counts, Verdict 3-4. Because peti tioner's conduct involved a scheme to defraud the Medi cal College of money, Gov't C.A. Br. 48-50, and because petitioner on appeal neither challenged that theory nor contended that it was insufficient to support his convic tions, Pet. C.A. Br. 14; CCW C.A. Br. 45-49, this case is an unsuitable vehicle for further consideration of the honest services fraud issue.8

3. After petitioner filed his petition, this Court de cided Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007). Peti tioner's request that the Court hold his petition pending decisions in those cases is therefore moot.

The district court found that a sentence above the advisory Guidelines range was warranted, and petitioner did not challenge the reasonableness of his sentence below. Gov't C.A. Br. 50. This Court's decisions in Gall and Kimbrough, which extend greater deference to a district court to sentence outside the Guidelines, do not help petitioner.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
KIRBY A. HELLER
Attorney

 

FEBRUARY 2008

1 The indictment also charged petitioner's daughter and his three companies in various counts. His daughter's case was severed, and she later pleaded guilty. Petitioner was tried with the three corporate de fendants.

2 Petitioner also challenged (unsuccessfully) the government's per emptory challenges on Batson grounds. Pet. App. 7 & n.8. He does not renew that claim here.

3 The district court made clear that it was not treating "white males" as a discrete group, but instead was reviewing the challenges for racial discrimination. Pet. App. 39-40 n.12.

4 This Court has granted a writ of certiorari in Snyder v. Louisiana, No. 06-10119 (argued Dec. 4, 2007), to review, for the second time, the State's use of peremptory challenges in a capital case and the state courts' finding of no discrimination. It is extremely unlikely that the resolution of the questions presented in Snyder will affect the fact bound question that petitioner raises here, and thus there is no reason to hold the petition in this case pending this Court's resolution of Snyder.

5 Petitioner also states that there is "palpable discontent with the statute's ambiguity." Pet. 25. The courts of appeals have unanimously rejected claims that Section 1346 is void for vagueness. See, e.g., United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) (en banc), cert. denied, 543 U.S. 809 (2004); United States v. Welch, 327 F.3d 1081, 1109 n.29 (10th Cir. 2003); United States v. Frega, 179 F.3d 793, 803 (9th Cir. 1999), cert. denied, 528 U.S. 1191, and 529 U.S. 1029 (2000); United States v. Frost, 125 F.3d 346, 370-371 (6th Cir. 1997), cert. denied, 525 U.S. 810 (1998); United States v. Gray, 96 F.3d 769, 776-777 (5thCir. 1996), cert. denied, 520 U.S. 1129 (1997); United States v. Castro, 89 F.3d 1443, 1455 (11th Cir. 1996), cert. denied, 519 U.S. 1118 (1997).

6 Petitioner below did not challenge his conviction on the Medical College counts on this ground. Gov't C.A. Br. 46; Pet. App. 26.

7 The disagreement is lopsided in the Eleventh Circuit's favor, with only the Fifth Circuit requiring proof of a state law violation. Compare United States v. Brumley, 116 F.3d 728, 734 (5th Cir.) (en banc) ("[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."), cert. denied, 522 U.S. 1028 (1997), with United States v. Hasner, 340 F.3d 1261, 1269 (11th Cir. 2003) ("Proof of a state law violation is not required for a conviction of honest services fraud."), cert. denied, 543 U.S. 810 (2004); United States v. Sawyer, 239 F.3d 31, 41-42 (1st Cir. 2001) (same); United States v. Bryan, 58 F.3d 933, 940-941 (4th Cir. 1995) (same); United States v. Bloom, 149 F.3d 649, 654 (7th Cir. 1998) (declining to adopt requirement that defendant must have violated "some other rule of law"). Contrary to petitioner's assertion (Pet. 28), the Third Circuit does not require the government to prove that the defendant violated state law, let alone state criminal law. See United States v. Panarella, 277 F.3d 678, 693, 699 n.9 (3d Cir. 2002) (reserving issue whether "a violation of state law is always necessary for nondisclosure to amount to honest services fraud," while noting that the court had suggested in dicta that it is not).

8 In any event, Georgia law prohibits state officials from transacting business with state agencies and requires legislators to disclose their financial interests. Ga. Code Ann. __ 45-10-24(a)(1), 45-10-26 (2002). Petitioner nevertheless transacted business with the Medical College (by misrepresenting his ownership interests in the relevant companies to the Medical College), and failed to disclose those transactions or his transactions with Grady on the state-mandated financial disclosure forms. Pet. App. 26-27; Gov't C.A. Br. 43-49; CWW C.A. Br. 14. Because petitioner apparently does not dispute that his conduct vio lated state law, petitioner would not benefit from the minority view re quiring a state law violation