United States v. Lopez-Lukis

United States Court of Appeals,

Eleventh Circuit.

No. 95-3130.

UNITED STATES of America, Plaintiff-Appellant,

v.

Vicki LOPEZ-LUKIS a.k.a. Vicki Lopez-Wolfe and Sylvester Lukis,

Defendants-Appellees.

Jan. 6, 1997.

Appeal from the United States District Court for the Middle

District of Florida. (No. 95-4-CR-FTM-21), Ralph W. Nimmons, Jr.,

Judge.

Before TJOFLAT, Circuit Judge, and RONEY and CAMPBELL*, Senior

Circuit Judges.

TJOFLAT, Circuit Judge:

Sections 1341 and 1346 of Title 18 of the United States Code,

the federal mail fraud statutes, make it unlawful to deprive the

electorate of a governmental office holder's "honest services."1

This interlocutory appeal presents the question of whether these

statutes make criminal a scheme in which a county commissioner, in

addition to selling her own votes to a lobbyist, takes steps to

ensure that a majority of commissioners vote for projects favored

by the lobbyist. In this mail fraud prosecution, the district

*

Honorable Levin H. Campbell, Senior U.S. Circuit Judge for

the First Circuit, sitting by designation.

1

Section 1341 proscribes use of the mails as part of a

"scheme or artifice to defraud." 18 U.S.C. § 1341 (1994).

Section 1346 defines "scheme or artifice to defraud" to include

"a scheme or artifice to deprive another of the intangible right

of honest services." 18 U.S.C. § 1346 (1994). While these

statutes are clearly not limited to schemes involving

governmental officials, they frequently are used to combat

governmental corruption. See, e.g., United States v. Waymer, 55

F.3d 564 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.

1350, 134 L.Ed.2d 519 (1996).

court, ruling on a defense motion in limine, answered this question

in the negative and struck the portion of the indictment alleging

that the defendants' scheme to defraud included an attempt to

control the composition of the commission. The court's order also

precluded the Government from introducing evidence that would

establish this objective. The Government appealed; we now

reverse.

I.

Defendant Vicki Lopez-Lukis is a former member of the

five-person Board of County Commissioners for Lee County, Florida

("the Board"). She served on the Board from her election to office

in November 1990 until her resignation in January 1993. Defendant

Sylvester Lukis is a lobbyist who represents clients before the

Board. The defendants engaged in a romantic relationship during

Lopez-Lukis' term in office and were married subsequent to the

events giving rise to this case.2

A.

Lopez-Lukis and Lukis were indicted by a federal grand jury on

March 10, 1995. Count one of the indictment, which is supplemented

by a bill of particulars, charges both defendants with violating

3

the federal mail fraud statutes, 18 U.S.C. §§ 1341, 1346. The

2

Presumably due to name changes related to different

marriages, Lopez-Lukis is also referred to in the record as Ms.

Lopez-Wolfe, Ms. Lopez-Wolfe-Lukis, and Ms. Lukis. For the sake

of clarity, we refer to her simply as "Lopez-Lukis."

3

Of the remaining ten counts, the defendants were indicted

together in eight counts of using a facility in interstate

commerce to commit bribery in violation of 18 U.S.C. § 1952

(1994), and each defendant was indicted separately for bribery in

violation of 18 U.S.C. § 666 (1994). Only the mail fraud count

is before us in this appeal.

indictment alleges that during Lopez-Lukis' term on the Board, the

defendants devised a scheme "to deprive the citizens of Lee County

and the State of Florida of their intangible right to [Lopez-

Lukis'] honest services ... in her official capacity as Lee County

Commissioner." Specifically, the defendants are charged with using

Lopez-Lukis' position for the benefit of Lukis' clients, two of

whom—Ogden Projects, Inc., and Goldman-Sachs and Company—are

identified by name in the indictment.4

The indictment alleges that Lukis paid Lopez-Lukis in order to

influence her actions as a county commissioner and that, to

facilitate their scheme, the defendants concealed their "monetary

and intimate relationship" from the public. More important for

this appeal, however, paragraph fourteen of the mail fraud count

alleges that the defendants tried to prevent Susan Anthony, a

candidate for the Board who opposed the interests of Lukis'

clients, from unseating Lopez-Lukis' fellow Board member John

Manning in the 1992 primary election.5 The alleged purpose of this

4

In its bill of particulars ordered by the district court,

the Government contends that the defendants helped Ogden

Projects, a contractor, retain its contract to construct a

multimillion-dollar waste-to-energy incinerator in Lee County and

ensure that the Board would allow the project to move forward.

Lukis and Lopez-Lukis were apparently successful in their efforts

on behalf of Ogden Projects: a final notice to proceed with

construction of the project was issued by the Board on October

21, 1992.

The defendants also enjoyed apparent success in

promoting the interests of Goldman-Sachs, a brokerage house.

The Board voted to select Goldman-Sachs to perform

underwriting work for public projects in Lee County,

including an airport.

5

The indictment alleges that Anthony ran as "an

anti-incinerator candidate"; in other words, she opposed the

incinerator project being undertaken by Lukis' client, Ogden

endeavor was to control the composition of the Board to ensure that

it would continue to vote in favor of the interests of Lukis'

clients.6

To secure Manning's victory, the defendants allegedly

threatened that, unless she withdrew from the race, they would

disseminate to several media organizations a videotape that

depicted Anthony, who was campaigning as a family-values candidate,

engaging in an extramarital affair. The Government's proffer to

the district court alleges that both defendants told Manning that

they were preparing videotapes that would "derail" Anthony's

campaign. When Anthony did not withdraw from the race, the

defendants distributed the videotape to the media. Manning

subsequently defeated Anthony in the primary's run-off election. 7

We refer to this series of events collectively as the "videotape

incident."8

Projects. According to the proffer made by the Government at the

hearing on the defendants' motion in limine, Lukis and his

clients supported Manning in the election.

6

Paragraph 14 states that the defendants attempted to keep

Anthony off the Board to "corruptly affect the composition and

work of the Board of Lee County Commissioners ... to promote,

foster, further, facilitate and enlarge the scheme." Although

the indictment is inartfully drawn and the Government has had

considerable difficulty articulating the nature of this

allegation, we read ¶ 14 as charging that the defendants

attempted to manipulate the composition of the Board in order to

control a majority of votes.

7

In the primary's main election on September 1, 1992,

Anthony received the most votes, but because of a third

candidate, she did not command a majority. The next day the

local newspaper ran a story about the videotape. Manning soundly

defeated Anthony in the run-off on October 1, 1992.

8

The parties have offered different explanations of the

events surrounding the videotape incident, including how and why

the videotape was made and what motivated Lopez-Lukis to issue

B.

Early in the case, the defendants moved to strike paragraph

fourteen from the indictment. As grounds for their motion, the

defendants argued that the allegations of paragraph fourteen were

irrelevant to the crime charged (i.e., mail fraud under sections

1341 and 1346), that their conduct described in that paragraph was

protected by the First Amendment, and that litigation of its

allegations would "needlessly complicate and lengthen the process

of trying this case." The district court summarily denied their

motion on June 20, 1995.

The defendants later moved in limine to exclude "any and all

evidence relating to any surveillance videotape of Susan Anthony"

on the same grounds as they presented in support of their earlier

motion to strike. The district court heard this motion on

September 1, 1995. Ruling from the bench on September 5, the day

before the trial was to commence, the court concluded that because

the videotape incident did not involve Lopez-Lukis' official duties

as county commissioner, it was not the sort of conduct proscribed

by sections 1341 and 1346.9 In granting the defendants' motion to

the threat. While these explanations may or may not be probative

at trial, depending on how the facts are developed, they are

irrelevant for purposes of this appeal. All that is important

for present purposes is that Lopez-Lukis threatened to

disseminate the tapes if Anthony did not abandon her candidacy,

that the defendants informed Manning of her threat, and that they

released the tapes after she refused to drop out of the race.

9

As the court stated:

Unlike other elements of the scheme or artifice

which clearly allege methods and means by which

services in her official capacity were affected or

sought to be affected, such as the payment of money to

influence her in her acts or decisions in her official

suppress all evidence related to the videotape incident, the court

vacated its earlier order denying the motion to strike and granted

that motion as well, striking paragraph fourteen from the

indictment. The Government immediately announced that it would

10

appeal the court's ruling; it took this interlocutory appeal the

capacity, her participation or complicity in either

secretly or openly attempting to persuade a candidate

for a seat on the County Commission to withdraw by

threatening to expose such person to disgrace cannot,

by any reasonable construction of the subject mail

fraud statute, be regarded as actions or conduct in her

official capacity as a County Commissioner. Her duties

and responsibilities as a County Commissioner simply do

not include the determination as to who is elected to

serve on the County Commission.

10

Interlocutory district court orders, such as the one

involved in this case, ordinarily are not reviewable until the

court has entered final judgment. See 28 U.S.C. § 1291 (1994).

We have jurisdiction over this interlocutory appeal, however,

under 18 U.S.C. § 3731, which provides that "[a]n appeal by the

United States shall lie to a court of appeals from a decision or

order of a district court suppressing or excluding evidence ...

in a criminal proceeding." 18 U.S.C. § 3731 (1994). While the

part of the district court's order striking ¶ 14 from the

indictment does not fall within this statutory exception,

"pendent jurisdiction and the doctrine of judicial economy permit

us to exercise jurisdiction over related claims when other claims

are properly reviewable." Hill v. Dekalb Reg'l Youth Detention

Ctr., 40 F.3d 1176, 1183 (11th Cir.1994).

Although the Supreme Court rejected our use of pendent

party appellate jurisdiction in Swint v. Chambers County

Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60

(1995), Swint does not bar jurisdiction in this case. That

case dealt only with the use of pendent jurisdiction over a

nonappealable issue involving parties different from those

involved in the appealable issue. Swint was a civil rights

case based on alleged misconduct by local police. The

defendants in that case included three individual police

officers and the local county commission. The district

court had denied summary judgment motions by all defendants,

and all defendants sought interlocutory appellate review.

The individual officers' motions for summary judgment were

based on qualified immunity; thus, we had immediate

appellate jurisdiction over the denial of these motions

under the narrow exception to the final judgment rule laid

out in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86

next day, the day the trial was to begin. The district court

stayed further proceedings in the case pending the outcome of this

appeal.

We hold that the district court misconstrued section 1346 and

improperly narrowed the scope of the scheme alleged by the

Government. We therefore reverse its order striking paragraph

fourteen from the indictment and excluding all evidence relating to

the videotape incident.

L.Ed.2d 411 (1985). Swint v. City of Wadley, 5 F.3d 1435,

1448-49 (11th Cir.1993), modified, 11 F.3d 1030 (11th

Cir.1994), vacated in part sub nom. Swint v. Chambers

County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60

(1995). We invoked pendent jurisdiction to review the order

denying the county commission's summary judgment motion,

even though it was an interlocutory order over which we

would normally not have immediate appellate jurisdiction

because it did not raise the defense of qualified immunity.

Swint, 5 F.3d at 1449-50. It was this use of pendent

jurisdiction that the Supreme Court rejected. Swint, ---

U.S. at ---- - ----, 115 S.Ct. at 1208-12.

The Court explicitly refrained, however, from

"definitively or preemptively" rejecting the use of pendent

appellate jurisdiction over related claims. It suggested

that pendent appellate jurisdiction may be appropriate when

a nonappealable decision is "inextricably intertwined" with

an appealable decision or when "review of the former

decision [is] necessary to ensure meaningful review of the

latter." Id. at ----, 115 S.Ct. at 1212; see also Johnson

v. Clifton, 74 F.3d 1087, 1091 (11th Cir.1996), petition for

cert. filed, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d 15

(1996) (No. 95-1743).

Because the district court's order striking the

indictment is so closely related to its exclusion of the

Government's evidence, we are confident that our application

of pendent jurisdiction is proper in this case. Review of

the order striking ¶ 14 from the indictment satisfies both

the "inextricably intertwined" and "necessary to ensure

meaningful review" tests. Both orders resulted from the

same determination—i.e., that the videotape incident cannot

be used to support a charge of mail fraud under §§ 1341 and

1346. Furthermore, review of the evidentiary ruling

necessarily implicates review of the order striking ¶ 14

from the indictment.

II.

The district court apparently based its decision that the

videotape incident could not be used to prove mail fraud not on the

question of factual relevance, but on the question of whether this

11

conduct "fit" within the parameters of section 1346. We review

this question of statutory interpretation de novo. See National

Coal Ass'n v. Chater, 81 F.3d 1077, 1081 (11th Cir.1996).

A proper understanding of the scheme alleged is essential to

the resolution of this appeal. The heart of count one is an

allegation of a broad bribery scheme: Lukis paid Lopez-Lukis for

political favors. The present controversy centers on exactly what

Lukis' money bought. The indictment alleges that Lukis bribed

Lopez-Lukis because he thought that she would give him two things:

11

The district judge stated:

While [the videotape incident] is, indeed,

reprehensible and illegal, it is simply outside the

framework of the subject mail fraud charge under

Section 1346.

The Court has simply not been able to fit this

transaction into the mail fraud scheme which is the

subject of Count 1. It stands out as a peculiarly

inappropriate part of this mail fraud count.

The district court also noted that the mailing upon

which the mail fraud charge is based was sent almost a year

before the videotape incident and shared "no connection"

with the videotape incident. The degree to which the

district court considered this to be determinative is

unclear, but to the extent that it relied on this

observation as grounds for excluding the evidence, it was in

error. There is no requirement that every piece of evidence

of the scheme to defraud somehow relate to the mailing. The

only requirement is that the mailing be related to some

"step in the plot." United States v. Waymer, 55 F.3d 564,

569 (11th Cir.1995) (quoting Schmuck v. United States, 489

U.S. 705, 711, 109 S.Ct. 1443, 1448, 103 L.Ed.2d 734

(1989)), cert. denied, --- U.S. ----, 116 S.Ct. 1350, 134

L.Ed.2d 519 (1996).

(1) her vote on key matters and (2) control of the Board—that is,

her influence to deliver a majority of the Board's votes on those

matters. The central question in this appeal is whether sections

1341 and 1346 reach such a bribery scheme.

We believe the answer to this question should be self-evident:

if it is illegal for a public official to sell her own vote, it

also must be illegal for her to sell her vote and her influence

over other's votes as well. After all, because the Board consists

of five members and presumably acts by majority vote, it would do

Lukis little good if all that his money purchased was Lopez-Lukis'

single vote.

In this section, we first explain why a scheme by a legislator

to deliver control of a majority of legislative votes for a price

constitutes a scheme to defraud, as defined by sections 1341 and

1346. We then address the district court's reasoning and

demonstrate why it is erroneous. Finally, we examine the

allegations against the defendants and show why they manifest an

attempt to deliver control of the Board.

A.

A brief review of the mail fraud statutes and their

interpretation by the courts is helpful to understanding why they

proscribe a scheme for a legislator to sell control of a

legislative body when that scheme includes use of the mails. To

establish a violation of sections 1341 and 1346, the Government

must prove that the defendants "(1) intentionally participated in

a scheme or artifice to defraud and (2) used the United States

mails to carry out that scheme or artifice." Waymer, 55 F.3d at

568 (citing United States v. Hooshmand, 931 F.2d 725, 731 (11th

Cir.1991)).

At common law, the prohibition of fraud generally was regarded

as protecting property rights only. See McNally v. United States,

483 U.S. 350, 358 n. 8, 107 S.Ct. 2875, 2881 n. 8, 97 L.Ed.2d 292

(1987). As early as the 1940s, however, federal prosecutors

seeking to combat government corruption began using section 1341 to

prosecute schemes to defraud the public of the honest and faithful

services of government officials. See, e.g., Shushan v. United

States, 117 F.2d 110 (5th Cir.), cert. denied, 313 U.S. 574, 61

S.Ct. 1085, 85 L.Ed. 1531 (1941). In the 1987 McNally case, the

Supreme Court rejected this practice by holding that section 1341

was "limited in scope to the protection of property rights" and

therefore did not prohibit schemes to defraud the citizens of their

intangible right to honest and impartial government. McNally, 483

U.S. at 360, 107 S.Ct. at 2882.

Section 1346 was enacted in 1988 to revive the

"honest-services" theory of mail fraud. We have recognized that

Congress passed this provision to overrule McNally and reinstate

prior law. See Waymer, 55 F.3d at 568 n. 3. Consequently, we

consider pre-McNally cases as persuasive authority in evaluating

12

the scope of honest-services fraud. Both the former Fifth Circuit

before McNally and this circuit after McNally consistently have

held that schemes by government officials to deprive the public of

12

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

its right to their honest services, when a mailing is involved,

constitute mail fraud. See, e.g., United States v. Castro, 89 F.3d

1443 (11th Cir.1996); Waymer, 55 F.3d 564; Steiner v. United

States, 134 F.2d 931 (5th Cir.), cert. denied, 319 U.S. 774, 63

S.Ct. 1439, 87 L.Ed. 1721 (1943); Shushan, 117 F.2d 110.

The crux of this theory is that when a political official

uses his office for personal gain, he deprives his constituents of

their right to have him perform his official duties in their best

interest. Elected officials generally owe a fiduciary duty to the

electorate. See Shushan, 117 F.2d at 115 (noting that "[n]o

trustee has more sacred duties than a public official"). When a

government officer decides how to proceed in an official

endeavor—as when a legislator decides how to vote on an issue—his

constituents have a right to have their best interests form the

basis of that decision. If the official instead secretly makes his

decision based on his own personal interests—as when an official

accepts a bribe or personally benefits from an undisclosed conflict

of interest—the official has defrauded the public of his honest

services. See United States v. Sawyer, 85 F.3d 713, 724 (1st

Cir.1996) ("The cases in which a deprivation of an official's

honest services is found typically involve either bribery of the

official or her failure to disclose a conflict of interest,

resulting in personal gain.").

The appellees concede that a county commissioner commits

honest-services fraud when she sells her vote. It is no less a

violation of sections 1341 and 1346, however, for that

commissioner, in addition to selling her vote, to take steps to

ensure that a majority of commissioners vote with her. See

generally Shushan, 117 F.2d 110 (affirming mail fraud convictions

for broad scheme involving bribery of two members of board of

commissioners who attempted to influence actions of entire board).

In both scenarios, the commissioner deprives her constituents of

their right to her honest services by deciding how to vote based on

her own interests. The second scenario simply makes this

deprivation more concrete. In addition to depriving her

constituents of their right to her honest services, she seeks to

ensure that the actions the Board takes are in her own best

interests instead of the best interests of the public.13

One commissioner's vote, without more, does not guarantee that

a particular legislative proposal favored by the briber will

succeed. Any such measure generally requires a majority vote from

the commission. While we do not mean to suggest that the bribery

of a single official for a vote cannot sustain a conviction for

mail fraud,14 that an official took steps to ensure that her

13

This analysis does not suggest that, under such a

scenario, the other commissioners are necessarily depriving their

constituents of the right to honest services. It is entirely

possible that they will decide that proposals that she supports

are in fact in the best interest of the electorate and vote

accordingly. In this case, only the bribed commissioner would be

depriving her constituents of their right to honest services.

That the result of the bribed commissioner's vote

actually benefits the electorate would not change the

fraudulent nature of her conduct. Sections 1341 and 1346 do

not address the wisdom or results of a legislative decision;

rather they concern the manner in which officials make their

decisions.

14

To the contrary, as we stated long ago, "[t]he fact that

the official who is bribed is only one of several and could not

award the contract by himself does not change the character of

the [fraudulent] scheme." Shushan, 117 F.2d at 115.

fraudulent scheme would yield results makes the case against her

more compelling. Such actions increase the likelihood that the

scheme to defraud the electorate of their right to the

commissioner's honest services will bear fruit. Surely section

1346 was intended to prohibit just this sort of conduct, and today

we hold that it does.

B.

The district court construed section 1346 to proscribe conduct

aimed at obtaining an individual legislator's vote, but no more.

By excluding evidence necessary to prove the existence of a larger

scheme, it narrowed the scheme's scope from an attempt to obtain

control of the Board to an attempt to procure a single vote. This

narrow interpretation of the mail fraud statutes was erroneous.

The court ruled that the videotape incident was outside the

scope of section 1346 because it did not involve Lopez-Lukis'

official duties. As the court noted, "[Lopez-Lukis'] duties and

responsibilities as a County Commissioner simply [did] not include

the determination as to who is elected to serve on the County

Commission." Even if we assume that honest-services fraud

involving a public official can be predicated only on the

Several scenarios may be imagined in which a potential

briber might only need a single vote. For example, the

bribed official might chair a committee and have power to

decide which issues come before the body for a vote and the

manner in which they are addressed. Similarly, if passage

of particular legislation only required a single additional

vote—that is, a number of officials already supported the

legislation for their own reasons—buying that extra vote

alone would be desirable.

performance of services in an official capacity,15 the court's

ruling misconceives the nature of the scheme alleged in the

indictment.

The object of the alleged scheme was not to keep Anthony off

the Board or otherwise determine who would serve on the Board.

Rather, the goal was for Lopez-Lukis to receive personal benefits

in exchange for her efforts to secure Board action that favored the

interests of Lukis' clients. The videotape incident is relevant

for at least two reasons. First, because the incident was

allegedly designed to keep Manning, who would likely vote for

projects favored by Lukis' clients, on the Board, it tends to show

that Lopez-Lukis had an agenda to serve the interests of Lukis'

clients instead of the interests of her constituents.

Second, the videotape incident also demonstrates that the

scheme embraced more than just the compromising of one vote on the

Board. The scheme involved efforts to influence decisions of the

entire Board. Lopez-Lukis' single vote, without more, could not

carry out the objectives of the defendants' scheme to procure Board

action favorable to Lukis' clients. To pass, any measure favorable

to Lukis' clients required a majority of the Board's votes—that is,

the votes of Lopez-Lukis and at least two others. To the extent

she exercised influence over the composition and voting of the

Board, Lopez-Lukis made the deprivation of her constituents' right

to her honest services more complete and profitable. In this

regard, the videotape incident may be viewed merely as a means to

15

Because it is not dispositive in this case, we decline to

rule on this issue.

an end. Thus, the Government does not seek to predicate mail fraud

liability on the videotape incident itself; it is merely

attempting to use the incident as circumstantial proof of a broad

scheme to defraud.

While we need not and do not decide the issue, it may be true

that the videotape incident, standing alone, could not support

criminal liability under section 1346 because it did not directly

involve conduct in Lopez-Lukis' official capacity. If true, this

proposition would not mean, however, that the Government cannot

introduce such evidence to demonstrate a broad scheme to control

and obtain favorable votes from the Board. Because the videotape

incident tends to show both that Lopez-Lukis intended to benefit

Lukis' clients instead of the public and that the scheme was more

likely to succeed, it is clearly relevant to the charge of

honest-services fraud and properly was charged in the indictment as

part of her overall scheme.16

16

For this reason, two other arguments that the appellees

stress in their brief are misguided. In addition to agreeing

with the district court's official-duty analysis, the appellees

offer two other, alternative arguments that would justify

affirming its order even though the district court did not

address them. They first point to the line of cases beginning

with Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 71

L.Ed. 443 (1926), which hold that extortion cannot be the basis

for a mail fraud conviction. The appellees argue that the

videotape incident, as alleged, constitutes extortion and thus is

not covered by § 1346. Second, they argue that their actions

constitute political speech and thus deserve protection under the

First Amendment.

Again, we need not decide whether the videotape

incident alone can support a mail fraud conviction. The

government is seeking to punish the defendants not because

they tried to keep a candidate from being elected to the

Board, but because they used Lopez-Lukis' office for

personal benefit. Evidence of the videotape incident tends

to show both that Lopez-Lukis intended to ensure that the

Any hard and fast rule that the government cannot use a public

official's conduct that is not in an official capacity as evidence

of a scheme to defraud the public of an official's honest services

would impermissibly narrow the scope of section 1346 and "would

belie a clear congressional intent to construe the mail fraud

statute broadly," Castro, 89 F.3d at 1456. Therefore, we decline

to read such a rule into the statute.

C.

The appellees argue in their brief that regardless of whether

the district court erred in its interpretation of section 1346, we

should affirm its ruling because the Government failed to proffer

any evidence that keeping Anthony off the Board would further the

interests of Lukis' clients. While any implication that the

videotape incident was part of a scheme to control the Board might

Board would vote for the interests of Lukis' clients and

that their scheme was likely to succeed.

Even if the videotape incident could not serve as a

proper independent basis for imposing criminal

liability—either because of the rule set down in Fasulo or

because of First Amendment concerns—the Government may use

it as evidence that the defendants engaged in a broad scheme

to defraud the public. Cf. Huff v. United States, 301 F.2d

760, 765 (5th Cir.) ("[F]raud and extortion are not mutually

exclusive. The mere fact that extortion may constitute one

aspect of the transaction does not insulate the fraudulent

... plan from prosecution as a scheme to defraud.")

(interpreting wire fraud statute, 18 U.S.C. § 1343), cert.

denied, 371 U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230 (1962);

Waymer, 55 F.3d at 569 ("Assuming arguendo that certain

marginal applications of section 1346 would impermissibly

intrude on First Amendment rights, we hold that such

potential problems with section 1346 are insubstantial when

judged in relation to the statute's plainly legitimate

sweep.").

hinge to some degree on such evidence,17 the appellees

characterization of the Government's evidence is not supported by

the record. The Government has offered to prove several facts that

could persuade a rational factfinder that Lopez-Lukis could control

a majority of Board votes more easily with Manning, instead of

Anthony, on the Board.

For example, the Government has proffered that Lopez-Lukis

told Manning that she was going to "derail" Anthony's campaign

against him. This allegation, if proven, would support an

inference that Manning owed a political debt to Lopez-Lukis and

likely would vote with her on key issues. Thus, Lopez-Lukis could

better obtain votes favorable to Lukis' present or future clients

with Manning on the Board.

Moreover, the record is replete with evidence that, without

Anthony, the Board would be more likely to vote in favor of the

interests of at least two of Lukis' current clients—Ogden Projects

and Goldman-Sachs. First, the indictment specifically alleges that

Anthony opposed Ogden Projects' incinerator project. Had she been

18

elected, she posed a serious threat to the project. Second, in

17

Of course, even without this kind of evidence a factfinder

might infer that the defendants were trying to gain control of

the Board to benefit Lukis' future clients. As a lobbyist, Lukis

could certainly use control of the Board as a valuable asset in

soliciting additional clients.

18

See supra note 4 (describing this project in greater

detail). The appellees contend that because the final notice to

proceed on the project had been issued before Anthony could have

taken office, Anthony could have no impact on the project. This

contention is flawed. Had she been elected, she could have voted

to terminate the project or cause problems throughout

construction. The fact that she was running on an

"anti-incinerator" platform certainly suggests she would have

done everything in her power to halt or delay the project.

its proffer the Government offered to prove that Lukis helped raise

funds for Manning's campaign and that officials from Goldman-Sachs

and Ogden Projects contributed to Manning's campaign fund. This

evidence suggests that Manning would further the interests of

Lukis' clients if re-elected, or at least that Lukis' clients

assumed he would. In short, keeping Anthony off the Board formed

an important step in effectuating the defendants' alleged scheme to

sell control of the Board.19

III.

For the foregoing reasons, we REVERSE the district court's

grant of the defendants' in limine motion seeking the exclusion of

the evidence relating to the videotape incident and its order

striking paragraph fourteen from the indictment. We REMAND this

case to the district court for further proceedings consistent with

this opinion.

SO ORDERED.

19

The appellees argue in their brief that the risk of

prejudice and undue delay substantially outweighs any relevance

the videotape incident has to the mail fraud charge. Thus, they

contend that any evidence concerning the videotape incident

should be excluded under Federal Rule of Evidence 403. Because

the trial court's ruling appears to be based on its

interpretation of § 1346 and not on considerations of relevance

and prejudice, we refrain from ruling on this issue. However, as

our analysis of the videotape incident suggests, the value of

this evidence may be sufficiently probative to render exclusion

under Rule 403 an abuse of discretion.