# Thomas N. Moore v. United States

> Court of Appeals for the Seventh Circuit · February 22, 1989 · 865 F.2d 149

URL: https://www.frixlaw.com/law-library/cases/9478580

## Case

- **Full name:** Thomas N. MOORE, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** February 22, 1989
- **Citations:** 865 F.2d 149; 1989 WL 1057
- **Precedential status:** Published
- **Opinion:** Dissent by Cudahy
- **Judges:** Bauer, Cummings, Cudahy
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478580

## How later opinions describe it (automated extraction)

- rejecting § 2255 petition for bid-rigging honest services convic tion. because the existence of a lower-cost bid demonstrates that his public employer suffered financial loss

## Opinion text

CUDAHY, Circuit Judge,
dissenting:
There is no doubt that Moore was indicted and the jury instructed under the now-rejected “intangible rights” theory of mail fraud. The only question is whether, for the jury to find a deprivation of intangible rights, it had necessarily to find a deprivation of money as well. See United States v. Wellman, 830 F.2d 1453 (7th Cir.1987). As a matter of fact, the jury did not have to find an actual loss of money to the MSD as a result of the scheme since without the scheme Roberts might not have bid at all. In that event, the contract would have gone to a competitor at $86,900, which is $1,900 more than the Roberts bid that was actually accepted. Under this scenario the MSD lost absolutely no money as a result of the scheme.
It is true, of course, that if we look at the situation from within the scenario of the scheme as its planners conceived it, the purpose of the scheme was to deprive the MSD of the lowest Roberts bid. Thus, if we begin by assuming the plan in place, we can conclude that its aim was to deprive the MSD of the difference between Roberts’ lowest bid and his highest one that came in under bids of the other bidders. And, of course, a scheme does not have to actually succeed in depriving a victim of money or property in order to fall under the mail fraud statute. United States v. Dial, 757 F.2d 163 (7th Cir.1985); United States v. Reicin, 497 F.2d 563 (7th Cir.1974). But it is necessary that the jury find that a deprivation of “money or property” was necessarily envisioned by the scheme. McNally, 107 S.Ct. at 2882.
This case is admittedly a close one; the fact situation here does not fall easily into the categories established by existing cases. Unlike the schemes in cases where convictions have been upheld, 1 this *155 scheme — even carried through successfully —did not unambiguously involve a planned deprivation of the intended victim’s money. Unlike the schemes in cases where convictions have been set aside, 2 this scheme did not involve only intangibles such as justice or fair dealing, but rather involved financial transactions in which the victim stood to gain or lose. The problem here is that it is unclear whether the victim gained or lost money as a result of this scheme, although it is very clear that the victim lost its right to have its business conducted “honestly, fairly and impartially, free from corruption, collusion, partiality, dishonesty, conflict of interest and fraud.”
Given that the issue is close, and that we are attempting to look back into the minds of a jury that was unambiguously instructed in intangible rights language, 3 1 think it better to proceed with caution in extending Wellman . A contrary approach is not clearly wrong but it seems better policy, when we cannot say with certainty that the jury found a deprivation of money or property, to vacate the conviction. For this reason, I respectfully dissent.
. See, e.g., U.S. v. Bailey, 859 F.2d 1265 (7th Cir.1988) (upholding conviction for scheme which depleted failing bank’s assets); U.S. v. Bonansinga, 855 F.2d 476 (7th Cir.1988) (upholding conviction for scheme under which defendant procured paint and auto supplies for personal use using public utility’s funds); U.S. v. Eckhardt, 843 F.2d 989, 997 (7th Cir.1988) (upholding conviction because portion of scheme involving appropriation of investors’ money alone states cognizable charge of wire fraud; portion alleging intangible rights violations in tax filings does not state cognizable charge but is "easily separable”); U.S. v. Cooke, 833 F.2d 109 (7th Cir.1987) (upholding conviction on counts involving scheme to deprive attorney’s clients of money; vacating conviction on counts involving only deprivation of intangible rights); U.S. v. Wellman, 830 F.2d 1453, 1463 (7th Cir.1987) (upholding conviction where scheme described in indictment using intangible rights language is clearly "a typical ‘garden variety’ fraud" defrauding buyer of its property).
. See Ward v. U.S., 845 F.2d 1459 (7th Cir.1988) (vacating conviction where bribery scheme did not result in any demonstrated loss of state’s property); U.S. v. Holzer, 840 F.2d 1343 (7th Cir.1988) (vacating conviction for participation in scheme to bribe judge); U.S. v. Cooke, 833 F.2d 109 (7th Cir.1987) (vacating portion of conviction involving scheme to defraud official body of intangible rights only); U.S. v. Gimbel, 830 F.2d 621 (7th Cir.1987) (vacating conviction for scheme to conceal information from Treasury Department).
. Further, the jury instructions in this case — unlike those in some of the other cases upholding intangible rights convictions — unambiguously left the jury the option of convicting the defendant for intangible rights deprivations alone ("A scheme means some plan or course of action intended to deprive another of something of value including intangible rights." Appellant’s App. at 153 (emphasis added)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478580. Public record. Not legal advice.