# Petition — Buckley v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0560%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 460 U.S. 1086 ## Text FILED 2=1459 hice ALEXANDER L. STEVAS, se CLERK Office -Supreme Court, US. | IN THE Supreme Court of the United States October Term, 1982 JEREMIAH P. BUCKLEY, ELLSWORTH B. SARGENT, WASHINGTON WATER POWER COMPANY, AND SARGENT - TYEE CONSTRUCTION COMPANY, Petitioners, V. THE UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Thomas S. Zilly* George W. Akers Arthur W. Harrigan, Jr. William K. Goodwin Larry S. Gangnes MONTGOMERY, PURDUE, LANE POWELL MOSS BLANKINSHIP & & MILLER AUSTIN 3800 Rainier Bank Tower 1515 Norton Bldg. Seattle, Washington 98101 Seattle, Washington 98104 Telephone: (206) 223-7000 Telephone: (206) 682-7090 Attorneys for Petitioner Attorneys for Petitioner Wash. Water Power Co. Ellsworth B. Sargent *Attorney of Record William A. Helsell Payton Smith HELSELL, FETTERMAN, DAVIS, WRIGHT, TODD, MARTIN, TODD RIESE & JONES & HOKANSON 4200 Seattle-First 1500 Washington Bldg. National Bank Bldg. PO. Box 21846 Seattle, Washington 98154 Seattle, Washington 98111 Telephone: (206) 622-3150 Telephone: (206) 292-1144 Attorneys for Petitioner Attorneys for Petitioner Sargent-Tyee Construction Jeremiah P. Buckley Company i QUESTIONS PRESENTED 1. Does a mail fraud indictment which alleges mailing of a public disciosure form in furtherance of a scheme to conceal political contributions allege a ‘‘scheme to defraud’’ under United States v. Dixon in the absence of allegation of any corrupt payment? 2. Under the criteria of United States v. Russell, does a mail fraud indictment adequately inform the defendants of the fraudulent act charged against them when it alleges, by implication only, omission of an unidentified payment to an unknown person for a purpose which is neither alleged nor otherwise disclosed? 3. Under United States v. Parr, does a mail fraud indictment based upon nondisclosure of political contributions allege a connection between the mailing of a legally compelled disclosure form and the scheme when it alleges no falsity in the disclosure form? ii | PARTIES TO THE PROCEEDING The Indictment reads Sargent‘Iyee Construction Company, Inc. The correct name is SargentTyee Construction Company. Sargent‘Tyee Construction Company is a predecessor corporation of Tyee Construction Company, now operating as a division of Commonwealth Electric Company, a wholly- owned subsidiary of Commonwealth Companies, Inc., a Delaware Corporation. DAVIS, WRIGHT, TODD, RIESE & JONES By Payton th Attorneys for Sargent“liyee Construction Company The Washington Water Power Company, a Washington corporation named as a defendant in the Indictment, has the following subsidiary companies (excluding wholly-owned subsidiaries): The Limestone Company, an Idaho corporation, and Spokane Industrial Park, Inc., a Washington corporation. LANE POWELL MOSS & MILLER By Thomas S. Zilly TABLE OF CONTENTS Page NON L502 CAME cltars PCUME Win 0's 8 eB iON aaa 1 SE a ut) bc, Wes thats vain SH eRe. 0 6 Cedi bin ola Oe 2 Statutory Provisions Involved ................... 2 I MS he idee Cv bes tener Vee bus 4 Reasons For Granting the Writ .................. 9 I. The Decision Below Conflicts With the Decisions of Other Courts of Appeal Concerning the Reach of the Mail Fraud Statute ................. i) II. The Decision Below Raises Significant Questions Concerning the Application of This Court’s Holdings in United States v. Russell and in Parr DD. S sasuhS aso ieee eee wks 13 Se PETS abs aes k-eR WU bide hie se Cae 13 SME CAS 6 aids p cow a Atorde ap mints gO tow hehe Wd 21 EL Og Peo Ue CRT ES 24 TABLES OF AUTHORITY Table of Cases Kann v. United States, 323 U.S. 88 (1945) ....... 22-23 Parr v. United States, 363 U.S. 370 (1960) .. 8,21-22,23,24 Russell v. United States, 369 U.S. 749 (1962) . 13,14,20,21 United States v. Bohonus, 628 F.2d 1167 (9th Cir.), cert. denied, 447 U.S. 928 (1980) ............e eens 11-12 United States v. Boyd, 606 F.2d 792 (8th Cir. 1979) . 22 United States v. Curtis, 506 F.2d 985 (10th Cir. 1974) 14 United States v. Cruikshank, 92 U.S. 542 (1876) .... 14 United States v. Dixon, 536 F.2d 1388 REED Ra Paap aN 7,9,10,12-13,15,24 United States v. George, 477 F.2d 508 (7th Cir. 1973) 19 iv United States v. Hess, 124 U.S. 483 (1888) ......... 14 United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974) 19 United States v. Louderman, 576 F.2d 1383 (9th Cir.) cert. ey Ge ULE GG ROT noi ieee ccc cece 12 United States v. McNeive, 536 F.2d 1245 EE Ou Pale ges Cen wake c's 08 8 16,17-19 United States v. Nance, 533 F.2d 699 (DC. Cir. 1976) 14 Statutes EE iS Maas Gd FAN Te aly d's v a\W 0 4» 9 aye 8,49 14 SOS ee 9 re) See ee ie 2,4 a 2 I GUD RUNG GRIND ko dds cic espe ection 2 Wash. Rev. Code $ 42.17.170 (1981) ............0.. 2,4 Wash. Rev. Code § 42.17.180 (1981) ............... 3,4 Wash. Rev. Code § 42.17.240(2) ...........00 00 cues 3 IN THE Supreme Court of the United States October Term, 1982 JEREMIAH P. BUCKLEY, ELLSWORTH B. SARGENT, WASHINGTON WATER POWER COMPANY, AND SARGENT - TYEE CONSTRUCTION COMPANY, Petitioners, v. THE UNITED STATES OF AMERICA, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT This petition is filed pursuant to Rule 21 of the Rules of this Court for a writ of certiorari to the United States Court of Appeals for the Ninth Circuit, to review the judgment of that Court in United States v. Jeremiah P. Buckley, Ellsworth B. Sargent, Washington Water Power Company and Sargent- Tyee Construction Company, Inc., No. 81-1597 (October 8, 1982). OPINIONS BELOW The court of appeals entered judgment is this case on October 8, 1982. United States v. Buckley, 689 F.2d 893 (9th Cir. 1982). The court of appeals’ opinion is attached hereto as Appendix A. On December 28, 1982, the court of appeals denied defendants’ Petition for Rehearing (suggested en banc). The court of appeals’ Order denying rehearing is attached hereto as Appendix B. The trial court’s Order, entered August 20, 1981 and granting defendants’ motion to dismiss Count I of the Indictment and denying defendants’ motion to 2 dismiss Count II, is attached hereto as Appendix C. A copy of the two-count Indictment is attached hereto as Appendix D. A transcript excerpt from the proceedings of August 16, 1981 before the trial court is attached hereto as Appendix E. JURISDICTION The judgment of the court of appeals was entered on October 8, 1982. The court of appeals denied defendants’ Petition for Rehearing (suggested en banc) on December 28, 1982. This Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED 18 U.SC. § 1341: Whoever, having devised or intending to devise any scheme or artifice to deiraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. Wash. Rev. Code § 42.17.170: (1) Any lobbyist registered under RCW 42.17.150 and any person who lobbies shall file with the commission periodic reports of his activities signed by the lobbyist. The reports shall be made in the form and manner prescribed by the commission. They shall be due monthly and shall be filed within fifteen days after the last day of the calendar month covered by the report. 3 (2) Each such monthly periodic report shall contain: *“* * (c) An itemized listing of each such expenditure in the nature of a contribution of money or of tangible or intangible personal property to any candidate, elected official, or officer or employee of any agency, or any political committee supporting or opposing any ballot proposition, or for or on behalf of any candidate, elected official, or officer or employee of any agency, or any political committee supporting or opposing any ballot proposition. All contributions made to, or for the benefit of, any candidate, elected official, or officer or employee of any arency, or any political committee supporting or opposing any ballot proposition shall be identified by date, amount, and the name of the candidate, elected official, or officer or employee of any agency, or any political committee supporting or opposing any ballot proposition receiving, or to be benefited by each such contribution. Wash. Rev. Code § 42.17.180: Every employer of a lobbyist registered under this chapter during the preceding calendar year shall file with the commis- sion on or before March 31st of each year a statement disclos- ing for the preceding calendar year the following information: (1) The name of each state elected official and the name of each candidate for state office who was elected to such office and any member of the immediate family of such persons to whom such employer has paid any compensation in the amount of five hundred dollars or more during the preceding calendar year for personal employment or professional services, including professional services rendered by a corporation, partnership, joint venture, association, union, or other entity in which such person holds any office, directorship, or any general partnership interest, or an ownership interest of ten percent or more, the value of such compensation in accordance with the reporting provisions set out in RCW 42.17.240(2), as now or hereafter amended, and the consideration given or performed in exchange for such compensation. 4 (2) The name of each state elected official, successful candidate for state office or members of his immediate family to whom the lobbyist employer made expenditures directly or indirectly, either through a lobbyist or otherwise, the amount of such expenditures and the purpose for such expenditures: Provided, That for the purposes of this subsection, the term expenditure shall not include any expenditure made by the employer in the ordinary course of business if such expenditure is not made for the purpose of influencing, honoring, or benefiting such elected official, successful candidate or member of his immediate family, as an elected official or candidate. (3) The total expenditures made by the employer for lobbying purposes, whether through or on behalf of a registered lobbyist or otherwise. (4) All contributions made to a candidate for state office, to a political committee supporting or opposing a candidate for state office, or to a political committee suporting or opposing a state-wide ballot proposition. Such contributions shall be identified by the name and the address of the recipient and the aggregate amount contributed to each such recipient. (5) The name and address of each registered lobbyist employed by such employer. (6) Such other information as the commission shall by rule prescribe. STATEMENT OF THE CASE In January 1981, the grand jury indicted petitioners on one count of mail fraud in violation of 18 U.S.C. § 1341, alleging a money-washing scheme for political contributions that operated from 1972 to 1976, in part to deprive the public of its “right to know” under a state law requiring disclosure of contributions to state legislators. As of February 1974, Washington state law required that both lobbyists and their employers report lobbying expenditures. Wash. Rev. Code $§ 42.17.170-.180 (1981). 5 The Indictment alleged that Buckley distributed $15,000 to unknown state legislators on behalf of his employer, Washington Water Power Company (“WWPC’”), at unknown times after receiving it in early June 1975, and that he filed Form L-3 reports from January 1973 to January 1976 with the Washington Public Disclosure Commission in which he intentionally failed to disclose the moneys paid to him in accordance with the scheme and subsequently distributed by him to members of the Washington State Legislature on behalf of WWPC. The only allegation of use of the mails in furtherance of the alleged fraudulent scheme within the applicable statute of limitations is contained in the 28th and final paragraph of Count I of the Indictment: On or about April 1, 1976, within the Western District of Washington, JEREMIAH P. BUCKLEY, ELLSWORTH B. SARGENT, WASHINGTON WATER POWER COMPANY, and SARGENT-TYEE CONSTRUCTION COMPANY, the defendants herein, for the p of executing the aforesaid scheme and artifice and attempting to do so, knowingly caused to be delivered by mail, according to the direction thereon, an envelope addressed to the ‘Public Disclosure Commission, 403 Evergreen Plaza, 711 Capitol Way, Olympia, Washington 98504’’ containing Public Disclosure Commission Form L-3, Lobbyist Employer’s rt, for the year 1975, fom WASHINGTON WATER POWER COMPANY. Deprivation of the public’s “right to know”’ by use of the mails pursuant to the alleged scheme could only have occurred if the 1976 L-3 form was false, and the Government has so conceded. 689 F.2d at 898. This 1976 Form L-3 called for disclosure of contributions made during the year 1975. The Indictment alleges that it was mailed “for the purpose of executing” the scheme, but the Indictment does not allege that this 1976 Form L-3 was false. (Appendix D, Indictment { 28.) Nor did the Government state in what respect it is contended the L-3 was false when directed to do so in a Bill of Particulars. (Appendix E-42-47.) In fact, Government 6 counsel candidly admitted in oral argument before the district court that the Government cannot do so. (Appendix E-46.)' There is no allegation or implication in the Indictment that any money was distributed in 1975 and thus required to be reported in the 1976 Form L-3 report. It is no surprise, therefore, that the Indictment pointedly omitted any allegation that the 1976 filing was false. The Indictment does not allege any improper payment or any fact constituting fraud or undue influence. It tells the defendants nothing about any undisclosed payment: to whom it was made, when or for what allegedly corrupt purpose. Even if the Indictment alleges by implication that some undisclosed payment was made, it tells the defendants nothing which would enable them to show propriety in the payment, because the payment is not and cannot be identified. The district court granted in part petitioners’ motion for a Bill of Particulars, including a request for further information about paragraph 28 of the Indictment. Specifically, the Government was directed to state: which perensnte or expenditures, if any, were omitted from the Form L-3 for the year 1975, and by identifying any other statements contained in said form which it has contended were untrue, and the respect in which it was contended they were untrue and by stating whether it is contended that any required information was omitted from said report and, if so, by identifying all such information. 1. In contrast, the Indictment alleges that other, earlier filings (not within the statute of limitations) were also made in furtherance of the scheme. (Appendix D, Indictment {{ 26, 27 and 28.) Unlike the allegations of paragraph 28 concerning the 1976 L-3, it is alleged that each prior form “intentionally failed to disclose” contributions. These allegations concerning the pre-1976 filings, however, are based upon clear errors of fact and law in the Indictment. The allegations of payments prior to 1975 are completely consistent with distribution of such sums at times when no disclosure law was in effect. See Washington Water Power Company's Memorandum in Support of Defendants’ Motion to Dismiss Indictment. The Government has never contested this point. 7 (Appendix E-43.) The Government then provided the following information relevant to paragraph 28: The L-3 filed by Washington Water Power Corporation for the year 1975 sah to report any of the money received from Robert A. Perry pied on ‘on behalf of Washington Water Power Corporation by deri Buckley. (Appendix E-45.) Petitioners then moved for dismissal of the mail fraud count. The district court granted the motion on two grounds. First, taking all allegations of the Indictment and Bill of Particulars as well as those made in open court by the Government as true, without an explicit allegation that Buckley made payments to legislators in 1975 and intentionally omitted them from the 1976 Form L-3, the court concluded that the Indictment failed to allege any facts implying that the Form L-3 was false, and thus mailed for the purpose of executing the alleged scheme to defraud. (Appendix C, Order { 1(e).) Although the Indictment recites the language of the mail fraud statute in alleging that the 1976 Form L-3 was “for the purpose of executing” a fraudulent scheme, the district court held it deficient in that it failed to inform the defendants of the essential facts of this fraud charge: the nature of the alleged fraud which inhered in the alleged payments and the alleged connection between the 1976 mailing and the fraud. (Id.) Since the Government is unable to state to whom, when or for what purpose any payment was made, or which such payments were omitted from the form, the Government is unable to inform the defendants of the nature of the fraud with which they are charged, and defendants are unable to gather evidence showing the non-fraudulent character of any payment because none is identified. (Jd.) The court of appeals reversed, distinguishing the decision in United States v. Dixon, 536 F.2d 1388 (2d Cir. 1976) (Friendly, J.) and held that “the Government made barely sufficient allegations in this mail fraud indictment,” 689 F.2d at 900, of “a ‘scheme to defraud’ Washington citizens of their statutory right to know who made what political payments 8 to whom, and a knowing use of the mails to further the scheme in violation of the mail fraud statute,’ 689 F.2d at 898, despite the facts that “the Government conceded that it could not prove the omission in the 1976 Lobbyist Report of any specific payment to any specific legislator in 1975 and that the Government refused to make such specific allegations in the bill of particulars.” 689 F.2d at 899. Agreeing “with the district court’s preliminary assessment of the weakness of the Government’s case,” 689 F.2d at 900, the court concluded that “[ajlthough the Government’s theory appears weak, and a judgment of acquittal may be granted if the Government presents inadequate evidence at trial, the weakness of the Government’s case is irrelevant to the sufficiency of the indictment.” Id. As a result, the court agreed with the Government that though “ ‘the only way [the disclosure form] could be in execution or furtherance [of a scheme to defraud] is if it were false; ” the Indictment “need not explicitly state that WWPC filed a false form by failing to report the 1975 payments to legislators because it implied that fact when it alleged a money laundering scheme in 1975, payments to legislators as a result of that scheme, and the mailing of a Lobbyist Employer’s Report for the year 1975 in furtherance of the scheme.” 689 F.2d at 898 (emphasis added). “Thus, the defendants had sufficient notice of the charged crime to prepare a defense and plead double jeopardy despite the fact that the indictment was lengthy, confusing, and largely irrelevant.” 689 F.2d at 899 (footnote omitted). Distinguishing Parr v. United States, 363 U.S. 370 (1960), the court held legally sufficient the allegation that the mailing was made in furtherance of a scheme to defraud despite the fact it was “legally compelled.” Finally, the court found unpersuasive the defendants’ plea that they could not defend against a fraud charge when none of the particulars of the fraud were alleged: who was paid, when and for what alleged “fraudulent” purpose. 9 REASONS FOR GRANTING THE WRIT I. The Decision Below Conflicts With the Decisions of Other Courts of Appeal Concerning the Reach of the Mail Fraud Statute. The court of appeals’ decision demonstrates the potentially limitless reach of the mail fraud statute when its plain words are stretched beyond normal bounds by imaginative Government prosecutors. It also is in direct conflict with the Second Circuit’s decision in United States v. Dixon. The indictment here alleges a scheme not to disclose political contributions as required by a state disclosure law. In Dixon, the indictment alleged a scheme not to disclose loans to a corporate officer in violation of a federal disclosure statute, Section 14 of the Securities Exchange Act of 1934, 15 U.S.C. § 78n. There, the defendant corporate president allegedly had distributed false proxy statements and made false filings with the SEC, both concealing corporate loans to him, and had then used the mails to obtain proxies. Fraud does not inhere in loans to corporate officers. Nor is it inherent in political contributions. In Dixon and in this case, the sole vice alleged was nondisclosure. Judge Friendly, speaking for the Second Circuit, held that nondisclosure in Dixon of otherwise proper corporate loans was not a “scheme or artifice to defraud” within the purview of the mail fraud statute. When all is said and done, the Government’s on the mail fraud counts was simply that Dixon | nar se a retuennan Wiad aid nok elaeaae the ladeers roxy statement which did not contain the isioemation choke tauihe 06 Dina tad: & choula have contend. Po hold that this alone constituted a violation of the mail fraud statutes would stretch its words beyond normal bounds; “am the ambit of criminal statutes Ber gd Boe my my bod of leniety,’ Rewis vu. United States, 401 U.S. 808, 812, 91 S. Ct. 1056, 1059, 28 L. Ed. 2d 493, 497 (1971), quoted and lied in United Svates v. Bass, 404 U.S. 336, 347-49, 92 S. Ct. 515, 522-523, 30 L. Ed. 2d 488, 496-497 (1971). 536 F.2d at 1401. 10 The facts alleged in this Indictment afford no basis for distinguishing it from Dixon. The court of appeals attempted to do so as follows: In Dixon, the court held that nondisclosure a corporate official of certain loans in violation of SEC regulations was not a scheme to defraud because the shareholders did not rely on the disclosure regulations, and the nondisclosure was not intended to secure m ae | or property in a fraudulent manner. Jd. at 1398-14 In contrast, the Government alleges that the defendants here did not disclose all of their contributions to state tors in violation of a state statute for the purpose iding contributic 2s that were intended to influence the officials improperly. 689 F.2d at 897 (emphasis added). The key language underlined above does not accurately describe the Indictment in this case. The only fact alleged which even implies impropriety is the allegation of nondisclosure. That, under Dixon, is not enough to constitute a “scheme or artifice to defraud.” There is no allegation of any payment constituting bribery, corruption or improper influence — and for good reason since the Government has admitted in three places in the Indictment (Appendix D, Indictment { 23(a), (b) and (c)) and in open court (Appendix E-45-46) that it cannot prove any specific payment by anyone to any legislator for any purpose. The Indictment does allege in a conclusory way that the purpose of the “scheme” was improper influence, but no facts are alleged to support that charge: Phra 29% er ee s peice 0 Ae ae conineng Ena 1977, in the Western W. a aa elsewhere, JEREMIAH P. BUCKLEY, ELLSWORTH 8B. SARGENT, WASHINGTON WATER POWER COMPANY and SARGENT-TYEE CONSTRUCTION COMPANY, Doe 11 Washington State Legislature openly and honestly, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud; (b) to defraud the citizens of the State of Washington of their right to have the State’s electoral processes conducted openly and honestly free from corruption, bias, dishonesty, deceit, official misconduct, and fraud and in accordance with the laws of the State of Washington; (c) to defraud the citizens of the State [oe of their right to know of any benefits, financial or otherwise, conferred upon members of the Washi n State Oey ASHINGTON WATER POWER COMP. and JEREMIAH P. BUCKLEY as lobbyist for WASHINGTON WATER POWER COMPANY. Following these allegations, this Court may search the remainder of the Indictment in vain for any alleged act of “corruption, bias, dishonesty, deceit, official misconduct and fraud,” or any allegation of a single payment made for an “improper” purpose. The Indictment simply alleges payments by Buckley were made “for the purpose of furthering the legislative interests of WASHINGTON WATER POWER COMPANY.” (Appendix D, Indictment {{ 2, 12(a) and (b).) All political contributions are presumably made for such purposes, and do not constitute “improper influence.” The Government may hold the view that political contributions “corrupt” legislators, but there is no allegation of corruption here; in fact, the Indictment admits that there will be no evidence of it by conceding that the persons who allegedly received such payments were “unknown to the Grand Jury.” (Appendix D, Indictment { 23(a), (b) and (c).) Neither does making political contributions rise to the level of a fraudulent scheme that, using the words of the court below, “fail[s] to measure up to the ‘reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.” 689 F.2d at 897, quoting United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.), cert. denied, 447 U.S. 928 (1980). In Bohonus, the court of appeals concluded that “depriving an employer of one’s honest services and of its right to have its business conducted honestly can constitute a ‘scheme to 12 defraud’ under § 1341.” 628 F.2d at 1172; see also United States v. Louderman, 576 F.2d 1383, 1387-88 (9th Cir. ), cert. denied, 439 U.S. 896 (1978) (scheme to gather private information by deception held fraudulent). “In light of Bohonus and Louderman,’ the court below held that the “Government adequately alleged a ‘scheme to defraud’ Washington citizens of their statutory right to know who made what political payments to whom, and a knowing use of the mails to further the scheme in violation of the mail fraud statute.” 689 F.2d at 898. This reasoning, however, was considered and expressly rejected by Judge Friendly in Dixon. eter weird tape chicrdaey eagrsars ban mag 2° pod BP stockholders’ ty to exercise a full and fair felgues dgment by D ’s § 14 violation rived them of ‘honest and faithful services,’ see United States v. Isaacs, 493 F.2d 1124 (7 Cir.), cert. peated 417 US. 976, 94 S. Ct. 3184, 41 L. Ed. 2d 1146, reh. denied, 418 US. 955, 94 S. Ct. 3234, 41 L. Ed. 2d 1178 (1974), in the sense required to constitute a violation of the mail fraud statute. This doctrine of the deprivation of honest and faithful services has to fit the situation in which a public official avails himself of his public position to enhance his private advan often by indood, eg inf Such actions may not deplete the fisc; as in Isaacs they may have enriched it, but they nonetheless frauds since sso the public official has been Te ee aes te Econ Ut hie cating: Tins the doctrine bes applied to the corruption of a public official with to the allocation of insurance commissions al these must, in any case, have been paid by the state to someone, United States v. Barrett, 505 F.2d 1091, 1103-05 (7 Cir. 1974), cert. denied, 421 U.S. 964, rsh Ss. Ct 1951, 44 os es 2d 450 3 480 G97). Bes alee the cases statute, ra i Eide malas th a oes to noasehe “to defraud the United States, or any thereof in any manner or for any aas v. Henkel, 216 U.S. 462, 30 “S. 249, 54 L. Ed. 569 (1910); Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S. Ct. 511, 512, 68 L. Ed. 968, 970 (1924); United States v. Johnson, 383 U.S. 169, 172, 86 S. Ct. 749, 751, 15 L. Ed. 2d 681, 683 (1966); Miller v. United States, 24 F2d 353, 358-59 (2 Cir,), cert. denied, 276 U.S. 638, 48 S. Ct. 421, 72 L. Ed. 745 (1928); United States v. Peitz, su pope hae pn 433 F.2d at 51-52. All these cases, however, invo 13 element of corruption not present here. We therefore need not consider whether the doctrine of the cited cases should be carried over into the private field, e.g., if, for example, Dixon had bribed Entwistle to put out a proxy statement known to be incomplete. 536 F.2d at 1400 (emphasis added). Since this Indictment contains no factual allegation of bribery, corruption, bias, dishonesty, deceit, official misconduct, fraud or improper purpose, the decision of the court below conflicts with Dixon. In short, the political contributions alleged to have been made here and not disclosed were not fraudulent or corrupt within the meaning of the mail fraud statute. Nondisclosure of such contributions, if made in 1975, would violate Washington state law, but it is not mail fraud any more than nondisclosure of otherwise legitimate loans in violation of federal law was fraud in the Dixon case. II. The Decision Below Raises Significant Questions Concerning the Application of this Court’s Holdings in United States v. Russell and in Parr v. United States. A. Russell The Government has conceded that the “only way [the 1976 L-3 disclosure form] could be in execution or furtherance [of a scheme to defraud] is if it were false.” 689 F.2d at 898. It is undisputed that the Indictment on its face does not allege any such falsity, nor does it apprise the defendants of the alleged fraudulent or corrupt elements of any allegedly undisclosed payment. Nonetheless, the Government contends that it was sufficient to allege only, using the words of the mail fraud statute, that the mailing of the 1976 L-3 report was “for the purpose of executing” a scheme which the Indictment labels fraudulent without any particularization of the basis for that label. The court below agreed, holding that the “barely sufficient allegations in this mail fraud indictment,” 689 F.2d at 900, “implicitly alleged the falsity of the [1976] disclosure report . . . [and thus were] clear enough to give the defendants notice of the crime charged and to allow them to plead double jeopardy.” 689 F.2d at 898 (emphasis added). This statement, even if true as far as it 14 goes, ignores the failure to allege the elements of the fraud: who was paid, for what corrupt purpose, with what sum of money and when. In Russell v. United States, 369 U.S. 749 (1962), this Court held fatally defective indictments that charged an offense using only the general language of the underlying criminal statute. In that case, the defendants were indicted for violating 2 U.S.C. § 192, which makes it a criminal offense for a witness before a congressional committee to refuse to answer any question “pertinent to the question under inquiry” by the committee. Because the indictments simply charged that the questions the witnesses refused to answer “were pertinent to the question then under inquiry” without setting forth facts showing what the subject of the inquiry was, which was “the very core of criminality under” the statute, they failed “ ‘to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had’ ” 369 U.S. at 768, quoting United States v. Cruikshank, 92 U.S. 542, 558 (1876). Although the Russell Court concluded that the language of the underlying statute may be used in the general description of an offence, “ ‘it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” 369 U.S. at 765, quoting United States v. Hess, 124 U.S. 483, 487 (1888). This the indictments in Russell failed to do. “The vice of these indictments, rather, is that they failed to satisfy the first essential criterion by which the sufficiency of an indictment is to be tested, ie., that they failed to sufficiently apprise the defendant ‘of what he must be prepared to meet.’ ” 369 U.S. at 764; accord, United States v. Nance, 533 F.2d 699 (D.C. Cir. 1976) (wire fraud indictment using statutory language to allege that “false representations” were made held fatally defective for failing to allege any of the factual particulars thereof); United States v. Curtis, 506 F.2d 985 (10th Cir. 1974) (mail fraud indictment held fatally defective because it failed to inform defendant as to what aspects of the alleged scheme were contended to be fraudulent). 15 The very core of criminality in the case at bar is the omission from the 1976 L-3 report of a corrupt payment: e.g., a bribe. The Indictment alleges neither the omission nor the facts making any omitted payment corrupt. Although the court below found that the Indictment alleged omission of some payment by implication, it clearly does not allege in what way that omission was part of a fraudulent scheme. A political contribution, like the loan in Dixon, is not inherently corrupting and mere nondisclosure of it is not fraud. In Dixon the Indictment at least identified the loan. Here the Government has, arguendo, implied some unidentified payment was made but has utterly failed to inform the defendants how the unidentified payment formed any part of a scheme of undue influence or fraud. To find by implication or otherwise that this Indictment alleges the defendants “corrupted” legislators or exerted “improper influence,’ this Court must rely solely upon the general allegations of the purposes of the alleged scheme of nondisclosure in paragraphs 1(a)-(c) (set forth above). But those resounding generalities tell the defendants nothing about the nature of the corrupt acts that are the core of any fraud charge. Once it is conceded that “corruption” or “improper influence” is a necessary element of the alleged scheme of nondisclosure here, it follows as a fundamental principle of due process that the defendants are entitled to know the facts constituting the improper influence or corruption in order to prepare a defense. Questions which are unanswered by this Indictment are: Who was influenced? How were they influenced? By what payment were they influenced? What was improper about the influence? Did a legislator agree to vote a certain way for money? What witnesses should defendants interview to defend this allegation? Which legislators should it call to testify in their defense? How are the defendants to show a payment was for a proper purpose when they are not advised of any payment they are alleged to have made or, of any improper purpose for which they are alleged to have made it? 16 In its opinion, the court below discussed the failure to allege any specific payment in 1975 solely in connection with the question whether the Indictment alleged falsity in the 1976 L-3 report and thus connected the filing with the alleged scheme. The court found the Indictment alleged a payment in 1975 by implication. But the Indictment must allege a payment made in 1975 for the purpose of improperly influencing a legislator in order to allege fraud. More importantly, it must allege sufficient facts about that payment and its allegedly improper aspects to permit defendants to gather the evidence relating to that claim in order to defend against it. Alleging “by implication” a payment of an unknown amount at an unknown time to an unknown person for an undisclosed objective hardly meets the test for pleading fraud; nor is this inadequacy cured by the shadow of vague “improper purposes” cast over the Indictment in paragraphs 1(a)-(c). Compare the allegations confronting the defendants here with those in United States v. McNeive, 536 F-2d 12465 (8th Cir. 1976). In that case, a mail fraud conviction was reversed because, although it was alleged and proved that a public official received gratuities by mail, in the absence of evidence that they accorded preferential treatment to the payors, there was no scheme to defraud, ie., the payments were not shown to be bribes. The defense in McNeive was able to show a lack of influence. Defen- dants cannot do so here because they are not told whom they are supposed to have paid, when, or for what. The gravamen of a mail fraud indictment is fraud. The reported cases are replete with indictments describing bribes, kickbacks, corruption, and influence-peddling. This Indictment and the McNeive indictment are unique in the complete omission of any facts constituting corruption. The gravamen of this Indictment is nondisclosure. But se agai of political contributions is not a mail fraud violation. The McNeive court distinguished several other leading mail fraud cases on grounds showing how vital it is to the defense of such a charge to be apprised of the specific fraudulent act complained of. The following excerpts from the opinion show 17 how the presence or absence of the elements of fraud depend upon circumstances surrounding specific payments or efforts to influence: The first category, which comprises the bulk of the mail fraud cases, includes the m tive schemes which are intended to defraud individuals of money or other tangible property interests. There can be little dispute that these schemes are within the scope of § 1341 since + ed a hyd calculated aionte. to use misrepresentations or other deceptive practices to induce the innocent or unwary to give up some tangible interest. ** * Tae satin’, pallies So tecr eee) fees of those which operate to ive individuals of i or interests. In United States v. States, 488 F.2d 761, 765 (8th Cir. 1973), cert. denied, 417 US. 909, 94 S. Ct. 2606, 41 L. Ed. 2d 212 (1974), this court ruled a fraud scheme was a proper subject a mail fraud prosecution since the scheme detrauded citizens of “certain intangible political and civil rights.” ** * An increasing number of courts have expanded the rationale of United ser v. bso pod su ay and related cases — the arena of vil rights. These courts held that a agentes ee can be rosecuted under § 1341 if he breaches his ance to pred by kt bribes or kickbacks in the yr PAE since such conduct defrauds roger right to the employee’s honest and the employer services. United States v. Bryza, ea, 522 F.2d 414 (7th Cir. 1975), cert. denied, __U.S.__., 96 S. Ct. 2237, 48 L. Ed. 2d 837, 44 U.S.L.W. 3685 (1976). Similar schemes devised by public officials have been viewed as defrauding state or municipal citizens of the same in ble right. United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976, 94 S. Ct. 3184, 41 L. Ed. 2d 1146 (1974). ** In sup of its position, the Government relies primary upon the Seventh Circuit cases of United tates v. "Dash 522 F.2d 641 (7th Cir. 1975), cert. denied, 424 US. 977, 96 S. Ct. 1484, 47 L. Ed. 2d 748, 44 US.LW. 3532 (1976); United States v. Keane, 522 F.2d 534 (7th 18 Cir. 1975), cert. denied, 424 U.S. 976, 96 S. Ct. 1481, 47 L. Ed. 2d 746, 44 U.S.L.W. 3532 (1976); United States uv. Isaacs, supra, and United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S. Ct. 155, 38 L. Ed. 2d 61 (1973). In each of these cases, the court found that either — or public official had breached his duty to thful and honest services and that this breach contributed to the court’s finding of a § 1341 scheme to defraud. These opinions contain broad statements which the Government cites as supportive of its position in the present case. However, these general statements, standing alone, are not necessarily controlling .... United States v. George, supra, is a kickback case. It involved a defendant who permitted his personal financial interests to interfere with his duty to secure the most favorable bargain for his employer. United States uv. Keane, supra, is also distinguishable. In thas cose, Keone, a city eidarmen, perticipated in a complicated and clandestine scheme to purchase, through a newly-established investment company, oe propery from county-sponsored scavenger sales. used position as chairman of the City Finance Committee to secure preferential treatment for the ne pres apteroe dein np et deny mummy The activities described in Keane cannot be deemed to McNeive’s conduct. Keane permitted his personal interest to distort his discretion and to adversely affect the legislative functions of the Cit Council. McNeive's scheme did not interfere at all wit any of his discretionary functions since the issuance of the permits was only a ministerial duty. The Government's reliance upon United States u. Isaacs, supra, and other bribery cases is likewise The 19 this case, however, does not fit within that mold. The Government does not, and could not, characterize the tips received by McNeive as disguised bribes. Furthermore, the tips did not affect McNeive’s discretio judgment nor result in any official derma treatment ae ares a ve's compared egregious bribery scheme in /saacs, is relatively innocuous, and petty to the extent that there is no actual intent to defraud, whi is an essential element of the mail fraud statute. The case of United States v. Bush, supra, is likewise not on point. In that case, a public official concealed his interest in an advertising agency and used his official influence to induce the City to issue an advertising contract to his agency. The court, dra an analogy to kickback cases such as George, correctly concluded that defendant’s conduct deprived the City of the opportunity of securing the most economically favorable contract. As previously stated, this constituent is absent in the present case. ee Based upon the language and underlying policy of 1341, we concluded that McN eive’s conduct is beyon the pale of that statute. We simply