Opposition Brief — Woodward v. United States

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| DEC 30 1998

No. 98-462 .

THE CLERK!

: TU L

In the Supreme Court of the GQnited States

OCTOBER TERM, 1998

K’'RANCIS H. WOODWARD. PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR

'O THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JAMES K. ROBINSON

Ass stant Attorneu G

NINA GOODMAN

Attorney

Department of Just

Wash mato? ; DC

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QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support

petitioner’s mail and wire fraud convictions.

2. Whether the district court properly instructed the

jury on the intent required for conviction on the fraud

charges.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Badders v. United States, 240 U.S. 391 (1916) .......00000.... 16

Chapman vy. United States, 500 U.S. 453 (1991) .............. 17

Kann v. United States, 323 U.S. 88 (1944) .......... ee 14, 15

McNally v. United States, 483 U.S. 350 (1987) ...........20. 4

Parker v. Levy, 417 U.S. T83 (1974) .........c.ccccssovsessseseoees 17

Parr v. United States, 363 U.S. 370 (1960) .............. 14, 15, 16

Schmuck v. United States, 489 U.S. 705 (1989) .............. 14-15

United States v. Evans, 148 F.3d 477 (5th Cir.

1988), petition for cert. pending, No. 98-7223 ...........s:0:0+ 15

United States v. Maze, 414 U.S. 395 (1974) ......ceesesees 14,15

United States v. Mazurie, 419 U.S. 544 (1975) ........ 17

United States v. McNeive, 536 F.2d 1245 (8th Cir.

SPINE, cide tei cacesatiaen ci abdibbicaceasighibeeenesd tabs beNeciantonsiiuateebhateieonl 12,13

United States v. Rabbitt, 583 F.2d 1014 ‘8th Cir.

1978), cert. denied, 439 U.S. 1116 (1979) wee eens 12,13

United States v. Sawyer, 85 F.3d 713 (1st Cir.

Ts api emsiaiblnigcinoionane 6, 9, 13, 16

Statutes:

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

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SS 5 SRS EAE RANT Se nO a YC 4,5, 10,11, 17

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1998

No. 98-462

FRANCIS H. WOODWARD, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-56a)

is reported at 149 F.3d 46.

JURISDICTION

The judgment of the court of appeals was entered on

July 20, 1998. The petition for a writ of certiorari was

filed on September 17, 1998. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of Massachusetts, petitioner was

convicted of mail fraud, in violation of 18 U.S.C. 1341;

wire fraud, in violation of 18 U.S.C. 1343; interstate

travel to commit bribery, in violation of 18 U.S.C. 1952;

2

and conspiracy to commit those offenses, in violation of

18 U.S.C. 371. The district court sentenced petitioner

to six months’ imprisonment, to be followed by two

years’ supervised release, and imposed a fine of $5000.

The court of appeals affirmed. Pet. App. la-56a; Gov’t

C.A. Br. 3.

1. From January 1977 until April 1992, petitioner

was a member of the Massachusetts House of Repre-

sentatives. From January 1985 to January 1991, he

served as the House Chair of the state legislature’s

Joint Committee on Insurance. Together with the

Senate Chair, petitioner supervised the staff of the

Insurance Committee-and scheduled all hearings and

meetings. He had the authority to assign bills to the

hearing calendar and subsequent executive sessions,

and to take other actions that would help advance bills

through the committee. Petitioner also had consider-

able influence over the ultimate disposition of a bill,

including the ability both to “carry” a bill through the

legislative process by advocating or leading the debate

for the bill, and to send a bill to “study,” which would

effectively shelve it. Pet. App. 2a, 4a & n.1; Gov’t C.A.

Br. 3-4.

William Sawyer was a lobbyist for the John Hancock

Mutual Life Insurance Company (Hancock), one of the

two largest life insurance companies in Massachusetts.

From 1984 to 1992, petitioner accepted approximately

$8700 in gratuities from Sawyer, for which Sawyer was

then reimbursed by Hancock. Sawyer’s expenditures

on behalf of petitioner consisted mainly of payments for

meals, golf outings, and other entertainment both at

conferences—sponsored by the National Conference of

Insurance Legislators (COIL), a national association of

state legislators involved in insurance matters—and in

Massachusetts. The gratuities offered by Hancock to

3

petitioner increased when he ascended to the position of

House Chair of the Insurance Committee. Those gra-

tuities remained at high levels throughout his chair-

manship and through 1991, the year he left his position

as co-chair. In 1992, the year petitioner resigned from

office, he received a mere $16 in gratuities from Han-

cock. Pet. App. 2a-3a, 5a-8a; Gov’t C.A. Br. 4-8.

During his tenure as House Chair of the Insurance

Committee, petitioner met with Sawyer approximately

three times a week when the legislature was in session.

Petitioner consistently took official actions that pro-

moted the interests of Hancock and the life insurance

industry. Insurance Committee research director -

Robert Smith stated that petitioner was the most pro-

life-insurance-industry chair during Smith’s ten-year

tenure. For example, in 1989 a bill opposed by Hancock

would have required mandatory discounts on life insur-

ance for non-smokers. After the bill received a favor-

able recommendation from the Insurance Committee

based on the support of the Senate Chair, petitioner led

the opposition to the bill in debate before the full House

of Representatives, ultimately defeating the bill. Peti-

tioner also repeatedly led the Insurance Committee to

support and report favorably bills proposed by the

insurance industry and then pushed those bills through

the legislative process. Pet. App. 8a, 25a; Gov’t C.A.

Br. 8-11.

Massachusetts law required petitioner to file a yearly

Statement of Financial Interests (SFI) with the Massa-

chusetts State Ethics Commission. Pet. App. 29a-30a;

see Mass. Gen. Laws Ann. ch. 268B, § 5 (West 1992 &

Supp. 1998). Petitioner was required to disclose on his

SFI forms gifts with an aggregate value greater than

$100 that he received from lobbyists or businesses that

had a direct interest in legislation. Petitioner did not

disclose any of the gratuities received from Hancock on

his SF1 forms for the years 1984 through 1992. Pet.

App. 30a; Gov’t C.A. Br. 12-15.

After petitioner left the legislature, he asked Sawyer

to help him obtain employment as a lobbyist with Han-

cock. Sawyer, however, told petitioner that he lacked

the necessary experience for the job. In a conversation

with Smith, petitioner expressed disappointment at

Sawyer’s unwillingness to help him. Smith stated that

petitioner told him: “After all I did for Bill Sawyer, you

know, I can’t believe he’s not—he can’t get me a job.”

Petitioner complained to Smith that “you would think

after all the years and everything I’ve done I would be

treated better than I have been treated.” Petitioner

also reported to Smith that he had told Sawyer that

“lilf he [petitioner] could not get the job himself he’d

like to see his son Brian get the job.” Pet. App. 21a-24a;

Gov't C.A. Br. 11-12.

2. A federal grand jury returned a 28-count indict-

ment charging petitioner with conspiracy, in violation of

18 U.S.C. 371; multiple counts of mail and wire fraud, in

violation of 18 U.S.C. 1341, 1343, 1346: and mu!tiple

counts of interstate travel to commit bribery, in viola-

tion of 18 U.S.C. 1952. Pet. App. 59a-77a. The mail and

wire fraud counts alleged a scheme to defraud the

Commonwealth of Massachusetts and its citizens of

their right to petitioner’s honest services as a state

legislator." The indictment charged that in furtherance

' The mail and wire fraud statutes, 18 U.S.C. 1341, 1343, pro-

scribe mailings and wire transmissions in furtherance of “any

scheme or artifice to defraud.” In McNally v. United States, 483

U.S. 350 (1987), this Court held that Section 1341 was “limited in

scope to the protection of property rights” and did not criminalize

schemes “designed to deprive individuals, the people, or the gov-

ernment of intangible rights.” Jd. at 358, 360. The following year,

ee ee

5

of this scheme, petitioner accepted illegal gratuities

from individuals representing Hancock and the in-

surance industry trade association, that he filed false

SFI forms in which he unlawfully failed to report his

receipt of those gratuities, and that he repeatedly per-

formed official acts on behalf of Hancock and the trade

association. Pet. App. 10a, 64a-72a.

At trial, the district court instructed the jury that in

| order to convict petitioner on the fraud counts, the

government was required to prove beyond a reasonable

| doubt that petitioner acted with intent to defraud.

' 10/1/96 Tr. 98-99; Gov’t C.A. Br. 40. The court in-

| structed that such intent “means to act knowingly and

with a specific intent to deceive for the purpose either

| of causing a loss to another or bringing about gain to

one’s self or for both of those purposes.” 10/1/96 Tr. 98-

99; Gov’t C.A. Br. 40-41. Further, the court stated that

to prove intent to defraud the government was re-

quired to show petitioner’s “lack of good faith * * *

beyond a reasonable doubt.” 10/1/96 Tr. 109-110; Gov’t

C.A. Br. 41. The district court warned the jurors that

“unattractive or reprehensible” behavior in the rela-

tionship between legislators and lobbyists does not

constitute a violation of federal law. 10/1/96 Tr. 95.

“The focus here is on the intent of the defendant to

accept a gratuity, actually to influence his officiat!

duties, to cause him to depart from his duty to act as a

disinterested legislator or legislative decision-maker.”

Congress enacted 18 U.S.C. 1346, which provides that, for pur-

poses of the mail fraud and wire fraud statutes, “the term ‘scheme

or artifice to defraud’ includes a scheme or artifice to deprive

another of the intangible right of honest services.” Anti-Drug

Abuse Act of 1988, Pub. L. No. 100-690, § 7603(a), 102 Stat. 4508.

6

Id. at 101. The court also gave the following instruc-

tion:

You may not find that the defendant violated either

set of the federal laws, which I have described to

you, if his receipt of the expenditures was solely

part of a routine cultivation of a business or political

friendship rather than an intent on his part to be

influenced in his official legislative duties. If, in-

stead or in addition, there is an intent on the defen-

dant’s part to be influenced in his official legislative

duties, then you may find a violation of either set of

federal laws. If there is both the intent to cultivate

a business and political friendship and the intent to

be influenced in official legislative duties, then you

may find a violation of the federal laws.*

Id. at 128; Gov’t C.A. Br. 41. The court then reminded

the jurors that “you’re not to be concerned with

whether or not it is unattractive for lobbyists and leg-

islaters to have a close personal friendship,” and cau-

tioned them that “[p]ayments for entertainment, lodg-

ing, golf, sports events and the like cannot serve as the

basis for the federal violations if the aim is limited to

2 That instruction was derived from the court of appeals’

decision in United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996), in

which William Sawyer—the same Hancock lobbyist—had appealed

his convictions for mail and wire fraud, as well as interstate travel

to commit bribery. The court of appeals reversed Sawyer’s convic-

tions based in part on the district court’s failure to instruct the

jury that a lobbyist who provides gratuities to a public official “has

not violated the bribery component of the Travel Act (or com-

mitted honest services fraud) if his intent was limited to the

cultivation of business or political friendship.” Jd. at 741. The

court explained that “[o]nly if instead or in addition, there is an

intent to cause the recipient to alter her official acts may the jury

find” a violation of those federal statutes. Jbid.

7

the cultivation of a business or political friendship.”

10/1/96 Tr. 128-129; Gov’t C.A. Br. 41-42.

The jury found petitioner guilty on the conspiracy

count (Count 1), one mail fraud count (Count 4), one

wire fraud count (Count 9), and two Travel Act counts

(Counts 14 and 24),° and acquitted petitioner on all

remaining counts. Pet. App. 9a & n.4.

3. The court of appeals affirmed. Pet. App. la-56a.

Petitioner challenged the sufficiency of the evidence to

sustain his fraud convictions, claiming that the evidence

was insufficient to prove that he accepted the gratuities

with the intent to deprive the public of his honest

services. Jd. at 15a. The court of appeals rejected that

claim, finding that evidence concerning the circum-

stances of petitioner’s relationship with Sawyer sup-

ported the jury’s finding that petitioner “knew what

the deal was—that the gratuities would continue as

long as he voted favorably to Hancock’s interests—and

that he intended to be influenced by the gratuities.” Jd.

at 19a (citation omitted). The court noted one instance

in which Sawyer departed from a conference early but

left his credit card behind to pay for petitioner’s golf

and meal expenses during the remainder of the con-

ference. The court found that that arrangement was

“not consistent with mere friendship as the sole pur-

pose of the payments, but rather is more consistent

with the theory of a gratuity made because of [peti-

tioner’s] potential official actions.” Jbid. The court of

appeals further noted that “[t]he same inference can be

drawn from the fact that the expenditures were not

mutual but rather operated in one direction only.” Jd.

3 The district court granted a post-trial motion for judgment of

acquittal on Count 24, ruling that it was multiplicitous with Count

9, Pet. App. 9a n.4; Gov’t C.A. Br. 3.

8

at 20a. The court also remarked that the government

presented direct evidence of petitioner’s illegal intent,

including his statements to Smith concerning his efforts

to persuade Sawyer to assist him in obtaining employ-

ment with Hancock. /d. at 2la-24a. In addition, the

court found that the jury’s verdict was supported by

evidence of the extent to which petitioner’s discretion-

ary official actions served the interests of Hancock and

the insurance industry. Jd. at 24a-29a.

Petitioner also argued that the evidence was in-

sufficient to support his wire fraud conviction because

the telephone call that formed the basis of that con-

viction was not made “for the purpose of executing” the

fraudulent scheme. Pet. App. 32a; see 18 U.S.C. 1348.

The telephone call charged in the indictment was placed

by a Hancock employee to a hotel in Orlando, Florida,

to reserve a hotel room so that Sawyer could attend a

COIL conference in that city. Pet. App. 33a. The court

of appeals held that “[t]he jury could reasonably have

concluded that the call was made in furtherance of the

scheme to defraud.” Jd. at 34a. The court reasoned

that in order to provide petitioner with illegal gratui-

ties at the COIL conference, Sawyer needed to secure a

hotel room in which to stay during the conference. Be-

cause “[t]he call in question secured that room,” the

court stated, it “played an essential role in the scheme.”

Ibid.

Likewise, the court rejected petitioner’s argument

that the government had failed to prove that the mail-

ing alleged in the mail fraud count was made in further-

ance of the scheme to defraud. Pet. App. 35a-37a. The

use of the mails on which petitioner’s conviction was

predicated was Citibank Visa’s mailing of a bill to

Sawyer for charges arising from his use of his Visa card

to pay for gratuities given to petitioner. /d. at 35a-36a.

9

Petitioner claimed that because the mailing took place

several weeks after Sawyer purchased those meals and

entertainment for petitioner, the fraudulent scheme

“had already reached fruition by the time the mails

were used.” Jbid. The court of appeals disagreed,

noting that petitioner mistakenly “assume[d] a new

fraudulent scheme began and ended every time Sawyer

used his credit card to pick up the tab” for petitioner.

Id. at 36a. On the contrary, the court stated, “the

evidence supported the conclusion that the fraudulent

scheme in which [petitioner] and Sawyer participated

was an ongoing scheme, lasting for years and involving

Sawyer’s use of his credit card.” J/bid. The court con-

cluded that it was “a necessary part of the ongoing

scheme that Sawyer pay his bill after receiving it in the

mail.” Jbid.

Petitioner also argued that the district court erred in

instructing the jury that it could find him guilty on the

fraud charges if it found that, in accepting the gratuities

from Sawyer, *e intended both to cultivate his friend-

ship with the lobbyist and to be influenced in his official

duties. Pet. App. 46a-48a. The court of appeals held

that the district court’s instruction accorded with its

prior decision in United States v. Sawyer, 85 F.3d 713

(1st Cir. 1996) (Pet. App. 48a-51a), rejecting petitioner’s

suggestion that Sawyer held that “the formation of a

friendship between a lobbyist and a legislator somehow

insulates both from prosecution for honest services

fraud.” Jd. at 48a. Instead, the court explained, “[a]

defendant may be prosecuted for deprivation of honest

services if * * * he is found to have intended both a

lawful and an unlawful purpose to some degree.” Jd. at

50a.

The court also rejected petitioner’s contention that

the district court should have instructed the jury that it

10

could not convict him if it found that his illegal intent

was “de minimus [sic] or insignificant,” reasoning that

“(t]he criminal law may punish conduct even if its illegal

purpose is incidental to other, legal purposes.” Pet.

App. 52a. In any event, the court found “no evidentiary

basis” for petitioner’s “implicit contention that he had

no more than a de minimus degree of intent to defraud

the public of his honest services.” Jd. at 53a. Thus, the

court held, any error in the district court’s “omission of

explicit ‘de minimus’ language from the jury instruc-

tions” was harmless. Jbid.

ARGUMENT

1. Petitioner raises two challenges (Pet. 7-16, 21-25)

to the sufficiency of the evidence to support his mail

and wire fraud convictions. Neither claim warrants this

Court’s review.

a. First, petitioner argues (Pet. 7-16) that the evi-

dence was insufficient because the government failed to

prove a “direct link” (Pet. 10) between any particular

gratuity provided by Sawyer and a specific official

action that petitioner would not have taken “but for his

receipt of the gratuity.” Jbid. Petitioner contends that,

to obtain a conviction for deprivation of honest services

under the mail and wire fraud statutes, 18 U.S.C. 1341,

1343, 1346, the government must present evidence

satisfying such a “quid pro quo requirement.” Pet. 14.4

* The issue in this case is distinct from the question presented

in United States v. Sun Diamond Growers, cert. granted, No. 98-

131 (Nov. 2, 1998). In that case, the Court granted certiorari to

consider whether “the requirement in 18 U.S.C. 201(e)(1)(A) that a

thing of value be given ‘for or because of any official act’ [is] satis-

fied by a showing that the giving of a thing of value was motivated

by the recipient’s official position.” Neither the mail fraud nor

the wire fraud statute, 18 U.S.C. 1341, 1343, contains similar

1]

Petitioner does not cite—and we have not found—any

decision in conflict with the court of appeals’ decision

below. Petitioner relies (Pet. 10-11) on cases in which

public officials were convicted of mail or wire fraud

based on evidence of specific actions taken by the

defendants in exchange for bribes. Yet he cites no

decision holding that Section 1346 requires such evi-

dence of a “direct link * * * between a particular

gratuity and resulting favorable action * * * [that]

would not have been taken by the official but for his

receipt of the gratuity.” Pet. 10.

In any event, there is no basis for petitioner’s claim

(Pet. 16) that his conviction was based merely upon

evidence of his “performance of official acts which by

happenstance were favorable to Hancock but which

were influenced by [his] view of the merits and not his

receipt of the gratuities.” As the court of appeals

correctly held, the jury could infer that petitioner knew

that the gratuities from Sawyer “would continue as

long as he voted favorably to Hancock’s interests,” and

that petitioner “intended to be influenced by the gratui-

ties” (Pet. App. 19a), as demonstrated by the evidence

that he “repeatedly acted on behalf of Hancock and the

life insurance industry in his capacity as co-chair” of the

Insurance Committee. /d. at 8a. The court of appeals

also relied on several other aspects of the record at trial

in holding that sufficient evidence supported the jury’s

verdict, including Sawyer’s leaving his credit card

behind at a conference to cover petitioner’s meals and

golf expenses, the fact that Sawyer covered petitioner’s

language. Indeed, 18 U.S.C. 1346 broadly defines a “scheme or

artifice to defraud” for purposes of the mail and wire fraud

statutes to include a “scheme or artifice to deprive another of the

intangible right of honest services.”

12

expenses but not vice versa, and the direct evidence of

petitioner’s statements to Smith concerning his efforts

to persuade Sawyer to help him (or failing that, his son)

to obtain a position with Hancock as a lobbyist.® Jd. at

19a-24a. In short, as the court of appeals concluded (id.

at 28a), the evidence was sufficient to permit the jury to

infer a “connection between the gratuities and [peti-

tioner’s] official acts.”

Petitioner disputes (Pet. 12-13) the court of appeals’

further finding that his failure to disclose the gratuities

received from Sawyer on his SFI forms, as required by

state law, supported the jury’s inference that petitioner

intended to deprive the public of his honest services.

Pet. App. 29a-32a. Petitioner claims that in that re-

spect the court’s decision is in conflict with the Eighth

Circuit’s rulings in United States v. Rabbitt, 583 F.2d

1014 (1978), cert. denied, 439 U.S. 1116 (1979), and

United States v. McNeive, 536 F.2d 1245 (1976). Neither

decision supports his claim.

In Rabbitt, the defendant was a state legislator who,

in return for a fee, aided an architectural firm in ob-

taining state contracts. 583 F.2d at 1020. The defen-

dant, however, “did not, in his official capacity, control

the awarding of state contracts to architects,” and the

evidence did not demonstrate that he failed to carry out

any of his official legislative duties or that he had an

affirmative duty to disclose his interest. Jd. at 1026.

The court in Rabbitt acknowledged that “[t]he concept

of fraud upon the public may clearly fall within the

ambit of the mail fraud statute where dishonest conduct

by a public official directly implicates the functions and

° This evidence belies petitioner's claim (Pet. 14) that the court

of appeals allowed the government to convict him based solely on a

“scorecard” of his votes on various legislative proposals.

Catia Rta yi) elinate

13

duties of that official’s public office.” Id. at 1024 (em-

phasis added). Similarly, in McNeive, a plumbing in-

spector’s acceptance of gratuities for the performance

of his duties was held not to violate the mail fraud

statute because the defendant “exercise[d] no discre-

tion in the issuance of plumbing permits,” and he “was

not derelict in any of his affirmative duties as Chief

Plumbing Inspector.” 536 F.2d at 1246, 1252. The court

also relied on the absence of any attempt by the

defendant to conceal his conduct as “tend[ing] to negate

a finding that [he] entertained the requisite intent to

defraud.” Jd. at 1252.

Here, by contrast, petitioner did exercise significant

discretionary control over the legislative agenda for

bills important to the life insurance industry. Accord-

ingly, the court of appeals properly held that “[wJhen

an official fails to disclose a personal interest in a

matter over which she has decision-making power, the

public is deprived of its right either to disinterested

decision making itself or, as the case may be, to full

disclosure as to the official’s potential motivation be-

hind an official act.” Pet. App. 29a-30a (emphasis

added) (quoting Sawyer, 85 F.3d at 724). Moreover.

petitioner had a duty under state law to disclose the

gratuities he received from Sawyer. His failure to do

so, in accordance with McNeive, could support a finding

of petitioner’s intent to defraud. In short, petitioner’s

conviction would also have been affirmed under the rule

of the Eighth Circuit.®

® There is no basis for petitioner’s contention (Pet. 13) that the

court of appeals improperly “collapse[d]” two elements of his fraud

offenses, the intent to deprive the public of his honest services and

the intent to deceive required to make out a “scheme to defraud.”

As petitioner acknowledges, the court of appeals specifically stated

(Pet. App. 12a n.6) that the two elements are distinct and must

14

b. Petitioner also renews his contention (Pet. 21-25)

that the government failed to prove that the telephone

call and mailing on which his fraud convictions were

based furthered the execution of the fraud. That claim

is limited to the particular facts of this case and was

properly considered and rejected by the court of

appeals.

Petitioner suggests (Pet. 23-24) that the fraudulent

scheme could have been carried out in other ways that

did not involve the charged telephone call or mailing.

This Court has made clear, however, that the use of the

mails or wires on which a mail fraud or wire fraud

conviction is based “need not be an essential element of

the scheme” to defraud; rather, “i]t is sufficient for the

mailing to be incident to an essential part of the

scheme, or a step in [the] plot.” Schmuck v. United

States, 489 U.S. 705, 710-711 (1989) (citation and inter-

nal quotation marks omitted).

Petitioner also contends (Pet. 24) that the court of

appeals’ ruling conflicts with this Court’s holdings in

Kann v. United States, 323 U.S. 88 (1944); Parr v.

United States, 363 U.S. 370 (1960); and United States v.

Maze, 414 U.S. 395 (1974), because the charged mailing

occurred only after petitioner received the gratuities

from Sawyer. In Kann, Parr, and Maze, however, the

fraudulent scheme had already “reached fruition”

before the charged mailings took place, so that the mail-

ings “involved little more than post-fraud accounting

among the potential victims of the various schemes.”

Schmuck, 489 U.S. at 713, 714; see id. at 712-714

each be satisfied in order to sustain a fraud conviction based on

deprivation of honest services. Rather than “collapsing” the two

elements, the court merely held that the same evidence supported

the jury’s findings with respect to both elements. See id. at 31a.

15

(distinguishing Kann, Parr, and Maze). In this case, as

the court of appeals found (Pet. App. 36a), the mailing

of Sawyer’s credit card bill advanced an “ongoing

scheme” in which Sawyer repeatedly used his credit

card to pay for gratuities provided to petitioner. Thus,

it is clear that the mailing was a “step in the plot” that

furthered the execution of the scheme to defraud.’

Petitioner’s claim (Pet. 21-22) that the mailing and

telephone call were merely “pretexts to invoke federal

jurisdiction” over violations of state law is equally un-

availing. As this Court has explained, “[t]he fact that a

scheme may violate state laws does not exclude it from

the proscriptions of the federal mail fraud statute, for

Congress ‘may forbid any . . . [mailings] . . . in

furtherance of a scheme that it regards as contrary to

public policy, whether it can forbid the scheme or not.’”

? For the same reason, petitioner’s reliance (Pet. 25 n.17) on

United States v. Evans, 148 F.3d 477 (5th Cir. 1998), petition for

cert. pending, No. 98-7223, is likewise misplaced. The defendant in

that case was a parole officer in Fort Worth, Texas, who accepted

bribes from a parolee she supervised in exchange for concealing his

parole violations. Jd. at 478-479. The defendant submitted false

travel vouchers for required visits to the parolee’s places of resi-

dence and employment that she in fact never made. /d. at 479.

After the vouchers were approved by her supervisor, they were

mailed to Austin, Texas, for processing. Jd. at 482-483. The defen-

dant was convicted of mail fraud based on the mailing of the travel

vouchers. The court of appeals reversed her mail fraud convic-

tions, explaining that “there was nobody in Austin who might have

uncovered the scheme because [the defendant] did or did not

submit travel vouchers,” and, therefore, the scheme reached frui-

ion once the defendant’s supervisor approved the vouchers. /d. at

483. Because the charged mailings took place after that time, the

court held, they did not further the scheme to defraud the State of

its right to the defendant’s honest services. Jbid. Here, in con-

trast, the credit card mailings took place during an ongoing course

of conduct and assisted in perpetrating the scheme.

16

Parr, 363 U.S. at 389 (quoting Badders v. United

States, 240 U.S. 391, 393 (1916)).

2. Petitioner also contends (Pet. 17-20) that the

district court erred in instructing the jury regarding

the requisite intent under the mail and wire fraud

statutes for honest services fraud. He faults the court’s

instructions because he claims they permitted him to be

convicted without proof of “the necessary quantum of

unlawful intent in the mix.” Pet. 18.

In Sawyer, the First Circuit held that, in honest

services fraud cases concerning political corruption, a

“jury needs to be told specifically that the defendant

has not * * * committed honest services fraud * * *

if his intent was limited to the cultivation of business or

political friendship.” 85 F.3d at 741. In accord with

Sawyer, the district court instructed the jury that it

could not find petitioner guilty “if his receipt of the

expenditures was solely part of a routine cultivation of

a business or political friendship rather than an intent

on his part to be influenced in his official duties.” Pet.

App. 5la. The court also instructed the jury that it

could find petitioner guilty on the fraud charges if there

was “both the intent to cultivate a business and political

relationship and the intent to be influenced in official

legislative duties.” Jbid. (emphasis added). As the

court of appeals correctly observed, that instruction

complied for all relevant purposes with the require-

ments set forth in Sawyer. Id. at 50a-51a. In his peti-

tion to this Court, petitioner fails to cite any court of

appeals decision—in any circuit—that would require a

district court to go beyond Sawyer’s requirements and

give a “de minimis” intent instruction in such circum-

stances. Absent such disagreement among the lower

courts, no further review is warranted by this Court.

17

In any event, the court of appeals’ decision is correct.

The court found that, “even if the instructions were not

technically adequate because they lacked an explicit ‘de

minimus’ instruction, [petitioner] was not prejudiced

thereby.” Pet. App. 52a. As explained and recounted

above, the evidence presented _at trial more than ade-

quately supported the jury’s finding that petitioner

possessed the intent to defraud. There is thus no basis

for petitioner’s claim that he accepted gratuities from

Sawyer primarily for the lawful purposes of cultivating

business and political friendship and only to a de

minimis extent for the unlawful purpose of allowing his

official legislative duties to be influenced thereby.

* Because sufficient evidence existed to support the jury’s

inference of petitioner’s intent to defraud, he also cannot press his

due process claim that the mail and wire fraud statutes are void for

vagueness. Petitioner may not successfully attack Section 1346 as

unconstitutionally vague by showing that hypothetical situations

exist in which application of the statute would be ambiguous. He

can prevail only by demonstrating that the statute failed to pro-

vide clear warning that his own conduct was proscribed. See

Chapman v. United States, 500 U.S. 453, 467 (1991) (“First

Amendment freedoms are not infringed * * * , so the vagueness

claim must be evaluated as the statute is applied to the facts of this

case.”); United States v. Mazurie, 419 U.S. 544, 550 (1975)

(“(VJagueness challenges to statutes which do not involve First

Amendment freedoms must be examined in the light of the facts of

the case at hand.”); Parker v. Levy, 417 U.S. 733, 756 (1974) (“One

to whose conduct a statute clearly applies may not successfully

challenge it for vagueness.”).

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

NINA GOODMAN

Attorney

DECEMBER 1998