USCA1 Opinion
June 24, 1996 United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 95-1689
UNITED STATES,
Appellee,
v.
F. WILLIAM SAWYER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on May 30, 1996, is amended
as follows:
Page 35, line 4 - change "is" to "in"
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 95-1689
UNITED STATES,
Appellee,
v.
F. WILLIAM SAWYER,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Thomas R. Kiley, with whom Carl Valvo, Steven H. Goldberg,
_________________ ___________ ___________________
Matthew L. Schemmel, and Cosgrove, Eisenberg & Kiley, P.C., were on
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brief for appellant.
Timothy W. Jenkins, Gary C. Adler, and O'Connor & Hannan, L.L.P.,
__________________ _____________ _________________________
were on brief for State Government Affairs Council, amicus curiae.
Ralph D. Gants, Susan Murphy, and Palmer & Dodge, were on brief
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for The Massachusetts Association of Professional Lobbyists, amicus
curiae.
Michael Kendall, Assistant United States Attorney, with whom
________________
Jonathan Chiel, Acting United States Attorney, and Amy Lederer,
_______________ ____________
Assistant United States Attorney, were on brief for appellee.
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May 30, 1996
_____________________
STAHL, Circuit Judge. Appellant F. William Sawyer
STAHL, Circuit Judge.
_____________
appeals his convictions for mail and wire fraud, interstate
travel to commit bribery, and conspiracy to commit those
offenses. The district court imposed a $10,000 fine, and
sentenced him to imprisonment for twelve months and one day.
In this appeal, Sawyer claims that the district court erred
in its jury instructions and in evidentiary rulings, and that
the evidence was insufficient to establish his guilt beyond a
reasonable doubt. For the reasons that follow, we vacate the
convictions and remand for further proceedings.
I.
I.
__
Facts
Facts
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Viewing the record in the light most favorable to
the verdict, United States v. Wihbey, 75 F.3d 761, 764 (1st
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Cir. 1996), a rational jury could have found the following
facts from the trial evidence.
During the indictment period, 1986 to March 1993,
the John Hancock Mutual Life Insurance Company ("Hancock")
employed the defendant-appellant, F. William Sawyer, as a
senior lobbyist within its Government Relations Department.
As the largest life insurance company in Massachusetts,
Hancock had a continuing and abiding interest in the state's
insurance laws. Sawyer's job was to lobby the Massachusetts
Legislature on Hancock's behalf. In particular, his job
description required him to: research and develop Hancock's
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position on pertinent legislation; communicate relevant
information to representative government officials in order
to effect a favorable outcome and to protect the Company's
interests; and establish and maintain relationships with
legislators as well as with members of industry associations.
A principal focus of Sawyer's lobbying activities
was the Legislature's Joint Insurance Committee ("Insurance
Committee"), composed of state representatives and senators.
The Insurance Committee has the ability to impact life
insurance regulations more than any other legislative
committee. To this end, it reviews approximately 300 bills
per year, about fifty of which affect the life insurance
industry. During each year of the indictment period,
Massachusetts life insurance companies actively sought the
passage of about five bills, most of which made it
successfully through the Insurance Committee "in some form or
another." Robert J. Smith, a research analyst and director
for the Committee, testified that, during the indictment
period, Sawyer was one of three lobbyists who appeared most
often to lobby for bills sought by the life insurance
industry.
The Insurance Committee is co-chaired by a senate
and house member, each with equal control over the fate of
bills assigned to the Committee. The Chairs have the ability
to schedule hearings, assign bills to the hearing calendar
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and subsequent executive sessions, advocate bills at
executive sessions, and take other action to advance them
through the Committee. Each Chair could "carry" a bill,
i.e., actively guide it through the Legislature as a whole;
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alternatively, a Chair could send it to the "Study Committee"
which usually shelved it.
During the indictment period, Sawyer focused his
lobbying activities on the house members of the Insurance
Committee, some of whom took action that directly or
indirectly affected Hancock's interests. Representative
Francis H. Woodward was the House Chair of the Insurance
Committee from 1986 to 1990. Research analyst Smith
identified Sawyer as the lobbyist he saw most often with
Representative Woodward during Woodward's tenure as the
Committee's House Chair. During this time, the Insurance
Committee never rejected Woodward's recommendations on bills
affecting the life insurance industry and Woodward "carried"
most of the bills sought by the industry. Representative
Frank Emilio, a member from 1986 to 1990, sponsored a
September 1990 bill on behalf of Hancock. Representative
John F. Cox sponsored bills that Hancock supported in
November 1990 and December 1991. In addition,
Representatives Walsh, Mara, and Driscoll sponsored
legislation sought by the life insurance industry.
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"Legislative Reports" issued by the Hancock
Government Relations Department to senior Hancock officers,
and signed by Sawyer, outlined specific lobbying efforts and
proceedings in the Massachusetts Legislature pertinent to
Hancock's interests. In July 1990, Sawyer wrote a memorandum
to Hancock's Management Committee summarizing the successful
efforts of Hancock lobbyists, including himself, in excluding
Hancock from a bill that would have subjected it to a $100-
million tax liability. In a September 1990 memorandum to the
Management Committee, Sawyer referred to a 1990 bill, filed
by Representative Emilio, that allowed Hancock to assess and
report its real estate advantageously. A November 1990
letter from Ralph F. Scott, Hancock's Assistant Legislative
Counsel, to Representative Cox indicated that Sawyer and
Scott planned to work with Cox in obtaining favorable action
on a specific bill that he had sponsored for Hancock.
During the indictment period, Sawyer paid for
numerous meals, rounds of golf, and other entertainment for
and with Massachusetts legislators, including many members of
the Insurance Committee. Although Sawyer initially paid for
most of these activities himself, they were treated as
business expenses and reimbursed by Hancock (hereinafter
"expenditures"). In accordance with Hancock's procedures,
Sawyer would complete monthly expense vouchers, attaching
receipts and a handwritten calendar that identified the
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recipients of the expenses. Sawyer's supervisor, Raeburn B.
Hathaway, the head of Hancock's Government Relations
Department, reviewed Sawyer's expense vouchers and approved
them for reimbursement. Hathaway's secretary would then
detach the detailed calendars from the vouchers, keeping the
calendars within the Government Relations Department, and
forward the voucher, alone, to the accounting department for
payment.
Analysis of Sawyer's expense vouchers and calendars
during the indictment period revealed that the top three
recipients of his expenditures were: Representative Woodward,
who received more than $8,000 worth of expenditures during
his tenure as Insurance Committee House Chair; Robert
Howarth, an Insurance Committee member from 1986 to 1992
(over $3,000); and Representative Emilio (over $2,500).
After these three legislators left office, Sawyer, on behalf
of Hancock, expended practically nothing on entertaining them
(Woodward, $0; Howarth, $8.33; and Emilio, $85.65).
Specifically, Sawyer's expenditures included
thousands of dollars for golf -- in and out of state -- with
various Massachusetts legislators including Representative
Francis Mara, Woodward's 1991 successor as Insurance
Committee House Chair. Sawyer also hosted dinners for
legislators and their families. In September 1992, Sawyer
provided Representative Mara and his wife tickets for a show
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in Hancock's private box at the Wang Center and ordered an
accompanying dinner.
The apparent catalyst for this prosecution was a
December 1992 trip to Puerto Rico where Sawyer, other
lobbyists, and a group of legislators, including
Representative Mara, travelled for a legislative conference.
The group did not stay at the conference site, but instead
went to a different resort where Sawyer paid for many of the
legislators' meals, transportation, and golf. Hancock
reimbursed Sawyer for some $4,000 of entertainment expenses
from the Puerto Rican trip.1
Both Sawyer and his supervisor, Hathaway, had
reason to believe that these expenditures could or did
violate certain state laws. In his office, Sawyer kept
internal Hancock memoranda, newspaper articles, and opinions
of the Massachusetts Ethics Commission, all explaining or
reporting on Massachusetts ethics-in-lobbying. While some of
the documents varied in their interpretations, they
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1. In 1986, Sawyer and his wife travelled with
Representative Woodward and his wife to New Orleans for the
Super Bowl. Hancock provided the game tickets and reimbursed
Sawyer for the airfare. The district court instructed the
jury that, because this trip occurred before the mail fraud
statute proscribed honest services fraud, it could not
provide the sole basis for a mail fraud conviction. The
court added, however, that the jury could consider the trip
as evidence of Sawyer's state of mind with respect to the
alleged scheme to defraud.
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nonetheless advised on compliance with laws regarding
gratuities, gifts, and lobbying expenditures.
In April 1993, a reporter from the Boston Globe
newspaper queried Richard Bevilacqua, Hancock's Director of
Employee and Customer Communications, about Sawyer's
entertainment of legislators during the 1992 Puerto Rico trip
and about Hancock's legislative agenda during that period.
Bevilacqua, in turn, asked Sawyer about the trip, and Sawyer
opined, "it's difficult to take anyone out to lunch or dinner
these days without going over [the] amount [permitted by
law]." This set of events prompted Hancock to begin an
internal investigation into Sawyer's legislative
expenditures.2 Bruce A. Skrine, vice president, corporate
counsel and secretary for Hancock, asked Sawyer for his
expense records. Contemporaneous with Sawyer's production of
the records, Sawyer told Skrine that the expenses were
"consistent with the way . . . things were done on Beacon
Hill." Sawyer also told Skrine that his reason for making
the expenditures was "to get to know" the legislators and to
develop "a certain relationship so that you could turn to
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2. In the Spring of 1993, the United States Attorney's
Office for the District of Massachusetts ("USAO") commenced
an investigation into Hancock's involvement in the allegedly
illegal expenditures on legislators. In March 1994, Hancock
entered into a civil settlement with the USAO whereby it paid
a fine of about $1,000,000 and promised to cooperate with the
USAO. In return, the USAO agreed not to prosecute Hancock
for any matter relating to the investigation.
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them"; he further indicated that he made these expenditures
to "build and maintain relationships," gain "access to
legislators," and get legislators to "return his calls as a
result of [the expenditures]."
Sawyer caused the mailing of items related to the
expenditures on legislators, including golf bills,
reimbursement requests, and credit card bills. Sawyer also
caused the making of interstate telephone calls to arrange
for some of the entertainment.
Following a nine-day trial, the jury convicted
Sawyer of fifteen counts of mail fraud, nine counts of wire
fraud, eight counts of interstate travel to commit bribery,
and one count of conspiracy. The jury acquitted Sawyer of
two additional mail fraud counts.
II.
II.
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Mail and Wire Fraud Counts
Mail and Wire Fraud Counts
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The government charged that Sawyer and his
unindicted co-conspirator -- his Hancock supervisor, Hathaway
-- engaged in a scheme to deprive the Commonwealth of
Massachusetts and its citizens of the right to the honest
services of their state legislators,3 and used the mails and
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3. According to the indictment, the legislators' duty of
honest services included the obligation to perform their jobs
as Massachusetts lawmakers free from deceit, fraud,
dishonesty, favoritism and self-enrichment. By consent of
the parties, the district court struck the word "favoritism"
in this description. United States v. Sawyer, 878 F. Supp.
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279, 294 (D. Mass. 1995). In addition to this general duty
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interstate telephone wires in furtherance of the scheme, in
violation of 18 U.S.C. 1341, and 1343.4
Sawyer contends that his convictions impermissibly
involve the federal government in setting standards of good
government for local and state officials. He argues that
this case is exemplary of the "dangers of standardless
federal criminal enforcement and unbridled prosecutorial
discretion long-recognized under the mail fraud statute." We
have already considered and rejected these arguments,
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of honest services, the indictment stated that the
legislators had a specific duty to abide by the Massachusetts
laws set forth in the indictment. The indictment identified
both the Commonwealth of Massachusetts and its citizenry as
the fraud victims; for simplicity, we will refer only to the
public (or "citizenry") as the victim.
With regard to the scheme to defraud, the
indictment charged, inter alia, that Sawyer gave, and
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legislators accepted, travel, lodging, golf, meals and other
entertainment in violation of Massachusetts law; that Sawyer
monitored the public coverage of the Massachusetts
Legislature so that he could ensure the nondisclosure of his
gratuities; that Sawyer was given greater access to the
Insurance Committee and its House Chair than was available
generally to the citizenry; that the House Chair of the
Insurance Committee repeatedly performed official acts
advocated by Sawyer on behalf of Hancock; and that Sawyer's
direct supervisor approved of, and authorized Hancock's
reimbursement of Sawyer for, his illegal gratuities.
4. In relevant part, 18 U.S.C. 1341 and 1343 provide:
Whoever, having devised or intending to
devise any scheme or artifice to defraud,
or for obtaining money or property by
means of false or fraudulent pretenses,
representations, or promises . . . [uses
the mails or wires, or causes their use]
for the purpose of executing such scheme
or artifice . . . [shall be punished].
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however. See United States v. Silvano, 812 F.2d 754, 758-59
___ _____________ _______
(1st Cir. 1987). Congress may protect the integrity of the
interstate mails and wires by forbidding their use in
furtherance of schemes to defraud a state and its citizens,
whether or not it can forbid the scheme itself. See id. at
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758 (citing Badders v. United States, 240 U.S. 391, 393
_______ _____________
(1916)); United States v. Rendini, 738 F.2d 530, 533 (1st
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Cir. 1984).5
Sawyer also contends that the government has failed
to establish that he committed "honest services" mail and
wire fraud ("honest services fraud") within the meaning of
the statutes. To explain our resolution of this issue, we
provide a brief overview of the law of honest services fraud.
The ultimate issue is whether or not the "scheme" presented
at trial actually targeted the Massachusetts' citizens' right
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5. Some have observed that these statutes are increasingly
used effectively to convict and punish for the substantive
fraud, and that the use of the mails or wires is merely a
"jurisdictional hook" to bring the conduct within the
proscription of the mail and wire fraud statutes. See Peter
___
J. Henning, Maybe It Should Just Be Called Federal Fraud: The
_________________________________________________
Changing Nature of the Mail Fraud Statute, 36 B.C. L. Rev.
___________________________________________
435 (1995); cf. Schmuck v. United States, 489 U.S. 705, 722-
___ _______ _____________
23 (1989) (Scalia, J. dissenting) (disagreeing with
majority's conclusion that certain mailings were in
furtherance of the demonstrated scheme, and observing that
"[t]he law does not establish a general federal remedy
against fraudulent conduct, with the use of the mails as the
jurisdictional hook . . . . In other words, it is mail fraud,
not mail and fraud, that incurs liability." (internal
citations, quotations and alterations omitted)).
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to "honest services" within the meaning of the mail fraud
statute.
To prove mail and wire fraud, the government must
prove, beyond a reasonable doubt: (1) the defendant's knowing
and willing participation in a scheme or artifice to defraud
with the specific intent to defraud, and (2) the use of the
mails or interstate wire communications in furtherance of the
scheme.6 United States v. Montminy, 936 F.2d 626, 627 (1st
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Cir. 1991) (listing mail fraud elements); United States v.
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Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993) (listing wire
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fraud elements). Because the relevant language in both the
mail and wire fraud statutes is the same, we analyze both
offenses together for the purposes of this case and, for
simplicity, we refer only to mail fraud. See United States
___ _____________
v. Boots, 80 F.3d 580, 586 n.11 (1st Cir. 1996).
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Traditionally, the mail fraud statute reached
schemes that deprived the fraud victim of property or some
other item of economic value. See generally, United States
___ _________ ______________
v. Grandmaison, 77 F.3d 555, 565-66 (1st Cir. 1996). Some
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courts later expanded the scope of the statutes to encompass
schemes intended to defraud citizens of their intangible,
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6. The use of the mails or wires to further the fraudulent
scheme need only be "incidental." United States v.
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Grandmaison, 77 F.3d 555, 566 (1st Cir. 1996). Moreover, the
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"[d]efendant[] need not personally use the [mails or] wires
as long as such use was a reasonably foreseeable part of the
scheme in which [he] participated." United States v. Boots,
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80 F.3d 580, 585 n.8 (1st Cir. 1996).
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non-property right to the honest services of their public
officials. See generally, W. Robert Gray, Comment, The
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Intangible-Rights Doctrine and Political-Corruption
_____________________________________________________________
Prosecutions Under the Federal Mail Fraud Statute, 47 U. Chi.
__________________________________________________
L. Rev. 562, 563 (1980) and cases cited therein. Those
courts rationalized that a public official "acts as `trustee
for the citizens and the State . . . and thus owes the normal
fiduciary duties of a trustee, e.g., honesty and loyalty' to
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them." Silvano, 812 F.2d at 759 (quoting United States v.
_______ _____________
Mandel, 591 F.2d 1347, 1363 (4th Cir.), aff'd in relevant
______ _________________
part en banc, 602 F.2d 653, 653 (4th Cir. 1979), cert.
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denied, 445 U.S. 961 (1980)).
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In 1987, the United States Supreme Court held,
contrary to every circuit court that had decided the issue,
that the mail fraud statute did not prohibit schemes to
defraud citizens of their intangible, non-property right to
honest and impartial government. McNally v. United States,
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483 U.S. 350, 359 (1987); see United States v. Ochs, 842 F.2d
___ _____________ ____
515, 521 (1st Cir. 1988) (noting Court's unexpected
decision), cert. denied, 498 U.S. 895 (1990). Congress
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quickly reacted to the McNally decision by enacting 18 U.S.C.
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1346, which provides that, for the purposes of, inter alia,
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the mail 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." We have
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recognized that 1346 was intended to overturn McNally and
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reinstate the reasoning of pre-McNally case law holding that
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the mail fraud statute reached schemes to defraud individuals
of the intangible right to honest services of government
officials. See Grandmaison, 77 F.3d at 565-66.7
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The concept of governmental "honest services" in
this context eludes easy definition. As Judge Winter has
aptly noted:
One searches in vain for even the vaguest
contours of the legal obligations created
beyond the obligation to conduct
governmental affairs "honestly" or
"impartially," to ensure one's "honest
and faithful participation" in government
and to obey "accepted standards of moral
uprightness, fundamental honesty, fair
play and right dealing" . . . . (citation
omitted) [T]he quest for legal standards
is not furthered by reference to "the
right to good government" and the duty
"to act in a disinterested manner."
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7. See also 134 Cong. Rec. H11108-01, 1988 WL 182261 (Oct.
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21, 1988) (statement of Rep. Conyers) ("This amendment is
intended merely to overturn the McNally decision. No other
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change in the law is intended."); 134 Cong. Rec. S17360-02,
1988 WL 182529 (Nov. 10, 1988), Section Analysis of Judiciary
Committee Issues in H.R. 5210, (Statement of Sen. Biden)
("[Section 1346] overturns the decision in McNally . . . .
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The intent is to reinstate all of the pre-McNally case law
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pertaining to the mail and wire fraud statutes without
change"). But see United States v. Brumley, 79 F.3d 1430,
___ ___ ______________ _______
1440 (5th Cir. 1996) (holding that 1346 does not clearly
reach schemes to defraud citizens of their right to
government officials' honest services).
Given the peculiar history and evolution of
honest-services mail fraud, we review case law from before
and after the McNally decision for guidance in discerning the
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parameters of this federal crime.
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United States v. Margiotta, 688 F.2d 108, 142-143 (2d Cir.
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1982) (Winter, J., concurring in part and dissenting in part)
(quoting Mandel, 591 F.2d at 1361), cert. denied, 461 U.S.
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913 (1983).
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. In a leading case
involving the bribery of a state governor on legislative
matters, the Fourth Circuit explained how bribery of an
official can constitute honest services fraud:
[T]he fraud involved in the bribery of a
public official lies in the fact that the
public official is not exercising his
independent judgment in passing on
official matters. . . . When a public
official has been bribed, he breaches his
duty of honest, faithful and
disinterested service. . . . [T]he
official has been paid for his decisions,
perhaps without even considering the
merits of the matter. Thus, the public
is not receiving what it expects and is
entitled to, the public official's honest
and faithful service.
Mandel, 591 F.2d at 1362; see also, Boots, 80 F.3d at 592-94
______ ___ ____ _____
(involving scheme to bribe Native-American police chief in
exercise of his border patrol duties); United States v.
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Holzer, 816 F.2d 304, 308 (7th Cir.) (judge's systematic
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receipt of bribes and "loans" to influence official actions),
vacated, 484 U.S. 807 (1987) (ordering reconsideration in
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light of McNally); United States v. Isaacs, 493 F.2d 1124,
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1149-51 (7th Cir.) (public officials received bribes intended
to induce special favors and preferential treatment for
certain racing interests), cert. denied, 417 U.S. 976 (1974).
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A public official has an affirmative duty to
disclose material information to the public employer. See
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Silvano 812 F.2d at 759. When an official fails to disclose
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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
behind an official act. See id. (upholding conviction of
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city fiduciary who failed to disclose material information
about unnecessary spending of city money for secret
enrichment of fiduciary's friend). Thus, undisclosed, biased
decision making for personal gain, whether or not tangible
loss to the public is shown, constitutes a deprivation of
honest services. See e.g., Grandmaison, 77 F.3d at 567 (city
___ ____ ___________
board member took secret action to influence award of public
contract to official's private construction-business
interest); United States v. Waymer, 55 F.3d 564 (11th Cir.
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1995) (board of education member received secret commissions
from companies contracting with school system), cert. denied,
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No. 95-887, 64 U.S.L.W. 3653, 3656 (U.S. May 20, 1996).
The broad scope of the mail fraud statute, however,
does not encompass every instance of official misconduct that
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results in the official's personal gain. For example, in
United States v. McNeive, 536 F.2d 1245, 1246 (8th Cir.
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1976), a city plumbing inspector repeatedly accepted
unsolicited gratuities in connection with his non-
discretionary, administrative duty to issue plumbing permits.
Although McNeive may have violated a city ordinance banning
the acceptance of gratuities by city officials, the court
found his conduct beyond the reach of the mail fraud statute
because there was no evidence that the gratuities
disadvantaged the city in any respect or that they deterred
McNeive from otherwise conscientiously performing his duties.
Id. at 1251. In short, the "scheme" was shown to neither
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involve nor contemplate the deprivation of McNeive's honest
services to the city or public.
Likewise, in United States v. Rabbitt, 583 F.2d
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1014, 1026 (8th Cir. 1978), cert. denied, 439 U.S. 1116
_____ ______
(1979), the Eighth Circuit reversed the mail fraud
convictions of Rabbitt, a state representative. Rabbitt had
offered to introduce a friend's architectural firm to certain
public officials responsible for awarding state architectural
contracts, in return for a ten percent commission on any work
awarded. Id. at 1020. The government charged that his
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receipt of the resulting, undisclosed commissions defrauded
the citizens of Rabbitt's honest services. Id. at 1025. The
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evidence showed, however, that the officials who awarded the
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architectural contracts did so on merit alone and Rabbitt
played no role in the selection of the firm. Id. at 1026.
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Because Rabbitt did not control the awarding of the
contracts, or otherwise fail to fulfill his official duties,
his conduct did not deprive the citizens of his honest
services. Id. (noting case's resemblance to McNeive, 536
___ _______
F.2d at 1251-52). The court also observed that the
government failed to cite any applicable standard requiring
Rabbit to disclose his interest in the contracts, and thus,
the citizens were not deprived of any right to such
disclosure. Id. at 1026.
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The McNeive and Rabbitt cases illustrate that
_______ _______
although a public official might engage in reprehensible
misconduct related to an official position, the conviction of
that official for honest-services fraud cannot stand where
the conduct does not actually deprive the public of its right
to her honest services, and it is not shown to intend that
result. Similarly, if a non-public-official is prosecuted
for scheming to defraud the public of an official's honest
services, the government must prove that the target of the
scheme is the deprivation of the official's honest services.
If the "scheme" does not, as its necessary outcome, deprive
the public of honest services, then independent evidence of
the intent to deprive another of those services must be
presented. See United States v. D'Amato, 39 F.3d, 1249, 1257
___ _____________ _______
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(2d Cir. 1994) ("Where the scheme does not cause injury to
the alleged victim as its necessary result, the government
must produce evidence independent of the alleged scheme to
show the defendant's fraudulent intent."); United States v.
______________
Von Barta, 635 F.2d 999, 1005-1006 n.14 (2d Cir. 1980)
__________
(noting that "the prosecution must prove that some actual
harm or injury was at least contemplated"), cert. denied, 450
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U.S. 998 (1981). With this background, we consider the facts
of this case.
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A. Scheme to Defraud
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Here, the government did not prosecute Sawyer on
the theory that he, as a lobbyist, directly owed a duty of
honest services to the Commonwealth or its citizens. Rather,
the government sought to prove that Sawyer engaged in conduct
intended to cause state legislators to violate their duty to
the public. The government sought to establish this scheme
by proving that Sawyer intentionally violated, or caused
members of the legislature to violate, two Massachusetts
statutes.
Briefly, these two Massachusetts statutes,
discussed more fully infra, are: (1) Mass. Gen. L. ch. 268B,
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6 (the "gift" statute), which prohibits -- under threat of
civil penalties -- a "legislative agent" from offering or
giving to a public official (or an official's acceptance of)
"gifts" aggregating $100 or more per year; and (2) Mass. Gen.
L. ch. 268A, 3 (the "gratuity" statute), which prohibits --
under threat of civil and criminal penalties -- anyone from
giving to a legislator (or a legislator from soliciting or
accepting) anything of "substantial value . . . for or
because of any official act performed or to be performed" by
that person. Through the violation of these laws, the
government contended, Sawyer stole the honest services of the
legislators.
-20-
20
In general, proof of a state law violation is not
required for conviction of honest services fraud. See
___
Silvano, 812 F.2d at 759. Indeed, the incorporation of a
_______
state law violation in such a prosecution may cause
complications. See United States v. Washington, 688 F.2d
___ _____________ __________
953, 958 (5th Cir. 1982) (reversing mail fraud conviction
where jury should have been instructed that the defendant
"should not be found guilty of the federal offense merely
because he violated state law"). Here, however, the parties
agree that the indictment, as structured, required it to
prove that Sawyer violated at least one state law. Thus, the
state laws in question had to be correctly charged as a
matter of state law, and the violation of at least one had to
be proven.
Sawyer appeals various aspects of the court's jury
instructions on the state statutes and their role in the
alleged scheme to defraud. To determine whether the court's
instructions adequately explained the law or whether they
"tended to confuse or mislead the jury," United States v.
_____________
Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995) (internal
_______
quotations and citation omitted), cert. denied, 116 S. Ct.
_____ ______
909 (1996), we review the entire charge pertaining to the
role of the state statutes in this honest services fraud
prosecution:
In this case the government has charged
Mr. Sawyer with devising a scheme or
-21-
21
artifice; that is, a plan, to deprive the
Commonwealth of Massachusetts and its
citizens of their right to the honest
services of members of the Massachusetts
Legislature by giving or offering to
those legislators gifts of free travel,
lodging, golf, meals, and other
entertainment. I instruct you that under
the mail and wire fraud statutes, a
scheme to defraud can be a plan to
deprive the public of its right to the
honest services of members of the
Massachusetts Legislature.
Elected public officials, such as
members of the Massachusetts Legislature,
owe certain duties to the Commonwealth of
Massachusetts and to its citizens. One
of those duties is the duty to act
honestly. The government charges that by
______________________________
violating and causing legislators to
_________________________________________
violate certain state statutes, Mr.
_________________________________________
Sawyer deprived the public of its right
_________________________________________
to the honest services of members of the
_________________________________________
Massachusetts Legislature and, therefore
_________________________________________
devised a scheme to defraud.
___________________________
In other words, the government
alleges that the defendant violated
___________________
federal laws, mail fraud and wire fraud,
_________________________________________
by intentionally violating or causing
_________________________________________
Massachusetts legislators to violate
_________________________________________
certain state laws. Accordingly, in
____________________
order to prove the first element of the
mail fraud and/or wire fraud, that the
defendant devised a scheme to defraud,
the government must prove beyond a
reasonable doubt that the defendant
intentionally violated or caused members
of the Massachusetts Legislature to
violate at least one of the following two
state laws . . . . (emphasis added).
After describing the two statutes, the court continued:
If you find beyond a reasonable doubt
that the defendant devised or created a
scheme to defraud in which he
intentionally violated or caused a
violation of at least one of the laws
that I have just described, then you may
find that the government has proved the
-22-
22
first element of mail fraud and wire
fraud.
These instructions permitted the jury to find the
requisite scheme to defraud upon proof that Sawyer violated,
or caused legislators to violate, either one of the state
______
statutes. In other words, the jury was allowed to find that
a violation of either statute, without more, constituted the
deprivation of honest services.8 At oral argument before
this court, the government affirmed that it chose the state
law violations as "the sole vehicle to prove the scheme or
artifice to defraud" in order to "narrow the issues of intent
and good faith." Thus, we analyze both state statutes in
light of the law of honest services, set forth above, to
determine whether the court's instructions erroneously
permitted a conviction for conduct not within the reach of
the mail fraud statute.
1. The Gift Statute
____________________
____________________
8. After the court instructed the jury, Sawyer lodged the
following objection:
Your Honor, I believe that the Court's
instruction failed to properly instruct
the jury that, even if it finds that the
defendant violated one of the two state
statutes . . . the defendant would not be
guilty of any federal offense, mail fraud
and wire fraud offense, unless [the
violation] was part of a plan to defraud
the Commonwealth of Massachusetts or its
citizens of the duty of honest services.
The court declined any further charge.
-23-
23
The first Massachusetts statute on which the
alleged scheme to defraud was based is ch. 268B, 6 (the
"gift statute"), which provides:
No legislative agent shall knowingly and
wilfully offer or give to a public
official or public employee or a member
of such person's immediate family, and no
public official or public employee or
member of such person's immediate family
shall knowingly and wilfully solicit or
accept from any legislative agent, gifts
with an aggregate value of one hundred
dollars or more in a calendar year.
Mass. Gen. L. ch. 268B, 6. We discuss Sawyer's challenges
to the court's instructions on the statutory definitions
before turning to the statute's relation to the scheme to
defraud.
a. "Legislative Agent"
_______________________
The court instructed the jury that, under the
statute, a legislative agent cannot give or offer gifts
aggregating $100 or more to a legislator or member of the
legislator's family. It further instructed that a
"legislative agent" is "any person who, for compensation or
reward, does any act to promote, oppose or influence
legislation." See Mass. Gen. L. ch. 268B, 1(g).9 Sawyer
___
____________________
9. The entire definition of "legislative agent," for
purposes of the gift statute, is:
any person who for compensation or reward
does any act to promote, oppose or
influence legislation . . . . The term
shall include persons who, as any part of
their regular and usual employment and
-24-
24
argues that this instruction failed to reflect his assertion
that a person is a "legislative agent" only when he is so
registered with the Secretary of State or he is actually
engaging in lobbying activity at the time he gave the alleged
gifts.
The court instructed that a legislative agent is
one who is paid to "promote, oppose or influence
legislation," i.e., to lobby, and that such agents are
____
forbidden to give or offer certain "gifts." The instruction,
as a whole, adequately conveyed the idea that such gifts are
forbidden only when given by those who, at the time of the
gifts, are paid to actually lobby. While there may be a
person with the job title "lobbyist" who does not actually
engage in lobbying, there was ample evidence here that Sawyer
lobbied at the time he gave the alleged "gifts." Moreover,
the fact that he had an obligation to register with the
Secretary of State, see Mass. Gen. L. ch. 3, 40, 41, does
___
not alter the definition. No further instruction was
required.
b. Shared Meals as "Gifts"
___________________________
____________________
not simply incidental thereto, attempt to
promote, oppose or influence legislation
. . . whether or not any compensation in
addition to the salary for such
employment is received for such services.
Mass. Gen. L. ch. 268B, 1(g); see also 3 39 (identical
___ ____
definition in statutory section on disclosure obligations).
-25-
25
The court instructed the jury that "gifts," under
the relevant Massachusetts law, are "a payment,
entertainment, subscription, advance, services or anything of
value, unless consideration of equal or greater value is
received." See Mass. Gen. L. ch. 268B, 1(g). Much of the
___
evidence offered to prove Sawyer's violations of the gift
statute was his payment for shared meals and entertainment
with the legislators. Sawyer contends that his payment for
"shared hospitality" does not constitute a "gift" within the
meaning of the statute. The issue turns out to be
potentially complicated and involves somewhat convoluted
analysis of the statutory history of a comparable law set
forth at Mass. Gen. L. ch. 3, 43. We have carefully
reviewed the arguments on both sides, and for the reasons set
forth in the district court's ruling, see Sawyer, 878 F.
___ ______
Supp. at 282-84, we conclude that Sawyer's shared meals
could, if the jury so found, fit within the gift definition's
term "entertainment" and/or the very broad phrase, "anything
of value."
c. Relation to Scheme to Defraud
_________________________________
As explained above, under the court's jury
instructions regarding the scheme to defraud, Sawyer's
intentional violations of the gift statute, by their very
occurrence (or ipso facto), must deprive the public of their
____ _____
legislators' honest services. Sawyer challenges this legal
-26-
26
premise, arguing that such violations do not necessarily
deprive the public of those services.10 For the reasons
that follow, we agree.
The gift statute, which forbids a legislative agent
from "knowingly and wilfully" giving a "public official . . .
gifts with an aggregated value of one hundred dollars or more
in a calendar year," Mass. Gen. L. ch. 268B, 6, simply
limits, by a dollar-amount, the gift-giving by lobbyists to
legislators. It is a prophylactic civil prohibition that
addresses appearances of -- but not actual -- corruption. A
violation of the Massachusetts gift statute does not
necessarily entail any improper motive to influence, or
otherwise affect, the official duties of the recipient. It
______
is possible for a lobbyist to give a legislator items falling
within the statute's definition of "gift," or for a
____________________
10. The government claims that Sawyer has only challenged
the evidentiary sufficiency of his fraudulent intent, and
thus has waived a jury instruction challenge on the issue.
We disagree. While Sawyer ultimately endeavors to persuade
us that the evidence was insufficient to support his
conviction, he squarely challenges the very legal theory upon
which he was convicted. He particularly challenges the
government's theory (as accepted by the district court) that,
as a matter of law, the scheme to defraud could be predicated
upon state law violations alone, without the intent to
deprive the public of honest services. Sawyer not only
lodged an adequate objection on this issue with the trial
court, see supra note 8, his brief to this court thoroughly
___ _____
addresses the precise legal issues surrounding the interplay
between the mail statute, the state statutes, and the
requirement of fraudulent intent. The legal arguments are
sharply presented and the record is adequate for our review.
Thus, we conclude that the issue is properly before us.
-27-
27
legislator to accept such gifts, without an accompanying
intent to cause the legislator to deviate from the honest
performance of official duties. While such gifts would
constitute a gift-statute violation, not every such
circumstance would necessarily amount to a deviation from the
official's performance of honest services to the public.11
Thus, unlike the honest services fraud cases, noted above, in
which an official was bribed or took official action based on
a secret conflict of interest, a gift statute violation, even
if intentional, does not in itself amount to honest services
fraud.
While the Massachusetts' citizenry expects their
legislators to comply with laws pertaining to their official
capacity, the presence of such illegal conduct, even though
it relates to public office, does not by itself (or, per se)
___ __
establish honest services fraud. Cf. See United States v.
___ ___ _____________
Dowling, 739 F.2d 1445, 1449-50 (9th Cir. 1984) (rejecting
_______
government's suggestion that "the presence of illegal conduct
alone may constitute the basis of the `fraud' element of a
mail fraud prosecution" and stating that "to hold otherwise .
. . would have the potential of bringing almost any illegal
act within the province of the mail fraud statute"), rev'd on
________
other grounds, 473 U.S. 207 (1985); United States v. Gallant,
_____________ _____________ _______
____________________
11. We note that under Massachusetts law, violation of the
gift statute is punishable by no more than a $2000 civil
_____
fine.
-28-
28
570 F. Supp. 303, 309 and n.7 (S.D.N.Y. 1983) (noting that
Congress forbade the use of the mails in furtherance of "any
scheme or artifice to defraud" and not in furtherance of "any
crime"). To allow every transgression of state governmental
obligations to amount to mail fraud would effectively turn
every such violation into a federal felony; this cannot be
countenanced.
Because the court's instructions allowed the jury
to equate a gift statute violation with the deprivation of
honest services, it also permitted the jury to find an
"intent to defraud" from the intent to violate the statute,
without more. To establish the scheme to defraud through
these violations, however, it must also have been charged and
shown that the intent behind the violations was the
______
deprivation of honest services. See D'Amato, 39 F.3d at 1257
___ _______
(explaining that where harm is not the necessary result of
the scheme, independent evidence of fraudulent intent is
required). Thus, this case required a separate instruction
that, to prove the intent to commit honest services fraud,
the jury had to find that Sawyer intended to influence or
__________________________
otherwise improperly affect the official s performance of
_____________________________________________________________
duties, not merely that he intended to violate the state
______
statute.12 Allowing the jury to find that Sawyer intended
____________________
12. This intent is not equivalent to, or subsumed within,
the intent to deceive the public, discussed infra. In
_______ _____
addition to deceit (the gravamen of "fraud"), the government
______
-29-
29
to defraud the public of its right to honest services based
on proof of gift statute violations alone constituted
reversible error. See United States v. Doherty, 867 F.2d 47,
___ _____________ _______
57 (1st Cir.), cert. denied, 492 U.S. 918 (1989) (observing
_____ ______
that reversal of convictions is required if instructions
"could have led the jury to convict for conduct outside the
proscription of the mail fraud statute").
2. The Gratuity Statute
________________________
The second Massachusetts statute upon which the
convictions for honest-services mail fraud rely, is ch. 268A,
3 (the "gratuity statute"), which provides, in part:
(a) Whoever, otherwise than as provided
by law for the proper discharge of
official duty, directly or indirectly
gives, offers or promises anything of
substantial value to any present or
former state . . . employee . . . for or
because of any official act performed or
to be performed by such an employee
. . . .
(d) . . . shall be punished by a fine of
not more than three thousand dollars or
by imprisonment for not more than two
years, or both.
Mass. Gen. L. ch. 268A, 3.
____________________
must also show the intent to harm (in this case, to deprive
____
of honest services). See McEvoy Travel Bureau, Inc. v.
___ ____________________________
Heritage Travel, Inc., 904 F.2d 786, 791-92 (1st Cir.)
_______________________
(explaining that mail fraud requires both deceit and
deprivation), cert. denied, 498 U.S. 992 (1990); D'Amato, 39
_____ ______ _______
F.3d at 1257 (explaining that "the deceit must be coupled
with a contemplated harm to the victim") (quotation and
citation omitted).
-30-
30
The centerpiece of the gratuity statute is the
giving of an item of "substantial value" (the "gratuity"), to
an official, "for or because of any official act performed or
to be performed" by the official. Because this language
entails some connection between the gift and the performance
of official duties, a gratuity statute violation -- unlike a
gift statute violation -- may itself be sufficient to
implicate the duty of honest services in a given case. As
with the gift statute, however, not every violation of the
gratuity statute automatically encompasses an intent to
induce the public official to alter or deviate from the
performance of honest and impartial services. We explain.
A Massachusetts gratuity offense does not require a
finding of corrupt intent, i.e., improper intent to influence
____
official decision making. See Commonwealth v. Dutney, 348
___ ____________ ______
N.E.2d 812, 821 (Mass. Ct. App. 1976) (finding gratuity
offense to be a lesser included offense of Massachusetts
bribery statute, Mass. Gen. L. ch. 268A, 2, which adds the
element of "corrupt intent" i.e., intent to influence);13
____
____________________
13. The Massachusetts bribery statute, which did not form a
part of this case, provides, in part:
Whoever, directly or indirectly,
corruptly gives, offers or promises
_________
anything of value to any state . . .
employee . . ., with intent . . . to
____________ __
influence any official act or any act
____________________________
within the official responsibility of
such employee [shall be punished].
-31-
31
cf. United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir.
___ _____________ _______
1993) (observing that gratuity offense, unlike bribery, does
not involve a "corrupt purpose"). Rather, only some lesser
intent need be shown. A jury might be charged to find a
bribery or gratuity offense in the alternative, thus allowing
it to convict for a gratuity offense if it is convinced that
the defendant gave something to a public official because of
an official act, but is not persuaded that the defendant had
a corrupt intent to influence that act. See, e.g., Dutney,
___ ____ ______
348 N.E.2d at 821.
As the word "gratuity" implies, the intent most
often associated with the offense is the intent to "reward"
an official for an act taken in the past or to be taken in
the future. See Mariano, 983 F.2d at 1159 (noting that,
___ _______
unlike one who bribes, the gratuity offender "gives the gift
without attaching any strings, intending it instead as a
reward for actions the public official has already taken or
is already committed to take"). The official act might
otherwise be properly motivated; and the gratuity, though
unlawful, might not be intended to influence the official's
mindset with regard to that particular action. In some
cases, such as a reward for long-past official action, the
intent to influence could not possibly exist. A finding of
honest services fraud, however, requires, in connection with
____________________
Mass. Gen. L. ch. 268A, 2(a) (emphasis added).
-32-
32
the gratuity, the intent to cause an official to deviate from
the honest performance of services.
Thus, as with the gift statute, proof of a
violation of the Massachusetts gratuity statute, without
more, does not establish an intent to commit honest services
fraud. The government must prove that the conduct was
accompanied by the requisite intent. This intent could be
shown in a number of ways. For example, a bribery-like,
corrupt intent to influence official action necessarily is an
intent to deprive the public of an official's honest
services. A person might not, however, give an unlawful
gratuity with the intent to effect a specific quid pro quo.
____ ___ ___
Rather, as the government contends here, a person with
continuing and long-term interests before an official might
engage in a pattern of repeated, intentional gratuity
offenses in order to coax ongoing favorable official action
in derogation of the public's right to impartial official
services. Such conduct would be akin to (although not a
classic case of) the conflict of interest cases noted above.
See, e.g., Grandmaison, 77 F.3d at 567; Silvano, 812 F.2d at
___ ____ ___________ _______
759. Here, for example, while Sawyer may not have provided
the legislators with direct kickbacks or commissions arising
out of the specific official action, he may have intended the
legislators generally to treat preferentially Hancock's
interests, knowing that the free meals, entertainment, and
-33-
33
golf would continue so long as favorable official acts were,
at some point, taken.
In this case, the district court did not, in fact,
instruct the jury on a true "gratuity" offense. Instead, it
instructed the jury that, to establish a gratuity offense,
the government must prove that Sawyer "gave something of
substantial value to a legislator with the intent to
_____________________
influence an official act of that legislator." While this
__________________________
instruction erroneously added an intent-to-influence element
to the gratuity offense, it also had the effect of charging
the jury to find the requisite intent for honest services
fraud.14
3. Conclusion: Scheme to Deprive of Honest
___________________________________________________
Services
________
The jury was permitted to find the first element of
mail and wire fraud, the scheme to defraud, upon proof that
either the gift statute or the gratuity statute was violated.
The gift statute as charged, however, was a legally
____
insufficient basis upon which to find the scheme to defraud.
____________________
14. The court also instructed the jury that it is not a
defense to a gratuity charge that the official act would have
occurred even if the gratuity had not been given. See United
___ ______
States v. Previte, 648 F.2d 73, 82 (1st Cir. 1981). Sawyer
______ _______
assigns error to this instruction, contending that the fact
that the act would have occurred without the gratuity is
indicative of good faith. Sawyer fails to explain, however,
how the fact that an official act would have occurred anyway
could have affected his state of mind when giving the
___
gratuities. The court's instruction was a correct statement
of the law, relevant to this case, and it was not in error.
-34-
34
Although the gratuity statute was properly instructed in
________
terms of honest services mail fraud, we cannot tell if the
convictions were based on that statute or the insufficiently
charged gift statute. When a jury has been presented with
several bases for conviction, one of which is legally
erroneous, and it is impossible to tell which ground the jury
convicted upon, the conviction cannot stand. United States
_____________
v. Nieves-Burgos, 62 F.3d 431, 435-36 (1st Cir. 1995).
_____________
The government contends that if we find error with
respect to the gift statute, we should affirm the convictions
because the jury found that Sawyer committed gratuity
offenses within the Travel Act convictions, discussed infra.
_____
We cannot assume from the Travel Act convictions, however,
that the jury based its mail and wire fraud convictions on
the gratuity statute. The court charged the jury to consider
each offense as separate bases for the mail and wire fraud
charges. Accordingly, the possibility exists that, when
convicting on the mail and wire fraud charges, the jury
focused on violations of the gift statute, alone. See Boots,
___ _____
80 F.3d at 589 (declining to affirm conviction where it was
possible that the jury focused its verdict on erroneous
basis). Thus, for the foregoing reasons, Sawyer's mail and
wire fraud convictions must be reversed.
Sawyer contends that the evidence was insufficient
to prove an intent to influence the legislators' official
-35-
35
acts and that therefore his conviction should be reversed
without the possibility of retrial. We cannot agree. At
trial, there was evidence that Sawyer intentionally and
repeatedly provided legislators with valuable gifts of
entertainment for the purpose of obtaining "greater access"
to,15 and of developing a "certain relationship with,"
legislators. A jury could credit Sawyer's defense that he
thought his expenditures were lawful and that they were meant
only for goodwill entertaining. Taking the evidence in the
light most favorable to the prosecution, however, see United
___ ______
States v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied,
______ ______ _____ ______
116 S. Ct. 522 (1995), a jury could also rationally infer,
beyond a reasonable doubt that Sawyer intended that his
repeated gifts and gratuities would induce legislators to
perform official acts to benefit Hancock's interests
regardless of, or at the expense of, the public interest.
____________________
15. We do not think that the desire to gain access, by
itself, amounts to an intent to influence improperly the
legislators' exercise of official duties. The government
points to no legislative duty to provide equal access to all
members of the public; and, from a practical standpoint, we
doubt one exists. See Sawyer, 878 F. Supp. at 294 (striking
___ ______
phrase "free from favoritism" from indictment's list of
legislators' duties). True, Sawyer's very job description
required him to develop contacts in the Legislature, and, as
with all lobbyists, his employment goal was to persuade and
influence legislators to benefit certain interests. Such
endeavors, however, are protected by the right "to petition
the Government for a redress of grievance" guaranteed by the
First Amendment of the United States Constitution, see United
___ ______
States v. Harriss, 347 U.S. 612, 625 (1954); it would be
______ _______
impermissible to rely upon the lobbying position simpliciter
to establish a corrupt intent to influence.
-36-
36
Hence, retrial is not precluded. See Boots, 80 F.3d at 589-
___ _____
90 (reversing because of legal error in instructions but
remanding for possible retrial because the evidence was
sufficient for proper conviction); United States v. Ochs, 842
_____________ ____
F.2d 515, 529 (1st Cir. 1988) (same).
In view of the possibility that the government may
choose to retry this case, we think it is useful to add a
cautionary word concerning the relationship between state and
federal law in cases such as this one. Our comments are
addressed primarily to the mail fraud statute but apply in
some measure to the Travel Act charge, discussed infra, as
_____
well. Two problems are of specific concern to us.
First, concerning the theft of honest services jury
instruction, an overemphasis on what state law forbids may
lead the jury to believe that state rather than federal law
defines the crime, or more specifically, that any violation
of a state law or regulation concerning lobbying or related
matters amounts to honest services fraud. Wire and mail
fraud are federal offenses; and while state violations may
_______
play a role, the jury should not be allowed to slip into the
misunderstanding that any violation of proliferating state
laws and regulations controlling this area automatically
amounts to a federal crime.
In a similar vein, we think there exists a risk in
this case -- particularly in view of the prosecutor's closing
-37-
37
argument with its repeated emphasis on permissible dollar
limits in lobbying -- that the jury could wrongly believe
that any expenditure in excess of that allowed by state
statute or regulation by itself constitutes the federal
offense. The district court has ample authority under
Federal Rule of Evidence 403 to limit evidence concerning
state law requirements where that evidence is substantially
more prejudicial than probative. And, in all events, jury
instructions need to make clear that for the federal honest
services fraud to be proven, the defendant must have the
intent to affect a legislator's performance of an official
act and not merely to make payments in excess of some state
specified limitations.
B. Intent to Deceive
_____________________
Whether or not a new trial on the mail and wire
fraud counts is allowable requires us to reach Sawyer's
additional contention that the evidence was insufficient to
establish his intent to deceive the public. To this end,
Sawyer contends that because the government did not establish
that he had a duty to disclose his illegal gifts and
gratuities to the public, his intent to deceive the public
had to be shown through affirmative acts of deception, which
he claims are absent here.
To establish mail fraud -- in cases involving
honest services fraud and otherwise -- the alleged scheme
-38-
38
must involve deception in the deprivation of money, property,
or the right to honest services. See McEvoy Travel Bureau,
___ ______________________
Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir.)
____ ______________________
("[N]ot every use of the mails or wires in furtherance of an
unlawful scheme to deprive another of property constitutes
mail or wire fraud. . . . Rather, the scheme must be intended
to deceive another, by means of false or fraudulent
_______
pretenses, representations, promises or other deceptive
conduct.") (citations omitted), cert. denied, 498 U.S. 992
_____ ______
(1990); see also Grandmaison, 77 F.3d at 567 (finding that
___ ____ ___________
public official's conduct of secretly delivering gratuities
to other officials for favorable action, "without disclosing
his actions to other [officials]," falls within purview of
honest services mail fraud) (citing McEvoy Travel, 904 F.2d
______________
at 791); United States v. Bush, 522 F.2d 641, 648 (7th Cir.
_____________ ____
1975), cert. denied, 424 U.S. 977 (1976).16 While a
_____ ______
____________________
16. Under 18 U.S.C. 1346, "the term 'scheme or artifice to
defraud' includes a scheme or artifice to deprive another of
_______
the intangible right of honest services." (emphasis added).
We do not think the word "deprive" in this section eliminates
the requirement of deceit in an honest services fraud
______
prosecution. Nor do we find that a deprivation of "honest"
services, by definition, necessarily includes the deceit
factor sufficient for mail fraud. By enacting 1346,
Congress meant to overturn McNally, 483 U.S. 350 (1987),
_______
which held that the scheme to defraud must be intended to
deprive another of money or property. Grandmaison, 77 F.3d
___________
at 566. And prior to McNally, courts endorsing the honest-
_______
services mail fraud theory invariably required some showing
of deceit which is inherent in the term "fraud." See
___
Silvano, 812 F.2d at 759-60; Mandel, 591 F.2d at 1361; United
_______ ______ ______
States v. Barber, 668 F.2d 778, 784-85 (4th Cir.), cert.
______ ______ _____
denied, 459 U.S. 829 (1982). We find nothing that indicates
______
-39-
39
misrepresentation of fact is not required to establish mail
fraud, McEvoy Travel, 904 F.2d at 791, a demonstrated intent
_____________
to deceive is required.
When the conduct of a government official is
involved, "the affirmative duty to disclose material
information arises out of [the] official's fiduciary
relationship to [the public]." Silvano, 812 F.2d at 758; see
_______ ___
id. at 760 ("Although not all dishonest or disloyal conduct
___
by an employee violates the mail fraud statute, an employee's
breach of a fiduciary duty falls within the strictures of the
statute when it encompasses the breach of a duty to disclose
material information to the employer."). Thus, an official's
intentional violation of the duty to disclose provides the
requisite "deceit." See id. at 760 (noting that failure to
___ ___
disclose "under circumstances where the non-disclosure could
or does result in harm to the employer is a violation of the
mail fraud statute") (citation and internal quotations
omitted).
Here, although the issue has not been clearly
presented by the parties, it appears that the requisite
intent to deceive could have been shown either through
Sawyer's own acts of deception toward the public with respect
____________________
a change in this requirement for establishing honest services
mail or wire fraud. Thus, while it may be difficult to
conceive of a scheme to deprive someone of the right to
honest services without intending to deceive that person, the
intent to deceive must nonetheless be established.
-40-
40
to the gift/gratuity statute violations, or through his
efforts to ensure that the legislators deceived the public
with respect to the violations. The latter requires evidence
only that Sawyer intended to cause the legislators
intentionally to fail to disclose material information about
the violations,17 although evidence that he intended the
legislators to affirmatively misrepresent themselves in this
regard would also suffice. At bottom, the evidence must be
sufficient to establish Sawyer's intent that, in the end, the
publicbedeceivedwith respecttohisunlawfulgifts andgratuities.
Therefore, we must determine if the admissible
evidence, viewed in light most favorable to the jury's
verdict, is sufficient for a rational jury to find that
Sawyer intended that the public be deceived. See United
___ ______
States v. Kaplan, 832 F.2d 676, 679 (1st Cir. 1987), cert.
______ ______ _____
denied, 485 U.S. 907 (1988). The evidence need not compel an
______
intent-to-deceive finding; rather, it is only required that a
reasonable jury could be persuaded, beyond a reasonable
doubt, that Sawyer had such intent. See United States v.
___ _____________
O'Brien, 14 F.3d 703, 706-707 (1st Cir. 1994). And we are
_______
mindful that a jury may choose among the reasonable
alternatives posed by the evidence. United States v. Olbres,
_____________ ______
____________________
17. Although allegations that Sawyer caused legislators to
violate their statutory disclosure obligations were withdrawn
by the government at trial, the obligation to disclose
material information inheres in the legislator's general
fiduciary duty to the public. Silvano, 812 F.2d at 758.
_______
-41-
41
61 F.3d 967, 973 (1st Cir. 1995), cert. denied, 116 S. Ct.
_____ ______
522 (1995). Finally, the specific intent to deceive may be
proven (and usually is) by indirect and circumstantial
evidence. See O'Brien, 14 F.3d at 706 (observing that fraud
___ _______
crimes "by their very nature, often yield little in the way
of direct proof"); Kaplan, 832 F.2d at 679; see also United
______ ___ ____ ______
States v. Nivica, 887 F.2d 1110, 1113 (1st Cir. 1989)
______ ______
(opining that "factual circumstances may signal fraudulent
intent in ways as diverse as the manifestations of fraud
itself"), cert. denied, 494 U.S. 1005 (1990).
_____ ______
At first blush, it may appear that bribery of a
public official necessarily incorporates a finding that the
offender intended to "trick" or "deceive" the public into
thinking that the official was acting independently when, in
fact, the official was actually motivated by the bribe.
While we have little doubt that bribes are usually given in
secrecy, see Holzer, 816 F.2d at 309 (observing that "no
___ ______
public official in the United States takes bribes openly"),
bribery and gratuity statutes generally, as here, do not
require a separate element of deception. Ostensibly, a
_______
person could offer an illegal bribe to a public official and
not be concerned with its secrecy. Thus, the evidence
presented must permit a finding that Sawyer not only gave the
unlawful gifts or gratuities with the intent to deprive the
public of honest services, but that he also intended to
-42-
42
deceive the public about that conduct. See Bush, 522 F.2d at
___ ____
648.
Here, the government presented evidence that Sawyer
gave the unlawful gifts and gratuities during the seven years
of the indictment period until the Boston Globe exposed the
practice in May 1993. Much of his entertainment of lobbyists
took place out-of-state -- usually at industry and
legislative conferences -- where members of the Massachusetts
citizenry generally would not observe the questionable
activities. Unlike his acts of "non-public" entertainment,
Sawyer ensured compliance with state ethical standards for a
1993 Boston Marathon brunch, potentially a high profile
event. In his office, Sawyer kept newspaper articles
reporting legislators' activities with lobbyists, and in
particular, the ethical ramifications of such relationships.
In one article, Representative Mara (a recipient of Sawyer's
unlawful gifts or gratuities) is quoted as saying, "Everyone
picks up their own tabs at [legislative] conferences. . . .
These conferences have become almost nonexistent." These
articles were kept in notebooks with other materials
regarding lobbying laws.
A jury rationally could infer that Sawyer was
cognizant of his ethical obligations in lobbying, knew of the
public awareness of lobbying activity, and repeatedly gave
hidden unlawful gifts and gratuities until he was publicly
-43-
43
exposed. While not overwhelming, the combined evidence is
sufficient to permit a reasonable jury to find, beyond a
reasonable doubt, that Sawyer intended to deceive the public
about his unlawful expenditures on legislators. See United
___ ______
States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)
______ _____
(explaining that "juries are not required to examine the
evidence in isolation, for `individual pieces of evidence,
insufficient in themselves to prove a point, may in
cumulation prove it. The sum of an evidentiary presentation
may well be greater than its constituent parts.'" (quoting
Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)),
_________ ______________
cert. denied, 506 U.S. 1063 (1993); United States v.
_____ ______ ______________
Montminy, 936 F.2d 626, 627-28 (1st Cir. 1991).18
________
____________________
18. The government also presented evidence that Sawyer
somehow concealed his expenditures on legislators from his
Hancock superiors other than Hathaway. The government does
not argue that this evidence can amount to the requisite
deceptive conduct, nor did it rely on it to prove the intent
to deceive. In any event, Sawyer's deceptive conduct toward
Hancock, alone, cannot form the basis of this honest services
fraud conviction. Rather, the alleged victims of the mail
fraud -- here, the state and the public -- must be the ones
deceived. Thus, in order for any deception of Hancock to
form a part of the scheme to deprive the Commonwealth and her
citizens of legislators' honest services, some showing that
such conduct was connected to the defrauding of alleged
victims is required. See McEvoy Travel, 904 F.2d at 794 &
___ _____________
n.13 (rejecting position that a scheme to defraud is
established if the deception of one party causes deprivation
to another); Lifschultz Fast Freight, Inc. v. Consolidated
______________________________ ____________
Freightways Corp., 805 F. Supp. 1277 (D.S.C. 1992) (requiring
_________________
convergence of identity of injured and deceived), aff'd on
________
other grounds, 998 F.2d 1009 (4th Cir.) (Table), 1993 WL
______________
241742, cert. denied, 114 S. Ct. 553 (1993).
_____ ______
-44-
44
For the foregoing reasons, Sawyer's mail and wire
fraud convictions must be vacated and remanded for a possible
new trial.
III.
III.
____
Travel Act Counts
Travel Act Counts
_________________
The government charged Sawyer with knowingly and
wilfully travelling and causing others to travel in
interstate commerce with the intent to promote, carry on and
facilitate the promotion and carrying on of unlawful
activity, to wit, illegal gratuities in violation of Mass.
Gen. L. ch. 268A, 3, in violation of 18 U.S.C. 1952 (the
"Travel Act").19 The government asserted that Sawyer
violated the Massachusetts gratuity statute subsequent to
interstate travel to the following destinations: Tulsa,
Oklahoma; Orlando, Florida; Savannah, Georgia; Scottsdale,
Arizona; Key Largo, Florida; Charleston, South Carolina;
Amelia Island, Florida; and Puerto Rico.
____________________
19. The Travel Act proscribes travel in interstate commerce
"with intent to . . . promote, manage, establish, carry on,
or facilitate the promotion, management, establishment, or
carrying on, of any unlawful activity." 18 U.S.C. 1952(a).
"Unlawful activity" is defined as, inter alia, "bribery . . .
_____ ____
in violation of the laws of the State in which committed or
of the United States." 18 U.S.C. 1952(b); see United
___ ______
States v. Arruda, 715 F.2d 671, 681 (1st Cir. 1983). The
______ ______
district court instructed the jury that a violation of the
gratuity statute constituted "unlawful" activity within the
purview of the Travel Act, a view with which we agree to the
extent that the court instructed that something of value was
given in order to influence the performance of an official
act. Sawyer does not dispute that a gratuity violation of
this character is "bribery" for purposes of the Travel Act.
-45-
45
Sawyer argues that his Travel Act convictions must
be reversed because: (1) the court erroneously instructed the
jury on the gratuity statute; (2) the evidence was
insufficient to establish the gratuity offenses; (3) the
court barred him from presenting evidence crucial to his
defense; and (4) the court improperly admitted summary
evidence introduced by the government. Although we discuss
and reject each of these arguments in turn, we nonetheless
reverse his conviction on these counts because the district
court's instructions on the meaning of "bribery," for the
purposes of the Travel Act, were fatally flawed.
A. Gratuity Statute Jury Instructions
______________________________________
Because the Travel Act convictions rely upon
violations of the Massachusetts gratuity statute, we now
address an additional state-law aspect of the gratuity
statute about which the parties disagree.
The gratuity statute requires that the item of
"substantial value" be given "for or because of any official
act performed or to be performed." Mass. Gen. L. ch. 268A,
3(a). An "official act" is defined as: "any decision or
action in a particular matter or in the enactment of
legislation." Mass. Gen. L. ch. 268A, 1(h).20 Here,
____________________
20. A "particular matter" is further defined as:
any judicial or other proceeding,
application, submission, request for a
ruling or other determination, contract,
-46-
46
Sawyer allegedly bestowed gratuities upon legislators who
were members of the Insurance Committee. Thus, for purposes
of this discussion, we proceed on the theory that the
government had to prove that Sawyer gave the gratuities "for
or because of . . . any decision or action in the enactment
of legislation." See Mass. Gen. L. ch. 268A, 3(a), 1(h).
___
The parties' interpretations of the gratuity
statute differ with respect to the scope and character of the
connection required between the gratuity and the official
act. Sawyer contends that the gratuity must be linked to a
specific, identifiable official act. The government argues
that it is sufficient to prove that the gratuity would not
have been given but for the legislator's ability to take
official action favorable to Sawyer. In a pretrial ruling on
Sawyer's motions to dismiss, the district court agreed with
the government's interpretation, and instructed as such.21
____________________
claim, controversy, charge, accusation,
arrest, decision, determination, finding,
but excluding enactment of general
legislation . . .
Mass. Gen. L. ch. 268A, 1(k).
21. The court's jury instructions on this issue were as
follows:
I instruct you that the government has to
prove beyond a reasonable doubt that the
defendant intended to influence the
action of the legislator on any official
matter which was pending before the
legislator or which may, by law, have
been brought before the legislator at
-47-
47
No Massachusetts court decision has yet interpreted
the operative "for or because of any official act" language
in ch. 268A, 3(a). To support their respective positions,
the parties present differing arguments regarding the
statutory language, legislative history, comparable statutes,
and State Ethics Commission rulings. We consider these
sources separately.
1. Statutory Language
______________________
The gratuity statute prohibits the giving of
gratuities "for or because of any official act performed or
to be performed." Mass. Gen. L. ch. 268A, 3. The statute
does not read "for or because of the official's position."
___
Rather, it forbids gratuities motivated by "any official act"
____________________
some later time.
. . . .
I further instruct you that the
government need not prove that the
alleged gratuity was linked to a specific
identifiable act. In other words, the
government need not prove that the
gratuity was given as a quid pro quo;
that is, in exchange for any one specific
act performed or to be performed by the
legislator. The government does not have
to show that there was an agreement
between the defendant and the legislator
requiring the legislator to perform
certain acts in exchange for the
gratuity.
The government must prove, however,
that the defendant gave the alleged
gratuity to a legislator with the
expectation that the legislator would use
his influence on official matters in ways
favorable to the defendant.
-48-
48
and further defines, rather meticulously, "official act."
See Mass. Gen. L. ch. 268A, 1(h) & (k). Thus, on the face
___
of the statute, it does not appear that the unlawfulness of
the gratuity could be established by proof that it was
motivated solely by the official's position. In other words,
proof of the offense requires something more than a simple
showing that "but for" the official's authority, the gratuity
would not have been given.22
This observation, however, does not lead to the
conclusion that the gratuity must be shown to be motivated by
a specifically identified official act. As noted supra, a
_____
gratuity offense is essentially a bribery offense without
proof of "corrupt intent." The concern behind the gratuity
statute, like the bribery statute, is the potential
undermining of official integrity. A gratuity does not
compromise this integrity because of its possible effect on
the official's "position"; rather, the danger is in its
ability to affect the official's performance of duties, i.e.,
____
"official acts." It is not surprising, then, that the
____________________
22. For example, if the parent of a student gives the school
principal a gift of substantial value at the student's
graduation, that alone would not constitute a gratuity
offense, even though the parent would not have given the gift
"but for" the principal's position. If, however, the gift
was given under circumstances in which the principal had the
discretion to decide whether or not the student would
graduate, a gratuity offense might be found.
-49-
49
statute proscribes gratuities motivated by "official acts"
rather than "official position."
Thus, the use of the term "official act" appears to
ensure that the gratuity would be deemed unlawful only when
the giving of an item of "substantial value" is linked to the
official's performance of duties. The connection between the
gratuity and the performance of official duties, however,
does not necessarily require the identification of a specific
official act, and we find nothing in the statutory language
to require such a demonstration.
2. Legislative History
_______________________
The gratuity statute was based, in part, upon a
bill drafted by a 1962 Massachusetts Special Commission on
Code of Ethics. See Report of the Special Commission on Code
___
of Ethics, 1962 House Doc. No. 3650, p.8. Nothing in the
Commission's Report, however, assists us in resolving the
instant question. It states only: "It should be noted that
to constitute a criminal act, the giving or receiving of the
item of such `substantial value' must be `for or because of'
an official act." Id. at 11; see Commonwealth v. Famigletti,
___ ___ ____________ __________
354 N.E.2d 890, 893 (Mass. Ct. App. 1976) (noting same
language in the report). The Report neither parses out what
these terms mean, nor gives examples of what was intended.
From this we discern only that the Commission was concerned
-50-
50
that "innocent" gifts to officials would not fall within the
gratuity statute's purview.
The Commission's report does tell us that "[m]uch
of the language of the proposed legislation is taken and
adapted from [a proposed federal bribery/gratuity bill]."
Report of Special Commission, supra at 8; see Dutney, 348
_____ ___ ______
N.E.2d at 822 n.16. As discussed below, however, the
comparable federal gratuity statute, 18 U.S.C. 201(c), is
also unhelpful in resolving the question before us.
3. Comparable Statutes
_______________________
In support of its position, the government relies
on the Massachusetts Supreme Judicial Court's interpretation
of a different statute in Commonwealth v. Lapham, 156 Mass.
____________ ______
480, 31 N.E. 638 (Mass. 1892), and on federal cases
interpreting the federal gratuity statute, 18 U.S.C.
201(c).
Lapham involved a milk dealer who attempted to
______
bribe a city milk inspector and was convicted under a statute
punishing anyone who:
corruptly gives, offers or promises to
any executive, legislative . . . or
judicial officer . . .any gift or
gratuity whatever, with intent to
influence his act, vote, opinion,
decision, or judgment on any matter,
question, cause, or proceeding, which may
be then pending, or may by law come or be
brought before him in his official
capacity.
-51-
51
Mass. Pub. St. ch. 205, 9 (Ch. 349 Revised May 21, 1891);
see Lapham, 31 N.E. at 638-39. The milk dealer argued that
___ ______
the indictment was insufficient because it did not aver a
particular matter to be influenced. Id. The Supreme
___
Judicial Court disagreed, reasoning as follows:
Nor is it necessary in an indictment
under [ch. 205, 9] to aver that the
corrupt intention to influence the act,
opinion, decision or judgment of the
inspector was in relation to any specific
and particular matter then pending before
him, or which was then expected to come
before him. It is enough to aver a
corrupt intention so to influence him in
any matter which may then be pending, or
which may by law come or be brought
before him. If for example an executive,
legislative or judicial officer is bribed
corruptly to favor a particular person in
any and all matters affecting that person
which may come before such officer,
without specification or knowledge of the
particular matters likely to come up, the
statute is broad enough to include such a
case. A narrower construction of a
similar statute has been adopted in
Alabama, but we cannot follow it.
Barefield v. State, 14 Ala. 603 [1848].
_________ _____
Id. at 639.
___
The difficulty with the government's reliance on
Lapham is, of course, the fact that it involved a differently
______
worded statute. The Lapham statute proscribes a corrupt gift
______
to influence an official act "on any matter . . . which may
___
be then pending or may by law come or be brought before him
___
in his official capacity." Mass. Pub. St. ch. 205, 9 (Ch.
349 Revised May 21, 1891) (emphasis added). In holding that
-52-
52
an averment of a specific matter was not necessary, the
Lapham court repeatedly used the word "may." See, e.g., id.
______ ___ ____ ___
("It is enough to aver a corrupt intention so to influence
him in any matter which may then be pending, or which may by
___ ___
law come or be brought before him.") (emphasis added).
The question is whether the absence of the word
"may" in the present gratuity statute, see Mass. Gen. L. ch.
___
268A, 3, 1(h) & (k), signifies, by negative implication,
the requirement of a specific official act. The reasoning in
Lapham does seem to indicate some relationship between the
______
word "may" and the absence of a specificity requirement. We
think, however, that it does not follow that the word "may"
is the only manner in which to indicate that particular
official acts need not be shown to establish a gratuity
offense.
The present statute proscribes a gift "for or
because of any official act performed or to be
___
performed,"23 and further defines "official act" as "any
___
____________________
23. The phrase "performed or to be performed" affords
temporal flexibility between the gratuity and any motivating
official act. Mass. Gen. L. ch 268A 3(a); Dutney, 348
______
N.E.2d at 821 n.14. This temporal flexibility is also
present in the Lapham statute ("may then be pending or which
______
may by law come or be brought before him"), ch. 205, 9
(1891), as well as the federal gratuity statute ("may at any
time be pending, or which may by law be brought before [an
official]") noted infra. 18 U.S.C. 201(a)(3). In our
_____
view, and contrary to the district court, while the language
affording temporal flexibility is consistent with the absence
of an official-act specificity requirement, it does not
compel that result. See Sawyer, 878 F. Supp. at 287.
___ ______
-53-
53
decision or action in a particular matter or in the enactment
of legislation." Mass. Gen. L. ch. 268A, 3(a), 1(h)
(emphasis added). Use of the broad term "any" is consistent
with a legislative intent to proscribe gifts motivated by
unidentified official acts. Most importantly, given the
reasoning set forth in Lapham, we think that if the
______
Massachusetts Legislature had wanted to drastically narrow
the scope of the gratuity offense by requiring specifically
identified official acts, it would have spoken more clearly
than it has. In the end, the Lapham case supports the
______
conclusion that a gratuity offense may be established without
proof that a specific official act was the motivation for the
gratuity.
The government also relies on cases interpreting
the similarly worded federal gratuity statute, 18 U.S.C.
201(c),24 that indicate that a conviction under that
____________________
24. The federal gratuity statute, 18 U.S.C. 201(c),
provides, in pertinent part:
Whoever -- [] otherwise than as provided
by law for the proper discharge of
official duty -- [] directly or
indirectly gives, offers, or promises
anything of value to any public official
. . . for or because of any official act
performed or to be performed by such
public official . . . shall be
[punished].
The term "official act" is further defined in 18
U.S.C. 201 (a)(3) as:
-54-
54
statute does not require a showing that the gratuity was
linked to a specific official act. See, e.g., United States
___ ____ _____________
v. Bustamante, 45 F.3d 933, 940 (5th Cir.) ("it is sufficient
__________
for the government to show that the defendant was given the
gratuity simply because he held public office"), cert.
_____
denied, 116 S. Ct. 473 (1995); United States v. Niederberger,
______ _____________ ____________
580 F.2d 63, 68-69 (3d Cir.), cert. denied, 439 U.S. 980
_____ ______
(1978); United States v. Standefer, 610 F.2d 1076, 1080 (3d
_____________ _________
Cir. 1979) (en banc), aff'd on other grounds, 447 U.S. 10
_______________________
(1980). The government reasons that because much of the
Massachusetts gratuity statute's language was based upon the
federal statute, see Dutney, 348 N.E.2d at 822 n.16, and
___ ______
because some federal cases hold that specific acts need not
be shown, a similar interpretation of the state law should
obtain.
Reliance on those cases, however, is undermined
by the fact that the First Circuit has expressly reserved
ruling on the question of whether or not a gratuity
prosecution under the federal statute requires proof of a
"causal relation to any `specific, identifiable act.'"
____________________
any decision or action on any question,
matter, cause, suit, proceeding or
controversy, which may at any time be
pending, or which may by law be brought
before any public official, in such
official's official capacity, or in such
official's place of trust or profit.
-55-
55
United States v. Previte, 648 F.2d 73, 82 n.8 (1st Cir. 1981)
_____________ _______
(quoting Niederberger, 580 F.2d at 68-69). Sawyer, on the
____________
other hand, cites no federal gratuity cases (or state
gratuity cases, for that matter) squarely holding that
specific acts must be shown; although, he does cite cases in
____
which specific official acts were shown, see e.g., United
____ ___ ____ ______
States v. Biaggi, 853 F.2d 89, 99-100 (2d Cir. 1988), cert.
______ ______ _____
denied, 489 U.S. 1052 (1989); United States v. Brewster, 506
______ _____________ ________
F.2d 62, 77-78 (D.C. Cir. 1974)). This is not the proper
case for us to decide the federal issue. Thus, we conclude
that it would be inappropriate to take any guidance here from
cases interpreting the federal gratuity statute.
4. State Ethics Commission Pronouncements
__________________________________________
The Massachusetts State Ethics Commission is the
primary civil enforcement agency for violations of the
gratuity statute. Mass. Gen. L. ch. 268B, 3(i). The
Ethics Commission has the power and duty to investigate
alleged gratuity offenses, initiate appropriate adjudicatory
proceedings, and order civil penalties if it concludes that a
violation has occurred. Id. 4. Upon the petition of any
___
party, a final action of the Ethics Commission is subject to
review by the Massachusetts superior court, which may
enforce, modify or set aside the order. Id. 4(k).
___
The Ethics Commission has repeatedly interpreted
the gratuity statute as forbidding gifts motivated generally
-56-
56
by the official's authority to act favorably for the donor.
See In Re Charles F. Flaherty, 1990 SEC 59 (Disposition
___ ____________________________
Agreement) ("`All that is required to bring [the gratuity
statute] into play is a nexus between the motivation for the
gift and the employee's public duties'" (quoting In Re George
____________
A. Michael, 1981 SEC 59, 68)); SEC Commission Advisory No. 8
___________
"Free Passes" (May 14, 1985) (noting that "even in the
absence of any specifically identifiable matter that was, is
or soon will be pending before the official, [the gratuity
statute] may apply" (citing United States v. Standefer, 452
_____________ _________
F. Supp. 1178, 1183 (W.D. Pa. 1978)).
We give the Ethics Commission's interpretation some
deference. See Olszewski v. Berube, 3 Mass. L. Rptr. 297,
___ _________ ______
1995 WL 808889 (Mass. Super. No. 922666) (Jan. 27, 1995) at
*2 (stating that although the Ethics Commission's "decision
on matters within its competence is to be given great weight,
the courts are the final interpreter" (citing Finkelstein v.
___________
Board of Reg. in Optometry, 349 N.E.2d 346, 348 (Mass.
_____________________________
1976)). That deference, however, is tempered not only by the
fact that no Massachusetts court has passed on the Ethics
Commission's interpretation, but also because this is a
criminal case and the Ethics Commission is charged only with
civil enforcement. The Commission may very well have valid
reasons for adopting a broad, prophylactic interpretation of
the statute in its civil dispositions of individual
-57-
57
transgressions; its interpretation is easier to prove and the
offender is more likely to settle with the Commission if she
does not have to admit to more egregious wrongdoing.
Nonetheless, we note that the Ethics Commission's
interpretation of the gratuity statute has been left
undisturbed by the Massachusetts Legislature, and its
interpretation is not "arbitrary, unreasonable or
inconsistent" with the statute. Finkelstein, 349 N.E.2d at
___________
348. Thus, the Ethics Commission's opinion on the matter
further supports the conclusion that a specific official act
need not be identified in a gratuity offense.
5. Conclusion: Jury Instructions
_________________________________
The absence of a Massachusetts court decision on
this issue is troubling. We have carefully considered,
however, all of the authority and arguments on Sawyer's
behalf, and none of them is availing. We also take note of
the fact that Sawyer does not cite a single gratuity case,
either federal or state (and we have found none), holding
that a specific official act must be linked to the unlawful
gratuity. Thus, we conclude that the Massachusetts gratuity
statute does not require proof that the offender gave the
item of "substantial value" because of a specifically
identified official act. Of course, the identification of
certain official acts in relation to the gratuity might make
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a gratuity offense easier to prove, and we suspect that most
cases will include such proof although it is unnecessary.
B. Sufficiency of the Evidence
_______________________________
In cases such as this one, it becomes clear why
particular official acts need not be shown. The evidence at
trial showed that Sawyer gave items (that could be found to
be of "substantial value") to Massachusetts legislators who
had the ability to take official action favorable to Hancock,
and that those gifts effectively ceased after the legislators
left office. While the government did not detail all of the
legislators' acts that were favorable to Hancock, the
government did show that Sawyer had a long-term, ongoing
interest in the official acts of the legislators, and that he
knew his gratuities were unlawful. From this evidence, the
jury could rationally infer that the gratuities were
motivated by the legislators' performance of official duties,
i.e., that they were given "for or because of any official
____
act," within the meaning of the Massachusetts gratuity
statute, Mass. Gen. L. ch. 268A, 3.
C. Evidentiary Issues
______________________
1. Exclusion of Skrine Memorandum
__________________________________
Sawyer contends that the court unduly restricted
the presentation of evidence that he entertained lawmakers
solely out of friendship and goodwill and he believed that
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this did not violate the gratuity statute.25 Specifically,
he appeals the court's exclusion of a document, written by
Bruce Skrine, memorializing Skrine's interview with Sawyer
after the Boston Globe's inquiry into the Puerto Rico trip.
That document reflects Sawyer's assertion that such
entertainment, while perhaps excessive in Puerto Rico, "was
commonly done and that, [the] legislators were all friends of
his and that they were not in anyway [sic] discussing
legislation or lobbying."
At trial, Sawyer did not attempt to offer this
document to prove his state of mind with respect to his
expenditures. In fact, he indicated to the court that its
admission was not necessary because he had already elicited
the desired testimony from Skrine. Later on, however,
pointing out that the document did not mention that he
entertained to "gain access" to legislators, Sawyer offered
it to impeach Skrine. The court did not permit its admission
on that basis, but it did allow Sawyer to cross-examine
Skrine on that very issue. Because Sawyer did not offer the
document for the purpose he now asserts on appeal, he has
____________________
25. Sawyer also raises arguments as to his good faith
conduct vis a vis the gift statute, which is not relevant to
___ _ ___
the Travel Act counts. Such contentions would be relevant to
the mail and wire fraud counts, which we have reversed. We
leave the good faith issues surrounding the gift statute
(which are dependent on the evidence adduced at trial) for
the district court to resolve on remand, should the
government choose to retry those counts.
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forfeited this claim. See United States v. Whiting, 28 F.3d
___ _____________ _______
1296, 1302 (1st Cir.) (explaining that evidence must have
been offered for the purpose asserted on appeal to preserve
issue) (citing Tate v. Robbins & Myers, Inc., 790 F.2d 10, 12
____ _____________________
(1st Cir. 1986)), cert. denied, 115 S. Ct. 378, 498, 499, 532
_____ ______
(1994). But because the issue may again arise on remand, we
further hold that because Sawyer was able to obtain the
desired testimony on the issue he now asserts, we would find
no abuse of discretion in its exclusion. See United States
___ _____________
v. Newman, 49 F.3d 1, 5-6 (1st Cir. 1995) (reviewing court's
______
exclusion of evidence for abuse of discretion).26
2. Admission of Computer Summaries
___________________________________
Sawyer assigns reversible error to the district
court's admission of five charts, Exhibits 1, 1Q, 1R, 1S and
1T, proffered by the government. Exhibit 1 was a forty-nine
page computer printout summarizing 612 expenditures,
occurring between January 1, 1986 and March 31, 1993, that
were recorded in Sawyer's appointment calendars, expense
records and other admitted documents. Exhibits 1Q, 1R and 1S
____________________
26. Sawyer also argues that the court erroneously refused to
instruct the jury on his defense-theory that it was his
belief that if expenditures were permitted under the
lobbying-disclosure obligations set forth in Mass. Gen. L.
ch. 3, then those expenditures (although they had to be
disclosed) were also allowed under the gratuity statute.
Upon review of the record, we agree with the district court
that this instruction was unwarranted because Sawyer did not
present any evidence that, during the indictment period, he
actually believed that his expenditures were permitted by the
lobbying-disclosure laws.
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are extracts of Exhibit 1 that isolate the expenditures for
Representatives Woodward, Howarth and Emilio. Exhibit 1T
contrasts the amount spent on those three Representatives
while they were members of the Legislature with the amount
spent on them after they left that office. Sawyer contends
that these charts were admitted on an insufficient foundation
and that they were misleading, argumentative and prejudicial.
Federal Rule of Evidence 1006 provides, in
pertinent part:
The contents of voluminous writings . . .
which cannot conveniently be examined in
court may be presented in the form of a
chart, summary, or calculation. The
originals or duplicates shall be made
available for examination or copying, or
both, by [the other party].
Before admitting such evidentiary presentations, the court
must first ensure that each is grounded upon a "sufficient
factual basis," i.e., upon independently established evidence
____
in the record, and that "possible prejudice or confusion does
not outweigh their usefulness in clarifying the evidence."
United States v. Drougas, 748 F.2d 8, 25 (1st Cir. 1984)
______________ _______
(citing J. Weinstein & M. Berger, Weinstein's Evidence 1006
____________________
(1983)); see United States v. Nivica, 887 F.2d 1110, 1125
___ _____________ ______
(1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990); United
_____ ______ ______
States v. Sorrentino, 726 F.2d 876, 884 (1st Cir. 1984).
______ __________
When a court admits such summaries,
[c]are must be taken to insure that
summaries accurately reflect the contents
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of the underlying documents and do not
function as pedagogical devices that
unfairly emphasize part of the
proponent's proof or create the
impression that disputed facts have been
conclusively established or that
inferences have been directly proved.
Drougas, 748 F.2d at 25 (citing Weinstein's Evidence, supra
_______ ____________________ _____
1006). We review the admission of summaries for abuse of
discretion. Nivica, 887 F.2d at 1126.
______
Sawyer contends that the district court improperly
admitted the summaries because they did not include evidence
of his expenditures on legislators before and after the time
period covered in the summaries, or his expenditures of
personal funds. He argues that this was unduly misleading
because it created a "false impression" as to the date the
alleged conspiracy began, and falsely implied that the
expenditures ended after the three named representatives left
office. We disagree.
The summaries were based on evidence that was
already independently admitted and that was relevant to
Sawyer's questionable expenditures during the indictment
period. Sawyer had the opportunity, on cross-examination, to
place the summaries in context with his total financial
activity. See Nivica, 887 F.2d at 1125 (concluding that
___ ______
argument that summaries failed to, inter alia, reflect "total
_____ ____
financial activity" "affect[s] weight rather than the
admissibility"). On the matters to which Sawyer assigns
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undue prejudice, he had ample opportunity to explore them on
cross-examination, which he did. He also could have offered
his own contrary evidence, including his own summary (which
he did not do). As we stated in Nivica, 887 F.2d at 1126:
______
So long as the government, exercising due
diligence, collects whatever records are
reasonably available and succeeds in
introducing them, it may be permitted
(subject, of course, to relevancy and
perscrutation under Fed. R. Evid. 403) to
summarize the data it has managed to
obtain. If defendants possessed
exculpatory records not in the
government's files, they could have
offered them at trial or prepared their
own summary. By the same token, if there
were gaps in the charts, the defense . .
. had every opportunity to exploit them.
In the last analysis, completeness of the
underlying records was for the jury.
We conclude that the summaries were based on a sufficient
foundation and that the court did not abuse its discretion in
admitting them.
D. Protective Instruction
__________________________
Having rejected all of Sawyer's arguments, we think
there is one flaw in the proceedings that does have to be
addressed in the interests of justice and especially in light
of the possibility of future prosecutions of this kind. Our
concern arises from the close relationship between lobbying
activities that are lawful from the standpoint of federal
law, even if deplorable, and associated or slightly more
extreme versions of such conduct that can constitute federal
violations. The problem is, in some respects, novel; the
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reason for its novelty is that it appears that prosecutions
on facts like these have not generally been brought.
A review of pre-McNally theft of honest services
_______
cases and of bribery and gratuity cases under the counterpart
federal statute, 18 U.S.C. 201, indicates, as we have
already noted, that most involved straightforward corruption
-- most often, quid pro quo bribery or blatant conflict of
____ ___ ___
interest. While the issue in those cases was typically
whether or not the conduct actually occurred, in most of them
the alleged conduct was blatantly illegal. This case is
distinct in that the conduct itself may not be very
different, except possibly in degree, from the kind of
routine cultivation of friendship in a lobbying context that,
while arguably very unattractive, is not "bribery" within the
meaning of the Travel Act.
The practice of using hospitality, including lavish
hospitality, to cultivate business or political relationships
is longstanding and pervasive. The government does not
argue, and we do not believe, that payments for
entertainment, lodging, golf, sports events, and the like
would constitute violations of the Travel Act (or the mail
and wire fraud statutes) if the aim of the lobbyist were
simply to cultivate a business or political "friendship" with
the legislator. It may well be that all such hospitality
should be flatly prohibited by law, but if Sawyer had this
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limited intent -- to cultivate friendship rather than to
influence an official act -- the federal statutes here
involved would not be violated.27
The charge to the jury in this case followed the
conventional formula for prosecutions involving political
corruption. But where the difference between lawful and
unlawful turns primarily on intent, and the lawful conduct is
itself most unattractive, we think the jury needs to be told
specifically that the defendant has not violated the bribery
component of the Travel Act (or committed honest services
fraud) if his intent was limited to the cultivation of
business or political friendship. Only if instead or in
addition, there is an intent to cause the recipient to alter
her official acts may the jury find a theft of honest
services or the bribery predicate of the Travel Act. Absent
some explicit explanation of this kind, the conventional
charge will be slanted in favor of conviction.28
____________________
27. See, e.g., United States v. Arthur, 544 F.2d 730 (4th
___ ____ _____________ ______
Cir. 1976); United States v. Brewster, 506 F.2d 62 (D.C. Cir.
_____________ ________
1974); cf. Dukehart-Hughes Tractor & Equipment co. v. United
___ ________________________________________ ______
States, 341 F.2d 613 (Ct. Cl. 1965).
______
28. It is not clear whether the government would contend
that a gratuity violation involving only a reward for an
official act (even without any intent to influence any future
official act) could constitute "bribery" for purposes of the
Travel Act. We are extremely doubtful whether this would
constitute bribery for these purposes and do not read the
Second Circuit as ruling on this point in United States v.
_____________
Biaggi, 853 F.2d 89, 100-02 (2d Cir. 1988), cert. denied, 489
______ _____ ______
U.S. 1052 (1989). The fact that a gratuity violation
involving an intent to influence is essentially bribery, see
___
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66
In reaching this conclusion, we intend no criticism
of the able district judge who was coping with a somewhat
novel foray by the government. But where, as here, the line
between the merely unattractive and actually criminal conduct
is blurred, the court must take pains to explain the
difference to the jury. The Second Circuit took this same
view in a closely related context, saying: "When an elected
official who has received campaign contributions is charged
with extortion and with receiving bribes, the charge must
carefully focus the jury's attention on the difference
between lawful political contributions and unlawful
extortionate payments and bribes." United States v. Biaggi,
_____________ ______
909 F.2d 662, 695-96 (2d Cir. 1990), cert. denied, 499 U.S.
_____ ______
904 (1991).
Having concluded that the jury charge was mistaken,
we must consider whether Sawyer should get the benefit of the
error. This is a close call. On the one hand, Sawyer did
not explicitly ask for the sort of language we think
appropriate. Ordinarily, the failure to make an explicit
objection requires the defendant to satisfy the plain error
test of United States v. Olano, 113 S. Ct. 1770, 1777 (1993).
_____________ _____
On the other hand, a number of Sawyer's objections were
____________________
853 F.2d at 101, does not mean that every possible
application of a gratuity statute fits the rubric. In all
events, if the government intends to rely upon an intent to
influence theory, our protective instruction would be
required here.
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closely related in that they sought in several different ways
-- which we do not accept -- to protect one engaged in good
faith lobbying from prosecution.
On balance, we think that the Travel Act counts, as
well as the mail and wire fraud convictions, ought to be
reversed and retried under proper instructions. Although the
evidence here would be adequate to infer improper intent, the
issue is close and an explanatory instruction could well
affect the outcome. Also, the fact that the prosecution was
novel makes us look more tolerantly on Sawyer's failure to
articulate precisely the shape of the necessary protective
instruction.
Apart from the expense of retrial, the government
has very little to complain about in this result. We have
agreed that the Massachusetts gratuity statute does not
require the government to link the gratuity to a specific
official act. We have also found that the evidence here is
sufficient to convict (although we can imagine reasonable
people thinking otherwise). And while we are somewhat
concerned about the lack of fair warning of a prosecution
such as this one, we see no legal basis for precluding the
government from embarking on what is in practical terms an
expansive reading of the federal statutes. Against this
backdrop, we think it even more important that Sawyer get the
benefit of the few protections that remain.
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IV.
IV.
___
Conspiracy Count
Conspiracy Count
________________
Sawyer was also convicted, under 18 U.S.C. 371,
of one count of conspiracy to commit mail and wire fraud, and
to violate the Travel Act. The court instructed the jury
that it could find Sawyer guilty of conspiracy if it found,
beyond a reasonable doubt, that he conspired with his
supervisor, Hathaway, to commit any one of the three objects,
i.e., the substantive offenses as charged. Because all of
____
the objects -- mail and wire fraud and the Travel Act
violations -- were erroneously charged and instructed, the
conspiracy convictions must be reversed as well.
Retrial is not precluded if the evidence is
sufficient to prove the existence of a conspiracy, Sawyer's
knowledge of and voluntary participation in it, and an overt
act in furtherance of it. See United States v. Yefsky, 994
___ _____________ ______
F.2d 885, 890 (1st Cir. 1993); see generally, United States
___ _________ ______________
v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996). The
___________
agreement need not be explicit; a tacit agreement will
suffice. Direct Sales Co. v. United States, 319 U.S. 703,
________________ _____________
712-13 (1943). To establish Sawyer's voluntary participation
in the conspiracy, the evidence must establish both his
intent to agree and his intent to effectuate the object of
the conspiracy. Yefsky, 994 F.2d at 890; see also United
______ ___ ____ ______
States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert.
______ _____ _____
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69
denied, 115 S. Ct. 1118 (1995). Neither the agreement nor
______
Sawyer's participation in it need be proven with direct
evidence. Glasser v. United States, 315 U.S. 60, 80 (1942);
_______ _____________
see Frankhauser, 80 F.3d at 653.
___ ___________
Sawyer contends that the evidence was
insufficient to prove that: (1) he and Hathaway knowingly
agreed to commit the offenses; (2) he voluntarily
participated in such an agreement; and (3) either of them
performed any overt act in furtherance of the conspiracy. We
disagree. The government presented evidence that Hathaway
supervised Sawyer in his lobbying activities. From
Hathaway's receipt of many of the same legal memoranda and
Massachusetts Ethics Commission rulings that Sawyer received,
a jury could rationally infer that Hathaway (an attorney,
like Sawyer) knew and understood the ethical obligations in
lobbying. Some of these documents had both Sawyer's and
Hathaway's names on them; thus, a jury could find that
Hathaway and Sawyer knew of each other's knowledge of the
lobbying laws.29 Sawyer turned to Hathaway, his
____________________
29. For example, one trial exhibit was a memorandum from
Sawyer to Hathaway, enclosing a 1990 State Ethics Commission
Disposition Agreement with House Majority Leader Charles
Flaherty. That agreement concerned the giving of Celtics
basketball game tickets to Representative Flaherty by a
person with interests before him, and how that might violate
the Massachusetts gratuity statute, Mass. Gen. L. ch. 268A,
3. Sawyer and Hathaway discussed the Flaherty Disposition
during a meeting with Bruce Skrine (vice president, counsel
and secretary for Hancock) in which Sawyer and Hathaway
expressed concern about compliance with state ethics law in
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supervisor, for approval of his expense vouchers. Hathaway
performed this responsibility throughout the indictment
period, and in so doing was the only person (other than
Sawyer) to have detailed knowledge of the specific
legislators, often members of the Insurance Committee, who
received the gifts and gratuities.
Thus, the jury could reasonably infer that Hathaway
and Sawyer both knew that the expenditures were unlawful, and
from this, that the reason for the repeated illegal gifts and
gratuities to key legislators was to secretly influence
legislative action. Given the evidence of the repeated
submission and approval of the expense vouchers, a jury could
rationally find that Hathaway and Sawyer agreed, at least
tacitly, to the pattern of unlawful conduct. Finally, the
jury could also infer that Sawyer and Hathaway knew that the
mails and wires would be used to facilitate the entertainment
and/or reimbursement (e.g., the mailing of bills related to,
____
and the making of telephone calls to arrange, the
entertainment), and that interstate travel in connection with
the entertainment (e.g., reimbursement of out-of-state golf)
____
would or had to occur. The overt acts charged in the
indictment included Sawyer's giving of illegal gratuities and
Hathaway's approval and authorization of reimbursement, and
the evidence was sufficient to establish those acts.
____________________
planning for the 1993 Boston Marathon brunch.
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Thus, despite the underlying legal error, the
evidence was sufficient to establish the conspiracy offense
and a new trial on this count is allowable should the
government so choose.
V.
V.
__
Conclusion
Conclusion
__________
Sawyer raises a number of other issues that we have
reviewed, find to be without merit, and that warrant no
further discussion.
For the foregoing reasons, we vacate the mail
______
fraud, wire fraud, Travel Act and conspiracy convictions, and
remand for proceedings consistent with this opinion.
______
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