Vacated by Supreme Court, January 24, 2005




                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4635
EDDIE ALEXANDER LONG,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              John T. Copenhaver, Jr., District Judge.
                            (CR-02-263)

                      Submitted: March 29, 2004

                       Decided: April 16, 2004

Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

S. Benjamin Bryant, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Steven I. Loew, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                        UNITED STATES v. LONG
                               OPINION

PER CURIAM:

   Eddie Alexander Long appeals his conviction and 24-month sen-
tence for one count of honest services mail fraud. See 18 U.S.C.
§§ 1341, 1346 (2000). This conviction stems from Long’s conduct
while he was mayor of Smithers, West Virginia. As mayor, Long also
acted as municipal judge and head of the Smithers police department.

   This case involves the proceedings that occur after a person is
arrested for Driving Under the Influence ("DUI") in West Virginia.
When a police officer arrests a driver for DUI in Smithers, he has the
choice of bringing the driver to municipal or county court, provided
that it is the driver’s first or second offense DUI.1 In addition to bring-
ing the suspect into court, within 48 hours of the arrest, the arresting
officer must send an affidavit attesting to the arrest to the West Vir-
ginia Department of Motor Vehicles ("DMV"). The DMV then noti-
fies the driver, by mail, that his license is suspended. If the driver
wishes to contest the suspension, he can mail a letter to the DMV dis-
puting the suspension. When the DMV receives a letter disputing a
DUI arrest, the DMV sets the case for hearing and informs the arrest-
ing officer of the hearing. Although there is no state law mandating
that the officer attend the DMV hearing, without his testimony, the
DMV must dismiss the case and the driver retains his license. If the
driver has been convicted of DUI in either municipal or county court
before the DMV hearing, however, then he is not entitled to a DMV
hearing. In other words, the driver has a DMV hearing, at which he
can hope to retain his license, only when the DUI charges were dis-
missed or reduced at the municipal or county level.

   Here, Long instructed Smithers police officers to bring all drivers
arrested for DUI to Smithers’ municipal court, where he presided as
judge. When a DUI driver asked Long how he could keep his license,
Long would frequently reduce the charge against the driver from DUI
to reckless driving. Long would then impose a substantial fine, above
    1
   If it is the driver’s third offense DUI or greater, the driver must be
brought to county court because he has allegedly committed a felony,
over which the municipal court lacks jurisdiction.
                        UNITED STATES v. LONG                          3
that typically indicated for reckless driving, and instruct the driver to
contest his license suspension with the DMV. Long told these drivers
he would ensure that the arresting officer failed to attend the hearing
so that the driver would keep his license. Over the years, Long
instructed several police officers, sometimes under threat of termina-
tion, not to attend DMV hearings. Based on this activity, the jury
found Long guilty of one count of using the mail in furtherance of his
scheme to deprive the citizens of West Virginia of the intangible right
of honest services of their public officials. See 18 U.S.C. §§ 1341,
1346.

   On appeal, Long challenges the honest services mail fraud statute
as unconstitutionally vague; the sufficiency of the evidence; the dis-
trict court’s jury instructions; and the court’s decision to prohibit
Long from presenting evidence of Smithers’ finances, finding such
evidence irrelevant. We address each of Long’s arguments in turn.

  First, Long challenges §§ 1341 and 1346 as unconstitutionally
vague. Section 1341, the federal mail fraud statute, states, in relevant
part,

    Whoever, having devised or intending to devise any scheme
    or artifice to defraud . . . for the purpose of executing such
    scheme or artifice or attempting to do so, places in any post
    office or authorized depository for mail matter, any matter
    or thing whatever to be sent or delivered by the Postal Ser-
    vice, or deposits or causes to be deposited any matter or
    thing whatever to be sent or delivered by the Postal Service,
    shall be fined under this title or imprisoned not more than
    20 years, or both.

(emphasis added). Section 1346 defines "scheme or artifice to
defraud" as including "a scheme or artifice to deprive another of the
intangible right of honest services."

   "‘[T]he void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement.’"

Lawson, 

, 357 (1983)). None-
4                       UNITED STATES v. LONG
theless, "[i]t is well established that vagueness challenges to statutes
which do not involve First Amendment freedoms must be examined
in the light of the facts of the case at hand." United States v. Mazurie,

, 550 (1975). Because Long’s challenge does not impli-
cate First Amendment concerns, he must contend with the general
rule that "[o]ne to whose conduct a statute clearly applies may not
successfully challenge it for vagueness." Parker v. Levy, 

, 756 (1974).

   We have previously addressed a vagueness challenge to the honest
services mail fraud statute. United States v. Bryan, 

(4th
Cir. 1995), abrogated on other grounds, United States v. O’Hagan,

(1997). In Bryan, we rejected the defendant’s vagueness
challenge, finding the defendant certainly should have known that his
conduct was prohibited. 

involving various
types of dishonesty by public officials come within the ambit of the
mail fraud statute because such schemes defraud citizens of their
intangible rights to honest and impartial government." 

Long threatened to fire officers if they did not follow his
instructions not to attend the DMV hearings in cases in which Long
had reduced the charges against the driver from DUI to reckless driv-
ing. Long mandated that officers bring all DUI cases, regardless of
whether they were felonies, to his municipal court. Several former
Smithers police officers testified against Long. One testified that he
tape-recorded conversations with Long because he feared Long’s con-
duct was improper and that he could face negative repercussions for
following Long’s instructions. Another testified that he approached
the county prosecutor for advice on the propriety of Long’s behavior.
This testimony supports the conclusion that Long should have known
that his conduct was prohibited. Therefore, we find that the honest
services mail fraud statute, as applied to Long, is not void for vague-
ness.

   Second, Long challenges the sufficiency of the evidence. "The ver-
dict of a jury must be sustained if there is substantial evidence, taking
the view most favorable to the Government, to support it." Glasser v.
United States, 

, 80 (1942). Substantial evidence is defined
as "that evidence which ‘a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s guilt
                        UNITED STATES v. LONG                           5
beyond a reasonable doubt.’" United States v. Newsome, 

, 333 (4th Cir. 2003) (quoting United States v. Burgos, 

, 862-63 (4th Cir. 1996) (en banc)).

   To support a conviction of honest services mail fraud, the Govern-
ment must prove that Long intended to engage in a scheme or artifice
to defraud citizens of their intangible right to honest services. See
§§ 1341, 1346; United States v. Vinyard, 

, 326 (4th Cir.
2001), cert. denied, 

(2002). Further, the Government
needs to show that Long caused a letter to be delivered by mail in fur-
therance of this scheme. See § 1341; 

.

   Here, the Government provided ample evidence that Long rou-
tinely threatened officers that if they attended DMV hearings against
Long’s instructions, they would be fired. The Government also sub-
mitted circumstantial evidence that implied that Long would purpose-
fully withhold mail to police officers from the DMV that notified the
officers of the dates of DMV hearings they were to attend. Finally,
the Government presented substantial evidence to show that Long’s
scheme hinged on use of the mail. For Long’s scheme to succeed, it
was essential that the driver mail a letter to the DMV, so that the
DMV could schedule a hearing which the police officer would fail to
attend. Mailing a letter was the only way to contest the license sus-
pension. The retention of the driver’s license was the key bargaining
chip that Long used to levy the large fines. Therefore, we find that,
viewed in the light most favorable to the Government, there is sub-
stantial evidence to support the jury’s verdict.

   Third, Long challenges the district court’s jury instructions. "The
purpose of jury instructions is to instruct the jury clearly regarding the
law to be applied in the case." United States v. Lewis, 

, 34
(4th Cir. 1995). In reviewing jury instructions, we "accord the district
court much discretion and will not reverse provided that the instruc-
tions, taken as a whole, adequately state the controlling law." Teague
v. Bakker, 

, 985 (4th Cir. 1995). Further, we do not review
jury instructions piecemeal, but as a whole. United States v. Cropp,

, 360 (4th Cir. 1997).

   Long actually brings two challenges to the district court’s jury
instructions. First, he argues that the district court abused its discre-
6                            UNITED STATES v. LONG
tion in rejecting Long’s proposed jury instructions. Because we find
that Long’s proposed instructions do not properly set forth the law on
honest services mail fraud, we find that the court did not abuse its dis-
cretion in its refusal to use them. Second, Long argues that the district
court committed plain error in instructing the jury regarding W. Va.
Code § 61-5-17, obstruction of a police officer.2 Section 61-5-17
states, in relevant part,

        Any person who by threats, menaces, acts or otherwise,
        forcibly or illegally hinders or obstructs, or attempts to hin-
        der or obstruct, any law-enforcement officer, probation offi-
        cer or parole officer acting in his or her official capacity is
        guilty of a misdemeanor and, upon conviction thereof, shall
        be fined not less than fifty nor more than five hundred dol-
        lars or confined in the county or regional jail not more than
        one year, or both.

Long contends that, by virtue of his position as head of the police
department, he could not have violated § 61-5-17. We find Long’s
argument unavailing. His repeated threats and instructions to police
officers not to perform their duty to attend DMV hearings fit within
the confines of § 61-5-17. Accordingly, the district court did not
abuse its discretion in instructing the jury regarding § 61-5-17.
    2
   Although no violation of state law is required to obtain a conviction
under the mail fraud statute, see United States v. Bryan, 

,
940-41 (4th Cir. 1995), abrogated on other grounds, United States v.
O’Hagan, 

(1997), the district court in its instructions on the
mail fraud counts referred to W. Va. Code § 61-5-17 as follows:
        The words "scheme to defraud," as used in the statute, includes
        a plan or course of action intended to deprive the citizens of the
        honest services of a public official; in this case by threats, men-
        aces, acts or otherwise, illegally obstructing or hindering a law
        enforcement officer acting in his official capacity, as set forth in
        West Virginia Code Section 61-5-17 . . . .
(J.A. at 702.) Because the district court’s instruction indicated that the
jury must find a violation of § 61-5-17 to support a conviction on the
mail fraud counts, the district court’s instruction was more favorable to
Long than necessary.
                        UNITED STATES v. LONG                           7
   Finally, Long argues that the court erred in refusing to allow him
to present evidence of Smithers’ bleak financial situation. At trial,
Long sought to argue that his behavior was simply a reaction to Smi-
thers’ financial status. He attempted to argue that he imposed large
fines to bring money into the community and that he refused to allow
officers to attend the DMV hearings to save the city money. The dis-
trict court excluded this evidence, finding it irrelevant to the question
of Long’s guilt.

   A district court’s decision to exclude evidence is reviewed for an
abuse of discretion. United States v. Lancaster, 

, 744 (4th
Cir. 1996). A court abuses its discretion when it makes an error of
law. Koon v. United States, 

, 100 (1996). Here, we find
that the district court did not abuse its discretion in excluding the evi-
dence of Smithers’ financial situation. Evidence of Long’s motive is
not relevant to whether or not he committed honest services mail
fraud.

  Accordingly, we affirm Long’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

                                                             AFFIRMED