US v. Sawyer
Case Date: 05/30/1996
Court: United States Court of Appeals
Docket No: 95-1689
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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. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________ ____________________ Before Boudin, Circuit Judge, _____________ Aldrich, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ ____________________ 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, _____________ Aldrich, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ ____________________ Thomas R. Kiley, with whom Carl Valvo, Steven H. Goldberg, _________________ ___________ ___________________ Matthew L. Schemmel, and Cosgrove, Eisenberg & Kiley, P.C., were on ____________________ ___________________________________ 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 ______________ ____________ _______________ 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. _____________________ 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 _____ Viewing the record in the light most favorable to the verdict, United States v. Wihbey, 75 F.3d 761, 764 (1st _____________ ______ 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 -2- 2 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 -3- 3 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; ____ 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. -4- 4 "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 -5- 5 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 -6- 6 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 ____________________ 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. -7- 7 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 ____________________ 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. -8- 8 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. ___ Mail and Wire Fraud Counts Mail and Wire Fraud Counts __________________________ 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 ____________________ 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. _____________ ______ 279, 294 (D. Mass. 1995). In addition to this general duty -9- 9 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, ____________________ 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 _____ ____ 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]. -10- 10 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 ___ ___ 758 (citing Badders v. United States, 240 U.S. 391, 393 _______ _____________ (1916)); United States v. Rendini, 738 F.2d 530, 533 (1st ______________ _______ 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 ____________________ 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)). -11- 11 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 _____________ ________ Cir. 1991) (listing mail fraud elements); United States v. ______________ Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993) (listing wire ________ 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). _____ 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 ___________ courts later expanded the scope of the statutes to encompass schemes intended to defraud citizens of their intangible, ____________________ 6. The use of the mails or wires to further the fraudulent scheme need only be "incidental." United States v. ______________ Grandmaison, 77 F.3d 555, 566 (1st Cir. 1996). Moreover, the ___________ "[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, _____________ _____ 80 F.3d 580, 585 n.8 (1st Cir. 1996). -12- 12 non-property right to the honest services of their public officials. See generally, W. Robert Gray, Comment, The ___ _________ ___ 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 ____ 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. _____________ _____ denied, 445 U.S. 961 (1980)). ______ 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, _______ _____________ 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 _____ ______ quickly reacted to the McNally decision by enacting 18 U.S.C. _______ 1346, which provides that, for the purposes of, inter alia, _____ ____ 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 -13- 13 recognized that 1346 was intended to overturn McNally and _______ reinstate the reasoning of pre-McNally case law holding that _______ 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 ___ ___________ 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." ____________________ 7. See also 134 Cong. Rec. H11108-01, 1988 WL 182261 (Oct. ___ ____ 21, 1988) (statement of Rep. Conyers) ("This amendment is intended merely to overturn the McNally decision. No other _______ 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 . . . . _______ The intent is to reinstate all of the pre-McNally case law _______ 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 _______ parameters of this federal crime. -14- 14 United States v. Margiotta, 688 F.2d 108, 142-143 (2d Cir. _____________ _________ 1982) (Winter, J., concurring in part and dissenting in part) (quoting Mandel, 591 F.2d at 1361), cert. denied, 461 U.S. ______ _____ ______ 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. _____________ Holzer, 816 F.2d 304, 308 (7th Cir.) (judge's systematic ______ receipt of bribes and "loans" to influence official actions), vacated, 484 U.S. 807 (1987) (ordering reconsideration in _______ light of McNally); United States v. Isaacs, 493 F.2d 1124, _______ _____________ ______ -15- 15 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). _____ ______ A public official has an affirmative duty to disclose material information to the public employer. See ___ Silvano 812 F.2d at 759. When an official fails to disclose _______ a personal interest in a matter over which she has decision- making power, the public is deprived of its right either to disinterested decision making itself or, as the case may be, to full disclosure as to the official's potential motivation behind an official act. See id. (upholding conviction of ___ ___ 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. _____________ ______ 1995) (board of education member received secret commissions from companies contracting with school system), cert. denied, _____ ______ 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 -16- 16 results in the official's personal gain. For example, in United States v. McNeive, 536 F.2d 1245, 1246 (8th Cir. _____________ _______ 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 ___ involve nor contemplate the deprivation of McNeive's honest services to the city or public. Likewise, in United States v. Rabbitt, 583 F.2d _____________ _______ 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 ___ receipt of the resulting, undisclosed commissions defrauded the citizens of Rabbitt's honest services. Id. at 1025. The ___ evidence showed, however, that the officials who awarded the -17- 17 architectural contracts did so on merit alone and Rabbitt played no role in the selection of the firm. Id. at 1026. ___ 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. ___ 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 ___ _____________ _______ -18- 18 (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 _____ ______ U.S. 998 (1981). With this background, we consider the facts of this case. -19- 19 A. Scheme to Defraud _____________________ 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, _____ 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 |