United States v. Brumley

59 F.3d 517

Opinion

REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40560

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

MICHAEL BRYANT BRUMLEY, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas

June 18, 1997

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Michael Bryant Brumley was convicted in a bench trial of

conspiring to defraud the citizens of the State of Texas of honest

services by use of interstate wire communications and the United

States mail in violation of 18 U.S.C. § 371, three counts of wire

fraud in violation of 18 U.S.C. § 1343, three counts of money

laundering in violation of 18 U.S.C. § 1956, and two counts of

making a false statement to a financial institution in violation of 18 U.S.C. § 1014. Brumley does not appeal his conviction on the

last two counts of defrauding a financial institution, and they are

not before us.

As we will explain, Brumley’s primary contention is that the

government has misused federal criminal statutes to prosecute a

state employee for ethical lapses. Along the way to review by the

en banc court the issues on appeal have narrowed to four. First,

Brumley urges that neither the plain language of § 1346 nor its

legislative history expands the types of victims protected by the

statute to include a state employer. Second, he insists that an

ethical lapse, or at worst a state misdemeanor, is not a

deprivation of honest services. Third, he argues that the Commerce

Clause does not support § 1346. Finally, he contends that the

money laundering statute does not reach his conduct. Brumley also

challenged the statute and the indictment on vagueness grounds in

the district court, but he did not pursue these contentions on

appeal.

We reject each of these contentions and affirm the

convictions. In doing so we reject the argument that Congress

failed in its 1988 effort to expand the statute to cover the

deprivation of honest services which the McNally and Carpenter

decisions found were outside the statute’s reach. See Carpenter v.

United States, 484 U.S. 19, 25 (1987); McNally v. United States,

483 U.S. 350, 359-60 (1987). This argument has gathered strength

from the Supreme Court’s recent Commerce Clause decisions, but we

2 ultimately conclude that it cannot escape the plain language of

§ 1346.

I

A panel of this court first reversed the convictions for wire

and mail fraud, as well as money laundering and conspiracy. United

States v. Brumley, 59 F.3d 517 (5th Cir. 1995), withdrawn, 79 F.3d

1430 (5th Cir. 1996). The panel reversed for lack of evidence that

Brumley could foresee the interstate character of the wire

transmission relied upon by the government. After withdrawing this

opinion, the panel, with one judge dissenting, held that the term

“another” as used in 18 U.S.C. § 1346 does not reach citizens of a

state or political subdivision who have been deprived of the honest

services of their public officials. United States v. Brumley, 79

F.3d 1430, 1441-42 (5th Cir. 1996). We granted the government’s

petition for rehearing en banc on July 17, 1996. United States v.

Brumley, 91 F.3d 676 (5th Cir. 1996).

II

Texas’ workers’ compensation law was long administered by the

Texas Industrial Accident Board. Under this regime the Board dealt

with three groups: claimants, their lawyers, and insurance

carriers insuring the employers. Brumley worked for the Board and

resided in Beaumont, Texas. In 1990 the Texas legislature changed

the process for resolving workers’ compensation claims. The Board

became the Texas Workers’ Compensation Commission, and Brumley was

promoted to Associate Director of the new commission and moved to

3 the new commission’s Houston office. Brumley’s duties included the

handling of claims arising under the old law and, according to the

indictment, responsibility for “identifying attorneys and insurance

carriers who failed to follow TWCC or IAB rules and regulations.”

Brumley’s work gave him knowledge of the conduct of lawyers, the

identity of unrepresented claimants, and the details of the process

itself.

Brumley never seemed to be able to live within his income. As

early as 1982, he began to solicit loans from lawyers representing

claimants and their assistance in obtaining loans from lending

institutions. In 1985 and 1986, while he was conducting prehearing

conferences in cases in Lufkin, Texas, he charged and never repaid

several hundred dollars to the account of a claimant’s counsel at

the local country club. By 1988 Brumley had borrowed money from at

least eight lawyers and struck up a relationship with John M. Cely,

a Lufkin attorney with a substantial workers’ compensation

practice. Cely and persons employed by his law firm made frequent

appearances before Brumley in prehearing conferences. They began

a process whereby Cely would cause wire transfers to be made from

the Western Union office in Lufkin to Brumley at various locations

in Texas. These wire transfers were accomplished electronically

through a Western Union facility located outside of Texas. From

1987 to May of 1992, Cely made some seventy wire transfers to

Brumley totaling approximately $86,730. In all, Brumley “borrowed”

4 some $112,156 from eleven lawyers, including Cely. None of this

sum was ever repaid.

The indictment charged a scheme to defraud “the citizens of

the State of Texas, including the members of the Texas Industrial

Accident Board . . . , an agency of the State of Texas, from

receiving the intangible right to honest services.”

III

Brumley contends that Congress did not intend to reach schemes

to deprive an entity of state government of the intangible right of

honest services in its 1988 enactment of § 1346. That statute

provides:

For the purposes of this Chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

Reading § 1346 with § 1343 we have the following prohibition:

Whoever, having devised or intending to devise any [scheme or artifice to deprive another of the intangible right of honest services], . . . transmits or causes to be transmitted by means of [interstate wires] for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years, or both.

Brumley’s present argument, taking a cue from the second panel

opinion, takes two related cuts at the application of the statute

to his conduct. First, he contends that “another” has the same

meaning as the term “whoever” for purposes of the fraud chapter of

the criminal code, specifically Chapter 63 of Title 18. And

5 “another” cannot include his state employer or the citizens of the

State of Texas. Second, invoking federalism, Brumley contends that

Congress failed to state its purpose with the clarity demanded for

federal incursions into state matters, at least those traveling on

the commerce power.

We are persuaded that a governmental entity qualifies as

“another” within the meaning of § 1346, and that “honest services”

can include “honest and impartial government.” The panel opinion

notes that Section 1 of Title I of the U.S. Code provides that

“‘person’ and ‘whoever’ include corporations, companies,

associations, firms, partnerships, and societies, and joint stock

companies, as well as individuals.” 79 F.3d at 1435. It “note[s]

that among the meanings of the word ‘whoever’ in Section 1, Title

I, there is nothing that could even remotely be interpreted or

construed to mean ‘a state,’ ‘a political subdivision of a state,’

‘a government,’ ‘a governmental agency,’ or ‘the citizens of a

state as a body politic.’” Id.

Brumley is himself an “individual,” and we think he must

qualify as a “whoever” within the meaning of the statute, in which

case he can be prosecuted for depriving “another” of his intangible

right of honest services. This case does not involve a prosecution

of a state, state subdivision, government, or agency. Rather, it

is a prosecution of an individual who abused his position as an

employee of a state commission. That the mail fraud statute

6 reaches Brumley’s conduct is consistent with the proposition that

the statute does not allow prosecution of a state or state agency.

Moreover, Section 1 of Title I provides that “person” and

“whoever” include the listed terms. We read this to mean that

“person” and “whoever” include the listed terms without deciding

whether other non-mentioned entities may qualify as a “person” or

a “whoever.” Otherwise, Congress would have said something other

than “include,” such as “person” and “whoever” mean the listed

terms (or consist of, or perhaps include only). In this criminal

statute, “another” defines the range of victims while “whoever”

defines the perpetrator; we do not think it makes sense to define

the victims by reference to the definition of the perpetrator. See

United States v. Castro, 89 F.3d 1443, 1456 (11th Cir. 1996)

(concluding that the plain language and legislative history of

§ 1346 do not limit its application to governmental victims of

fraud), cert. denied, 117 S. Ct. 965 (1997).

IV

Brumley argues that even if “another” does not modify

“whoever,” it does not include “citizens as the body politic.” The

exact thrust of this contention is uncertain, given the fact that

the defendant is not a political entity but a person charged with

fraudulent activity while employed by a state entity. We

understand the argument to be that “another” should not be read to

reach such abuses of state office. The contention is that § 1343

is at least sufficiently uncertain that it need not be so read, and

7 traditional principles of lenity and the doctrine of clear

statement counsel that it should not be. The argument points to

McNally itself, specifically the Court’s observation that:

Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read [the statute] as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.

483 U.S. at 360.

The argument fails because Congress accepted the Court’s

invitation and was clear in its purpose. First, we think the

statutory language plainly reaches state officials such as Brumley,

and thus it is unnecessary to repair to legislative history. That

history is recounted by the dissent and by the panel majority, see

79 F.3d at 1435-40, and we will not rehearse it again. There is

nothing to suggest that Congress did not intend by § 1346 to

overturn the Supreme Court’s McNally decision and to insist that

the fraud statutes cover deprivations of intangible rights such as

those charged in the counts for which Brumley was convicted. We

join the First, Fourth, and Eleventh Circuits in rejecting similar

attacks on § 1343 convictions. United States v. Sawyer, 85 F.3d

713, 723-24 (1st Cir. 1996); United States v. Bryan, 58 F.3d 933,

939-43 (4th Cir. 1995); United States v. Waymer, 55 F.3d 564, 568

n.3 (11th Cir. 1995), cert. denied, 116 S. Ct. 1350 (1996).

8 The dissent, worried that the text of § 1346 fails to give

citizens adequate notice, accuses the majority of illicitly re-

drafting a criminal statute. But we are hardly announcing a

common-law crime. As the Supreme Court has recently explained,

“the touchstone is whether the statute, either standing alone or as

construed, made it reasonably clear at the relevant time that the

defendant’s conduct was criminal.” United States v. Lanier, ___

U.S. ___, ___, 117 S. Ct. 1219, 1225 (1997). Gauging fair notice

requires an inquiry into the state of the law as a whole, not

merely into the words printed on a single page of the United States

Code. Constructions of a statute announced by the Supreme Court or

lower courts can give citizens fair warning, even if the cases are

not “fundamentally similar.” Id. at ___-___, 117 S. Ct. at 1226-

28.

Here Brumley had notice that Congress had repudiated the

Supreme Court’s interpretation in McNally. Congress, in other

words, announced that it wanted the courts to enforce the honest-

services doctrine developed in the years leading up to McNally.

Because Congress was not faced with a uniform formulation of the

precise contours of the doctrine, some defendants on the outer

reaches of the statute might be able to complain that they were not

on notice that Congress criminalized their conduct when it revived

the honest-services doctrine. But even if there are such

defendants, Brumley is not among them. As we will explain, his

conduct was inconsistent with his duties under Texas law. The

9 boundaries of “intangible rights” may be difficult to discern, but

that does not mean that it is difficult to determine whether

Brumley in particular violated them. See Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 505, 102

S. Ct. 1186, 1196 (1982) (rejecting a vagueness challenge to a

quasi-criminal ordinance regulating the sale of drug paraphernalia

because the ordinance was “reasonably clear in its application to

the complainant”).

V

We must next find the meaning of honest services as used in

this federal statute.1 As we have explained, Congress has insisted

that the fraud statutes cover the deprivation of intangible rights.

In doing so, it reestablished the honest services doctrine. It

bears emphasis that before McNally the doctrine of honest services

was not a unified set of rules. And Congress could not have

intended to bless each and every pre-McNally lower court “honest

services” opinion. Many of these opinions have expressions far

broader than their holdings. See United States v. Curry, 681 F.2d

402, 419 n.1 (5th Cir. 1982) (Garwood, J., concurring). Congress,

then, has set us back on a course of defining “honest services,”

and we turn to that task.

The statute continues to draw much cogent and scholarly commentary. See, e.g., George D. Brown, Should Federalism Shield Corruption?--Mail Fraud, State Law and Post-Lopez Analysis, 82 Cornell L. Rev. 225 (1997).

10 Before McNally, the meaning of “honest services” was uneven.

See, e.g., United States v. Holzer, 816 F.2d 304, 307-10 (7th Cir.)

(affirming the conviction of a county judge who accepted “loans”

from attorneys who practiced before him, even though the government

never showed that the judge ruled differently in a case because of

any lawyer’s willingness to make a “loan”), vacated, 484 U.S. 807

(1988) (remanded for reconsideration in light of McNally); United

States v. Silvano, 812 F.2d 754 (1st Cir. 1987) (affirming the

conviction of a city budget director who did not disclose his

secret plan to enrich a friend with an expensive and unnecessary

project bid); United States v. Lovett, 811 F.2d 979 (7th Cir. 1987)

(affirming the conviction of a mayor who accepted an undisclosed 5%

interest in a local cable company attempting to bid on a city

franchise); United States v. Bruno, 809 F.2d 1097, 1104-06 & n.1

(5th Cir.) (affirming convictions under § 1343 based on a scheme to

bribe), cert. denied, 481 U.S. 1057 (1987); United States v.

Barber, 668 F.2d 778 (4th Cir.) (affirming the conviction of an

Alcoholic Beverage Control Commission official who “withdrew”

liquor from a state warehouse with subsequent “authorization” from

liquor companies so that the companies would be billed), cert.

denied, 459 U.S. 829 (1982); Bradford v. United States, 129 F.2d

274, 276 (5th Cir.) (grounding a § 1343 conviction on a scheme to

use city officials’ positions to sell buses to the city at

exorbitant prices for unearned profits), cert. denied, 317 U.S. 683

(1942); Shushan v. United States, 117 F.2d 110, 115 (5th Cir.) (“No

11 trustee has more sacred duties than a public official and any

scheme to obtain an unfair advantage by corrupting such a one must

in the federal law be considered a scheme to defraud.”), cert.

denied, 313 U.S. 374, 314 U.S. 706 (1941).

A close look at these cases uncovers two uncertainties

regarding the draw by this federal statute upon state law,

specifically in defining the statutory element of honest services.

First, must the services be owed under state law? Second, must the

breach of a duty to provide services rooted in state law violate

the criminal law of the state? We decide today that services must

be owed under state law and that the government must prove in a

federal prosecution that they were in fact not delivered. We do

not reach the question of whether a breach of a duty to perform

must violate the criminal law of the state.

We begin with the plain language of the statute. There are

two words — “honest” and “services.” We will not lightly infer

that Congress intended to leave to courts and prosecutors, in the

first instance, the power to define the range and quality of

services a state employer may choose to demand of its employees.

We find nothing to suggest that Congress was attempting in § 1346

to garner to the federal government the right to impose upon states

a federal vision of appropriate services — to establish, in other

words, an ethical regime for state employees. Such a taking of

power would sorely tax separation of powers and erode our

federalist structure. Under the most natural reading of the

12 statute, a federal prosecutor must prove that conduct of a state

official breached a duty respecting the provision of services owed

to the official’s employer under state law. Stated directly, the

official must act or fail to act contrary to the requirements of

his job under state law. This means that if the official does all

that is required under state law, alleging that the services were

not otherwise done “honestly” does not charge a violation of the

mail fraud statute. The statute contemplates that there must first

be a breach of a state-owed duty. It follows that a violation of

state law that prohibits only appearances of corruption will not

alone support a violation of §§ 1343 and 1346. See United States

v. Sawyer, 85 F.3d 713, 728-29 (1st Cir. 1996). As the Ninth

Circuit put it, “[t]o hold otherwise that illegal conduct alone

[would suffice] would have the potential of bringing almost any

illegal act within the province of the mail fraud statute.” United

States v. Dowling, 739 F.2d 1445, 1450 (9th Cir. 1984), rev’d on

other grounds, 473 U.S. 207 (1985).

Stated another way, “honest services” contemplates that in

rendering some particular service or services, the defendant was

conscious of the fact that his actions were something less than in

the best interests of the employer — or that he consciously

contemplated or intended such actions. For example, something

close to bribery. If the employee renders all the services his

position calls for, and if these and all other services rendered by

him are just the services which would be rendered by a totally

13 faithful employee, and if the scheme does not contemplate

otherwise, there has been no deprivation of honest services. See,

e.g., United States v. Czubinski, 106 F.3d 1069, 1077 (1st Cir.

1997) (reversing convictions under §§ 1343 and 1346 because

although unauthorized browsing of taxpayer files by an IRS employee

constitutes a breach of personnel policies, “there [was] no

suggestion that he failed to carry out his official tasks

adequately, or intended to do so”); United States v. Rabbitt, 583

F.2d 1014, 1026 (8th Cir. 1978), cert. denied, 439 U.S. 1116

(1979); United States v. McNeive, 536 F.2d 1245, 1246 (8th Cir.

1976). Thus, the mere violation of a gratuity statute, even one

closer to bribery than the Texas statute, will not suffice.

Sawyer, 85 F.3d at 729-30.

Finally, the statute proscribes an actual scheme or artifice

to defraud. There is nothing in the informing principles of

federalism or legislative history to suggest that the scheme or

artifice to defraud elements are drawn from state law. Rather,

they are familiar terms of federal criminal law generating and

drawing their sustenance from federal common law. These wholly

federal elements, read with the jurisdictional elements of mail

usage and coupled with the draw upon state law for the definition

of service, allow the statute to serve federal interests without

supplanting rights of core state governance. The indictment

charged that Brumley used his position to assist Cely in exchange

14 for money. Thus, the federal component of the crime was properly

charged, and, as we will explain, was proved.

We pause to put aside the frequent invocations of a

deprivation of citizens’ rights to honest services. See Bruno, 809

F.2d at 1105-06; Shushan, 117 F.2d at 115. The reference to such

“rights” of citizens has little relevant meaning beyond a shorthand

statement of a duty rooted in state law and owed to the state

employer. Despite its rhetorical ring, the rights of citizens to

honest government have no purchase independent of rights and duties

locatable in state law. To hold otherwise would offer § 1346 as an

enforcer of federal preferences of “good government” with attendant

potential for large federal inroads into state matters and genuine

difficulties of vagueness. Congress did not use those words, and

we will not supply them.

The federalism arguments that inform the definition of “honest

services” under federal criminal law are powerful, and we

acknowledge them in our holdings today. A sitting state official

with adjudicatory authority who accepts payments from lawyers

practicing in front of him and simultaneously acts for those

lawyers in his official capacity contrary to his state-law duty has

provided dishonest services to his employer, here the Texas

Industrial Accident Board and its successor, the TWCC. As it turns

out, Texas condemns such conduct by making it a criminal offense

punishable by imprisonment for up to one year and a fine as large

as $4,000, and this violation was part of a fraudulent scheme and

15 conspiracy under § 1346, as found by the district court. The

tension inherent in federal criminalization of conduct by state

officials innocent under state law is absent here.

We have held that services under § 1346 are those an employee

must provide the employer under state law. Using his office to

pursue his own account and not that of his employer, Brumley

violated a Texas criminal statute. This case does not then require

us to decide whether the amended federal statute criminalizes

conduct no part of which is criminal under state law. Cf. United

States v. Cochran, 109 F.3d 660, 667 (10th Cir. 1997) (“[I]t would

give us great pause if a right to honest services is violated by

every breach of contract or every misstatement made in the course

of dealing.”).

Our previous cases have not made clear the use of state law we

emphasize today. To the extent our prior cases are contrary, they

are overruled.

VI

Having concluded that § 1343 applies to deprivations of honest

services by state employees and that such services must be owed

under state law, we now address Brumley’s contention that his own

actions did not do so. At trial, the government stipulated that it

would not try to prove that any IAB award was enhanced by Brumley

or that any claimant was awarded more money by Brumley or that

Brumley referred any unrepresented claimant to an attorney in

return for cash. Rather, the government’s “position [was] that the

16 quid pro quo [was] intangible, such as favoritism or other types of

intangible matters.” The government points out that Cely admitted

to the trial court that the $86,780 in payments to Brumley were not

“loans.” And during the time period that Brumley was receiving

these payments from Cely, Brumley vouched for Cely’s good character

when Cely was investigated by IAB and interceded to try to stop the

investigation altogether. Brumley also advised Cely on the

alteration of documents subpoenaed by the IAB, so as to make easy

detection of wrongdoing difficult. The relationship between Cely

and Brumley was so tight that when one of Cely’s employees inquired

into Cely’s unconcerned confidence about an impending TWCC/IAB

investigation of Cely, he replied: “We have Brumley.” Brumley also

helped Cely’s attempt to lease property in Lufkin to the TWCC by

advising Cely how to conceal his efforts and by aggressively

discouraging the TWCC from leasing from another bidder.

The district court found “ample and convincing” evidence to

support each of the counts of the indictment. According to the

district court, Brumley and Cely engaged in a conspiracy in which

Cely would give Brumley money and Brumley would use his position

with the IAB and TWCC to assist Cely’s dealings with the agency.

Although the district court found clear evidence of ethical

violations, it did not rely on them to make its decision. Instead,

the district court found a scheme to defraud that included conduct

that violated Texas penal law. See Tex. Penal Code Ann. § 36.08(e)

(making it a Class A misdemeanor for a public servant with judicial

17 authority to “solicit[], accept[], or agree[] to accept any benefit

from a person the public servant knows is interested in or likely

to become interested in any matter before the public servant or

[his] tribunal”).

Brumley’s other contentions are without merit, and we affirm

the judgment of convictions.

AFFIRMED.

18 JOLLY and DeMOSS, Circuit Judges, with whom SMITH, Circuit Judge, joins, Dissenting:

We respectfully dissent from what we consider to be an

issue-evasive and jurisprudentially flawed majority opinion. With

little analysis, and much judicially engrafted legislation, it

holds that general, undefined, vague, and ambiguous words

constitute a clear statement that Congress intended for federal

prosecutors and grand juries to police the conduct of state

officers acting in their official state capacities. We should make

clear that we do not at all suggest that the criminal statute at

issue is unconstitutional or must otherwise be stricken -- only

that as the statute is applied in this case, the indictment and

proof fails to state and prove a crime.

INTRODUCTION

First, the majority needs to be reminded that when

interpreting a criminal statute, courts must apply the rule of

lenity; that is, when choosing between two readings of a criminal

statute, the courts must favor the narrower interpretation unless

Congress has spoken to the contrary in language that is clear and

definite. This is an indisputable rule of statutory construction

ignored by the majority. Second, the Supreme Court has emphasized

that when a statute is applied, as here, to alter the balance of

federalism, congressional intent must be plain on the face of the statute -- an intent that even infrared eyes cannot detect from

this statute.

The words we interpret today are these few: “For the purpose

of this chapter, the term ‘scheme or artifice to defraud’ includes

a scheme or artifice to deprive another of the intangible right of

honest services.” For the majority to prevail, these words must

clearly demonstrate that Congress intended to apply the wire fraud

statute to police the integrity of state officials acting in the

capacities of their offices. Moreover, these words must satisfy

constitutional due process, which requires that citizens be given

fair notice that specific conduct constitutes a crime.

The majority utterly fails to address these principles of

statutory construction. The reason the majority opinion avoids

raising these crucial matters is simple: it cannot possibly conform

its conclusions with principles of statutory construction.

Principles of statutory construction are not the only

obstacles to the majority's reading of the statute. The

legislative history is also devastating to the majority’s position

that Congress has spoken clearly in § 1346 to reach the conduct of

state officers acting in their official capacity. Because the

statute fails on its face to make a crime of the charged conduct,

this dissent need not address the matter of legislative history.

The legislative history does, however, make plain beyond any doubt

that § 1346 cannot be fairly construed to reflect a clear

congressional intent to police the integrity of state officers.

20 Thus, rather than deal with the legislative history, the majority

pursues the only course available to it: silence.

Indeed, the only significant issue in this case that the

majority squarely faces is the meaning of “honest services," a term

that the majority acknowledges is ambiguous and undefined by

Congress. One would think that the majority would directly

acknowledge that this patent and indisputable ambiguity cripples

this prosecution. But no. Instead, the majority assumes a role

somewhere between a philosopher king and a legislator to create its

own definitions of the terms of a criminal statute. Surely, the

majority should recognize the laudatory principle to which we as a

Court try scrupulously to adhere: The courts may not assume the

place of Congress by writing or rewriting criminal laws pursuant to

which citizens will be prosecuted. This is solely the prerogative

of Congress. With great respect for the usual judgment of our

colleagues, we must say that the majority opinion in this respect

is hardly a judicial opinion.2

That it is necessary for the majority to write more in the nature of legislative drafting than judicial reasoning underscores that the majority implicitly acknowledges that the statute does not reflect a clear statement of Congressional intent. For example, the majority says at page 10, “We decide today” that “honest services” must be owed under state law in order to establish a crime under § 1343 as amended by § 1346. Furthermore, at page 14, the majority overrules all previous cases that criminalize conduct under § 1343, if these cases involve less, or more, than the majority’s determination of the appropriate state law component. In short, the majority’s legislative engraftment onto § 1343 gives the appearance that Brumley is being convicted of a crime that is now in the process of being devised by the Court.

21 The majority opinion is flawed in other respects as we shall

develop more fully in this dissent. Its argument that it makes no

sense to "define victims by reference to the definition of the

perpetrator" is sophistry, a glib phrase giving the appearance of

a truism, resorted to by the majority because it can provide no

answer to otherwise define the meaning of “another” as it appears

in the statute. Although it may be less than a perfect method of

divining the hidden intent of Congress, we suggest that defining

"another," which is otherwise completely undefined by Congress, by

referring to "whoever," is an absolutely correct grammatical

construction of the one-sentence statute; at least it provides some

definitional meaning or limits to the term “another.” The majority

opinion provides no definitional limits for a key term in a

criminal statute. The majority also says nothing about the due

process problems of sufficient notice of what behavior has been

prohibited when such key terms have no definitional limits.

In this dissent, we shall further show that the majority,

without any analysis, baldly states that "another" means the

citizens as the body politic. It is beyond our capacity to accept

the conclusion that by using the term "another" in § 1346, Congress

clearly has referred to the entire “body politic” of the State of

Texas. In so concluding without analysis, the majority gives the

phrase judicial chutzpa new meaning.

After the majority completes its assumed legislative task of

defining honest services, it appears to have some second thoughts

22 about the application of "another" to the body politic, and

"pauses" to

put aside the frequent invocations of a deprivation of citizens' rights to honest services. The reference to such "rights" of citizens has little relevant meaning beyond a shorthand statement of a duty rooted in state law and owed to the state employer. Despite its rhetorical ring, the rights of citizens to honest government have no purchase independent of rights and duties locatable in state law. To hold otherwise would offer § 1346 as an enforcer of federal preferences of "good government" with attendant potential for large federal inroads into state matters and genuine difficulties of vagueness. Congress did not use those words, and we will not supply them.

Maj. Op. at 13 (internal citation omitted). It is certainly true

that Congress did not use those words. Indeed, that is a major

point of this dissent. The indictment, however, used those words.

Does the majority conclude that the indictment charges the

specifics of a crime unauthorized by Congress? If for no other

purpose than to remind the majority, we point out that the

indictment charged Brumley with depriving "the citizens of the

State of Texas . . . from receiving . . . honest services." Yet

the majority says the term has no “purchase.” No purchase? The

deprivation of the “citizens of Texas rights to honest services” in

this case has “purchased” a federal prison sentence for Mr.

Brumley.

We turn now to more fully address the substantive issues

raised by this appeal. We first address the Supreme Court opinions

in McNally and Carpenter, the cases that prompted the passage of §

23 1346. We will then show how the Supreme Court has made it

unmistakably plain that Congress must make a clear statement when

it intends to extend a criminal statute into policing the behavior

of state officials. Next we will show that the statutory language

cannot possibly be interpreted as such a clear statement, and that

the legislative history debunks the majority’s position that § 1346

is a clear statement that Congress intended to police the honesty

of state government officials in their official capacities.

Finally, we demonstrate that the phrase "honest services" is

entirely ambiguous.

McNALLY AND CARPENTER

A thorough understanding of the Supreme Court's landmark

decision in McNally v. United States, 483 U.S. 350, 107 S. Ct.

2875, 97 L.Ed.2d 292 (1987), is the first order of business. This

case involved the prosecution of a former public official of

Kentucky and a private individual for alleged violation of the

federal mail fraud statute, 18 U.S.C. § 1341. The principal theory

of the prosecution in McNally, which was accepted by the courts

below, was that the defendants' participation in a self-dealing

patronage scheme defrauded the citizens and government of Kentucky

of certain "intangible rights," such as the right to have the

commonwealth affairs conducted honestly. The jury convicted the

defendants and the Court of Appeals affirmed the convictions,

24 relying upon a line of decision from the Courts of Appeals holding

that the mail fraud statute proscribed schemes to defraud citizens

of their intangible rights to honest and impartial government. The

Supreme Court granted certiorari and reversed. The most

illuminating language of the majority opinion in McNally provides

that:

Rather than construe the statute [mail fraud, § 1341] in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read § 1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.

Id. at 360 (emphasis added).

This seven to two majority opinion overturned the theories

upon which a large number of prior Circuit Court decisions had been

based. Justice Stevens' dissent identifies in detail the prior

Circuit Court cases and categorizes them in separate footnotes:

Footnote 1

State and federal officials convicted of defrauding citizens of their right to the honest services of their governmental officials, id. at 362;

Footnote 2

Elected officials and campaign workers convicted of mail fraud for using the mail to falsify votes, thus defrauding the citizenry of its right to an honest election, id. at 363;

Footnote 3

In the private sector, agents with clear fiduciary duty to their employers or unions, found guilty of

25 defrauding by accepting kick backs or selling confidential information, id. at 363; and

Footnote 4

In the private sector, defendants convicted for defrauding individuals of their rights to privacy and other non-monetary rights. Id. at 364.

The key language from McNally quoted above clearly states that

the majority overruled the body of case law referred to in Justice

Stevens' footnotes for two reasons:

1. The majority did not want to construe the statute as

involving the federal government in setting standards of

disclosure and good government for local and state officials.

This is a healthy recognition of the realities of our federal

system and pulls the rug out from under the conceptual

analysis used by the Circuit Courts in deciding the cases in

footnotes 1 and 2 of the dissent; and

2. The majority did not want to construe the mail fraud

statute in a manner that would create ambiguity in its outer

limits, so it said the statute would apply only to the

"protection of property rights," thereby pulling the rug out

from under the category of cases described in footnotes 3 and

4.

Both the majority opinion and the dissent in McNally indicate

that Congress might change the Court's construction; but the

26 majority made it absolutely clear that Congress "must speak more

clearly than it has" if it desired to make such changes.

Shortly after its decision in McNally, the Supreme Court

decided Carpenter v. United States, 484 U.S. 19, 108 S. Ct. 316, 98

L.Ed.2d. 275 (1987). In Carpenter, a unanimous Supreme Court

described its holding in McNally as follows:

We held in McNally that the mail fraud statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government" and that the statute is "limited in scope to the protection of property rights."

Id. at 320 (internal citations omitted).

In Carpenter, the Supreme Court found that the property

rights, though intangible, were none the less property rights and

that "McNally did not limit the scope of § 1341 to tangible as

distinguished from intangible property rights." Id. Therefore,

Carpenter clearly reaffirms the majority opinion in McNally, but

recognizes that both tangible and intangible property rights are

protected by the mail fraud and wire fraud statutes as they then

stood.

Because of the emphasis that the majority opinion places on

the circumstance of the employment relationship between Brumley and

the TWCC, it should be noted that in Carpenter the Court

characterized an employer’s contractual right to an employee’s

honest and faithful services as "an interest too ethereal in itself

to fall within the protection of the mail fraud statute." Id.

27 Consequently, Carpenter foreclosed the use of the "intangible right

of honest services" doctrine in private employment relationships,

just as McNally had foreclosed the use of that doctrine as to the

defrauding of "citizens of their intangible rights to honest and

impartial government."

PRINCIPLES OF STATUTORY CONSTRUCTION

On the last day of the 100th Congress in October 1988,

Congress passed a highly publicized and much debated omnibus drug

bill. Attached to that omnibus bill, as one of some 30 other

unrelated provisions, was a provision containing the text of what

has now been codified as 18 U.S.C. § 1346. See Pub. L. 100-690,

Title VII, § 7603(a), Nov. 18, 1988, 102 Stat. 4508. Our first

task is to decide whether the language used by the Congress in §

1346 satisfies the admonition of the Supreme Court in McNally that

Congress "speak more clearly than it has."

As with any statutory question, analysis begins with the

language of the statute. Kellogg v. United States, (In re West

Texas Marketing Corp.), 54 F.3d 1194, 1200 (5th Cir.), cert.

denied, ___ U.S. ___, 116 S. Ct. 523, ___ L.Ed.2d ___ (1995). In

determining a statute's plain meaning, the courts assume that,

absent any contrary definition, "Congress intends the words in its

enactments to carry their ordinary, contemporary, common meaning."

Pioneer Investment Services v. Brunswick Associates, 507 U.S. 380,

28 388, 113 S. Ct. 1489, 1495, 123 L.Ed.2d 74 (1993) (internal

quotation marks omitted). As the Supreme Court has stated: "There

is, of course, no more persuasive evidence of the purpose of a

statute than the words by which the legislature undertook to give

expression to its wishes." Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564, 571, 102 S. Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)

(internal quotation marks omitted). If the language is clear, then

"the inquiry should end." United States v. Ron Pair Enterprises,

489 U.S. 235, 241, 109 S. Ct. 1026, 1030, 103 L.Ed.2d 290 (1989).

In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30

L.Ed.2d 488 (1971), the Supreme Court stated the principles which

the Court has long followed in construing criminal statutes passed

by Congress:

First, as we have recently reaffirmed, "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812 [(1971)].... In various ways over the years we have stated that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal CIT Credit Corp., 344 U.S. 218, 221 [(1952)].... This principle is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U.S. 25, 27 [(1931)].... Second, because of the seriousness of criminal penalties and because criminal punishment usually represents the moral condemnation of the

29 community, legislatures and not courts should define criminal activity. This policy embodies "the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes in BENCHMARKS, 196, 209 (1967).

Id. at 522-23 (other internal citations omitted).

Therefore, the Supreme Court has recognized that criminal

statutes must be construed narrowly. Moreover, the Court has

emphasized a second critical principle:

Unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.... As this Court emphasized only last term in Rewis v. United States, [401 U.S. at 812,] we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the travel act. To do so, we said then, "would alter sensitive federal state relationships [and] could overextend limited federal police resources." While we noted there that "[i]t is not for us to weigh the merits of these factors," we went on to conclude that the "fact that they are not even discussed in the legislative history... strongly suggests that Congress did not intend that [the statute have the broad reach]." 401 U.S. at 812... As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal state balance in the way now claimed by the government.

30 Id. at 523 (internal footnotes and citations omitted) (alterations

in original). When legislation has the potential of altering the

relationship between state and federal police powers, this Court

must adopt a narrow interpretation of the statute.

It is clear, of course, that, under the Supremacy Clause, the

Congress may legislate in areas traditionally regulated by the

States. Nevertheless, the Court has emphasized that "[t]his is an

extraordinary power in a federalist system. It is a power that we

must assume Congress does not exercise lightly." Gregory v.

Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 2400, 115 L.Ed.2d 410

(1991). "If Congress intends to alter the usual constitutional

balance between the States and the Federal Government, it must make

its intention to do so unmistakably clear in the language of the

statute." Id. at 461 (internal citations omitted) (emphasis

added).

INTERPRETING THE TEXT OF SECTION 1346

The text of § 1346 is only one sentence in length and reads as

follows:

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

18 U.S.C. § 1346. A plain reading of the statutory text produces

numerous ambiguities and questions:

a. Who is the "deprivor" and who is the "deprivee?"

31 b. What is an "intangible right?" c. What are "honest services?" d. What is "the intangible right of honest services?"

If a criminal statute is to satisfy the "fair warning" test of

Bass, answers to these questions must be available to the "common

world" in a fashion which is clear and readily understandable so

that the line where permitted conduct ends and prohibited conduct

begins is certain.

The answer to the first question, "Who is the deprivor?,"

should be clear to the common man. The chapter referred to is

Chapter 63 of Title 18 entitled "Mail Fraud," and the term "scheme

or artifice to defraud" appears in four sections: Section 1341,

Mail Fraud; Section 1342, Fictitious Names or Addresses; Section

1343, Fraud by Wire, Radio or Television; and Section 1344, Bank

Fraud. The pronoun "whoever" is the pronoun used at the beginning

of each of these sections. Section 1 of Title I of the United

States Code, relating to rules of construction, contains the

following definition:

In determining the meaning of any Act of Congress, unless the context indicates otherwise --

"person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; ....

If one substitutes for the pronoun "whoever" its statutory

definition, and if one also inserts the definition of § 1346 in §

32 1343 (Wire Fraud), which is the relevant section involved in this

case, the statute reads as follows:

WHO [any person, individual, corporation, company, association, firm, partnership, society or joint stock company who],

PROHIBITED CONDUCT having devised or intending to devise s c h e m e o r artifice [to deprive another of the intangible right of honest services]

transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce any writings, signs, signals, pictures or sounds

MOTIVE for the purpose of executing such scheme or artifice; etc.

The answer to the first question, therefore, is that the deprivor

is "any person, individual, corporation, company, association,

firm, partnership, society or joint stock company."

The answer to the second question, "Who is the deprivee?," is

not clear. The word "another" is not defined anywhere in the

United States Code. The dictionary says that the first and most

frequent use of "another” as a pronoun is "one more; an additional

one."3 Grammarians teach that the word "another," when used as a

WEBSTER'S COLLEGIATE DICTIONARY, Random House, 1992.

33 pronoun, is an indefinite pronoun which has no specific meaning in

and of itself but draws its meaning from the context in which it is

used. A logical argument could be made, therefore, that the

pronoun "another," as incorporated by § 1346 into § 1343, would

have the same meaning as the lists of nouns incorporated into §

1343 by the Title 1, § 1 definition of "whoever." If this second

insertion is made, the first portion of § 1343 (wire fraud) reads

as follows:

[Any person, individual, corporation, company, association, firm, partnership, society or joint stock company who], having devised or intending to devise any scheme or artifice [to deprive any other person, individual, corporation, company, association, firm, partnership, society or joint stock company of the intangible right of honest services] etc.

With these insertions, § 1343 as amended by § 1346 can certainly be

read to clearly define the deprivor and the deprivee, setting aside

for the time being the definitional problem of what constitutes a

"deprivation of an intangible right of honest services." But these

insertions do not solve the interpretation problem in this case,

because the indictment charged Brumley with conspiring to defraud

and defrauding "the citizens of the State of Texas, including

members of the Texas Industrial Accident Board, an agency of the

State of Texas, from receiving the intangible right to honest

services," and defrauding "the citizens of the State of Texas

including the Industrial Accident Board and its successor (the

Texas Workman’s Compensation Commission), a state agency, of the

34 intangible right to good, faithful and honest service." There is

nothing in the definition of "whoever" in § 1 of Title 1 which

could even remotely be interpreted or construed to mean "a state,"

"the citizens of a state," "a political subdivision of a state,"

"a governmental agency," or "an employee or official of a govern-

mental agency." Moreover, the majority opinion impliedly concedes

that none of the nouns listed in the definition of § 1 of Title 1

could be construed to include a "state or state agency" when it

states that "the statute does not allow prosecution of a state or

state agency." Maj. Op. at 6.

The answers to the questions "What is an intangible right?",

"What are honest services?," and what is "the intangible right of

honest services" are not clear nor is their meaning readily

available to the average citizen. The term "intangible right" is

not defined in the United States Code, is not defined in BLACK’S LAW

DICTIONARY, and, prior to its use in § 1346, had never been used in

any other statute of the United States. The term "honest services"

is not defined anywhere in the United States Code, is not defined

in BLACK’S LAW DICTIONARY, and had never been used in the United States

Code prior to its use in § 1346. The phrase "the intangible right

of honest services" is, therefore, inherently undefined and

ambiguous. There is no listing in the United States Code of all

"intangible rights;" therefore, there is nothing which could be

identified as "the intangible right of honest services."

35 It is therefore incomprehensible to us that the majority can

conclude, as it must in order to uphold this conviction, that the

inclusion of the words "[f]or the purposes of this chapter, the

term 'scheme or artifice to defraud' includes a scheme or artifice

to deprive another of the intangible right of honest services,"

reflects a clear statement of a Congressional intention to protect

the citizenry of a state from corrupt state officials. Given this

certain ambiguity of statutory words, there is surely no call for

us to proceed further into legislative history to demonstrate that

Congress has failed to satisfy the requirements delineated in Bass

and Ashcroft. Nonetheless, the egregious error of the majority in

applying this statute to the instant facts is emphasized by

reference to legislative history. The legislative history

demonstrates conclusively that the United States House of

Representatives was unwilling to pass a criminal statute to reach

the conduct alleged in the instant indictment.

LEGISLATIVE HISTORY

The specific text of what has become 18 U.S.C. § 1346 was

inserted in the Omnibus Drug Bill for the first time on the very

day that the Omnibus Drug Bill was finally passed by both the House

and the Senate.4 The text of what is now § 1346 was never included

For an excellent discussion of the legislative history of § 1346, see Adam H. Kurland, The Guarantee Clause as a Basis for Federal Prosecutions of State and Local Officials, 62 S.

36 in any bill as filed in either the House of Representatives or the

Senate. As a result, the text of § 1346 was never referred to any

committee of either the House or the Senate, was never the subject

of any committee report from either the House or the Senate, and

was never the subject of any floor debate reported in the

Congressional Record.

There are only two items of legislative history pertinent to

the text of § 1346 as actually passed. First, there are remarks on

the floor of the House entered by Representative Conyers regarding

various provisions in the Omnibus Drug Bill, including the section

of that bill which added the new § 1346 to Title 18. After

describing the Supreme Court decision in McNally and its effect on

various prior federal Circuit Court opinions, Representative

Conyers stated:

This amendment restores the mail fraud provision to where that provision was before the McNally decision. The amendment also applies to the wire fraud provision and precludes the McNally result with regard to that provision.

The amendment adds a new section to 18 U.S.C. 63 that defines the term "scheme or artifice to defraud to include a scheme or artifice to defraud another of the intangible right of honest services." Thus, it is no longer necessary to determine whether or not the scheme or artifice to defraud involved money or property. This amendment is intended merely to overturn the McNally decision. No other change in the law is intended.

CAL. L. REV. 367, 487-91 (1989).

37 134 Cong. Rec. H11,108-01 (daily ed. Oct. 21, 1988) (emphasis

It is significant that in this statement Representative

Conyers does not use the word "state," nor the words "citizens of

a state," nor the words "state official," nor the words "public

official," nor the words "state employee." What Representative

Conyers does refer to as the change made by the amendment is that

it eliminates the necessity "to determine whether or not the scheme

or artifice to defraud involved money or property."5

Second, several weeks after the passage of the Omnibus Drug

Bill, the Senate Judiciary Committee prepared and entered into the

Congressional Record a report regarding all of the provisions in

the Anti-Drug Abuse Act of 1988 which were within the jurisdiction

of the Senate Judiciary Committee, for the purpose of detailing

"Congress' intent in enacting these provisions." Regarding the

text of what is now 18 U.S.C. § 1346, this report states as

Section 7603. Intangible Rights for Mail and Wire Fraud.

This section overturns the decision of McNally v. United States in which the Supreme Court held

In the case of Representative Conyers’ remarks, affording them any weight is dubious, as he voted against the final omnibus drug bill. See Geraldine Szott Moohr, Mail Fraud and the Intangible Rights Doctrine: Someone to Watch Over Us, 31 Harv. J. Leg. 153, 169 n.69 (1994). Likewise, there is nothing in the Congressional Record which identifies Representative Conyers as the sponsor of this amendment.

38 that the mail and wire fraud statutes protect property but not intangible rights. Under the amendment, those statutes will protect any person's intangible right to the honest services of another, including the right of the public to the honest services of public officials.6 The intent is to reinstate all of the pre-McNally case law pertaining to the mail and wire fraud statutes without change.7

134 Cong. Rec. S17,360-02 (daily ed. Nov. 10, 1988) (footnotes

Such post-enactment legislative history, however, is not

entitled to great weight. See Consumer Products Safety Comm’n v.

GTE Sylvania, Inc., 447 U.S. 102, 118 (1980). Moreover, additional

legislative history reveals that, on at least two occasions,

Congress was unwilling to specifically enact a statute that

expressly spoke to the conduct of public officials. The first such

occasion was H.R. 3050, 100th Cong., 1st Sess., filed July 29,

1987, which provided for the addition of a new section in Chapter

63 of Title 18 of the United States Code, which would have read:

The phrase "including the right of the public to the honest services of public officials" in this report is pure conjecture at best. Surely the staff of the Senate Judiciary Committee knew that Section 2 of S2973 (public corruption) was rejected by the House of Representatives See our discussion of S2973 hereinafter.

The majority correctly notes that the pre-McNally case law was "uneven" and was "not a unified set of rules." Therefore, the federal statute could not have intended to "reinstate all of the pre-McNally case law." To do so would have required a truly extraordinary statute, in which the substantive force of the statute varied in each judicial circuit.

39 Section 1346. Definition of Defraud for Certain Sections.

As used in Sections 1341 and 1343, the term "defraud" includes the defrauding of the citizens of a body politic --

1. of their right to the conscientious, loyal, faithful, disinterested and unbiased performance of official duties by a public official thereof; or

2. of their right to have the public business conducted honestly, impartially, free from bribery, corruption, bias, dishonesty, deceit, official misconduct and fraud.

This bill was referred to the House Committee on the Judiciary but

was never further acted upon in any way. Had this bill become law,

Congress would have declared in clear and unmistakable language

that the "citizens of a body politic" are protected by federal law

from dishonest public servants.

Second, the most comprehensive vehicle by which Congress

sought to change the McNally decision in a manner sufficient to

satisfy the tests of McNally was Senate Bill 2793 (S2793), titled

the "Anti-Corruption Act of 1988." This bill was introduced in the

Senate on September 7, 1988, referred to the Judiciary Committee,

reported favorably by that committee without a report, and passed

later by the Senate on October 14, 1988. This bill was then sent

to the House of Representatives, where it was referred to the House

Judiciary Committee on October 19, 1988. Concurrently with its

passage by the Senate, S2793 was designated by a unanimous consent

agreement of the Senate as one of a large number of amendments to

40 "comprise the joint leadership package" which would be attached as

amendments to H.R. 5210, the Drug Initiative Act of 1988, Omnibus,8

which was then before the Senate, having earlier been passed by the

House. H.R. 5210 (with S2793 included) was then passed by the

Senate and sent back to the House. On October 22, 1988, the House

of Representatives reconsidered H.R. 5210 with the leadership

package of amendments attached in the Senate and made various

amendments thereto, and then passed the revised bill. One of the

amendments made by the House of Representatives was to delete the

text of S2973 and substitute in its place the language which now

appears codified as 18 U.S.C. § 1346. H.R. 5210 as then amended

was sent back to the Senate, which concurred in those amendments

later on October 22, 1988.

Because of the direct relevance of S2973 to the text of what

was ultimately passed as 18 U.S.C. § 1346, a copy of that bill is

appended as an addendum to this dissent. Section 2 of this bill

(pages 1-6 of addendum) would have created a new Section 225,

entitled "Public Corruption," to be inserted in Chapter 11 of Title

18 of the United States Code. This new section would make

criminal: (a) depriving or defrauding the inhabitants of a state or

a political subdivision of a state of the honest services of an

official or employee of such state or subdivision and (b) depriving

It should be noted that H.R. 5210 as previously passed by the House did not contain any section dealing with the McNally decision nor the concept of "honest services."

41 or defrauding the inhabitants of a state or political subdivision

of a state of a fair and impartially conducted election process in

any primary, runoff, special or general election. On its face

Section 2 of S2793 would have been a fairly comprehensive,

articulate and clear attempt to define criminal conduct which would

satisfy the requirements of McNally that the Congress speak "more

clearly than it has" and, in the area of federal/state relations,

that Congress clearly express its intent to affect such relations.

If Section 2 of S2793 had been adopted by the House of

Representatives, there would not now be any need for determining

whether the word "another" means a "state or a political

subdivision of a state." There is no report in the legislative

history explaining why the House of Representatives declined to

accept the full text of S2793 as part of the omnibus Anti-Drug Act

of 1988 (H.R. 5210).

We may conclude from the demise of these more comprehensive

bills (H.R. 3050 and S2793) that the House of Representatives was

unwilling to join the Senate in the comprehensive definition of

crime involving "public corruption" as set forth in Section 2 of

S2793.

Section 3 of S2793, entitled "White Collar Crime,"

contemplated the addition of a new § 1346, entitled "Scheme or

Artifice to Defraud," which would be added to Chapter 63 of Title

18 of the United States Code. It is apparent that Section 3 of

42 S2793 is a progenitor in some respects of the text of 18 U.S.C. §

1346, which was ultimately adopted by both Houses. Change the word

"organization" to "another" and put a period after the words

"honest services," and one has the text of what was ultimately

passed.

The legislative history likewise does not reveal any report or

statement as to why the House of Representatives opted to make the

changes it made in the portion of Section 3 of S2793 which the

House of Representatives retained as Section 7603 of the Omnibus

Crime Bill. The word "organization" is defined in Section 18 of

Title 18 as meaning "a person other than an individual." The

substitution of the pronoun "another" for the noun "organization"

would work some enlargement of the class of potential victims,

since the word "organization" by definition does not mean

individual persons. But the critical question to our inquiry here

is whether simply by making this one word change the House intended

to accomplish the same results that would have been accomplished if

Section 2 of S2793 had also been adopted. Simply to pose the

question is to answer it. If the House of Representatives truly

agreed with the Senate that "depriving the inhabitants of a state

or political subdivision of a state of the honest services of an

official or employee of such state or subdivision" should become a

federal crime when use was made of the mails or interstate wire,

radio or television communications, then the clearest and most

comprehensive way to do that (and satisfy the Supreme Court's tests

43 in McNally) would have been to adopt the entirety of Section 2 of

S2793. The House of Representatives was unwilling to do that.9

Given this legislative history, the following conclusions must

be drawn:

1. Both the House and the Senate certainly knew how to

"speak clearly and definitively" on the subject of fraud

depriving the citizens of a state or political subdivision of

A conclusion that the House of Representatives during the 100th Congress in 1988 was consciously unwilling to pass Section 2 of S2793 is corroborated by two other sources. First, the Public Integrity Section of the Department of Justice stated in its 1988 Report to Congress:

Also, the Section pushed for and ultimately obtained congressional attention to the obstacle to effective corruption prosecution posed by the Supreme Court decision in McNally v. United States. That decision largely invalidated the use of the mail fraud statute to combat state and local corruption. Unfortunately, the legislation passed by Congress in 1988 did not completely address the problems posed by the McNally decision, and the Section will continue its efforts to see that this valuable weapon against corruption is restored. (Emphasis added).

Second, in subsequent Congresses, the Senate passed and included in its version of various crime bills provisions almost verbatim the same as the provisions of Section 2 of S2793. See 135 Cong. Rec. S12,430-32 (daily ed. Oct. 3, 1989) (statement of Sen. Biden); 136 Cong. Rec. S6638-39 (daily ed. May 21, 1990) (statement of Sen. Biden); 137 Cong. Rec. S9382-83 (daily ed. July 9, 1991); 138 Cong. Rec. S6911-03 (daily ed. May 19, 1992). But none of these bills passed by the Senate were ever adopted by the House of Representatives.

44 the intangible right of good and honest government, but the

House refused to do so; and

2. None of the bills containing any such express

provisions received a majority vote of both houses of

Congress. Instead, what was passed by both houses of Congress

was a last minute, "bobtailed" compromise which had never been

the subject of hearings in either house.

The wording of § 1346 simply does not effect a change in the

portion of the McNally opinion which held that the mail fraud

statute does not reach "schemes to defraud citizens of their

intangible rights to honest and impartial government." The

legislative history reinforces this view.

SECTION 1346 FAILS TO GIVE NOTICE

The majority opinion seems to make the test of "speaking more

clearly" simply Congress’ evidencing an intention to overrule

McNally. But overruling McNally does nothing to place in the

statutory language the necessary words, phrases and language which

would notify the average citizen that these statutes have been

dramatically extended to include conduct and activities not

previously stated therein. Clearly, when the Supreme Court decided

McNally, all of the preexisting Circuit Court constructions,

interpretations and applications went down the drain; the

convictions of many defendants who had been prosecuted under the

45 pre-McNally law had to be vacated, and conduct occurring prior to

the effective date of § 1346 could no longer be prosecuted under

the old law.

McNally placed the burden on Congress to put down in statutory

form whatever expanded scope it chose to give to the fraud

statutes. In effect, Congress was charged with codifying in

statutory form the definitions of the conduct which would be

prohibited by the concepts of "intangible rights," "honest

services," and "good and honest government," and to expressly

indicate whether Congress intended to extend these concepts to the

conduct of state officials. The requirement imposed by the Supreme

Court to speak more clearly was not for the benefit of the Circuit

Courts which had, in fact, given birth to these concepts in the

first place. Rather, the requirement to speak more clearly, in

addition to addressing federalism concerns, was for the benefit of

the public, the average citizen, the average mid-level state

administrator like Brumley, who must be forewarned and given notice

that certain conduct may subject him to federal prosecution. The

staff of the Senate Judiciary Committee and the Department of

Justice clearly understood these requirements and drafted S2793

(see addendum) which would satisfy them. This bill passed the

Senate, but the House was unwilling to specifically regulate the

conduct of state officials. In its place, the House substituted a

one-sentence statement that did not define the word "another," did

46 not define the term "intangible right," and did not define the term

"honest services." It is difficult to understand how the majority

can conclude that the statutory language of § 1346 "plainly reaches

state officials such as Brumley."

HONEST SERVICES

Finally, we have to register our disagreement with the

fundamental premise upon which the majority opinion seems to be

based, i.e., that Congress can delegate to the federal courts the

task of defining the key terms and coverage of a criminal statute.

We have found no Supreme Court case which supports that

proposition, and the majority opinion cites no authority, either

constitutional, statutory or decisional, for that premise. The

majority pays lip service to the principle that Congress must

define the criminal conduct when it states:

We will not lightly infer that Congress intended to leave to courts and prosecutors, in the first instance, the power to define the range and quality of services a state employer may choose to demand of its employees.

Maj. Op. at 10. Surprisingly, the majority flatly contradicts

itself when it states that the passage of § 1346 has set the Courts

"back on a course of defining honest services, and we turn to that

task." As stated earlier, research indicates that the term "honest

services" has never been used by the United States Congress in any

statute prior to its use in § 1346, and that the term is nowhere

47 defined by Congress. Likewise, there is nothing in the words of

the statute itself nor in any of the legislative history of § 1346

which would indicate any Congressional intent to delegate to the

Courts the task of defining the words "honest services," even if

Congress could constitutionally do so.

The majority’s attempt to define "honest services"

demonstrates why such ad hoc definitions cannot possibly satisfy

the requirements of "fair notice" to our fellow citizens as to

where the line between permitted and prohibited conduct is drawn.

On the one hand, the majority says that "the statute contemplates

that there must first be a breach of a state owed duty," but on the

other hand, it states that "the mere violation of a gratuity

statute, even one closer to bribery than the Texas statute, will

not suffice." Likewise, at one point the majority states that "we

do not reach the question of whether a breach of duty to perform

must violate the criminal law of the state," but in another point

the majority supports its evidentiary analysis by saying that

"Brumley violated a Texas criminal statute." Finally, at two

points the majority recognizes that the case law on "honest

services" prior to McNally was "not a unified set of rules" and was

"uneven." From its review of the pre-McNally cases, the majority

found "two uncertainties regarding the draw by this federal statute

upon state law, specifically in defining the statutory element of

honest services." Maj. Op. at 10. It is obvious, therefore, that

48 the majority has recognized that the term "honest services" has not

achieved the status of a commonly accepted and recognized term of

art which Congress could have been relying upon in using these

words. The majority makes a labored effort to infuse some sort of

meaning to these words; but in truth and in fact, the majority

finds that meaning in its own subjective notions and not in the

words of Congress.

CONCLUSION

Because our colleagues in the majority (1) have closed their

eyes to obvious ambiguities in the text of 28 U.S.C. § 1346; (2)

have chosen to completely ignore and avoid the legislative history

of § 1346 which that undermines the majority's conclusion; (3) have

concluded, without analysis or reference to any principles of

statutory construction, that § 1346 "plainly reaches state

officials such as Brumley;" and (4) now legislate the definition of

honest services, we find ourselves in total and fundamental

disagreement with the majority opinion. We therefore respectfully

dissent.