United States v. Gordon W. Curry, Jr.

681 F.2d 406, 1982 U.S. App. LEXIS 16990

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 29, 1982
• Docket: 81-3130
• Status: Published

Opinions

GOLDBERG, Circuit Judge:

Gordon Curry appeals his conviction on three counts of mail fraud,¹ arguing that there was no jurisdiction under the mail fraud statute, that the evidence was insufficient to support a guilty verdict, and that the trial court erred in refusing to instruct the jury that good faith was a defense to the violations charged. While we find that the evidence was indeed sufficient to support the convictions for mail fraud, we conclude that the trial court erred in refusing to provide the requested jury charge. Accordingly, we reverse.

FACTS

Gordon Curry’s indictment and conviction for mail fraud arise out of his activities as chairman of a citizens’ political action organization during three elections in 1978 and 1979. The defendant is accused of fraudulently converting to his own use thousands of dollars received by him from electoral candidates on behalf of his political organization. In addition, the defendant is said to have mailed false documents to a state election supervisory committee in an effort to both conceal his fraudulent conversion of funds and to deny the state of Louisiana true and correct information concerning campaign finances.

Gordon Curry was chairman of the political action committee of an organization incorporated under Louisiana law as P.E.O.P. L.E., Inc. “P.E.O.P.L.E.” was a group of black citizens in the South Baton Rouge area who performed various social, civil, charitable and political functions.² In early 1978, a group of P.E.O.P.L.E. members formed a so-called “political action committee,” ostensibly for the purpose of supporting political candidates chosen by the organization. Actually, candidates paid P.E. O.P.L.E. large amounts for its official endorsement, and for providing an array of campaign assistance services such as distributing signs and bumper stickers, printing ballots, and calling voters. P.E.O.P.L.E.’s presidents testified that any funds received from candidates over and above the cost of these election services were to be turned over to P.E.O.P.L.E.’s treasury and used to support programs to benefit youth and the elderly. Thus, P.E.O.P.L.E.’s “political action committee,” served both to support the organization’s political goals, and as a fund-raising vehicle for the organization’s other programs.

Gordon Curry was chairman of P.E.O.P. L.E.’s political action committee during three elections in 1978 and 1979. P.E.O.P. L.E. supported eight candidates in the September, 1978 election; six candidates in the November, 1978 election; and two candidates in the April, 1979 election. Candidates endorsed by P.E.O.P.L.E. ran for various offices, ranging from the United States Senate to local school board. In his role as chairman of P.E.O.P.L.E.’s political action committee, Mr. Curry negotiated with, and received funds in cash and check directly from, candidates. In addition, Curry oversaw and managed P.E.O.P.L.E.’s campaign support activities. Candidates testified that P.E.O.P.L.E. workers, led by Curry, provided substantial campaign assistance: they placed signs in voters’ yards, distributed bumper stickers and ballots, manned the polls and set up phone banks for contacting voters.

The Government contends that Gordon Curry used his position as Chairman of P.E.O.P.L.E.’s political action committee to defraud that organization of over fourteen thousand dollars. According to the Government’s calculations, Curry received an aggregate of $23,777.80 on behalf of P.E.O. P. L.E. during the three elections in question, and converted $14,975.00 of this to his own personal use. Curry deposited checks from candidates into his own checking account, or cashed the checks. According to the Government, only a small fraction of these funds were ever used to pay for campaign expenses. Instead of turning the balance of funds over to P.E.O.P.L.E., as he was required to do, Curry allegedly used the money for his own personal expenses.

Louisiana’s Election Campaign Finance Disclosure Act (hereinafter “the Election Act”)³ requires political committees to report their campaign finances to a Supervisory Committee. Pursuant to the Election Act, Mr. Curry mailed ⁴ affidavits attesting to P.E.O.P.L.E.’s campaign finances to the state’s Supervisory Committee after each election. The Government contends that the affidavits mailed by Curry to the Supervisory Committee were false and fraudulent under the terms of Louisiana’s Election Act. According to the Government, the false affidavits were intended by Curry to conceal from the Committee and from P.E.O.P.L. E.’s membership the true amounts of money received by Curry on P.E.O.P.L.E.’s behalf from political candidates, thereby preventing detection of Curry’s scheme to defraud P.E.O.P.L.E.

PROCEEDINGS BELOW

Curry was indicted on three counts⁵ of violating the mail fraud statute, 18 U.S.C. § 1341. Defendant filed several pre-trial motions, including a motion to dismiss the indictment for lack of jurisdiction, which were denied. At the close of trial, defendant submitted a request for a “good faith” jury charge, which was also denied. The jury found Curry guilty of all three counts of mail fraud. The district court denied defendant’s post-trial motions for judgment of acquittal, based on insufficiency of evidence; and for arrest of judgment, based on lack of jurisdiction. Defendant brought this appeal.⁶

ISSUES ON APPEAL

Three principal questions are presented on appeal.⁷ First, assuming arguendo the existence of a scheme to defraud P.E.O.P. L.E., we must determine whether there is sufficient connection between the fraudulent scheme and the affidavits mailed by-Curry to constitute the federal crime of mail fraud. Second, we must examine the record to determine whether there is sufficient evidence to sustain a guilty verdict. Finally, we must decide whether the district court erred in refusing to charge the jury on the issue of defendant’s good faith.

THE CRIME OF MAIL FRAUD

The mail fraud statute prohibits in general terms the use of the United States mails in furtherance of fraudulent schemes.⁸ Thus, in order to establish mail fraud, the Government must prove both the existence of a scheme to defraud, and use of the mails “for the purpose of executing” that scheme. U. S. v. Goss, 650 F.2d 1336, 1341 (5th Cir. 1981); U. S. v. Freeman, 619 F.2d 1112, 1117 (5th Cir. 1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981); U. S. v. Kent, 608 F.2d 542, 545 (5th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1981); U. S. v. Zicree, 605 F.2d 1381, 1384 (5th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). Specific intent to defraud is an essential element of the crime. U. S. v. Goss, supra; U. S. v. Freeman, supra; U. S. v. Kent, supra at 545 n.3. See generally K. Carlyle, A Survey of the Mail Fraud Act, 8 Memphis State L.Rev. 673, 677-678 (1978) (discussing the intent requirement in mail fraud cases). Accordingly, the defendant’s good faith is a defense to charges of mail fraud. U. S. v. Goss, supra.

The definition of a scheme to defraud is quite broad. As a learned judge of this Circuit⁹ once remarked in regard to the mail fraud statute, “[t]he law does not define fraud; it needs no definition; it is as old as falsehood and as versatile as human ingenuity.” The language of the mail fraud statute is sufficiently flexible to encompass any conduct “which fails to match the reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.” Blackly v. U. S., 380 F.2d 665, 671 (5th Cir. 1967).

Moreover, a scheme to defraud need not necessarily contemplate loss of money or property to the victims. See, e.g., U. S. v. Isaacs, 493 F.2d 1124, 1149-50 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v. States, 488 F.2d 761, 764 (8th Cir. 1973); U. S. v. Mandel, 415 F.Supp. 997, 1011 (D.Md.1976), aff’d in relevant part, 591 F.2d 1347 (4th Cir. 1979), aff’d in relevant part, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). Although the Government must prove that some actual harm was contemplated by the defendant, U. S. v. Regent Office Supply, 421 F.2d 1174, 1180 (2d Cir. 1970), it is well-established that a scheme which operates to deprive citizens of “intangible rights or interests” is a scheme to defraud under section 1341. U. S. v. McNeive, 536 F.2d 1245, 1248-49 (8th Cir. 1976). Thus, the mail fraud statute has been interpreted to forbid the use of the mails for schemes to defraud citizens of an elected official’s honest and faithful services, see U. S. v. Isaacs, supra; U. S. v. Mandel, supra; of political and civil rights, see, U. S. v. States, supra ; and of information relevant to public officials’ duties, see, U. S. v. Mandel, 591 F.2d at 1364. See generally, K. Carlyle, supra at 679-680 (discussing schemes to defraud aimed at “intangible” rights).

The indictment in this case describes two separate and distinct fraudulent schemes allegedly perpetrated by Curry, each scheme involving a different set of purported victims. First, it is alleged that Curry devised a scheme to defraud P.E.O.P. L.E. of funds collected from political candidates by converting these funds to his own use. This scheme also involved defrauding P.E.O.P.L.E.’s membership of their right to Curry’s honest, true and faithful services as chairman of the political action committee. Second, Curry is alleged to have defrauded the Supervisory Committee of its right to obtain true and correct financial disclosure reports as required by the Election Act.¹⁰

We find that the conduct described in the indictment, if supported by the evidence, would constitute two separate schemes to defraud within the context of the mail fraud statute.¹¹ The more difficult question is whether the affidavits mailed by Curry could have been “for the purpose of executing” his scheme to defraud P.E.O.P. L.E.¹²

Since the mail fraud statute was enacted, courts have been plagued by difficulties in defining the necessary degree of connection between a mailing and a scheme to defraud.¹³ A number of “tests” have been formulated. Thus: “[i]t is not necessary that the scheme contemplate the use of the mails as an essential element;” it is necessary only that the mailing be “incident to an essential part of the scheme.” Pereira v. U. S., 347 U.S. 1, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954); and “[t]he requisite statutory purpose exists if the alleged scheme’s completion could be found to have been dependent in some way upon the information and documents passed through the mail.” U. S. v. Kent, 608 F.2d at 546. A document mailed after the completion of a scheme to defraud may still be “for the purpose of executing” the scheme if the mailing was intended to conceal the fraud from the victim and “therefore make the apprehension of the defendants less likely than if no mailings had taken place.” U. S. v. Maze, 414 U.S. 395, 94 S.Ct. 645, 650, 38 L.Ed.2d 603 (1974).

The mailings in this case consist of three affidavits sent to the Supervisory Committee charged with enforcing Louisiana’s Election Act. The Government contends that the affidavits were “incidental to an essential element” of Curry’s scheme to defraud P.E.O.P.L.E. in several respects. First, since all political committees are required by law to report to the Supervisory Committee, the affidavits were a necessary part of P.E.O.P.L.E.'s continued existence as a political committee, and thus, of Curry’s scheme to use that organization to obtain funds for himself. In other words, the affidavits were the sine qua non of P.E.O.P. L.E.’s continued political operations, and hence, of Curry’s fraudulent scheme. Under this theory, the truth or falsehood of the affidavits is irrelevant: even if the affidavits were themselves true and correct, Curry would still be guilty of mail fraud because his scheme to defraud P.E.O.P.L.E. was “dependent in some way,” U. S. v. Kent, supra, on the documents mailed.

We find that this connection between the affidavits mailed by Curry and his scheme to defraud P.E.O.P.L.E. is, by itself, insufficient to establish a violation of the mail fraud statute. It is true that, ordinarily, the mailing of documents which are themselves innocent may still constitute the crime of mail fraud if the documents are mailed in execution of a scheme to defraud. Parr v. U. S., 363 U.S. 370, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960); U. S. v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976); U. S. v. Reid, 533 F.2d 1255, 1265 (D.C.Cir.1976). However, mailings of documents which are required by law to be mailed, and which are not themselves false and fraudulent, cannot be regarded as mailed for the purpose of executing a fraudulent scheme. Parr v. U. S., 80 S.Ct. at 1183.¹⁴

The affidavits in this case were mailed by defendant pursuant to the requirements of Louisiana’s Election Act. Under these circumstances, Parr rules our jurisprudence. Thus, if the affidavits were true and correct, as Curry contends, the affidavits cannot, under the holding of Parr, be regarded as mailed for the purpose of executing Curry’s scheme to convert P.E.O.P.L.E.’s funds to his own use.

In order to establish a violation of the mail fraud statute in this case, which involves documents mailed pursuant to state law, the Government must prove something more than the mere mailing of the affidavits. If the Government proves that the affidavits were themselves false, and were intended by Curry to defraud Louisiana’s Supervisory Committee of true and correct campaign finance information, Curry’s conviction under the mail fraud statute would be sustained. See U. S. v. Isaacs, 493 F.2d at 1149-50; U. S. v. States, 488 F.2d at 764; U. S. v. Mandel, 415 F.Supp. at 1011. Alternatively, Curry’s conviction would be sustained if the Government proved that the affidavits were false, and that Curry mailed the false affidavits in a deliberate attempt to prevent discovery of his scheme to defraud P.E.O.P.L.E. See U. S. v. Maze, 94 S.Ct. at 650. Under either theory, however, Curry’s good faith belief that the affidavits were in compliance with Louisiana’s Election Act would be relevant to the issue whether the affidavits were mailed for the purpose of executing a scheme to defraud. See U. S. v. Goss, 650 F.2d at 1341.

Thus, we must examine the record to determine first, whether there was sufficient evidence of schemes to defraud the Supervisory Committee or P.E.O.P.L.E.; second, whether there was sufficient evidence that the affidavits were mailed in furtherance of the fraudulent schemes; and third, whether the jury was properly instructed as to the relevancy of Curry’s good faith, if any. Throughout our analysis, we will use two standards to evaluate the quality and quantity of evidence. In order to determine if the evidence was sufficient to sustain Curry’s conviction, we must evaluate the evidence in the light most favorable to the Government. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), U. S. v. Goss, 650 F.2d at 1341. In deciding whether Curry was entitled to a good faith jury charge, however, we need only search for any evidence of good faith, This is because “if there is any evidentiary support whatsoever for a legal defense, and the trial court’s attention is specifically directed to that defense, the trial judge commits reversible error by refusing thus to charge the jury.” U. S. v. Goss, 650 F.2d at 1344, n.7. Thus equipped with a legal road map and compass, we set off to explore the dense thicket of evidence and argument which comprises this appeal.

SUFFICIENCY OF THE EVIDENCE

A. Evidence of a Scheme to Defraud

The record is replete with evidence that Gordon Curry abused his position of trust as chairman of P.E.O.P.L.E.’s political action committee by diverting funds earmarked for P.E.O.P.L.E. to his own use. Candidates testified that Mr. Curry asked them for sums of money, describing these sums as the candidates’ pro rata share of election expenses. (Candidates who refused to pay were not endorsed.) The money was given to Curry in several ways. Candidates testified that on many occasions, Curry asked for, and received, funds in cash. On other occasions, checks were written out to “P.E.O.P.L.E., Inc.” These checks were endorsed by P.E.O.P.L.E.’s current president, Mr. Ford or Mr. Johnson, and by Mr. Curry, and then deposited in Mr. Curry’s personal bank account, or cashed by Mr. Curry. After P.E.O.P.L.E. had its own bank account, Mr. Curry deposited checks from candidates in that account. He would then request of P.E.O.P.L.E.’s treasurer that she write a check on P.E.O.P.L.E.’s account to Mr. Curry for the amount deposited. These checks were deposited in Mr. Curry’s personal account.

It is true that Mr. Curry used his personal account for receipt of candidate’s funds with the knowledge of P.E.O.P.L.E.’s President during periods in which P.E.O.P.L.E. did not have its own account. However, both Mr. Ford and Mr. Johnson testified that Curry was supposed to use the money received from candidates for campaign expenses, and that any excess funds were to be turned over to P.E.O.P.L.E.’s treasury. These funds were to be used for P.E.O.P.L. E.’s programs to assist youth and the elderly-

The bulk of campaign expenses incurred by P.E.O.P.L.E. were for salaries to workers ¹⁵ who put up signs, distributed information, and served as poll watchers. However, the evidence shows that P.E.O.P.L.E. workers were not paid out of funds deposited in Curry’s account.¹⁶ Rather, they were paid by yet other checks demanded by Curry from candidates. Candidates were instructed to write large numbers of checks for small amounts with the payees’ names left blank. These checks were then distributed by Curry to poll workers.

Thus, after elections, Curry was left with thousands of dollars collected from candidates in his personal bank account; money which was not used to pay P.E.O.P.L.E. workers, or for any other campaign expenses. Yet both Mr. Ford and Mr. Johnson testified that none of this money was ever turned over to P.E.O.P.L.E. Instead, Mr. Curry reported to them that P.E.O.P. L.E. suffered from a shortage of funds after elections.

In sum, the evidence shows clearly that Curry used his position as chairman of P.E. O.P.L.E.’s political action committee to solicit thousands of dollars from candidates for election expenses. It shows also that instead of disbursing the money either for election expenses or to P.E.O.P.L.E.’s treasury, Mr. Curry converted the money to his own use. Moreover, in light of the testimony of P.E.O.P.L.E.’s presidents, it is not reasonable to assume that Mr. Curry believed he was authorized to use the candidates’ money to compensate himself for campaign work. Both Mr. Ford and Mr. Johnson testified that Mr. Curry was not entitled to receive a salary for his activities as chairman of the political committee. Even if, as Mr. Curry contends, he was entitled to compensation for his campaign efforts, he could not have been entitled to the amounts involved here. According to the Government’s analysis, which is supported by the evidence, Curry took for his own use approximately $14,975.00 of funds received from candidates. This figure far exceeds amounts paid to other P.E.O.P.L.E. members for campaign work,¹⁷ and cannot be construed as reasonable compensation for even the most prodigous of election efforts.

Thus, a jury could reasonably conclude that Gordon Curry intentionally used his position as chairman of P.E.O.P.L.E.’s political action committee to defraud that organization of thousands of dollars solicited by Curry from candidates endorsed by P.E. O.P.L.E. Certainly, there is sufficient evidence to show that Curry’s conduct did not comport with our society’s concepts of “fair play and right dealing,” Blackly v. U. S., supra, and thus constitutes a “scheme to defraud” as that term is used in the mail fraud statute.

B. Evidence of Mailing in Execution of a Fraudulent Scheme

We turn now to the more complicated question of whether there was sufficient evidence to sustain a finding that defendant mailed the three affidavits described in the indictment in a deliberate effort to conceal his scheme to defraud P.E.O.P.L.E.; or in execution of a scheme to defraud Louisiana’s Supervisory Committee of true and correct campaign finance information.

A brief excursion into Louisiana state law is necessary to understand the evidence. Under Louisiana’s Election Act, political committees such as P.E.O.P.L.E.¹⁸ are required to report their campaign finances to the Supervisory Committee. Ordinarily, political committees must submit a detailed report which contains the name of each person who contributed money to the political committee and the amount contributed by that person, as well as the total sum of all contributions received by the committee. R.S. 18:1486E(1) and (2). However, there is an exception for “small campaigns.” R.S. 18:1487. In lieu of a full report, a political committee may file an affidavit stating first, that the committee did not receive contributions from any one source in excess of the applicable reporting amount, in this case five hundred dollars;¹⁹ and second, that the committee’s total expenditures did not exceed $5,000.

Gordon Curry mailed an affidavit after each election stating that P.E.O.P.L.E. had not received contributions from any one candidate in excess of five hundred dollars. However, the Election Act defines “contributions” broadly as any money received for the purpose of supporting a person’s election to public office.²⁰ Under the terms of the statute, “contributions” could include money given by a candidate to a political committee to support the candidates own election.

The Government argues that the affidavits mailed by Curry were patently false, since P.E.O.P.L.E. received far in excess of five hundred dollars from individual candidates in each of the three elections.²¹ Moreover, a jury could reasonably conclude that the false affidavits were mailed in a deliberate effort to conceal Curry’s fraudulent scheme from P.E.O.P.L.E. members. If Curry had submitted nothing to the Supervisory Committee, P.E.O.P.L.E. could have been prosecuted under the Election Act for failure to disclose campaign finances. If Curry had filed a correct report, detailing the amounts of money received from each candidate, he would have run the risk of investigation by P.E.O.P.L.E.’s members, and the possible detection of his fraudulent scheme to keep candidate’s money for his own use.

Curry contends, however, that even assuming the existence of a scheme to defraud P.E.O.P.L.E., there is insufficient evidence to sustain a finding that the affidavits were mailed in an effort to conceal the scheme.

According to Curry, the affidavits were mailed directly to the Supervisory Committee; they were never distributed to any members of P.E.O.P.L.E., and therefore could not have been used as a device to misrepresent anything to that organization. Although two of the affidavits were presented by Curry to the presidents of P.E.O.P.L.E. for their signatures,²² both Mr. Ford and Mr. Johnson testified that they did not read the affidavit carefully at the time they signed the documents. No other members of P.E.O.P.L.E. saw the affidavits.²³

We find there is sufficient evidence to support a jury finding that Curry intended the affidavits to conceal his fraudulent scheme. First, a member of the Supervisory Committee testified that reports filed with the Committee became part of the public record, and that local newspapers freqúently published campaign finance reports of particular interest. Thus, Curry risked publication of a detailed report of money received by P.E.O.P.L.E., had he filed such a report. In addition, Curry could not be assured of obtaining Ford’s and Johnson’s signatures on a detailed campaign finance report without risking investigation. The jury could have reasoned that Ford and Johnson each signed a short affidavit without questioning Curry as to its contents because nothing on the face of the affidavit aroused suspicion.²⁴ However, had Curry presented to the president a long report showing the total amount of funds received by him from candidates, sums which totalled $10,650.00, $7,850.00 and $5,052.80 for the three elections in question, the president might well have demanded an explanation of Curry as to the disbursement of those funds. Certainly, neither Ford nor Johnson would have been likely to accept Curry’s representation that P.E.O.P.L.E. was left with a shortage of funds after each election.

In sum, there was ample evidence to sustain a jury finding that Curry mailed the affidavits in a deliberate attempt to conceal his fraudulent scheme from P.E.O.P.L.E.’s members; and thus, that the affidavits were mailed for the purpose of executing Curry’s fraudulent scheme. Moreover, the same evidence supports a finding that Curry falsified the affidavits in order to conceal from the Supervisory Committee the true amounts collected from candidates. Thus, the jury could find that Curry intended to defraud the Supervisory Committee of correct campaign finance information.

C. Evidence of Good Faith

Having concluded that the evidence was sufficient to sustain Curry’s conviction on mail fraud charges, we turn now to the question whether there was any evidence to support a good faith jury charge. As noted supra, good faith is a defense to charges of mail fraud. Hence, if Gordon Curry believed in good faith that the affidavits were correct, and were in compliance with Louisiana’s Election Act, a jury could not reasonably conclude that the affidavits were intended to defraud the Supervisory Committee of true and correct campaign finance information. In addition, Curry’s good faith belief that the affidavits were correct is relevant to the issue whether the affidavits were mailed by defendant in an effort to conceal his scheme to defraud P.E. O.P.L.E. Because-good faith was an availn-ble defense,-Cur-p-v-was entitled toagood faith-juryjnstruction if there was any evidence at all to support the charge, “regardless of how weak, inconsistent or dubious the evidence of good faith may have been.” U. S. v. Goss, 650 F.2d at 1345.

On this record, we cannot say there was no evidence to support a finding that Curry prepared the affidavits in a good faith belief that they were true and correct.²⁵ The most obvious evidence supporting a finding of good faith is the ambiguity of Louisiana’s Election Act.' The Act defines “a, contribution” as “a gift, loan, advance, or deposit of money ... made for the purpose of supporting, opposing or otherwise influencing the nomination or election of a person to public office.” See Note 18, supra. The Act also requires that any “contributions” received by a political committee must be reported. However, a jury could well decide that Gordon Curry did not, in good faith, regard the money he solicited and received from political candidates as “contributions.” In ordinary parlance, a political contribution is understood as a donation, voluntarily given²⁶ by a citizen to a candidate, in order to assist in the candidate’s election efforts. Ordinarily, one expects no more in return for his money than that the candidate of his choice is elected.

In this case, candidates testified that they transferred funds to P.E.O.P.L.E. in exchange for a definite set of services: P.E.O. P.L.E.’s endorsement, and its workers’ campaigning efforts. As far as the candidates were concerned, they were simply expending funds for necessary services.²⁷ Accordingly, candidates listed amounts given to P.E.O.P.L.E. as “expenditures” on their campaign finance reports. Thus, the money was seen as no more a “contribution” to P.E.O.P.L.E. than a candidate’s payment for posters would be a “contribution” to a printing shop. And in fact, candidates repeatedly testified that they had specifically refused to authorize P.E.O.P.L.E. members to solicit “contributions,” meaning donations from citizens, on the candidates’ behalf.

The Government’s position is that funds given to P.E.O.P.L.E. were “expenditures” to the candidates and at the same time, “contributions” to P.E.O.P.L.E. This interpretation of the Election Act may well be legally correct. Gordon Curry, however, is not a lawyer. The issue is whether a non-lawyer might reasonably have believed that money received in exchange for services was not a “contribution.” In regard to this question, there is evidence that leaders of other political committees also thought that funds received from candidates in exchange for services did not have to be reported as “contributions.”²⁸

In sum, the record reveals sufficient circumstantial evidence to justify a good faith jury charge. The trial judge read to the jury the relevant portions of Louisiana’s Election Act. He did not however, instruct the jury that even if the funds from candidates were “contributions,” the jury should still consider whether Gordon Currv h&J lieved in good faith that, the affidavits were corLgcty-m--reaching their decision on the question whether the affidavits were mailed for the purpose of concealing Curry’s scheme to defraud P.E.O.P.L.E. Nor did the trial judge instruct the jury that Curryis-good faith belief in the veracity of the affidavits was ^defense to charges that. he intended to ~ defraftd the Supervisory Committee of true and correct campaign finance information.²⁹ Because there was evidence to support a good faith defense, it was reversible error to not include the instructions in the jury charge.

CONCLUSION

We have found that there was sufficient evidence to uphold a conviction for mail fraud. The record reveals a gross misuse of funds for personal gain on the part of defendant. The record also reveals evidence which could convince a jury that defendant mailed false campaign' finance reports to the State of Louisiana in order to conceal his misuse of funds and to deprive the citizens of Louisiana of accurate campaign finance information. However, we find that there was also some evidence to support the defendant’s good faith defense, and that the trial court erred in refusing to instruct the jury as to this defense. Therefore, this case must be remanded for a new trial in order to give the proper good faith instruction. Needless to say, our decision today does not exculpate the defendant; instead, it provides a roadmap for retrial.

REVERSED and REMANDED.

1 . 18 U.S.C. § 1341.

2 . P.E.O.P.L.E. stands for People Encouraging Other People Living Everywhere. The organization’s brochure states:

“P.E.O.P.L.E., Inc. is a community-based organization of concerned citizens established in November 1976. We came together to upgrade the social, economic and political conditions in East Baton Rouge Parish by coordinating people-oriented programs — particularly those providing services to youth and the elderly. As we seek to achieve these goals, we strongly encourage voter registration and education to promote an enlightened sense of civil responsibility among our citizens.”

3 . La.R.S. 18:1481 et seq.

4 . The defendant stipulated that he mailed, or caused to be mailed, each of the three affidavits described in the indictment.

5 . Under the mail fraud statute, each mailing is a separate violation.

6 . Jurisdiction is based on 28 U.S.C. § 1291.

7 . In addition to the issues discussed herein, the appellant suggests that the trial court erred in refusing his request for a Bill of Particulars, in refusing to exclude certain jurors, and in certain of its evidentiary rulings. We have considered each of these arguments, and find them to be without merit.

8 . 18 U.S.C. § 1341 reads in pertinent part:

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 ... for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon ... any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

9 . Judge Holmes, in Weiss v. U. S., 122 F.2d 675, 681 (5th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941).

10 . The indictment alleges in addition that Curry defrauded the citizens of East Baton Rouge Parish of their right “to be fully informed of the financial activities and relationships of political committees and candidates for public office.” We see this allegation as part of, and subsidiary to, the alleged scheme to defraud the Supervisory Committee out of true and correct information, which would in turn have been made available to all citizens in Louisiana.

11 . The same conduct could also give rise to charges of state law violations. Thus, Curry faced the possibility of being indicted under Louisiana law, for, inter alia, embezzling, and for “knowingly and willfully” filing a false campaign report in violation of the Election Act’s criminal provisions. See R.S. 18:1491. However, “[t]he fact that a scheme may violate state laws does not exclude it from the proscriptions of the federal mail fraud statute. . . . ” Parr v. U. S., 363 U.S. 370, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960), citing Badders v. U. S., 240 U.S. 391, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1915). Thus even when a state is itself the victim of a fraudulent scheme, and makes the scheme illegal under state law, the perpetrators may still be prosecuted under the federal mail fraud statute. U. S. v. Flaxman, 495 F.2d 344, 349 (7th Cir. 1974). Of course, conviction under state law would be for the underlying fraud, and not for use of the United States mails in furtherance of the fraud.

12 . With regard to the alleged scheme to defraud the Supervisory Committee of true and correct information, there can be no question that the affidavits were mailed to the Committee “for the purpose of executing” such a scheme.

13 . See generally J. S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 Duquesne L.Rev. 771-823 (1980) (discussing the history and peculiarities of the mail fraud statute and cases arising thereunder).

14 . In Parr, defendants, members of the Bena-vides Independent School District, were engaged in an on-going scheme to defraud the District’s taxpayers by embezzling tax revenues. Pursuant to state law, defendants mailed tax assessments, which were not proven to be themselves illegal, to taxpayers in the District. Defendants then illegally appropriated a large portion of these tax revenues for their own use. The Supreme Court stated:

“we think it cannot be said that mailings made or caused to be made under the imperative command of duty imposed by state law are criminal under the mail fraud statute, even though some of those who are required to do the mailing for the District plan to steal, when or after received some indefinite part of its moneys.”

Parr v. U. S., 80 S.Ct. at 1183-84.

15 . Candidates testified that they themselves provided the signs, bumper stickers, and other campaign materials for distribution.

16 . Mr. Hahn, an FBI agent with expertise in financial records, examined all of the checks written on Mr. Curry’s personal accounts from 1978 to 1979. Of these, he identified only $479.63 which could be characterized as payments for campaign expenditures. Mr. Hahn also identified $628.00 as cashed checks, who’s purpose was unknown. The remaining checks were made out for personal living expenses.

17 . For instance, a list provided by Mr. Curry himself shows that six P.E.O.P.L.E. members were paid amounts ranging from $1,000.00 to $800.00 for work in the 1979 election. (As usual, the money was paid to them directly by one of the candidates in that election, and not out of funds received by Mr. Curry from the candidate.)

18 . Defendant does not contend that P.E.O.P. L.E. is not a “political committee” as that term is defined under the Election Act, R.S. 18:1482(2).

19 . Defendant has stipulated that $500 was the reporting amount applicable to all candidates in each of the elections.

20 . The Election Act states:

(3) “Contribution”, except as otherwise provided in this Part, means a gift, loan, advance, or deposit of money, or a promissory note or written contract to make a gift, loan, advance, or deposit of money made for the purpose of supporting, opposing or otherwise influencing the nomination or election of a person to public office.

R.S. 18:1482.

21 . The Government’s analysis, which is supported by the evidence, shows that P.E.O.P.L.E. received $10,650.00 from eight candidates in the first election, $7,850.00 from six candidates in the second election, and $5,052.80 from two candidates in the third election.

22 . Mr. Alton Ford was president of P.E.O.P. L.E. in early 1978, and signed the affidavit pertaining to the first election. Mr. Johnson became president in late 1978, and signed the second affidavit. The third affidavit was signed by Gordon Curry.

23 . Curry also argues, in a somewhat twisted fashion, that the affidavits could not have been intended to mislead Ford and Johnson because the affidavits were so patently false. The record shows that both Ford and Johnson endorsed checks made out to P.E.O.P.L.E. from candidates in amounts exceeding five hundred dollars. Thus, claims Curry, they would immediately spot the falsehood of an affidavit attesting to the fact that no more than five hundred dollars had been received by P.E.O.P.L.E. by any one candidate.

The weakness of this argument is immediately apparent: neither Ford nor Johnson in fact noticed the discrepancy in the affidavit. This is because the affidavit does not mention a dollar amount. Instead, it states, “the committee did not receive a contribution in excess of the reporting amount applicable to such candidate [or] political committee ...” The “reporting amount” is defined in the Election Act, but does not appear on the affidavit.

24 . The affidavits were introduced into evidence for the jury to examine.

25 . The Government takes the position that there can be no finding of good faith in this case because defendant Curry did not take the stand to testify that he subjectively believed the affidavits to be true. We reject this argument. Good faith, just like bad faith, can be proved by circumstantial evidence. To hold otherwise would effectively eviscerate the accused’s right not to testify in any criminal matter in which good faith was at issue.

26 . According to the dictionary, a “contribution” is “a sum or thing voluntarily contributed.” Webster’s Third International Dictionary.

27 . Indicative of the confusions surrounding the Election Act’s definition of “contribution” is one candidate’s response to questions on cross examination. The candidate had given money to P.E.O.P.L.E. in exchange of campaign services, and reported the amounts disbursed as “expenditures.”

“Q [D]id it come to your attention that you might report these [funds] as contributions to any place?

A It was never a consideration to report it as contributions.... I couldn’t even afford to run my own race, much less contribute to someone else’s benefit.”

28 . Mr. Sam Livor, president of another South Baton Rouge political committee, also filled out affidavits stating that his group had not received “contributions” in excess of the reporting amount. In fact, candidates had given money to Mr. Livor’s group in exchange for the same type of services as provided by P.E.O.P. L.E., and these amounts exceeded the reporting amounts. Mr. Livors testified that he signed the affidavits because he did not think he had received any “contributions” from candidates.

29 . In his instructions to the jury, the trial judge did comment on the Election Act in the following terms:

“In all candor, ladies and gentlemen, I must tell you that this Louisiana Campaign Finance Disclosure Act is one of the most poorly drafted statutes that in twenty-nine years at the bar I have ever seen. There are many unclear and ambiguous provisions of this statute. Let me hasten to add, however, that you are entirely free to disregard the opinion which I have just stated.”

In the context of the charge as a whole, however, this comment does not adequately instruct the jury on the relationship between Curry’s good faith, if any, and the charges contained in the indictment.