United States v. Thomas Henry Mowry Mike

29 F.3d 112, 1994 U.S. App. LEXIS 16985, 1994 WL 328573

• Court: Court of Appeals for the Third Circuit
• Decided: July 12, 1994
• Docket: 93-7267
• Status: Published

Opinions

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The government appeals the district court’s dismissal of a twenty-one count indictment charging Thomas Henry and Mow-ry Mike with conspiracy, bank fraud, and wire fraud in connection with an alleged bid-rigging scheme. For the following reasons, we will affirm the dismissal of the indictment.

I.

Between 1986 and 1988, Thomas Henry was the Comptroller of the Delaware River Joint Toll Bridge Commission (the “Commission”). The Commission, a bi-state agency, operates and maintains twenty-one bridges spanning the Delaware River between New Jersey and Pennsylvania. Among these bridges are seven toll bridges that generate more than ten million dollars in revenue annually.

The Commission is governed by ten Commissioners, five of whom are appointed by the Governor of New Jersey and confirmed by the New Jersey Senate and five of whom represent Pennsylvania’s Governor, Treasurer, Auditor General and Transportation Secretary. Mowry Mike, Pennsylvania’s Executive Deputy Auditor General, served as Auditor General Donald Bailey’s representative on the Commission between 1986 and 1988. Mike also was a political operative and campaign fund-raiser for Bailey during his unsuccessful runs in 1986 for the Democratic nomination for the United States Senate and in 1988 for re-election as Auditor General.

The charges in the indictment were based on Henry’s and Mike’s alleged corruption of the process by which banks were chosen to be the depositories of the Commission’s toll bridge revenues. The Commission invested the money in short-term certificates of deposit at banks selected through competitive bidding. As the Commission’s Comptroller, Henry was responsible for this process and, according to the indictment, had “a fiduciary obligation to deal with Commission funds and other public money in a forthright and honest fashion.” He would notify interested banks that the Commission had money it wished to deposit and that they could submit confidential bids to him in writing or by telephone by a certain deadline. After the deadline passed, the funds would be deposited with the bank meeting the Commission’s financial requirements that offered the highest interest rate on the certificates of deposit.

According to the indictment, on ten occasions Henry disclosed bid information to Mike and another individual in the Auditor General’s office, who in turn disclosed it to a representative of one bank, Bank A. Bank A was thus allegedly able to narrowly outbid the other banks by offering a slightly higher rate of interest and, as a result, received deposits of $34,278,000 in Commission funds. In return, representatives of Bank A allegedly afforded Mike expedited handling on a $50,000 car loan and contributed more than $10,000 to various political campaigns, including Auditor General Bailey’s Senate campaign, in which Mike was involved.

Count one of the indictment charged Henry and Mike with conspiracy to violate the federal mail, wire and bank fraud statutes, in violation of 18 U.S.C. § 371. Counts two through twenty-one charged ten counts of bank fraud in violation of 18 U.S.C. § 1344, and ten counts of wire fraud in violation of 18 U.S.C. § 1343, for each occasion on which the bidding information allegedly was compromised.¹ The indictment asserted that in rigging the bids, “Henry violatefd] his fiduciary duty and Commission custom, practices and policies” and “Henry, Mike and their [unin-dicted] co-conspirators defrauded the other banks bidding for these public funds of money and property, in that [they] denied these other bidding banks a fair and honest opportunity to receive this public money” or “a fair and honest opportunity to bid on” it.

The district court dismissed all of these counts, finding that the scheme alleged in the indictment, although unethical, did not involve a deprivation of property as required by McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), and therefore could not constitute mail, wire or bank fraud. The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3731. Our review of the district court’s dismissal of the indictment on the grounds of legal insufficiency is plenary.

II.

In McNally, the Supreme Court held that the federal mail fraud statute did not prohibit a scheme to defraud a state and its citizens of the intangible right to honest government, but rather only proscribed schemes to defraud their victims of money or property. Shortly thereafter, in Carpenter v. United States, 484 U.S. 19, 25, 108 S.Ct. 316, 320, 98 L.Ed.2d 275 (1987), the Court indicated that the mail and wire fraud statutes likewise do not reach schemes to defraud an employer of its intangible right to its employee’s honest services. Carpenter made clear, however, that although a property right is required under McNally, it need not be a tangible one. The statutes cover schemes to defraud another of intangible property, such as confidential business information. Id. at 25-26, 108 S.Ct. at 320-21.

In response to McNally, Congress extended the fraud statutes’ sweep to schemes to defraud the intangible right of honest services, see 18 U.S.C. § 1364, but that extension does not apply to this case. It did not become effective until November 18, 1988, well after the bid-rigging alleged in the indictment ceased, and it is not retroactive. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1417 n. 4 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). Therefore, to state an offense under the federal fraud statutes, the indictment against Henry and Mike must allege a scheme that meets McNally’s standards.²

Initially, we see an intangible rights problem with the indictment’s allegations involving. Henry’s derelictions of his duties to the public and the Commission. Under McNally and Carpenter, a government official’s breach of his or her obligations to the public or an employee’s breach of his or her obligations to an employer cannot violate the fraud statutes. See Carpenter, 484 U.S. at 25, 108 S.Ct. at 320; McNally, 483 U.S. at 355, 107 S.Ct. at 2879. These theories, however, were not the only ones relied upon in the indictment. Indeed, the indictment’s focus was not on the Commission or the public, but on the competing

2. McNally and Carpenter involved the mail and wire fraud statutes, but their principles apply equally to the bank fraud statute because the operative language of all three is the same. See 18 U.S.C. §§ 1341, 1343, 1344. banks: its fraud claims were grounded on the allegation that Henry’s and Mike’s scheme defrauded these banks of a fair opportunity to bid to receive the Commission’s funds.³ The government now argues that Henry’s and Mike’s scheme also defrauded the Commission of.its confidential business information and the right to control how its money was invested, but these theories were not advanced in the indictment and cannot save it on appeal.⁴ See United States v. Zauber, 857 F.2d 137, 143 (3d Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1340, 103 L.Ed.2d 810 (1989). The question, then, is whether a fair bidding opportunity is a property right of the competing banks. If it is, the presence of any intangible rights allegations will not invalidate the indictment. See United States v. Asher, 854 F.2d 1483, 1494 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989).

We note that once the Commission’s deposits actually were awarded to one of the bidding banks, they legally would be considered the property of that bank. It is a fundamental principle of banking law that money deposited with a bank becomes the bank’s property and the bank may use it as its own. In re Erie Forge & Steel Corp., 456 F.2d 801, 804 (3d Cir.1972) (citing Prudential Trust Company’s Assignment, 223 Pa. 409, 413, 72 A. 798, 799 (1909)); Lebanon Iron Co. v. Donnelly & Co., 29 F.2d 411, 412 (E.D.Pa.1928). Here, however, the money had not yet been deposited, and there is no way of knowing to which, if any, of the bidding banks it would have gone. Even in a fair process, Bank A might still have won the deposits. The issue, therefore, is whether the competing banks’ interest in having a fair opportunity to bid for something that would become their property if and when it were received is in itself property. We conclude that it is not.

In holding that the Wall Street Journal was deprived of property in violation of the mail and wire fraud statutes when one of its reporters disclosed the timing and contents of his column before it was published, the Carpenter Court emphasized that the law had long treated confidential business information as ‘“a species of property to which the corporation has the exclusive right and benefit, and which a court of'equity will protect through the injunctive process or other appropriate remedy.’” See Carpenter, 484 U.S. at 26, 108 S.Ct. at 320-21. Thus, to determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right. See United States v. Evans, 844 F.2d 36, 41 (2d Cir.1988) (“That the right at issue ... has not been treated as a property right in other contexts and that there are many basic differences between it and common-law property are relevant considerations in determining whether the right is property under the federal fraud statutes.”).

The competing banks’ interest in a fair bidding opportunity does not meet this test. Clearly, each bidding bank’s chance of receiving property — the deposits if its. bid were accepted — was, at least in part, dependent on the condition that the bidding process would be fair. This condition, which is all that the bidding banks allegedly lost, was thus valuable to them, but it is not a traditionally recognized, enforceable property right. At most, the condition is a promise to the bidding banks from those in charge of the process that they would not interfere with it. It is not a grant of a right of exclusion, which is an important aspect of traditional property. See Carpenter, 484 U.S. at 26-27, 108 S.Ct. at 821. Violation of this condition may have affected each bidding bank’s possible future receipt of property, but that does not make the condition property.

The government bases its argument that the banks’ interest in a fair bidding opportunity is property on a Seventh Circuit decision, United States v. Ashman, 979 F.2d 469 (7th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 62, 126 L.Ed.2d 32 (1993). We believe, however, that Ashman does not support the government’s contention. In Ash-man, a number of traders of commodities futures contracts at the Chicago Board of Trade (“CBOT”) were convicted of mail and wire fraud, among other things, for manipulating trades. The defendants were all either “locals” (who traded on their own accounts) or “brokers” (who executed orders from customers). Trading at the CBOT took place in pits on the trading floor through “open outcry:” traders seeking to buy or sell, either for themselves or for customers, openly and audibly bid on or offered each contract so that all other traders in the pit could accept the bid or offer. Id. at 475. However,

[i]n a “match” (the most recurrent type of fraud charged in the indictment), a broker traded buy and sell orders in equal quantities with a cooperating local. The two traders simply agreed on the price of the trade rather than bidding or offering the customer order in the open market and securing the best price available. The broker thereby filled the customers’ orders by selection and not on the market.

Id. at 477. Most of the matches involved “market on close” orders directing the broker to execute just before the close of trading at the best possible price. Id. at 476-77. The defendants filled these orders after the day’s legitimate trading had ended at a selected price within that day’s closing range (the span between the highest and lowest prices actually traded in the market during the period immediately before the close of trading). Id. These matches resulted in profits for the local:

The broker sold a customer’s sell order to the local at a lower price than the price at which he bought a different customer’s buy order from the same local. The local thereby would buy low and sell high with the customer orders from the broker, guaranteeing that the local made money.

Id. at 477.

The defendants mounted a McNally challenge, arguing that matching trades did not involve the deprivation of property since the customers received just what they asked for when their orders were filled at a price within the closing range. Id. at 477. The Seventh Circuit disagreed insofar as matching denied the customers the opportunity to obtain a better price, but concluded that where the customers had no such opportunity, matching did not violate the fraud statutes. Id. at 477-79. The court thus invalidated the convictions for matching trades on “limit days” when the commodity’s price was fixed and no other price was being traded in the pit, because “[m]erely denying a customer the opportunity to obtain the limit price by open outcry rather than by arranged trades [is] the kind of intangible deprivation that McNally held could- not constitute mail fraud.” Id. The government attempted to save the limit day convictions by arguing that the matching deprived other traders in the pits of the opportunity to profit on the trades, but the court rejected this claim as nothing more than the untenable “assertion that open outcry trading by itself constitutes a property right protected under the mail and wire fraud statutes[.]” Id. We see no difference between the other traders’ interest in open outcry trading, which the Seventh Circuit held not to be property in Ashman, and the competing banks’ interest in a fair bidding process, which we hold not to be property here. Thus, Ashman supports our conclusion, not the government’s position.

Our determination that the fair opportunity to bid is not a property right of the competing banks seals the fate of this indictment. It is irrelevant that, as the government points out, the scheme allegedly afforded its participants tangible benefits — over $34,000,000 in deposits for Bank A, and favorable loan treatment and campaign contributions to his political allies for Mike. The same was true in McNally, but did not save the convictions there. McNally involved a self-dealing patronage scheme in which the Kentucky Democratic Party Chairman, a cabinet official, and a private individual arranged with the company securing the Commonwealth’s workers compensation insurance that, in exchange for a continuing relationship, it would share the commissions it received from insurers with companies the defendants controlled. McNally, 483 U.S. at 352-53, 107 S.Ct. at 2877-78. In reversing mail fraud convictions obtained under the theory that the scheme defrauded Kentucky’s citizens and government of the intangible right to have the Commonwealth’s affairs conducted honestly, the Supreme Court stated that

there was no charge and the jury was not required to find that the Commonwealth itself was defrauded of any money or property. It was not alleged that in the absence of the alleged scheme the Commonwealth would have paid a lower premium or secured better insurance. [The defendants] received part of the commissions but those commissions were not the Commonwealth’s money....

Id. at 360, 107 S.Ct. at 2882 (emphasis added). Just as the insurance commissions in McNally were not from the Commonwealth, the benefits Bank A and Mike received were not from the competing banks, and therefore those benefits cannot save the indictment here.

III.

In sum, we conclude that the indictment against Henry and Mike does not allege a scheme to defraud its victims of a property right and therefore does not state offenses under the federal fraud statutes. We therefore will affirm the district court’s dismissal of the indictment.⁵

1 . The indictment also contained a twenty-second count charging Mike alone with obstructing justice during the investigation into the scheme, but this count was dismissed without prejudice pending this appeal.

3 . The focus on the competing banks as the scheme’s victims is obviously necessary in the bank fraud counts, see United States v. Goldblatt, 813 F.2d 619, 623-24 (3d Cir.1987) (noting that 18 U.S.C. § 1344 is aimed at losses to banks), and it is understandable in the other counts because of the unusual nature of this particular scheme. Bid-rigging by public officials typically results in a government entity paying more than it otherwise would have for goods or services, see, e.g., United States v. Osser, 864 F.2d 1056, 1062-63 (3d Cir.1988), United States v. Asher, 854 F.2d 1483, 1495-96 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989), but the Commission allegedly made money here, receiving a higher interest rate on its deposits as a result of the scheme.

4 .Because the loss of control theory was not alleged, we need not decide whether such a deprivation satisfies McNally. See United States v. Zauber, 857 F.2d 137, 147 (3d Cir.1988) (questioning whether McNally supports the argument that the right to control money constitutes properly), cert. denied, 489 U.S. 1066, 109 S.Ct. 1340, 103 L.Ed.2d 810 (1989). But see United States v. Martinez, 905 F.2d 709, 714-15 (3d Cir.) (holding that state’s "right to keep its medical licenses to itself and to bestow them on persons who had fairly earned them” is property), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 595 (1990).

5 . In light of our disposition of the government’s appeal, we dismiss Mike's cross-appeal from the district court’s denial of his motions for discovery and suppression as moot.

2 . See Craig M. Bradley, Foreword: Mail Fraud After McNally and Carpenter: The Essence of Fraud, 79 J.Crim.L. & Criminology 573 (1988). “|Tlhe question of what is 'property,' after the Court’s seemingly inconsistent signals in McNally and Carpenter, answers itself: Property is ... anything that can provide economic loss to the victim and gain to the defendant including information, reputation and anything else on which a dollar value can be placed.” Id. at 597.