FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30339 Plaintiff-Appellant, v. D.C. No. CR-07-00056-JWS BRUCE WEYHRAUCH, OPINION Defendant-Appellee. Appeal from the United States District Court for the District of Alaska John W. Sedwick, District Judge, Presiding
Argued and Submitted August 4, 2008—Anchorage, Alaska
Filed November 26, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
15785 15788 UNITED STATES v. WEYHRAUCH
COUNSEL
Nicholas A. Marsh, Trial Attorney, United States Department of Justice, Criminal Division, Public Integrity Section, Wash- ington, D.C., for the plaintiff-appellant.
Douglas Pope, Pope & Katcher, Anchorage, Alaska, for the defendant-appellee.
OPINION
FISHER, Circuit Judge:
This is an interlocutory appeal by the government of the district court’s pretrial order excluding evidence from a mail fraud prosecution. It presents a matter of first impression in this circuit — whether a federal honest services mail fraud prosecution under 18 U.S.C. §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable state law. Preliminarily, we must also address the government’s repeated failures to certify this appeal properly according to the jurisdictional requirements of 18 U.S.C. § 3731. We accept the government’s fourth attempt to certify, and thus have jurisdiction under § 3731. On the merits, we disagree with district court that a state law violation is required, and thus reverse the court’s order excluding certain evidence from trial. UNITED STATES v. WEYHRAUCH 15789 I. BACKGROUND
Defendant Bruce Weyhrauch, a lawyer, was a member of the Alaska House of Representatives in 2006 while Alaska’s legislature was considering legislation that would alter how the state taxed oil production. According to the criminal indictment against him, VECO Corp., an oil field services company, took an active interest in the legislature’s reconsid- eration of the oil tax, and two of its executives had a series of contacts with Weyhrauch regarding the pending legislation.1 The indictment alleges that Weyhrauch solicited, by mail, telephone and personal contact, future legal work from VECO in exchange for voting on the oil tax legislation as VECO instructed and taking other actions favorable to VECO in Weyhrauch’s capacity as state legislator, such as maneuvering the legislation and reporting information about proposed changes to the legislation to the VECO executives. The indict- ment does not allege that Weyhrauch received any compensa- tion or benefits from VECO or its executives during this period, but alleges facts suggesting that Weyhrauch took the actions favorable to VECO on the understanding that VECO would hire him in the future to provide legal services to the company.
Count VII of the indictment charges Weyhrauch with devising “a scheme and artifice to defraud and deprive the State of Alaska of its intangible right to [his] honest services . . . performed free from deceit, self-dealing, bias, and con- cealment” and attempting to execute the scheme by mailing his resume to VECO (“the honest services charge”). Before 1 The government prosecuted Weyhrauch and Peter Kott, another state legislator, together. On September 5, 2007, after the government informed the parties and district court that it intended to appeal the district court’s decision excluding evidence as to Weyhrauch only, the district court granted Weyhrauch’s severance motion. Kott was then tried on four of the counts in the indictment and convicted of three. Kott has appealed his con- viction and sentence. See United States v. Kott, No. 07-30496. This appeal does not concern Kott’s conviction. 15790 UNITED STATES v. WEYHRAUCH trial, the parties filed cross-motions regarding the admission or exclusion of evidence related to the honest services charge. Specifically, the government proposed to introduce: (1) legis- lative ethics publications containing excerpts of various Alaska state statutes addressing conflicts of interest and dis- closure requirements; (2) evidence that members of the Alaska State Legislature customarily acknowledge the exis- tence of conflicts of interests on the floor of the Legislature, and that Weyhrauch never disclosed he was negotiating for employment with VECO; (3) a description of the ethics train- ing Weyhrauch had received; and (4) evidence that Wey- hrauch served on the Legislature’s Select Committee on Ethics.
The district court found that the proffered evidence related only to duties to disclose a conflict of interest that might be imposed by state law, and that state law did not require Wey- hrauch to disclose the conflict of interest he faced in discharg- ing his duties while negotiating for future employment with a company affected by pending legislation.2 The government argued that the evidence should nonetheless be admitted because proof that a legislator knowingly concealed a conflict of interest may be used to support an honest services fraud conviction even if state law does not require disclosure of the conflict of interest. Recognizing an absence of Ninth Circuit precedent and a split among the other circuits on this issue, the district court adopted the approach outlined by the Fifth Circuit in United States v. Brumley, 116 F.3d 728 (5th Cir. 1997) (en banc), and concluded that “any duty to disclose suf- ficient to support the mail and wire fraud charges here must be a duty imposed by state law.” Accordingly, on September 4, 2007, the district court granted Weyhrauch’s motion, denied the government’s motion and excluded the proffered evidence. The next day, September 5, the government initi- ated this interlocutory appeal of the district court’s ruling. 2 The government has not appealed these aspects of the district court’s ruling. UNITED STATES v. WEYHRAUCH 15791 II. STANDARD OF REVIEW
We review a district court’s ruling excluding evidence for abuse of discretion. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004). “The district court abuses its dis- cretion when its evidentiary rulings are based on an erroneous view of the law or a clearly erroneous assessment of the facts.” United States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir. 2006) (internal quotation marks omitted).
III. CERTIFICATION OF THIS APPEAL UNDER § 3731
[1] Under 18 U.S.C. § 3731, the government may bring an interlocutory appeal “if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” See United States v. W.R. Grace, 526 F.3d 499, 504-05 (9th Cir. 2008) (en banc). We recently recounted in detail the procedural history of this interlocutory appeal in a published order, see United States v. Weyhrauch, ___ F.3d ___, 2008 WL 4277587 (9th Cir. Sept. 8, 2008) (order to show cause), so we summarize only the pertinent details here.
Nicholas Marsh, lead trial counsel from the Department of Justice, Criminal Division, Public Integrity Section (PIS), orally advised the district court at a September 5 pre-trial con- ference that the government intended immediately to appeal the ruling, that the excluded evidence was substantial proof of a material fact and that the appeal was not being taken for the purpose of delay. Based on this oral certification, the district court stayed the trial pending the interlocutory appeal. How- ever, because the purported certification to the district court was not made by the United States Attorney as required by § 3731, before oral argument we issued an order to show cause (OSC) why the appeal should not be dismissed as improperly certified. 15792 UNITED STATES v. WEYHRAUCH In its response, the government argued that Marsh’s certifi- cation was sufficient under § 3731 because it was made in consultation with and at the direction of William M. Welch II, Chief of PIS, who was overseeing the prosecution, and sub- mitted a document signed by Chief Welch, dated July 25, 2008, certifying the appeal pursuant to § 3731. The govern- ment failed to explain how Chief Welch, who is not a United States Attorney, could properly certify an appeal under § 3731, so after oral argument we issued a second OSC to address this issue.
In response, the government submitted a formal recusal notice, dated November 7, 2005, from the Executive Office for United States Attorneys stating that the United States Attorney’s Office for the District of Alaska was recused from the investigation that led to the prosecution of Weyhrauch and that PIS had agreed to handle the matter in its entirety. The government also continued to argue that trial attorney Marsh’s September 5, 2007 certification was sufficient, but on a new theory that he was himself authorized to certify the appeal because he had been specially appointed under 28 C.F.R. § 0.13(a) by the Deputy Assistant Attorney General and there- fore was authorized to conduct “any legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct.” 28 C.F.R. § 0.13(a). In a published OSC, we held that the recusal notice failed to explain Chief Welch’s authority to certify the appeal and rejected the government’s argument that any attorney spe- cially appointed under § 0.13(a) can certify an interlocutory appeal under 18 U.S.C. § 3731. Weyhrauch, 2008 WL 4277587 at *3, *6. We gave the government a final opportu- nity to demonstrate that this appeal was properly certified.
[2] On September 22, 2008, the government submitted two documents signed by Attorney General Michael Mukasey.3 In 3 Remarkably, the government also continued to argue that the recusal notice was sufficient to demonstrate that Chief Welch possessed authority UNITED STATES v. WEYHRAUCH 15793 the first, the Attorney General averred that the appeal was not taken for the purposes of delay and that the evidence at issue is substantial proof of facts material to the proceeding; in the second, he ratified Chief Welch’s written certification of July 25, 2008 and confirmed that Chief Welch had been delegated authority to make that certification. We accept that the Attor- ney General can himself certify an appeal. Plainly, Congress’ designation of the United States Attorney as the one autho- rized to make the requisite § 3731 certification was not intended to preclude certification by an equivalent or higher authority should there be no United States Attorney or acting United States Attorney overseeing a prosecution.4 Because the ultimate authority to appoint an acting United States Attorney rests with the Attorney General under 28 U.S.C. § 515(a), see Weyhrauch, 2008 WL 4277587, at *4, the Attorney General can certify an appeal under § 3731 if no one else has been properly designated to do so. Because we conclude that the
to certify the appeal. Setting aside for the moment that the government’s filing was made in response to an order in which we squarely held that the recusal notice was insufficient, the government’s continued insistence that the recusal notice is sufficient ignores the rationale for our holding: when an investigation or prosecution is being overseen by someone outside of a United States Attorney’s office, that person can certify an appeal only if properly appointed pursuant to 28 U.S.C. § 515(a) as the acting United States Attorney for the purposes of that investigation or prosecution. Although a document demonstrating that an entire United States Attor- ney’s office was recused from a case does suggest that someone else is running that case, it does not demonstrate that the Attorney General appro- priately appointed that person as acting United States Attorney or to cer- tify an appeal under 18 U.S.C. § 3731. 4 As the government noted in its most recent filing, some investigations originate and are conducted within the Department of Justice, without any involvement of the local United States Attorney’s office. The Department would do well to adopt procedures to ensure that someone has been expressly delegated authority to certify interlocutory appeals under § 3731 in such cases. See Weyhrauch, 2008 WL 4277587, at *4-5 (holding that someone outside of a United States Attorney’s office can certify an appeal under § 3731 only if specifically appointed to do so under 28 U.S.C. § 515(a)). 15794 UNITED STATES v. WEYHRAUCH Attorney General’s own certification is sufficient, we do not decide whether ratification alone would suffice. See Weyhrauch, 2008 WL 4277587, at *4 (noting that the govern- ment “has not submitted any documentation that the Attorney General or his delegee in the EOUSA explicitly appointed Chief Welch as a special attorney or special assistant under 28 U.S.C. § 515(a) to be the acting United States Attorney for the Weyhrauch investigation and prosecution” (emphasis added)).
Although the Attorney General’s certification is a proper substitute for that of the United States Attorney for Alaska, we must still decide whether to exercise our discretion to accept the certification at this late date. See W.R. Grace, 526 F.3d at 507 n.4. Weyhrauch offers two reasons why we should decline to do so. First, he contends that he has been prejudiced by the government’s failure to certify this appeal properly at the outset, thereby delaying the appeal and his opportunity to address the charges against him and causing him to incur additional legal expenses defending against it. Any criminal defendant would suffer those consequences under § 3731, however, yet Congress nonetheless has autho- rized the government to pursue interlocutory appeals despite such hardships. Thus, Weyhrauch has been prejudiced largely by the interlocutory appeal itself, not by the government’s deficient certification. Although we are sympathetic to Wey- hrauch because the certification dispute, which arose only because the government failed to comply with § 3731, may have aggravated his cost of defending against the appeal, we decline to dismiss the appeal on that basis alone.
Second, Weyhrauch suggests that the government’s con- duct demonstrates that it did not take the § 3731 certification requirement seriously. See W.R. Grace, 526 F.3d at 507 (“Congress plainly intended that the decision to take an inter- locutory appeal be a serious, considered judgment . . . .”). The government’s belief that the oral certification by the line pros- ecutor and the subsequent written certification by Chief Welch without accompanying documentation of his delegated UNITED STATES v. WEYHRAUCH 15795 authority were sufficient is certainly difficult to fathom in light of our previous holdings. See Weyhrauch, 2008 WL 4277587, at *3 (“[O]ur prior decisions make clear that a § 3731 certification must be made personally by the United States Attorney or by someone acting with legitimate, dele- gated authority that is sufficiently documented.” (internal cita- tions omitted)). Nonetheless, we are satisfied that the government did not take the decision to appeal lightly. The government has represented that the trial attorney consulted with the attorney supervising the prosecution and the Solicitor General before initiating the appeal. The legal issue on the merits presents a question of first impression in this circuit and therefore is not frivolous. Even though the government was careless about the certification process, we conclude that the government did not willfully disregard the certification requirement itself.
Moreover, because this case presents a factual scenario (recusal of the entire United States Attorney’s office) not addressed in any of our prior opinions (or by any other cir- cuit) and the Attorney General has now given this issue his personal attention, we will excuse the government’s confusion and allow it to supplement the record with the Attorney Gen- eral’s certification. In doing so, however, we point out that we have previously invited the government to submit documenta- tion of properly delegated authority when the certification is made by someone other than the United States Attorney, see United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir. 2000), and more recently held that a trial attorney lacks authority to certify an appeal, see W.R. Grace, 526 F.3d at 506. Apparently, our hortatory language and square holdings have not convinced the government that the statutory require- ments for § 3731 certification are requirements rather than suggestions. We shall not be so forgiving in the future. See United States v. Eccles, 850 F.2d 1357, 1359 (9th Cir. 1988) (“We recognize . . . that a general rule excusing the govern- ment from filing a certificate until after oral argument would eviscerate the statutory requirement that the United States 15796 UNITED STATES v. WEYHRAUCH attorney certify that the appeal has not been taken to delay trial.”).
IV. HONEST SERVICES MAIL FRAUD
Accepting our jurisdiction under 18 U.S.C. § 3731, we address whether the district court properly excluded the gov- ernment’s proffered evidence. Weyhrauch was indicted under 18 U.S.C. § 1341, which criminalizes the use of the postal services in carrying out a “scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” Before 1987, we and other courts interpreted § 1341 as covering schemes to defraud another not just of money and property, but also of “intangible rights,” including the right of citizens to have pub- lic officials perform their duties honestly. See United States v. Williams, 441 F.3d 716, 721-22 (9th Cir. 2006); see also United States v. Sorich, 523 F.3d 702, 707 (7th Cir. 2008). In 1987, the Supreme Court rejected the intangible rights theory of mail fraud, holding:
Rather than construe [§ 1341] in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of dis- closure and good government for local and state offi- cials, 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.
McNally v. United States, 483 U.S. 350, 360 (1987).
[3] Shortly thereafter, Congress in 1988 chose to “speak more clearly” by enacting 18 U.S.C. § 1346, specifying that for the purposes of the mail, wire and bank fraud statutes, “the term ‘scheme or artifice to defraud’ includes a scheme or arti- fice to deprive another of the intangible right of honest ser- vices.” See Williams, 441 F.3d at 721-22 (holding that Congress restored the pre-McNally landscape by passing UNITED STATES v. WEYHRAUCH 15797 § 1346). Unfortunately, Congress did not define the concept of “honest services” in § 1346, thereby creating some confu- sion over the reach of the mail fraud statute. See United States v. Urciuoli, 513 F.3d 290, 294 (1st Cir. 2008) (“The central problem is that the concept of ‘honest services’ is vague and undefined by the statute. So, as one moves beyond core mis- conduct covered by the statute (e.g., taking a bribe for a legis- lative vote), difficult questions arise giving coherent content to the phrase through judicial glosses.”). Because the statute’s plain language is inconclusive, we turn for guidance in con- struing the statute to our pre-McNally case law and any rele- vant post-McNally decisions, and then consider pre- and post- McNally decisions from our sister circuits. See Williams, 441 F.3d at 722.
[4] The district court accurately observed that we have not considered what § 1346 requires of public officials and that our sister circuits have expressed divergent views on the proper meaning of “honest services” for public officials. The Fifth Circuit has adopted the so-called “state law limiting principle,” which requires the government to prove that a pub- lic official violated an independent state law to support an honest services mail fraud conviction. See Brumley, 116 F.3d at 734-35. The Third Circuit has adopted a similar rule requir- ing the government to prove the public official violated a fiduciary duty specifically established by state or federal law. See United States v. Murphy, 323 F.3d 102, 116-17 (3d Cir. 2003).
The majority of circuits, however, have held that the mean- ing of “honest services” is governed by a uniform federal standard inherent in § 1346, although they have not uniformly defined the contours of that standard. See Sorich, 523 F.3d at 712 (holding that sources other than state law can establish a duty to provide honest services); Urciuoli, 513 F.3d at 298-99 (declining to read honest services fraud statute to require vio- lation of state law); United States v. Walker, 490 F.3d 1282, 1299 (11th Cir. 2007) (holding that an honest services fraud 15798 UNITED STATES v. WEYHRAUCH conviction “does not require proof of a state law violation”); United States v. Bryan, 58 F.3d 933, 942 (4th Cir. 1994) (holding that the duty of honesty is defined irrespective of the existence of state law). The Seventh Circuit has read § 1346 to require public officials to breach a fiduciary duty with an intent to reap private gain to support an honest services mail fraud conviction, see Sorich, 523 F.3d at 708, and the First Circuit has suggested that the official’s misconduct must involve more than a mere conflict of interest to support a con- viction, see Urciuoli, 513 F.3d at 298-99. Finally, several cir- cuits have read into § 1346 the requirement that a public official’s breach of duty must be material and accompanied by fraudulent intent. See United States v. Cochran, 109 F.3d 660, 667 (10th Cir. 1997); United States v. Jain, 93 F.3d 436, 442 (8th Cir. 1996). In essence, our sister circuits have con- strued the meaning of “honest services” in ways that limit, to differing degrees, the reach of § 1346 into state and local pub- lic affairs.
One concern is that a literal reading of § 1346 might give federal prosecutors unwarranted influence over state and local public ethics standards. See Brumley, 116 F.3d at 734 (expressing concern that reading § 1346 to create a uniform standard of conduct would erode federalist structure). This is particularly relevant in light of the Supreme Court’s admoni- tion that “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes,” Cleveland v. United States, 531 U.S. 12, 25 (2000) (internal quotation marks omit- ted). Other valid considerations are (1) the need to give public officials fair notice of the conduct that would subject them to the federal fraud statutes’ serious criminal penalties, see Urci- uoli, 513 F.3d at 294 (noting the need to assure “fair notice to those governed by the statute”); see also Williams, 441 F.3d at 724 (“In examining a statute for vagueness, we must determine whether a person of average intelligence would rea- sonably understand that the charged conduct is proscribed.”); (2) a desire to establish firm boundaries lest every dishonest UNITED STATES v. WEYHRAUCH 15799 act by public officials lead to federal criminal liability, see Sorich, 523 F.3d at 707-08 (noting the need for a limiting principle that “cabins zealous prosecutors by insuring that not every violation of a fiduciary duty becomes a federal crime”); Urciuoli, 513 F.3d at 294 (expressing concern that the statute might “embrace every kind of legal or ethical abuse remotely connected to the holding of a governmental position”); and (3) the potential for selective enforcement against public offi- cials, many of whom engage in partisan political activity.
The Fifth Circuit’s state law limiting principle, which the district court adopted, addresses all of these concerns. It limits how much control federal prosecutors have over state public affairs by restricting federal criminal liability to conduct pro- hibited by the states themselves and sets a clear outer limit to the reach of the federal statute by tying liability to violations of specific state statutes, thereby allaying concerns over fair notice. Moreover, to the extent the honest services doctrine is intended to ensure public officials act ethically, elected state officials are accountable to their constituencies, who can pun- ish dishonest or unethical conduct directly at the ballot box, and nonelected state officials may be subject to state ethics laws, which can be strengthened through the democratic pro- cess. Thus, because the federal criminal statutes are not the only remedy for dishonest conduct not proscribed by state law, there is some degree of logic in reserving to the states exclusive control over the ethical standards for their own pub- lic officials.
[5] Nonetheless, we decline to adopt the state law limiting principle.5 As an initial matter, our pre-McNally decisions do 5 Although we reject the state law limiting principle in the context of honest services prosecutions of public officials, we express no opinion on the role of state law in honest services fraud prosecutions in the private context. See Sorich, 523 F.3d at 708 (noting that courts have “crafted spe- cial requirements in the limited context of honest services fraud in the pri- vate sector”). Similarly, we express no opinion on what effect, if any, state law that expressly condones or excuses certain conduct would have because Alaska law did not excuse Weyhrauch’s conduct here. See Urci- uoli, 513 F.3d at 298 (observing that state law might be relevant if it “im- munize[s]” certain conduct). 15800 UNITED STATES v. WEYHRAUCH not support the conclusion that the federal fraud statutes derive their content solely from state law. In United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir. 1980), we explained that the basis for prosecuting public officials for honest ser- vices fraud rests on “the deprivation of the public’s right to honest and faithful government.” This broad characterization of the duty, without reference to any underlying state law duty, suggests that public officials’ duty of honesty is uniform rather than variable by state. We were less equivocal in United States v. Louderman, 576 F.2d 1383, 1387 (9th Cir. 1978), holding that “state law is irrelevant in determining whether a certain course of conduct is violative of the wire fraud statute.” Although Louderman is not directly on point because it involved a traditional wire fraud prosecution rather than an honest services mail fraud prosecution, our refusal to define the federal fraud statutes based on the contours of state law informs our decision here. In short, we have never limited the reach of the federal fraud statutes only to conduct that vio- lates state law.6
[6] We also cannot find any basis in the text or legislative history of § 1346 revealing that Congress intended to condi- 6 We recently affirmed the conviction of a private individual for honest services fraud because he breached his fiduciary duty of loyalty. See Wil- liams, 441 F.3d at 722-24. We explained that the defendant stood in a fiduciary relationship to his victim, citing an Oregon statute about powers of attorney, id. at 723, but later observed that the defendant “undertook the high duties of honesty and loyalty” without reference to the state statute, id. at 724. Arguably, our citation to the state law suggests we relied on state law as the source of the fiduciary relationship. On the other hand, we affirmed the conviction because the defendant violated duties of honesty and loyalty, which are mentioned nowhere in the text of the state statute, so our decision may have turned on uniform duties of honesty and loyalty that exist in all relationships of trust. See Sorich, 523 F.3d at 712 (citing Williams for the proposition that a source other than state law can create a fiduciary obligation). In any event, we were not required in Williams to decide if § 1346 requires a violation of state law, so we do not find our passing reference to a state statute conclusive on how we might have ruled had that issue been squarely presented. UNITED STATES v. WEYHRAUCH 15801 tion the meaning of “honest services” on state law. Because laws governing official conduct differ from state to state, con- ditioning mail fraud convictions on state law means that con- duct in one state might violate the mail fraud statute, whereas identical conduct in a neighboring state would not. Congress has given no indication it intended the criminality of official conduct under federal law to depend on geography. Moreover, although the Supreme Court has warned against interpreting the mail fraud statute to allow federal prosecutors to intrude into areas traditionally governed by state law absent a clear showing that Congress intended to do so, see Cleveland, 531 U.S. at 24 (expressing reluctance over subjecting “to federal mail fraud prosecution a wide range of conduct traditionally regulated by state and local authorities”); McNally, 483 U.S. at 360 (declining to read the mail fraud statute “in a manner that . . . involves the Federal Government in setting standards of disclosure and good government for local and state offi- cials”), Congress demonstrated a clear intent to reinstate the line of pre-McNally honest services cases when it enacted § 1346, see Williams, 441 F.3d at 721-22. Because pre- McNally honest services fraud cases generally did not require state law to create the duty of honesty that public officials owe the public and the plain language of the statute does not refer to state law, we cannot infer that Congress intended to import a state law limitation into § 1346.
[7] Finally, federal action based on a valid constitutional grant of authority is not improper simply because it intrudes on state interests. See U.S. Const. art. VI, cl. 2 (“[T]he Laws of the United States . . . shall be the supreme Law of the land.”). Congress has a legitimate constitutional basis for pre- venting public officials from using the mails to perpetrate fraud, see Badders v. United States, 240 U.S. 391, 393 (1916) (holding that Congress may forbid putting letters in the mail “in furtherance of a scheme it regards as contrary to public policy, whether it can forbid the scheme or not”), so the fed- eral interest in establishing a uniform standard of conduct for public officials merits equal consideration. That interest is not 15802 UNITED STATES v. WEYHRAUCH limited to preventing individuals from using the mails as a tool in a fraudulent scheme. States often regulate industries that are national and international in scope and that the federal government also regulates under concurrent constitutional authority, including the financial services, transportation, communications, oil, gas and timber industries. State regula- tions of these industries can have national or international implications, so the federal government may wish to prevent state action in these areas from being improperly influenced. Similarly, state laws that affect economic development within a state can influence the federal budget, reduce federal tax receipts and broadly affect the national economy. In short, Congress has a legitimate interest in ensuring that state action affecting federal priorities is not improperly influenced by personal motivations of state policymakers and regulators, and the happenstance of whether state law prohibits particular conduct should not control Congress’ ability to protect federal interests through the federal fraud statutes, which are predi- cated on valid federal constitutional authority to regulate the mails.7
[8] Having rejected the state law limiting principle, we next consider the appropriate contours of honest services fraud. Our pre-McNally cases recognized two core categories of con- duct by public officials that other courts have found sufficient to support an honest services conviction: (1) taking a bribe or otherwise being paid for a decision while purporting to be exercising independent discretion and (2) nondisclosure of material information. See Bohonus, 628 F.2d at 1171 (citing 7 This prosecution illustrates how national policies are implicated by alleged fraud against the people of a state. Alaska’s oil tax legislation could influence how companies across the nation develop and exploit petroleum resources (particularly which geographic area would be a prior- ity for investment), with consequences for the national economy and national energy policy. Under the state law limiting principle, however, the federal government would be deprived of its ability to protect these federal interests against allegedly corrupt influences simply because a state law did not expressly forbid the conduct. UNITED STATES v. WEYHRAUCH 15803 cases). Post-McNally public honest services fraud cases from other circuits have generally fallen into one of those two cate- gories. See Urciuoli, 513 F.3d at 295 n.3 (“Typical [post McNally] cases involve votes paid for by bribes or based on private undisclosed financial interests of the legislator, award- ing of contracts based on bribes, and the filing of false finan- cial disclosure forms or other non-disclosures in relation to official duties.” (internal citations omitted)). The post- McNally decisions from our sister circuits confirm our view in Bohonus that conduct on par with bribery and nondisclo- sure of material information lies at the heart of public honest services fraud. Notably, both categories of misconduct under- mine transparency in the legislative process and other govern- mental functions. Because public officials may legitimately disagree over which of the many competing interests in soci- ety deserve support from the state, without transparency the public cannot evaluate the motivations of public officials who are purporting to act for the common good to determine whether they are in fact acting for their own benefit. Thus, the two core categories of misconduct supporting public honest services fraud ensure transparency, without which the public cannot determine whether public officials are living up to their duty of honesty. See John C. Coffee, Jr., Modern Mail Fraud: The Restoration of the Public/Private Distinction, 35 AM. CRIM. L. REV. 427, 444 (1998) (noting that courts agree that “§ 1346 may constitutionally be applied to schemes by state or local governmental officials to deprive citizens of their honest services as public fiduciaries”). We are persuaded that Congress’ intent in reinstating the honest services doc- trine after McNally was to bring at least the two core catego- ries of official misconduct within the reach of § 1346.
[9] Here, Weyhrauch allegedly voted and took other offi- cial actions on legislation at the direction of VECO while engaged in undisclosed negotiations for future legal work from VECO. These allegations describe an undisclosed con- flict of interest and could also support an inference of a quid pro quo arrangement to vote for the oil tax legislation in 15804 UNITED STATES v. WEYHRAUCH exchange for future remuneration in the form of legal work. Because Weyhrauch’s alleged conduct falls comfortably within the two categories long recognized as the core of hon- est services fraud, we need not define the outer limits of pub- lic honest services fraud in this case. Accordingly, the government may proceed on its theory that Weyhrauch com- mitted honest services fraud by failing to disclose a conflict of interest or by taking official actions with the expectation that he would receive future legal work for doing so.8
V. CONCLUSION
[10] We hold that 18 U.S.C. § 1346 establishes a uniform standard for “honest services” that governs every public offi- cial and that the government does not need to prove an inde- pendent violation of state law to sustain an honest services fraud conviction. Because the district court excluded the evi- dence based, in part, on its conclusion that the government had to prove that state law imposed an affirmative duty on Weyhrauch to disclose a conflict of interest, we reverse. The government did not appeal the district court’s ruling that the proffered evidence relates only to state law, and we express no opinion whether the proffered evidence is relevant to prov- ing the government’s case under the standard we have announced and leave that determination to the district court’s 8 The honest services doctrine exists within the broader context of the mail and wire fraud statutes, however, so the government must still prove fraudulent intent, see Cochran, 109 F.3d at 667 (holding that “§ 1346 must be read against a backdrop of the mail and wire fraud statutes, thereby requiring fraudulent intent”); Bohonus, 628 F.2d at 1172 (“Neither breach of a fiduciary duty, nor the receipt of secret profits . . . would suffice, standing alone, to show a [mail fraud] violation; there must be a recogniz- able scheme formed with intent to defraud.”), and materiality, see Neder v. United States, 527 U.S. 1, 25 (1999) (holding “materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud stat- utes”). UNITED STATES v. WEYHRAUCH 15805 sound judgment.
REVERSED and REMANDED.