United States v. Woodward

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1429



                          UNITED STATES,



                            Appellee,



                                v.



                       FRANCIS H. WOODWARD,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Douglas P. Woodlock, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

             Bownes and Cyr, Senior Circuit Judges.


Bruce A. Singal, with whom William C. Athanas, and Donoghue,

Barrett & Singal, P.C., were on brief for appellant.



     John M. Griffin, Assistant United States Attorney, with whom

Mark W. Pearlstein, Acting United States Attorney, was on brief for

appellee.


July 20, 1998


BOWNES, Senior Circuit Judge.  This case is the sequel to

United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996), as we discuss

in detail infra.  Appellant Francis H. Woodward appeals his four-

count conviction for mail and wire fraud, 18 U.S.C.  1341, 1343;

interstate travel to commit bribery, 18 U.S.C.  1952 (the "Travel

Act"); and conspiracy to commit those offenses, 18 U.S.C.  371. 

The charges stem from his acceptance of illegal gratuities from

William Sawyer and others, with the intent of depriving Woodward's

constituents of his honest services as a legislator.  In this

appeal, Woodward claims that the evidence was insufficient to

establish his guilt beyond a reasonable doubt on any of the four

counts.  He also argues that the district court erred in certain

evidentiary rulings and in its jury instructions.  We affirm.

                                I

                              Facts

  When reviewing an appeal from a conviction, we view the

facts in the light most favorable to the verdict.  United States v.

Gonzalez-Maldonado, 115 F.3d 9, 12 (1st Cir. 1997); Sawyer, 85 F.3d

at 731.  Francis H. Woodward was first elected to the Massachusetts

House of Representatives in 1977.  He was assigned to the Joint

Committee on Insurance ("Insurance Committee"), and served as the

Committee's House Chair from January, 1985 through January 19,

1991.  Beginning January 20, 1991 and continuing through April 1992

when he resigned from the legislature, Woodward was assigned to the

Transportation Committee, which had no jurisdiction over insurance

matters.

  During the relevant time period, John Hancock Mutual Life

Insurance Company ("Hancock") was one of the two largest life

insurance companies in Massachusetts, and one of the ten largest in

the entire United States.  Because Hancock is domiciled in

Massachusetts and is regulated primarily at the state level,

Massachusetts' laws and regulations have a major impact on Hancock,

affecting such issues as the corporation's organization and

funding.  

  William Sawyer was the senior legislative counsel in

Hancock's Government Relations Department.  He was responsible for

lobbying the Massachusetts legislature on behalf of bills favored

by Hancock and the industry, and against those bills they opposed. 

He actively lobbied the Insurance Committee.

  Hancock was also a member of an industry trade

association known as the Life Insurance Association of

Massachusetts ("LIAM").  LIAM also employed lobbyists who worked on

Massachusetts legislation, in coordination with the lobbyists of

its member companies.  Sawyer was an active participant in LIAM as

well.

  Bills filed in the Massachusetts legislature were

assigned to committee by subject matter.  The Insurance Committee,

comprising eleven representatives and six senators, was one of the

principal legislative committees to which legislation of interest

to Hancock and LIAM was assigned.  From 1985 through 1990, the

Insurance Committee received, on average, three hundred bills a

year, one hundred of which affected the life insurance industry. 

Of those bills, the industry was interested in passing an average

of only five per year; it opposed the rest. 

  The committee's procedures were, in general, as follows. 

First, public hearings were held on the bills.  Following such

hearings, the members of the committee voted on the bills in

executive sessions that were open to the public.  If the bill

received a favorable recommendation in the committee's executive

session, it was reported out favorably for further action on the

floor of either the House or the Senate.  If it received an

unfavorable recommendation or a study order in the committee's

executive session vote, then in all likelihood the bill would not

pass in that session.

  The Insurance Committee was co-chaired by one House and

one Senate member.  The co-chairs, Woodward and his Senate co-

chair, directed the activities of the committee, supervising the

committee staff and scheduling all public hearings, executive

sessions, and meetings.  As co-chair, Woodward had the authority to

assign bills to the hearing calendar and subsequent executive

sessions, and to take other action that would help to advance bills

through the committee (or he could choose not to take such action). 

Woodward also had the authority to affect the disposition of a

bill, including the ability to "carry" a bill through the

legislative process or to send it to "study," which effectively

shelved it.  

     As one of the four most active lobbyists on behalf of

domestic life insurance companies, Sawyer was frequently present at

Insurance Committee meetings.  He saw Woodward two or three times

a week, and was the lobbyist who met most often with Woodward. 

After Woodward was removed from the Insurance Committee in January

1991, Sawyer continued to appear at committee meetings and to meet

with Woodward's successor as House Chair with the same frequency as

he had before.

     At the heart of the government's case was the evidence of

Sawyer's expenditures on Woodward for shared meals and

entertainment.  From 1984 through 1992, Woodward accepted in excess

of $9,000 in gratuities from Hancock and LIAM through their

lobbyists Sawyer and William F. Carroll, the president of LIAM. 

Hancock provided the majority of this largesse, at least $8,740 in

meals, rounds of golf, and other entertainment.

     The government introduced evidence showing that, from

March 28, 1984 through January 23, 1992, Sawyer expended $8,740 on

behalf of Woodward.  Of that total, $1,827 was expended after the

statute of limitations period began, i.e., after July 27, 1990. 

One thousand three hundred forty dollars ($1,340) of the total

expenditures occurred after January 19, 1991, when Woodward was

removed from the Insurance Committee.

     Sawyer's expenditures consisted of (1) shared meals and

entertainment at conferences, generally once or twice a year;

(2) miscellaneous meals and rounds of golf each year in

Massachusetts; (3) a dinner at the annual Fourth of July social

gathering on Cape Cod; and (4) a trip in January 1986 to the Super

Bowl in New Orleans.  Expenditures from categories (1) and (2) are

the subject of this appeal on the sufficiency issue.  The jury

acquitted Woodward as to category (3) expenditures.  Evidence

relating to the Super Bowl was not the subject of the indictment,

but was admitted, over Woodward's objection, to show the nature of

the conspiracy and for its bearing on intent; Woodward appeals the

admission of that evidence.

     The National Conference of Insurance Legislators (COIL)

is a national association of state legislators involved in

insurance matters.  Every year the organization sponsored one or

more conferences for legislators, at various sites around the

country, where educational presentations were made concerning

insurance matters.  Woodward attended many COIL conferences, as did

other legislators from Massachusetts and elsewhere.  Legislators'

travel and hotel expenses were paid from a legislative account or

campaign funds but not by the insurance industry.  Woodward and

Sawyer frequently played golf at exclusive clubs near the

conference site, and Sawyer generally paid the costs of the golf. 

Sawyer used his corporate credit card to pay for business-related

expenses.  He submitted an expense account statement with receipts,

and Hancock reimbursed Sawyer for such expenses.  In addition,

Sawyer paid for a number of dinners at local restaurants that would

be attended by legislators such as Woodward who were attending the

conferences.  At times, William Carroll of LIAM would pay for the

dinners.  Sawyer/Hancock also paid for Woodward's entertainment

while at these conferences, such as tickets for the Grand Ole Opry

when the conference was in Nashville.

     In addition to the COIL conference expenditures, Sawyer

paid for Woodward's meals at expensive restaurants, as early as

1984, when Woodward was in the Legislature but before Woodward

served as co-chair of the Insurance Committee.  This practice

continued throughout the years Woodward remained in the House, with

higher amounts generally in the years he was committee chair. 

Sawyer also paid for an average of three to five golf outings with

Woodward each year at various locations in Massachusetts.  These

were principally at Sawyer's private golf club, the Woodland Golf

Club.  Hancock also paid for other forms of entertainment,

including boat rentals and tickets to tourist attractions such as

Busch Gardens.

     The government introduced into evidence a chart showing

the amount of annual gratuities accepted by Woodward.  The pattern

formed by these amounts is noteworthy.  In 1984 and 1985, before

Woodward became chair of the Committee and for the first year

afterward, Woodward accepted gratuities in the range of $200-300

from Sawyer/Hancock.  In 1986 there was a marked increase to

$2,527, including over $1,800 to cover the air fare, hotel, and

tickets (for him and his wife) to attend the Super Bowl in New

Orleans.  In 1987-91, Woodward received gratuities in the amount of

$1,547, $1,093, $513, $1,230, and $1,324.  Woodward served as

committee chair during all but the last of these years.  During his

last four months in the legislature, January through April 1992, he

received only $16, and his gratuities dropped to $0 after he

resigned from office in April.  After Woodward was replaced as

committee chair by Rep. Francis Mara, Sawyer began wining and

dining Mara in the same manner as he had Woodward.  Sawyer, 85 F.3d

at 721.

     In addition to Sawyer's payments on behalf of Woodward,

LIAM lobbyists also paid for some of Woodward's meals during the

period of the charged conspiracy (1984-92).  These amounted to

$444.

     Woodward's official actions, for the most part, conformed

with the way Sawyer and Hancock wanted the recipient of their

gratuities to conduct himself.  Sawyer was the lobbyist with whom

Woodward met the most, according to Robert J. Smith, the research

director for the Insurance Committee.  They met approximately three

times a week when the legislature was in session.  And Woodward

repeatedly acted on behalf of Hancock and the life insurance

industry in his capacity as co-chair of the Committee.

     According to Smith, Woodward was the most pro-life-

insurance-industry chair of the Insurance Committee during Smith's

tenure, 1985-95 (which included six other House and Senate chairs). 

Woodward actively supported the industry's position on most bills

of importance to the industry.

     As his defense to the charge that he engaged in illegal

theft of honest services, Woodward presented evidence that Sawyer's

expenditures on his behalf were based not on bribery but on their

"close" friendship.  In addition to their business relationship,

Woodward and Sawyer maintained a personal relationship.  They met

in the late 1970s, which is the time Woodward began serving on the

Insurance Committee.  The two families socialized together even

before Woodward assumed the chair of the Committee in 1984.  The

two couples drove together to a conference in New York in 1980, and

the Sawyers and their children visited the Woodwards at the

latter's house on Cape Cod as early as 1982.  Beginning in about

1984, the Sawyers would traditionally stay at the Woodwards' house

on the Cape for an annual Fourth of July weekend gathering.  The

two families also shared other times, including family celebrations

and tragedies.  Mrs. Woodward testified that the Sawyers were one

of three couples with whom the Woodwards were the closest.

     The jury convicted Woodward of four (of the twenty-

eight) charges against him:  one count each of mail and wire fraud,

one count of interstate travel to commit bribery, and one count of

conspiracy to commit the foregoing three offenses.

                                II

       Requisite Intent Under Mail and Wire Fraud Statutes 

     To support a conviction for mail or wire fraud, the

government must prove beyond a reasonable doubt:  "(1) the

defendant's knowing and willing participation in a scheme or

artifice to defraud with the specific intent to defraud, and

(2) the use of the mails or interstate wire communications in

furtherance of the scheme."  Sawyer, 85 F.3d at 723; see 18 U.S.C.

 1341, 1343.  "[T]he term 'scheme or artifice to defraud'

includes a scheme or artifice to deprive another of the intangible

right of honest services."  18 U.S.C.  1346; see Sawyer, 85 F.3d

at 723-24.

     The government charged that Woodward engaged in a scheme

to deprive the Commonwealth of Massachusetts and its citizens

(collectively, "the public" or "citizenry") of their right to his

honest services as a state legislator, performed free from deceit,

fraud, dishonesty, conflict of interest, and self-enrichment.  In

addition to this general duty of honest services, the government

charged that Woodward had a specific duty to abide by Massachusetts

reporting requirements.  With regard to the scheme to defraud, the

government charged, inter alia, that Woodward accepted, from

individuals (including Sawyer) representing Hancock and LIAM, golf,

meals, tickets, and other entertainment and benefits, in violation

of Massachusetts law; that Woodward filed false Statements of

Financial Interest ("SFI") under oath, in which he unlawfully

failed to report to the State Ethics Commission his receipt of the

gratuities; that Sawyer on behalf of Hancock and LIAM was given

greater access to the Insurance Committee and to Woodward as House

Chair than was available generally to the citizenry; and that, from

1984 through 1990, Woodward repeatedly performed official acts on

behalf of Hancock and LIAM.  The government further charged that

Woodward used the mails and interstate telephone wires in

furtherance of the scheme, in violation of 18 U.S.C.  1341 and

1343.

     In Sawyer, we discussed mail and wire fraud in connection

with theft of honest services in a closely analogous situation

where the same facts formed the backdrop for the case.  We

particularly highlighted the intent required to support a

conviction; intent is also a major issue in the present case.  But

as Woodward stresses, his situation   as the legislator   is not

exactly identical to that of Sawyer as the lobbyist.  We will,

therefore, summarize our analysis in Sawyer, insofar as is

applicable here.

     We explained that, prior to Sawyer, honest services fraud

had typically been found in two types of circumstances: 

(1) bribery, where a legislator was paid for a particular decision

or action, or (2) failure to disclose a conflict of interest,

resulting in personal gain.  85 F.3d at 724.  As to the latter, we

noted that "[a] public official has an affirmative duty to disclose

material information to the public employer.  When an official

fails to disclose a personal interest in a matter over which she

has decision-making power, the public is deprived of its right

either to disinterested decision making itself or, as the case may

be, to full disclosure as to the official's potential motivation." 

Id. (citing United States v. Silvano, 812 F.2d 754, 759 (1st Cir.

1987)).  "Thus, undisclosed, biased decision making for personal

gain, whether or not tangible loss to the public is shown,

constitutes a deprivation of honest services."  Id.  The Sawyercase expanded category (1) from quid pro quo bribery, to include a

more generalized pattern of gratuities to coax "ongoing favorable

official action."  Id. at 730; see infra.

     "The broad scope of the mail fraud statute, however, does

not encompass every instance of official misconduct," even of

"reprehensible misconduct," "that results in the official's

personal gain."  Sawyer, 85 F.3d at 725.  The government must prove

that the defendant intended to deprive the public of its right to

the honest services of its legislators.  Id. at 725, 730.  

     This intent could be shown in a number of

     ways.  For example, a bribery-like, corrupt

     intent to influence official action

     necessarily is an intent to deprive the public

     of an official's honest services.  A person

     might not, however, give an unlawful gratuity

     with the intent to effect a specific quid pro

     quo.  Rather, as the government contends here,

     a person with continuing and long-term

     interests before an official might engage in a

     pattern of repeated, intentional gratuity

     offenses in order to coax ongoing favorable

     official action in derogation of the public's

     right to impartial official services.



Sawyer, 85 F.3d at 730 (noting that "[s]uch conduct would be akin

to (although not a classic case of) the conflict of interest cases

noted" previously).

     Applying this principle to the facts adduced, we stated

that, "while Sawyer may not have provided the legislators with

direct kickbacks or commissions arising out of the specific

official action, he may have intended the legislators generally to

treat preferentially Hancock's interests, knowing that the free

meals, entertainment, and golf would continue so long as favorable

official acts were, at some point, taken."  Id.  We reversed the

mail and wire fraud convictions, nevertheless, because we could not

be sure that the jury convicted Sawyer based upon the Massachusetts

gift statute (as a basis for the federal scheme to defraud) or the

Massachusetts gratuity statute, and the former had been improperly

charged in the court's instructions to the jury.  We mandated a

protective instruction to be used in cases such as this, which

would help the jury understand the difference between

"reprehensible misconduct" which is not a violation of federal law,

and misconduct which does form the basis for a federal conviction. 

Id. at 741.  Noting that prior cases usually involved "quid pro quo

bribery or blatant conflict of interest," which was clearly

illegal, we distinguished Sawyer's gratuities to Woodward (and

other legislators) as involving conduct which "itself may not be

very different, except in degree, from routine cultivation of

friendship in a lobbying context," which does not violate federal

criminal law.  Id.  We noted that "[t]he practice of using

hospitality, including lavish hospitality, to cultivate business or

political relationships is longstanding and pervasive."  Id. 

Because the "difference between lawful and unlawful turns primarily

on intent," we held that the court must instruct the jury that a

lobbyist does not commit honest services fraud or violate the

Travel Act if his "intent was limited to the cultivation of

business or political friendship."  Id.  He commits those

violations "only if instead or in addition, there is an intent to

cause the recipient to alter her official acts."  Id.

                               III

                   Sufficiency of the Evidence

     Woodward's principal argument on appeal is that there was

insufficient evidence for the jury to find beyond a reasonable

doubt that he had the requisite intent on any of the four counts at

issue here.  We will focus our discussion here on the mail and wire

fraud counts.  We held in Sawyer that the intent required for a

Travel Act violation is the same as that for mail and wire fraud. 

85 F.3d at 741.  Woodward argues that the conspiracy count must

fall because there is insufficient evidence to support the

substantive counts that served as its objects.  

     Because theft of honest services constitutes a "scheme or

artifice to defraud" within the meaning of the mail and wire fraud

statutes, see Sawyer, 85 F.3d at 723-24, the question becomes

whether the jury could reasonably have found that Woodward intended

to steal his honest services from the public.  As Woodward phrased

it in his brief, "[t]he central question is whether by accepting

his friend's largesse Woodward intended to be influenced to support

Hancock's legislative interests."

                                A

                        Standard of Review

     In determining the evidentiary sufficiency of a guilty

verdict, "the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt."  Jackson v. Virginia, 443

U.S. 307, 319 (1979).  "The scope of review is over the totality of

the evidence, both direct and circumstantial."  United States v.

Czubinski, 106 F.3d 1069, 1073 (1st Cir. 1997).

     Woodward focuses most of his sufficiency challenge on an

alleged lack of intent to be influenced.  He argues that the

evidence was insufficient to show that Woodward accepted Sawyer's

gratuities with the intent to deprive the public of his honest

services by performing official acts on behalf of Hancock (or the

life insurance industry).  

     Woodward "bear[s] a heavy burden" in arguing

insufficiency of the evidence, even with respect to this intent

element.  United States v. Biaggi, 853 F.2d 89, 99 (2d Cir. 1988). 

"An appellate court plays a very circumscribed role in gauging the

sufficiency of the evidentiary foundation upon which a criminal

conviction rests.  The court of appeals neither weighs the

credibility of the witnesses nor attempts to assess whether the

prosecution succeeded in eliminating every possible theory

consistent with the defendant's innocence."  United States v. Noah,

130 F.3d 490, 494 (1st Cir. 1997).  We "defer, within reason, to

inferences formulated by the jury in the light of its collective

understanding of human behavior in the circumstances revealed by

the evidence."  United States v. Guerrero 114 F.3d 332, 339 (1st

Cir.) (internal quotation marks omitted), cert. denied sub nom.

Pilco v. United States, 118 S. Ct. 184 (1997).

     In reviewing Woodward's contention, "we must view the

evidence in the light most favorable to the government, crediting

every inference that could have been drawn in the government's

favor, and we must affirm the convictions so long as, from the

inferences reasonably drawn, the jury might fairly have found the

requisite connection beyond a reasonable doubt."  Biaggi, 853 F.2d

at 99 (citations omitted); see Sawyer, 85 F.3d at 731.

     As we stated in Sawyer (in the context of intent to

deceive):

     The evidence need not compel an intent-to-

     deceive finding; rather, it is only required

     that a reasonable jury could be persuaded,

     beyond a reasonable doubt, that [Woodward] had

     such intent.  And we are mindful that a jury

     may choose among the reasonable alternatives

     posed by the evidence.  Finally, the specific

     intent to deceive may be proven (and usually

     is) by indirect and circumstantial evidence.



Sawyer, 85 F.3d at 733 (citations omitted).  

     "Despite the deference that characterizes appellate

review of jury verdicts, juries do not have carte blanche.  The

appellate function . . . requires the reviewing court to take a

hard look at the record and to reject those evidentiary

interpretations and illations that are unreasonable, insupportable,

or overly speculative.  This function is especially important in

criminal cases, given the prosecution's obligation to prove every

element of an offense beyond a reasonable doubt."  United States v.

Spinney, 65 F.3d 231, 234 (1st Cir. 1995) (citations omitted). 

"[A]n appellate court must reverse a conviction on the grounds of

evidentiary insufficiency 'where an equal or nearly equal theory of

guilt[] and a theory of innocence is supported by the evidence

viewed in the light most favorable to the verdict.'"  Guerrero 114

F. 3d at 344 (quoting United States v. Andujar, 49 F.3d 16, 20 (1st

Cir. 1995)).  In such cases, "a reasonable jury must necessarily

entertain a reasonable doubt."  Andujar, 49 F.3d at 20.  Viewed in

this context, we find that the government has met its burden of

proof beyond a reasonable doubt.

                                B

                   Intent (Counts 1, 4, 9, 14)

     In Sawyer, we noted two of the ways that a public

official can steal his honest services from his public employer: 

(1) the official can be influenced or otherwise improperly affected

in the performance of his duties, 85 F.3d at 724, 729; or (2) the

official can fail to disclose a conflict of interest, resulting in

personal gain, id. at 724.  The government asserts that the

evidence supports the jury's finding that Woodward had the

requisite intent to deprive the public of his honest services in

both of these ways.  We agree.

                 1.  Influence in Official Action

     As Woodward states in his brief, "the government must

[have] demonstrate[d] that there was sufficient evidence for a

rational jury to conclude that Woodward accepted the free meals and

entertainment from Sawyer with the intent to perform official acts

to favor Hancock's legislative interests."  Def. Br. at 19. 

Identical standards apply in determining the "scheme to defraud"

element under the mail and wire fraud statutes.  Czubinski, 106

F.3d at 1076 n.10.

     "The jury was entitled to infer [the defendant's] intent

from the circumstances surrounding" his actions, from indirect, as

opposed to direct, evidence.  United States v. Fulmer, 108 F.3d

1486, 1493 (1st Cir. 1997); see United States v. Taylor, 54 F.3d

967, 975 (1st Cir. 1995) (noting that a showing of criminal intent

"may be made wholly on the basis of circumstantial evidence").  Nor

are juries "required to examine the evidence in isolation";

"'individual pieces of evidence, insufficient in themselves to

prove a point, may in cumulation prove it.  The sum of an

evidentiary presentation may well be greater than its constituent

parts.'"  United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)

(quoting Bourjaily v. United States, 483 U.S. 171, 179-80 (1987));

see also United States v. Montminy, 936 F.2d 626, 627-28 (1st Cir.

1991).

     In Sawyer, we reviewed much of the same evidence that was

presented to the jury here, and determined that the evidence was

sufficient "to prove [Sawyer's] intent to influence the

legislators' official acts."  85 F.3d at 731.  We noted that Sawyer

continually gave gifts for the purposes of gaining access and

developing a relationship with Woodward and other legislators. 

From this, the jury could have inferred that Sawyer intended to

induce official actions favorable to Hancock's interests.  Id.; see

also id. at 739 (noting that Sawyer gave items of substantial value

to legislators like Woodward who had the ability to take official

action favorable to Hancock, that those gifts ceased after the

legislators left office, and that Sawyer had long-term ongoing

interests in official actions and knew the gratuities were illegal;

and concluding that the jury could rationally have inferred that

"the gratuities were motivated by the legislators' performance of

official duties, i.e., that they were given 'for or because of any

official act,' within the meaning of the Massachusetts gratuity

statute, Mass. Gen. L. ch. 268A,  3.").

     The same inferences regarding Woodward's intent can be

drawn from the evidence here, based upon the nature and sequences

of events, certain explicit statements, and the suggestions of a

cover-up.  In Sawyer, of course, the jury was assessing the

motivation of the donor of the gratuity, Sawyer, not that of the

donee, Woodward.  But it is an equally valid inference, from the

foregoing evidence coupled with the fact that Sawyer and Woodward

spent a good amount of time together, that Woodward understood the

gratuities and their purpose in the same way that his "close

friend" Sawyer did.  Woodward knew that Sawyer was giving him items

of substantial value, continuing over a long period of time; he

knew that Sawyer had a long-term ongoing interest in his official

acts; and that he had the ability to take official action favorable

to Hancock.  Woodward also knew that his relationship with Sawyer

began after he became a member of the Insurance Committee and that

the gifts increased substantially shortly after he became chair of

the committee that handled insurance legislation.  Finally,

Woodward knew that, at many of the same entertainment events that

he enjoyed, Sawyer also wined and dined other legislators in a

similar manner, and those legislators had only a business

relationship, not a friendship, with Sawyer.  In light of all this,

the jury could have inferred that Woodward knew what the deal was 

  that the gratuities would continue as long as he voted favorably

to Hancock's interests, see Sawyer, 85 F.3d at 730   and that he

intended to be influenced by the gratuities.

     Moreover, the jury had additional evidentiary bases for

drawing the inference that Woodward's intent included an illegal

element rather than being solely based on friendship.  After

entertaining Woodward for several days at the Scottsdale COIL

conference in 1991, Sawyer left the conference early, but left his

credit card to be used for paying Woodward's golf and meal expenses

during the remainder of the conference.  This is not consistent

with mere friendship as the sole purpose of the payments, but

rather is more consistent with the theory of a gratuity made

because of Woodward's potential official actions.

     In addition, Woodward received some gratuities from

Sawyer (although in lesser amounts) at events where other

legislators   mostly members of the Insurance Committee, who could

also influence legislative acts in favor of Hancock   were also

present.  This too indicates an illegal gratuity more than the

camaraderie of "close friends."  Similarly, some of Woodward's

gratuities came from LIAM, through its president, Carroll, who was

not a personal friend of Woodward's.

     The same inference can be drawn from the fact that the

expenditures were not mutual but rather operated in one direction

only.  The standard operating procedure was for Sawyer to pay for

meals, drinks and golf for Woodward; Woodward did not make similar

payments for Sawyer.  If the reason Sawyer "picked up the tab" for

Woodward on some occasions was simply because the two men were

"close friends," one would expect there to be a roughly equal

number of occasions on which Woodward "picked up the tab" for

Sawyer.  But that was not the case.

     Indeed, the only evidence in the record as to Woodward

performing some reciprocal acts of treating his "close friend"

Sawyer were the weekends spent on Cape Cod.  On those occasions,

Woodward invited the Sawyers to stay at the Woodward family's house

on the Cape, where the Woodwards cooked some meals.  In return,

according to Woodward, Sawyer would pay for a group dinner at a

nearby restaurant.

     Significantly, the jury returned not guilty verdicts on

all indictments alleging such reciprocal expenditures.  In

contrast, the jury weighed the evidence differently as to four

counts charging Woodward with accepting gratuities in a non-mutual,

non-reciprocal way.  As to these, the jury apparently viewed

Sawyer's expenditures and Woodward's acceptance of them as notbeing based on the two men's friendship but rather based on a

business relationship:  i.e., insurance industry lobbyist and Chair

of the Legislature's Insurance Committee.  The jury recognized  

and this recognition is supported by the evidence of record   that

the two men had two types of relationships, a personal friendship

and a business relationship.  Woodward's acceptance of expenditures

that were part of their friendship was not illegal, but his

acceptance of expenditures in the context of their business

relationship constituted theft of the honest services that Woodward

owed to his constituents.  We think the evidence was sufficient for

a reasonable juror to so conclude beyond a reasonable doubt.  The

jury was free to "choose among the reasonable alternatives posed by

the evidence," Sawyer, 85 F.3d at 733, and we will not second-guess

the jury's conclusion in this regard. 

     Another reason the jury could have rejected Woodward's

contention that Sawyer picked up his tab solely because of

friendship rather than as an attempt to influence is the direct

statements showing how Woodward expected to receive gratuities from

Sawyer (and, through him, from Hancock).  In 1989, at a COIL

conference in Florida, Lorraine Bohannon, the former staff director

of the Insurance Committee, who reported directly to Woodward, went

out to dinner with Woodward, Sawyer, and their spouses.  There is

no evidence that Bohannon had any kind of personal friendship with

Sawyer.  After dinner, Bohannon offered to Woodward to pay a

portion of the bill, and Woodward's response was: "Don't worry

about it; it's taken care of."  Sawyer picked up the tab and was

reimbursed by Hancock for the bill.

     The government presented evidence of another direct

statement to demonstrate Woodward's illegal intent.  After Woodward

left the legislature, he expressed interest in working for Hancock

as a lobbyist.  He asked Sawyer to help him obtain the job.  Sawyer

told Woodward he was not qualified for the job, and Woodward was

"very hurt."  Subsequently when he talked to Committee research

director Robert Smith about the Hancock job, Woodward said, in

effect, "After all I did for Bill Sawyer, you know, I can't believe

he's not   he can't get me a job" or "he's not getting me a job." 

The prosecutor asked Smith whether Woodward told him what "he felt

he had done for Bill Sawyer," and Smith replied, "Not specifically,

just generally.  'After all these years as Chairman of the

committee and trying to do the right thing and being willing to

take on tough issues, I would   I expected, you know, more

assistance than I received.'"  

     Woodward argues that this conversation does not

demonstrate any illegal intent on Woodward's part.  He points out

that, at trial, Smith could not recall Woodward saying "after all

I've done for Sawyer," but only "after all I've done."  Woodward

also notes that "trying to do the right thing" could have meant

following his own conscience, not necessarily doing the "right

thing" for Sawyer and Hancock.  Similarly, "taking on tough issues"

did not necessarily mean "taking on tough issues" for Sawyer or

Hancock.  At trial, Smith testified that he did not interpret these

phrases in an illegal manner.

     But Woodward's argument is belied by the totality of

Smith's testimony about the conversation, or at least a reasonable

jury could have so inferred.  In his grand jury testimony, which

was used by the government at trial, Smith testified to the more

directly inculpatory language:  "after all I did for Bill Sawyer." 

And Smith's trial testimony covered additional incriminating

evidence that Smith had revealed to the grand jury but did not

include in his direct testimony at trial.  When asked (at the grand

jury session) to repeat the whole conversation, Smith testified:

     [Woodward] said that he had spoken to Bill

     Sawyer and that Bill Sawyer had been reluctant

     to help him, and Representative Woodward at

     that time -- as many legislators do, they

     don't remember the specific bill numbers or

     subject matter, but they'll remember in

     general if they were favorable towards someone

     or not -- said to me "you would think after

     all the years and everything I've done I would

     be treated better than I have been treated."



This juxtaposition of the "everything I've done" language with the

notion of legislators "remember[ing] in general if they were

favorable towards someone or not" carries a strong implication

that, at least in Smith's mind as he heard Woodward make the quoted

statements, Woodward's reference to "all he had done" was meant in

the sense of taking action in the legislature to favor Sawyer and

Hancock's interests.  

     Smith's grand jury testimony, elicited after an

inconsistent statement at the trial, constitutes substantive

evidence under Fed. R. Evid. 801(d)(1)(A).  The jury, in assessing

Smith's credibility in the context of all his testimony, could well

have believed that Smith's grand jury testimony   with its

incriminating inferences   was true; and the jury could have

concluded that Smith's trial testimony was not believable to the

extent it undercut the grand jury testimony.  On appeal, of course,

we view the evidence in the light most favorable to the verdict,

not the light most favorable to Woodward.  Credibility assessments

are properly left to the jury.  United States v. Mangual-Corchado,

139 F.3d 34, 43 n.20 (1st Cir. 1998).  And juries are not required

to evaluate the evidence in isolation; "individual pieces of

evidence, insufficient in themselves to prove a point, may in

cumulation prove it."  Bourjaily, 483 U.S. at 179-80.

     The inference of illegal intent grows even stronger when

we consider another aspect of what Woodward told Smith about his

attempt to persuade Sawyer to help him get a job at Hancock. 

According to Smith's trial testimony, Woodward said:  "If he

[Woodward] could not get the job himself he'd like to see his son

Brian get the job."  Smith testified that he was unaware of any

experience that Woodward's son, Brian, had in insurance matters. 

This, too, carries the implication that Woodward was expecting some

kind of reward from Sawyer/Hancock for all his years of favoring

the industry's position in the legislature.

     In addition, as Woodward recognizes, "[i]ntent can be

inferred from a defendant's conduct, viewed in light of all the

surrounding circumstances."  Def. Br. at 19; see, e.g., Gaunt v.

United States, 184 F.2d 284, 290-91 (1st Cir. 1950).  Thus "[t]he

best evidence of Woodward's intent to perform official acts to

favor Hancock's (and LIAM's) interests is the evidence of

Woodward's actions on bills which were important to Hancock."  Id. 

Unfortunately for Woodward, the evidence supports the jury's

verdict, rather than undermining it as he contends.

     It is not necessary for the government to link a

particular gratuity with a specific act in order to obtain a

conviction.  Sawyer, 85 F.3d at 738-39; see discussion supra at

p. 13.  Nevertheless, Woodward disputes the extent to which, in his

official capacity as chair of the Insurance Committee, he took

action that served the interests of his benefactors.  The evidence

does not support his contention.  According to Robert Smith,

Woodward was the most pro-life-insurance-industry chair of the

Committee, of the seven House and Senate chairs with whom Smith

worked during the ten years that Smith served as the Committee's

research director.  Woodward even took pro-industry positions in

opposition to his own committee.  As an example, in each year from

1985 through 1990, the legislature considered a bill proposing

mandatory discounts on life insurance for non-smokers.  Hancock and

LIAM opposed the bill.  In 1989, the bill received favorable

recommendation from the Insurance Committee based on support from

Senator Linda Melconian, Woodward's co-chair of the Committee.  But

despite the Committee's favorable report, Woodward led the

opposition to the bill in debate before the full House of

Representatives, and was successful in defeating the so-called

"non-smoker's bill" for that session.  Hancock's vice-president,

who directly supervised Sawyer, called the bill's defeat a

"significant victory for the industry."

     Woodward also led the Insurance Committee to support and

report favorably bills proposed by the industry.  Among these were

bills allowing life insurance companies to change the ways in which

they valued real estate assets, to adjust pension funds, to provide

financial services, and to be flexible in corporate governance and

finance.

     In addition, more than any other co-chair from 1985-95,

Woodward "carried" bills sought by the life insurance industry. 

This means that, after the bill left the committee, Woodward served

as the point person to push these bills through the legislative

process.

     Woodward challenges this characterization of the meaning

of "carrying" a bill after it leaves committee.  Woodward contends

that "carrying" is merely a ministerial function, that it simply

refers to the fact that the chair of any committee of the

Massachusetts legislature "sign[s] the paperwork recommending a

bill favorably and [is] available to answer questions from non-

committee legislators when [the bill is] presented to the House or

Senate floor."  Woodward relies on Robert Smith's testimony for the

proposition that carrying legislation does not necessarily mean

advocating or leading the debate for the bill on the House floor,

that that role is normally reserved for the legislator who sponsors

the bill.  

     Smith's testimony to this effect, however, was impeached

with his grand jury testimony in which he had testified that

"carrying" meant actively guiding bills through the legislative

process.  As we noted in discussing the conversations about getting

Woodward a job at Hancock, the jury was entitled to believe this

portion of Smith's testimony (i.e., introduction at trial of his

prior grand jury testimony)   that "carrying" means actively

guiding a bill through the process; it is not merely ministerial  

and the jury was entitled to disbelieve other parts of his trial

testimony that supported Woodward's interpretation to the contrary. 

     Woodward points to thirty-one (31) bills that he

supported despite opposition on the part of Hancock and the

insurance industry.  But, as the government notes, the proper

analysis is to examine all bills considered by the Committee in

context, not to isolate a relatively small number of bills in an

effort to show that Woodward was not 100% in the industry's pocket. 

The record reflects that, during his six years as co-chair of the

Insurance Committee, there were approximately one hundred bills per

year that were of interest to the life insurance industry, for a

total of six hundred bills during his tenure.  Woodward opposed the

industry's position on only thirty-one of those bills.  Moreover,

at least ten of the opposed bills were duplicates of previously

filed bills.  Of the remainder, only three actually related to life

insurance.  The rest concerned mandated benefits for health

insurance which were of less importance to the life insurance

industry, in particular to Hancock.  This is because, as Hancock's

attorney testified, life insurance was Hancock's "big money earner

in terms of profit."  The company's group health insurance business

was "[o]ne of the lesser profit earners."  As already noted,

several of the bills where Woodward's position conformed to the

life insurance industry's positions were of great importance to the

industry in that the bills significantly improved the industry's

profitability.

     Woodward relies heavily on Czubinski, 106 F.3d at 1076,

where we cited Sawyer for the "most important[]" proposition that

the government must do more than "merely indicate wrongdoing by a

public official, but must also demonstrate that the wrongdoing at

issue [was] intended to prevent or call into question the proper or

impartial performance of that public servant's official duties." 

Czubinski, 106 F.3d at 1076 (citing Sawyer, 85 F.3d at 725).  In

Czubinski, we explained that Czubinski's "case falls outside of the

core of honest services fraud precedents," in that he was "not

bribed or otherwise influenced in any public decisionmaking

capacity."  Id. at 1077.  We also distinguished Czubinski's

"relatively straightforward" job   responding to information

requests from the public   from "a discretionary, decision-making

role," which "raise[s] the specter of secretive, self-interested

action.".  Id.  We found "no evidence that Congress intended to

create what amounts to a draconian personnel regulation," by

"transforming governmental workplace violations into [federal]

felonies."  Id.  

     The instant case is very different from Czubinski.  As

Woodward recognizes, Czubinski did not receive or intend to receive

any tangible benefit from his conduct, whereas Woodward did. 

Additionally, Czubinski's official duties did not involve the

discretionary, decision-making role of a legislator. 

"Notwithstanding these factual differences," Woodward asserts,

"Czubinski and the instant case are similarly flawed by the failure

of proof on the critical fraudulent intent element."  We disagree. 

As discussed supra, the jury in the present case could justifiably

have inferred the fraudulent intent element.  Woodward did receive

tangible benefits here, as Czubinski had not.  And the connection

between the gratuities and Woodward's official acts could have been

justifiably inferred from the fact that Woodward had discretion to

act or not act in ways that would further the insurance industry's

interests; this discretion extended both to the bottom line

(support of or opposition to the industry's position on

legislation) and to the degree of vigor with which Woodward

championed the industry's positions.

          2.  Failure to Disclose Conflicts of Interest

     In addition to demonstrating Woodward's intent by

evidence showing that he was influenced or otherwise improperly

affected in performing his duties, the government argues that

Woodward's intent is also demonstrated by his failure to disclose

his conflict of interest although he was required to do so.  We

agree. 

     Massachusetts law mandates such disclosure on his

Statements of Financial Interest (SFIs).  Mass. Gen. Laws ch. 268B,

 5 (West 1990).  In addition, separate and apart from the state

statute, "[t]he obligation to disclose material information inheres

in the legislator's general fiduciary duty to the public."  Sawyer,

85 F.3d at 733 n.17.  We recognized in Sawyer that the non-

disclosure of a conflict of interest is a second way in which a

public official can steal his honest services.  85 F.3d at 724; cf.id. at 728 ("[U]nlike the honest services fraud cases, noted above,

in which an official was bribed or took official action based on a

secret conflict of interest, a gift statute violation, even if

intentional, does not itself amount to honest services fraud." 

(Emphasis added)).  The evidence of Woodward's non-disclosure is

also probative of Woodward's intent; it supports the jury's finding

that he had the requisite intent.

     As we stated in Sawyer:

     A public official has an affirmative duty to

     disclose material information to the public

     employer.  When an official fails to disclose

     a personal interest in a matter over which she

     has decision-making power, the public is

     deprived of its right either to disinterested

     decision making itself or, as the case may be,

     to full disclosure as to the official's

     potential motivation behind an official act.



Sawyer, 85 F.3d at 724 (citing Silvano, 812 F.2d at 759).

     In addition to the general "affirmative duty to disclose"

discussed in Sawyer, Woodward had a specific statutory duty each

year to file a Statement of Financial Interests with the

Massachusetts State Ethics Commission.  See Mass. Gen. Laws

ch. 268B,  5.  Woodward was required to disclose on his SFI forms

all gifts he or his immediate family received, aggregating more

than $100 per year, from lobbyists or businesses that had a direct

interest in legislation.  He had to sign the forms under oath. 

Woodward did not report the gratuities he received from Hancock or

LIAM on any of his SFI forms submitted for the years 1984 through

1992.

     Woodward contends that his failure to comply with the

Massachusetts reporting statute, while "reprehensible," is not

relevant here.  We disagree.  In Czubinski, we listed "the failure

of public decision-makers to disclose certain conflicts of

interest" as one of three examples of "serious corruption" on the

part of public officials that would "typically" justify an honest

services conviction.  106 F.3d at 1076.  Woodward's failure to

report supports the implication that Woodward was aware that these

gratuities were improper, especially in light of the fact that

"[m]uch of his entertainment . . . took place out-of-state --

usually at industry and legislative conferences -- where members of

the Massachusetts citizenry generally would not observe the

questionable activities."  Sawyer, 85 F.3d at 733.  Woodward had

every incentive to keep these "questionable activities" secret from

the public by not disclosing them on his SFIs.  The SFIs are public

documents, which are frequently scrutinized by the press and

political opponents during election years.  In fact, the only gift

Woodward ever reported was a local, public golf tournament

sponsored by Massachusetts Candy & Tobacco Distributors, Inc.,

which he reported after learning that the tournament was under

investigation by the State Ethics Commission.  

     We agree with the government that Woodward's intentional

failure to disclose the Hancock and LIAM gifts in itself provides

a solid basis for the jury to find that Woodward had the requisite

intent to deprive the public of his honest services.  This same

evidence also supports the finding that Woodward had the intent to

deceive necessary for a mail and wire fraud conviction.  See supraat 13, n.6.  "[A]n official's intentional violation of the duty to

disclose provides the requisite 'deceit.'"  Sawyer, 85 F.3d at 732

(quoting Silvano, 812 F.2d at 760).

     Viewing the record in the light most favorable to the

verdict, a rational jury could have found the requisite intent from

the trial evidence.  The evidence was sufficient for a rational

juror to find, beyond a reasonable doubt, that Woodward accepted

gratuities from Sawyer with the intent to defraud the public of its

right to his honest services, and that he had the specific intent

to deceive.  See also Sawyer, 85 F.3d at 742 (finding that the

evidence adduced there "would be adequate to infer improper

intent").

                                C

              Other Elements of Wire Fraud (Count 9)

     As noted supra, to support a conviction for mail or wire

fraud, the government must prove beyond a reasonable doubt: 

"(1) the defendant's knowing and willing participation in a scheme

or artifice to defraud with the specific intent to defraud, and

(2) the use of the mails or interstate wire communications in

furtherance of the scheme."  Sawyer, 85 F.3d at 723; see 18 U.S.C.

 1341, 1343.  

     Woodward also challenges his convictions based on the

second requirement.  He argues that the government offered

insufficient evidence to prove either that Woodward caused the

wiring or that the wiring was "for the purpose of executing [the]

scheme" to defraud.  See 18 U.S.C.  1343.

     The wire fraud count relates to a COIL conference in

Orlando, Florida, in November, 1990.  The indictment alleged that

on November 21, 1990, a call was placed from Boston, Massachusetts,

to Lake Buena Vista, Florida, and that its purpose involved

"[a]rrangements related to entertainment in Florida."  

     Woodward claims that he did not "cause" this telephone

call to be made, and that it was not made for the purpose of

executing a scheme for Woodward to defraud the public of its right

to his honest services.  We disagree on both points.  As we stated

in Sawyer, Woodward "'need not personally use the wires as long as

such use was a reasonably foreseeable part of the scheme in which

[he] participated.'"  85 F.3d at 723 n.6 (quoting United States v.

Boots, 80 F.3d 580, 585 n.8 (1st Cir.), cert. denied, 117 S. Ct.

263 (1996)).  In addition, "[t]he use of the mails or wires to

further the fraudulent scheme need only be 'incidental.'"  Id.(quoting United States v. Grandmaison, 77 F.3d 555, 566 (1st Cir.

1996)). 

     Here, Woodward concedes that the jury could reasonably

have inferred from the evidence that Hancock's Functions

Coordinator called the Florida hotel on or about November 21, 1990,

for the purpose of reserving a room, so Sawyer could attend the

COIL conference in Orlando.  Nevertheless, Woodward claims that he

could not have reasonably foreseen that a Hancock employee would

make a room reservation for Sawyer at this COIL conference, nor

that she would use the telephone to do so.  According to Woodward,

Sawyer's "presence [at the conference] could have been ensured by

many means other than the fortuity of an interstate telephone call

to reserve his hotel room."  We disagree.

     Woodward knew full well that Sawyer would need a hotel

room in Florida for the COIL conference, and that Sawyer's office

was located in Massachusetts.  Woodward could reasonably have

foreseen that the hotel reservations in Florida would be made by

phone either by Sawyer or by someone acting on his behalf.  That

Sawyer could conceivably have made his room reservation in person

or by mail does not undermine the foreseeability of a telephone

call.  The jury was entitled to use its common sense to infer that

a reasonable person would have foreseen a telephonic reservation,

as a means commonly employed in the business world for transactions

of this type.  Thus, the jury was entitled to conclude, based on

the evidence presented, that Woodward "caused" the wiring.

     Woodward further argues that "the evidence presented was

insufficient to show that the purpose of this call was to execute

a scheme by Woodward to deprive the public of its right to his

honest services by receiving gratuities from Sawyer with the intent

to favor unlawfully Hancock's legislative interests."  Def. Br. at

27.  We disagree.  The jury could reasonably have concluded that

the call was made in furtherance of the scheme to defraud.  Sawyer

would not have been able to give Woodward the illegal gratuities

during the COIL conference if Sawyer did not have a hotel room in

which to stay for the four days of the conference.  The call in

question secured that room, and thus played an essential role in

the scheme.

     Our conclusion is buttressed by decisions involving mail

fraud, which is analogous to wire fraud for these purposes.  The

focus of our inquiry on this question "ought to be concerned less

with the precise contents of the particular mailings than with the

role those mailings played in the execution of the scheme to

defraud."  United States v. Serino, 835 F.2d 924, 928 (1st Cir.

1987).  In Silvano, we upheld a mail fraud conviction of government

officials, where the defendants neither placed nor received any of

the mailings.  (The mailings consisted of the payment of premiums

and commissions, all incidental to, but related to, commission of

the fraud.)  We held that these mailings were sufficiently in

furtherance of the fraud.  812 F.2d at 760.  We reasoned that "the

federal mail fraud statute sweeps broadly and its prohibitions

extend to the use of the mails by corrupt local government

officials.  It is similarly settled that use of the mails need be

no more central to the illegal scheme than were the mailings

supporting the counts upon which [the defendants] were convicted." 

Id.

     The evidence was sufficient to support Woodward's wire

fraud conviction.

                                D

                       Mail Fraud (Count 4)

     With respect to the mail fraud count, Woodward concedes

that, "because the evidence showed he was at events for which

Sawyer paid with his credit card, it was reasonably foreseeable to

him that Sawyer would be billed by mail for these credit card

expenditures on his behalf."  Def. Br. at 28.  Therefore he does

not contest the fact that he "may be said to have 'caused' the

mailing alleged in Count 4 when he let Sawyer pick up the tab." 

Id.

     But he contends that "the purpose of the mailing strays

far from the execution of a scheme by Woodward to defraud the

public."  Id. at 29.  He argues that the scheme had already reached

fruition by the time the mails were used.  He points to United

States v. Maze, 414 U.S. 395 (1974), where the Supreme Court noted

that "Congress could have drafted the mail fraud statute so as to

require only that the mails be in fact used as a result of the

fraudulent scheme.  But it did not do this; instead, it required

that the use of the mail be 'for the purpose of executing such

scheme or artifice.'"  Id. at 405 (footnote omitted) (emphasis

added).  

     In the present case, the mailing in question was sent by

Citibank Visa to Sawyer, billing him for charges arising from

Sawyer's use of his Visa card to pay for illegal gratuities given

to Woodward.  According to Woodward, because the mailing took place

some three to four weeks after Sawyer purchased the meals and

entertainment for Woodward, the use of the mail was "a result of"

the fraudulent scheme but not "for the purpose of executing" the

scheme.  Id.  We disagree.

     Woodward's argument focuses too narrowly, on each

gratuity individually.  His contention assumes a new fraudulent

scheme began and ended every time Sawyer used his credit card to

pick up the tab for Woodward.  On the contrary, the evidence

supported the conclusion that the fraudulent scheme in which

Woodward and Sawyer participated was an ongoing scheme, lasting for

years and involving Sawyer's use of his credit card.  Every month,

Visa would use the mails to bill Sawyer for his charges; if Sawyer

did not pay those bills, his credit line would have been terminated

and the gratuities could not have continued as Woodward and Sawyer

expected.  It was thus a necessary part of the ongoing scheme that

Sawyer pay his bill after receiving it in the mail.  See Sawyer, 85

F.3d at 730 ("[A] person with continuing and long-term interests

before an official might engage in a pattern of repeated,

intentional gratuity offenses in order to coax ongoing favorable

official action in derogation of the public's right to impartial

official services.")  This case is therefore distinguishable from

Maze, where the mailing involved only a post-fraud accounting among

victims, after the defendant's fraudulent use of credit cards was

already completed.  See Maze, 414 U.S. at 402; Schmuck v. United

States, 489 U.S. 705, 714 (1989) (distinguishing and limiting Mazeto cases in which the fraudulent scheme has come to fruition).

     Woodward cursorily argues that the wiring and mailing are

merely "a pretext to manufacture federal jurisdiction over a local

offense."  Def. Br. at 30 (mail fraud); see id. at 28 (wire fraud). 

We have already rejected such a federalism claim:  "Congress may

protect the integrity of the interstate mails and wires by

forbidding their use in furtherance of schemes to defraud a state

and its citizens, whether or not it can forbid the scheme itself." 

Sawyer, 85 F.3d at 722-23 (citations omitted).

     The evidence was sufficient to support the mail fraud

conviction.

                                E

                      Travel Act (Count 14)

     The elements of a Travel Act violation include: 

(1) interstate travel or the use of an interstate facility;

(2) with the intent to promote, manage, establish, carry on, or

facilitate an unlawful activity (here, violation of the

Massachusetts gratuity statute, Mass. Gen. Laws ch. 268A,  3 (West

1990); and (3) followed by performance or attempted performance of

acts in furtherance of the unlawful activity.  See 18 U.S.C.

 1952; United States v. Arruda, 715 F.2d 671, 681 (1st Cir. 1983).

     Woodward argues that the evidence supporting the Travel

Act conviction was deficient in four respects.  First, he argues

that the evidence was insufficient to establish the requisite

criminal intent to violate 18 U.S.C.  1952.  We disagree, for the

same reasons discussed in Part III(B), supra, in relation to his

intent under the mail and wire fraud statutes.  See Sawyer, 85 F.3d

at 741 (equating intent requirements of mail and wire fraud

statutes with that required under Travel Act).

     Second, Woodward maintains that, in order to prove a

violation of the Travel Act, the government had to prove that

Woodward violated the bribery laws of Florida.  The Travel Act

punishes traveling in interstate commerce for the purpose of

carrying on any unlawful activity; such activity encompasses the

commission of bribery "in violation of the laws of the state in

which committed or of the United States."  18 U.S.C.  1952(b)(2). 

The indictment incorporates the Massachusetts gratuity statute,

Mass. Gen. Laws ch. 268A,  3, as the underlying bribery offense. 

Woodward contends that the bribery, if any, took place only in

Florida, and therefore, without evidence of any Florida bribery

statute, the Travel Act conviction must be reversed.  This argument

is unavailing.

     The Travel Act "does not require the government to prove

that the alleged 'unlawful activity' violates the laws of the state

ultimately traveled to," or of the state where money actually

changed hands.  United States v. Walsh, 700 F.2d 846, 854-55 (2d

Cir. 1983) (mayor of city in New Jersey agreed in New Jersey to

accept bribe and traveled to New York to collect it); see United

States v. Jones, 642 F.2d 909, 913 (5th Cir. 1981).  A conviction

may be sustained where the evidence demonstrates "unlawful

activity" in violation of the laws of the state where the effects

of the fraudulent scheme are felt, in this case, the state whose

citizens are defrauded of their legislator's honest services.  SeeWalsh, 700 F.2d at 854-55.  Here, Woodward is a legislator from

Massachusetts, and the jury could have concluded that the gratuity,

though paid in Florida, was paid for the purpose of influencing

legislative activities in and affecting Massachusetts.  As we

discuss below, that is sufficient.

     Woodward's third challenge to his Travel Act conviction

involves timing.  He asserts that there was no evidence that

Woodward performed any acts in furtherance of the unlawful activity

after the interstate travel on November 24, 1990, as alleged in the

indictment.  Woodward notes that, although the Travel Act requires

such, the Massachusetts gratuity statute does not require any

subsequent activity to be taken in Massachusetts after the Florida

bribe.  As evidence of Woodward's post-gratuity activity, the

government points to Woodward's action with respect to S. 641,

which proposed premium reductions in life insurance for

policyholders who were non-smokers.  The bill was originally

reported favorably out of the Insurance Committee on May 7, 1990. 

Then on July 24, 1990, just before becoming law, the House of

Representatives recommitted the bill to the Insurance Committee.

The effect of a bill's recommittal is that both chairs would have

to act in order for the bill to be released.  The bill languished

in the Insurance Committee with no further action taken through

January 1, 1991, after Woodward received the Florida gratuities and

prior to his removal as co-chair.  Woodward's co-chair, Senator

Melconian, had actively supported the 1989 bill by requesting a

favorable recommendation from the Insurance Committee.  The jury

could, therefore, reasonably have inferred that Woodward prevented

any further action on S. 641, because in the previous year he led

the floor debate, on behalf of Hancock and LIAM, against a similar

non-smokers bill.

     Woodward's receipt of the gratuities in Florida and the

subsequent recommittal of S. 641 through January 1991 provided

sufficient evidence to allow the jury to find that Woodward

performed an act in furtherance of the unlawful activity after the

travel to Florida on November 24, 1990.  Arruda, 715 F.2d at 682. 

Woodward's timing argument thus fails.

     Woodward's fourth argument against his Travel Act

conviction is that "the payment of the 'bribe' in Florida" has such

an "attenuated relationship to Massachusetts" that it would violate

the "effects doctrine."  Def. Br. at 32.  "Under this doctrine, a

sovereign only possesses jurisdiction to prosecute a crime where,

inter alia, 'the effect within the territory is substantial.'" 

Id. (quoting Commonwealth v. Beneficial Fin. Corp., 275 N.E.2d 33,

57 n.8 (1971)).  Because acts that might otherwise be "gratuities"

could be performed out-of-state without any corresponding "effect"

in Massachusetts, Woodward maintains that Massachusetts would lack

jurisdiction to prosecute purely out-of-state expenditures.  Def.

Br. at 32 (citing Heath v. Jones, 941 F.2d 1126, 1139 (11th Cir.

1991) (no due process violation when state prosecutes crime that

started within its borders and concluded in another state);

Commonwealth v. Levin, 417 N.E.2d 440, 451 (Mass. App. Ct. 1981)

(state may prosecute acts performed outside of its jurisdiction

where acts are intended to produce and actually produce detrimental

effects within the state)).

     Woodward asserts that the government failed to produce

any evidence of detrimental effect actually resulting from the out-

of-state expenditures; the "mere possibility of future action

favorable to Hancock is not an 'effect,' let alone one that is

'substantial.'  Nor would alteration of official acts be the

'direct' or 'foreseeable' result of lobbyists entertaining

legislators at out-of-state conferences."  Def. Br. at 33 (citing

Sawyer, 85 F.3d at 741).  We disagree.

      The Massachusetts gratuity statute prohibits public

employees from receiving "anything of substantial value . . . for

or because of any official act . . . performed or to be performed

by him."  Mass. Gen. Laws ch. 268A,  3.  "The concern behind the

gratuity statute, like the bribery statute, is the potentialundermining of official integrity."  Sawyer, 85 F.3d at 735

(emphasis added).  Indeed, when someone gives a stream of illegal

gratuities to a public official, a sense of being beholden to the

giver's interests is exactly the kind of influence that the giver

is trying to develop.  See id. at 730.  The potential effect on

Massachusetts when one of its own legislators accepts gratuities

out-of-state paid by someone with an interest in Massachusetts

legislation is a sufficient nexus to satisfy the effects test and

give Massachusetts jurisdiction to prohibit such conduct. 

     Besides this potential effect, of course, Woodward's

receipt of gratuities in Florida was linked also to his official

acts in Massachusetts.  Among these acts is his recommittal of a

particular bill, Senate Bill 641 (S. 641), shortly after he

returned from Florida, as already discussed.  And they also

included his prior acts to champion the insurance industry's

positions in the Legislature.  Woodward violated the Massachusetts

gratuity statute, a prerequisite for his Travel Act violation,

because he received something of "substantial value . . . for or

because of any official act . . . performed or to be performed by

him."  Mass. Gen. Laws ch. 268A,  3.  We have already discussed

our view that the evidence was sufficient to establish the linkage

beyond a reasonable doubt.  

     Woodward's Florida gratuity was closely enough related to

Massachusetts that his "effects doctrine" argument must fail.  SeeStrassheim, 221 U.S. at 284-85 (holding that, when an individual's

criminal acts were intended to and did produce detrimental effects

within a state, the state may prosecute that individual even if he

commits the act in another jurisdiction; applying this rule to an

attempt to bribe a Michigan official who was in charge of making

state purchases, even though defendant never entered Michigan);

Heath, 941 F.2d at 1138-39.  As the district court noted, to hold

otherwise would "be at odds with the idea of official bribery or

corruption . . . .  [It would] provide a series of safe havens for

those who wish to be bribed or [to be] the recipients of

gratuities.  [It would be] at odds with the statute itself [and]

with the larger purposes of the Travel Act."

                                F

                       Conspiracy (Count 1)

     In order to convict Woodward of conspiracy, the

government had to prove that a conspiracy existed, that Woodward

knew of and voluntarily participated in it, and that an overt act

took place in furtherance of it.  See United States v. Frankhauser,

80 F.3d 641, 653 (1st Cir. 1996).  The agreement need not be

explicit; a tacit agreement will suffice.  See id.; Direct Sales

Co. v. United States, 319 U.S. 703, 712-13 (1943).  To establish

Woodward's voluntary participation in the conspiracy, the evidence

must establish both his intent to agree and his intent to

effectuate the object of the conspiracy.  Frankhauser, 80 F.3d at

653; see also United States v. Piper, 35 F.3d 611, 615 (1st Cir.

1994).  Neither the agreement nor Woodward's participation in it

need be proven with direct evidence.  See Glasser v. United States,

315 U.S. 60, 80 (1942); Frankhauser, 80 F.3d at 653. 

     Woodward's challenge to his conspiracy conviction is that

it depends on the three substantive counts on which he was

convicted, and he maintains that those counts suffered from

sufficiency of the evidence infirmities that compel acquittal. 

"Because these infirmities extend to the conspiracy count," he

argues, "Count 1 must fall for the same reasons as the three

substantive counts of which it is comprised."  Def. Br. at 34.

     Woodward's argument is unavailing, because we have

concluded that none of the three substantive counts comprising the

conspiracy count was infirm.  Therefore, the evidence is sufficient

to support the conspiracy conviction for the same reasons discussed

supra concerning the substantive counts, and Woodward's conspiracy

conviction must stand.

     Based on the evidence in this record, we conclude that a

reasonable jury could have found, beyond a reasonable doubt, that

Woodward committed all elements of the four offenses of which he

was convicted.

                               III

                        Jury Instructions

     Woodward contends that the district court erred in

instructing the jury as to the intent necessary to support a

conviction, contrary to our decision in Sawyer.  Such a challenge

to the jury instructions presents legal issues which we review de

novo.  United States v. Phath, 1998 WL 244746, at *2 (1st Cir.

May 20, 1998); United States v. Pitrone, 115 F.3d 1, 4 (1st Cir.

1997) (When the alleged error involves the instructions' adequacy

in explaining the law, such as "interpretation of the elements of

a statutory offense, it poses a question of law and sparks plenary

review."); United States v. Fulmer, 108 F.3d 1486, 1494 (1st Cir.

1997).  We must look at the entire charge, in light of the

evidence, and determine whether, taken as a whole, the court's

instructions "fairly and adequately submit[ted] the issues in the

case to the jury," United States v. Cassiere, 4 F.3d 1006, 1022

(1st Cir. 1993) (internal quotation marks omitted), or whether they

"tended to confuse or mislead the jury" as to the applicable

principles of law, Sawyer, 85 F.3d at 726 (internal quotation marks

omitted); see Fulmer, 108 F.3d at 1494.

     The district court is not obligated to "follow the exact

form and wording of the defendant's proposed instructions."  United

States v. Gibson, 726 F.2d 869, 874 (1st Cir. 1984); Lawrence v.

Gulf Oil Corp., 375 F.2d 427, 429 (3d Cir. 1967).  Rather, "[t]he

trial court has considerable latitude in charging the jury," so

long as the charge as a whole fairly and adequately limns the law

applicable to the controlling issues.  Cassiere, 4 F.3d at 1022

(internal quotation marks omitted).  That latitude is not

unlimited, however.  Clear, accurate, easily understood jury

instructions are "vitally important in assuring that jurors grasp

subtle or highly nuanced legal concepts."  United States v.

DeStefano, 59 F.3d 1, 4 (1st Cir. 1995).  In Sawyer, in order to

protect a defendant from being convicted based on conduct that was

not actually illegal, we reversed the conviction and mandated a

protective instruction in cases such as this one.  

     In the present case, Woodward challenges the district

court's instruction on the issue that the court and the parties

referred to as the issue of "mixed motive."  Proof of motive is

not an element of the offenses.  The phrase "mixed motive" was

apparently meant as shorthand for the dual intent that might be

supportable by the evidence in this case:  the jury could have

concluded (1) that Woodward accepted expenditures based on his

legitimate friendship with Sawyer, or (2) that these were unlawful

expenditures to influence official action (or some combination of

the two).

     Woodward argues that our decision in Sawyer intended to

draw a bright line between "the merely unattractive and actual

criminal conduct."  Sawyer, 85 F.3d at 741.  On one side of the

line, according to Woodward, is conduct that is "unattractive" or

even "reprehensible" but is not illegal as a matter of federal

criminal law.  This would include lavish hospitality if intended to

cultivate business or political relationships or friendships.  On

the other side of the line is illegal expenditures, i.e., those by

lobbyists intended "to cause the recipient to alter her official

acts."  Id.  According to Woodward, Sawyer presented this analysis

"largely in stark 'either-or' terms."  Def. Br. at 35.  He claims

to have premised "the core" of his defense on this "bright line"

distinction, attempting to persuade the jury that Woodward and

Sawyer's relationship should be found "to fall on the 'friendship'

side of the line," because of the family friendship and the social

nature of the functions at which the expenditures were made.  Id.at 38.

     Woodward's theory of the case is flawed, based on a

misreading of our decision in Sawyer.  Relationships among human

beings, especially among lobbyists and elected officials, will

frequently not follow a bright-line pattern, falling on one side or

the other of some magical wall dividing friendship from attempts at

undue influence.  A lobbyist and legislator may initially have an

exclusively business relationship when they first meet, but if it

continues over time, given the nature of the lobbying business with

its sometimes "lavish hospitality," Sawyer, 85 F.3d at 741, the

individuals involved may eventually get to know each other, and

some may be able to claim, with some truth, that their relationship

has become one of friendship.  We did not imply anything different

in Sawyer, and we certainly did not state or imply what Woodward's

theory seems to entail:  that the formation of a friendship between

a lobbyist and a legislator somehow insulates both from prosecution

for honest services fraud.

     A look at Sawyer's language illustrates Woodward's error. 

We stated:  "[I]f the aim of the lobbyist were simply to cultivate

a business or political 'friendship' with the legislator," then

payments for entertainment would not constitute a violation of the

Travel Act or the mail or wire fraud statutes.  85 F.3d at 741

(emphasis added).  To so hold   that conduct is not illegal if it

is "simply" to cultivate a friendship   does not immunize dual

intent conduct.  The word "simply" carries the import of "solely." 

A dual intent that seeks both to cultivate friendship and to

illegally influence official acts is not a purpose that is "simply"

to promote friendship.  Such a dual purpose is not insulated from

criminal liability merely because, in Sawyer, we were careful to

protect a purpose that is "simply" to promote friendship.

     Similarly, in Sawyer we said:  "[I]f Sawyer had this

limited intent   to cultivate friendship rather than to influence

an official act   the federal statutes here involved would not be

violated."  Id. (emphasis added).  An intent "limited" to promoting

friendship does not include an intent that also has a second

purpose.  The words "rather than"   when juxtaposed in this way

against the "limited intent" language   imply that an intent to

influence cannot be part of one's intent if one seeks the Sawyerimmunity.

     After discussing an intent limited to the cultivation of

business or friendship, Sawyer went on to say that:  "Only if

instead or in addition, there is an intent to cause the recipient

to alter her official acts may the jury find a theft of honest

services or the bribery predicate of the Travel Act."  Id. at 741

(emphasis added).  Woodward's argument addresses the "instead"

portion of the disjunctive, but Woodward offers no basis for

reading the highlighted words out of our holding in Sawyer.  The

quoted sentence clearly contemplates, not a "bright line" or

"either-or" dichotomy (Def. Br. at 37-38), but the possibility that

a defendant may be prosecuted if he possesses a dual intent, an

illegal intent "in addition" to a legal "friendship" intent.  

     Thus, Sawyer's language does not mean what Woodward would

like it to mean   that conduct must have an exclusively illegalintent in order to be subject to the criminal laws.  Rather, it

means only that conduct may not be subject to the criminal laws if

the intent underlying it is exclusively legal.  A defendant may be

prosecuted for deprivation of honest services if he has a dual

intent, i.e., if he is found to have intended both a lawful and an

unlawful purpose to some degree.  If the jury finds that an

unlawful purpose was present, it may convict the defendant.

     The Third Circuit reached a similar conclusion in United

States v. Greber, 760 F.2d 68, 72 (3d Cir. 1985).  As Woodward

noted, the jury in Greber "was instructed similarly to the present

case, making any amount of inducement, however small, illegal." 

Def. Br. at 39 n.27; see Greber, 760 F.2d at 72.  In United Statesv. Bay State Ambulance & Hosp. Rental Serv., Inc., 874 F.2d 20 (1st

Cir. 1989), we noted that we were "impressed with the Third

Circuit's reasoning" in Greber.  Bay State, 874 F.2d at 29-30. 

Likewise, the Second Circuit has "noted that there could be dual

purposes for payments, stating that a 'valid purpose that partially

motivates a transaction does not insulate participants in an

unlawful transaction from criminal liability.'  The charge was

entirely appropriate in light of [the defendant's] argument that he

was motivated by friendship."  United States v. Coyne, 4 F.3d 100,

113 (2d Cir. 1993) (rejecting challenge to jury instruction that

defendant must be found to have accepted or solicited a thing of

value "at least in part" for or because of his intent to be

influenced) (citing Biaggi, 909 F.2d at 683); see also Anderson v.

United States, 417 U.S. 211, 226 (1974) (conspiracy).

     Therefore, the answer to Woodward's assertion that "[t]he

district court's instruction should . . . have parroted Sawyer,"

Def. Br. at 38, is that, for all relevant purposes, it did.  The

district court instructed the jury, inter alia, as follows:

     You may not find that the defendant violated

     either set of federal laws which I have

     described to you if his receipt of the

     expenditures was solely part of a routine

     cultivation of a business or political

     friendship rather than an intent on his part

     to be influenced in his official legislative

     duties.  If instead or in addition, there is

     an intent on the defendant's part to be

     influenced in his official legislative duties,

     then you may find a violation of either set of

     federal laws.  If there is both the intent to

     cultivate a business and political

     relationship and the intent to be influenced

     in official legislative duties, then you may

     find a violation of the federal laws.



     Woodward would have us go beyond Sawyer in the present

case.  He insists that the real issue here is the degree of

unlawful intent necessary in a dual intent case to permit or

sustain a conviction, and the necessary jury charge on that point. 

Woodward argues that the protective instruction we set forth in

Sawyer should be modified to say that an illegal purpose must be at

least "one of the [scheme's] several dominant purposes," Def. Br.

at 40 (quoting United States v. Ellis, 935 F.2d 385 (1st Cir. 1991)

(Mann Act)) (emphasis added).  Otherwise, under our reading of

Sawyer, a de minimus illegal intent could result in a conviction

even if it were dwarfed by a perfectly legal "friendship" intent.

     According to Woodward, the illegal purpose of the

gratuity should not be a minor or incidental portion of the mix. 

We disagree.  The criminal law may punish conduct even if its

illegal purpose is incidental to other, legal purposes.  SeeAnderson, 417 U.S. at 226 (holding that the purpose to violate

federal law may be a secondary purpose, not necessarily primary);

United States v. Ellis, 595 F.2d 154, 162 (3d Cir. 1979) ("While

[Supreme Court cases] require such a specific intent [to violate

constitutional rights], they do not require that the immediate

intent to violate constitutional rights predominate over the

ultimate purposes which that violation is designed to achieve."). 

     We will assume nevertheless that Woodward is correct that

a conviction should not stand if the illegal intent is de minimusor insignificant.  But this does not mean that the district court

erred in failing to give an instruction as to the "de minimus"

point.  The law may require a certain degree of illegal intent in

order to convict, but it does not follow that an explicit

instruction on that point is necessary.  In the present case, even

if the instructions were not technically adequate because they

lacked an explicit "de minimus" instruction, Woodward was not

prejudiced thereby.  "An error in jury instructions will warrant

reversal of a judgment only if the error is determined to have been

prejudicial, based on a review of the record as a whole."  Davetv. Maccarone, 973 F.2d 22, 26 (1st Cir. 1992).  As we have already

discussed in Part III, there is no evidentiary basis in this record

for Woodward's implicit contention that he had no more than a de

minimus degree of intent to defraud the public of his honest

services.  Therefore the omission of explicit "de minimus" language

from the jury instructions   even if erroneous   did not prejudice

Woodward, and any error does not warrant reversal of his

conviction.  See Davet, 973 F.2d at 26.

                                IV

                       Super Bowl Evidence

     Woodward appeals the denial of his motion in limine to

exclude evidence that Hancock, through Sawyer, paid for a 1986 trip

for Woodward and his wife to the Super Bowl in New Orleans.  The

court permitted the government to introduce evidence concerning the

Woodwards' receipt of $1,809 worth of airfare, lodging, and tickets

to the game.  After admitting such evidence, the court gave a

limiting instruction to the jury.  

     Woodward objects that this particular gratuity involved

more money and was different in kind than the gratuities on the

basis of which he was convicted:  it included payment for airfare

and lodging, whereas all other gratuities were limited to meals,

golf, and other forms of entertainment.  He also points out that

the statute of limitations precludes Woodward from being charged

with crimes committed prior to July 27, 1990, and that 18 U.S.C.

 1346 was not even enacted until November 18, 1988.  For these

reasons, Woodward claims that the admission of the Super Bowl

evidence was of limited probative value, and that whatever

probative value it did have was substantially outweighed by the

danger of unfair prejudice.  He argues that it should have been

excluded under Fed. R. Evid. 403.  

     Under Rule 403, "if the evidence brings unwanted baggage,

say, unfair prejudice or a cognizable risk of confusing the jury,

and if the baggage's weight substantially overbalances any

probative value, then the evidence must be excluded."  United

States v. Aguilar-Aranceta, 58 F.3d 796, 800 (1st Cir. 1995)

(internal quotation marks omitted).  "The damage done to the

defense is not a basis for exclusion; the question under Rule 403

is one of unfair prejudice -- not of prejudice alone."  United

States v. Munoz, 36 F.3d 1229, 1233 (1st Cir. 1994) (internal

quotation marks omitted).  We review trial court rulings under Rule

403 for abuse of discretion.  See United States v. Fulmer, 108 F.3d

1486, 1497 (1st Cir. 1997); Aguilar-Aranceta, 58 F.3d at 800.

     We note first that, while Woodward is concerned that this

particularly expensive gratuity might prejudice the jury because of

its amount, he neglects to mention the coincidence in the timing: 

the Super Bowl took place shortly after Woodward became chair of

the Insurance Committee, which happened to be a position from

which he could potentially be of great use to Sawyer and Hancock. 

The government argues, with some force, that the Super Bowl

gratuity, elaborate as it was, established and set the tone for the

ongoing relationship, i.e., a conspiracy to trade valuable gifts

for influence, to deprive Woodward's constituents of his honest

services.  Once the nature of the relationship was established,

ongoing gifts could be given in smaller amounts in order to "keep

the wheels greased."  Thus, the Super Bowl evidence has a good deal

more probative value than Woodward suggests.  And its prejudicial

effect is far less:  accepting tickets to the Super Bowl is not so

heinous or outrageous that the jury was likely to be inflamed

against Woodward and ignore the arguments presented in his

defense, thereby risking a conviction based on passion rather than

on the evidence.  Cf. United States v. Bartelho, 129 F.3d 663, 677-

78 (1st Cir. 1997) (affirming admission of plans to escape from

prison at trial on bank robbery); Pitrone, 115 F.3d at 7-8

(admitting evidence of defendant's boasting about 40 prior

commissions of the same crime); United States v. Rivera, 83 F.3d

542, 545-47 (1st Cir. 1996) (evidence that defendant raped victim

admissible at trial on carjacking charge); United States v.

Manning, 79 F.3d 212, 217-18 (1st Cir.), cert. denied, 117 S. Ct.

147 (1996) (admitting evidence of prior drug dealing at trial on

current drug trafficking charges); United States v. Cruz-Kuilan, 75

F.3d 59, 61 (1st Cir. 1996) (affirming admission of evidence that

victim died of gunshot wounds at trial for carjacking); United

States v. Lombard, 72 F.3d 170, 190 (1st Cir. 1995) (evidence

relating to murder, of which defendant had previously been

acquitted, admitted at trial on firearms violations).

     In Sawyer, we noted the district court's decision to

admit the same Super Bowl evidence to prove "Sawyer's state of mind

with respect to the alleged scheme to defraud."  85 F.3d at 721

n.1.  We observed that the court had instructed the jury, as the

district court did here, that these events took place prior to the

time indictable under the statute of limitations, but that such

evidence was probative of the defendant's (there, Sawyer's) state

of mind.  In Sawyer, we did not address the propriety of admitting

this evidence because Sawyer had not challenged it as Woodward has

here.  In this case, we hold that the district court properly

admitted this evidence, to prove Woodward's intent and the nature

of the conspiracy.

                                V

                            Conclusion

     In this case, the jury instructions adequately conveyed

to the jury the difference between conduct that is legal and

conduct that violates the criminal laws.  The evidence was

sufficient to enable a rational jury to conclude beyond a

reasonable doubt that Woodward was guilty of the four counts on

which he was convicted, and no ground for error has been found. 

The judgment of the district court is affirmed.