Sawyer v. United States

which, true, to set forth facts if would

prevent trier from concluding to a America, UNITED STATES of legal certainty potential recovery Appellant, capped figure jurisdic- at a below the minimum. Dep’t tional Recreation Ass’n, Sports Boxing & v. World SAWYER, F. William Defendant, (1st Cir.1991). Here, the appellant Appellee. supply bearing did some information on 00-1105, Nos. 00-1330. warrant, the value of the and Lombardi proffered nothing to fig- contradict these United States Appeals, Court of ures or appel- otherwise establish First Circuit. lant, even if successful in recovering the (the warrant), property would up wind Heard Oct. $75,000. with a prize worth less than We Decided Jan. court, do think that the district on this bareboned record and without conducting evidentiary hearing, simply could brush

aside the appellant’s estimates as “based

entirely speculation” and declare to a

legal certainty that the warrant was worth

less than jurisdictional reason,

amount. For this we hold that the court dismissing

district erred in count five

of the amended complaint.7

IV. CONCLUSION need go no further. For the reasons

stated, we sustain the determination that

Veritas was not properly before the court

and, accordingly, we affirm so much of the dismissed,

lower court’s order as without

prejudice, against the claims Veritas. We

also affirm the district court’s dismissal of

the first four counts of the amended com-

plaint hold, however, as to Lombardi. We

that the court erred in concluding on this

meager record that it subject-mat- lacked jurisdiction

ter over the fifth count of the complaint.

amended We therefore reverse

so much of the order of per- dismissal as

tains to that count and remand for further

proceedings opinion. consistent part, part,

Affirmed in reversed in

remanded. No costs. According (if

7. There is a legal significance wrinkle here. any) to the of this new Agreement, expired development terms parties warrant and the district during pendency appeal. of this We leave court. Clements, Assistant United

Ben T. David with whom S. Attorney, States Attorney, Acting United States Mackey, brief, appellant. for was on Kiley, Gregory with whom S. Thomas R. Kiley, Eisenberg & Cosgrove, Gilman brief, appellee. were on P.C. CYR, BOUDIN, Judge, Circuit Before LIPEZ, Judge, and Circuit Circuit Senior Judge.

LIPEZ, Judge. Circuit judg- a appeals from The United States F. Wil- granting of the district court ment nobis, error coram liam a writ of to a one-count vacating guilty plea him with honest ser- charging information of 18 U.S.C. vices mail fraud violation ordering that his §§ and The district court expunged. be record opinion of its decision on a recent based Court, States v. Sun- Supreme United California, 526 U.S. Diamond Growers of 143 L.Ed.2d 576 119 S.Ct. (1999), gratuities construing the federal law, that the require U.S.C. act prove a link between the of received gratuity official and the of that act. by the official for or because contended, and the district court to which he agreed, that the information proof of a violation of pled guilty required gratu- similarly worded Massachusetts law, 268A, three. Con- ity chapter section state law should cluding that this Sun-Diamond, light interpreted govern- court found that the district Sawyer gave gra- that ment had to specific officials for official tuities to had not Noting that the acts. gratuities alleged a link between even acts, identifiable, official specific prosecuted court ruled make the law does not “for an act criminal,” that his conviction “was proportion,” legal error of fundamental a writ of by the issuance of be redressed coram nobis.

We conclude the information to vouchers to Hancock’s accounting depart- Sawyer pled guilty require which did ment for reimbursement. proof that he violated the Massachusetts Sawyer and a group legislators trav- Moreover, gratuity statute. there was suf- elled to Puerto Rico December 1992 for guilt ficient evidence to prove Sawyer’s conference, legislative and Hancock re- apart honest services mail fraud from $4,000 imbursed approximately he violated state law. entertainment expenses incurred during There was no fundamental error in his trip. April, the Boston Globe guilty. The writ should not have began an investigation Sawyer’s expen- issued. We the judgment reverse Rico, ditures in Puerto and the Globe’s district court. inquiries to Hancock prompted the compa- ny to conduct an internal review of Saw- I. yer’s legislative expenditures. Shortly appeal following long This comes to us thereafter, the United Attorney’s States history. We recount those facts that Office for the District of Massachusetts here, analysis are relevant to our and refer commenced its investigation to our decisions United States Saw- allegedly illegal expenditures.1 (1st 713, Cir.1996), yer, 85 F.3d 720-22 and A grand jury returned an indictment Woodward, 46, United States v. 7, against Sawyer July on charging (1st Cir.1998), 51-54 for a more detailed him with violations of federal gratuity and recitation of the giving circumstances rise statutes, bribery including 18 U.S.C. Sawyer’s prosecution. §§ 1341 and as well as violations of employed by was the John the Travel Act.2 Following jury a trial Hancock Mutual Life Company Insurance lasting nine days, jury him convicted (“Hancock”) lobbyist its Govern- counts,3 on 33 and the trial court sentenced mental Relations Department. part As him year day to one and one in prison. of responsibilities, his he tracked the Sawyer then appealed his convictions and progress pending legislation of in the sentence to this Court. opinion is- legislature. Massachusetts He also lob- 30, 1996, sued May we vacated Saw-

bied legislators, particularly members of yer’s convictions because we concluded Legislature’s Joint Insurance Com- jury might instructions have al- mittee, to adopt positions favorable to jury lowed the convict on an Hancock’s interests in the in- insurance improper basis. dustry. In order goodwill to cultivate individuals, Sawyer paid these Following remand, Attorney’s the U.S. meals, golf, numerous rounds of and oth- Office decided to prosecute Sawyer again. er entertainment on their behalf. Saw- pursuant On November to a plea yer treated these activities as agreement, business Sawyer pled guilty before expenses monthly and submitted expense Judge Harrington ato one-count informa- In March Hancock entered into a civil or of the United States.” 18 U.S.C. Attorney's 1952(b). settlement with the United States The did not renew its Office, pursuant paid to which it a fine of prosecution of under the Travel Act $1,000,000 approximately agreed and to co- following after we reversed his convictions his operate fully investigation. with the appeal first to this Court. proscribes 2. The Travel Act travel in interstate specifically, jury 3.More convicted promote, commerce “with intent to ... man- fraud, of 15 counts of mail 9 counts of wire establish, on, age, carry pro- or facilitate the fraud, 8 counts of interstate travel to commit motion, establishment, management, carry- bribery, conspiracy. and 1 count of on, ing activity.” unlawful 18 U.S.C. acquitted 1952(a). him of two additional counts of mail The statute defines “unlawful ac- as, alia, fraud. tivity” "bribery inter ... in violation of the laws of the State in which committed selectively used as a courts and not be with honest services him charging tion prosecution §§ and for the basis for federal 18 U.S.C. mail fraud under felony of criminal fraud. plea agreement, serious part 1346. As indict- original dismissed prosecution The fact that even the clearly The court was July, ment acknowledges that criminal fraud is not by government’s troubled my here mind intended is established plea time his Sawyer’s case at the and by wrong the fact that after this the court hearing, At the plea entered. they ordeal are able to enter tortuous commented: man agreement where a into the threat demonstrates This case plea[d] to one count of allowed of individuals reputation and liberty charges information that criminal gift laws the state’s when mailing one in furtherance of he mailed Massachusetts by administered the fraud in the amount of about a $183 typically State Ethics Commission [sic]. imposition penal- of civil enforced is, justify My question does this result into a selectively can transformed ties has long ordeal that this defendant felony under the broad federal serious undergone? I don’t think so. interpretation and elastic language Despite govern- this uneasiness with the criminal fraud statute. the federal prosecute ment’s decision to an innovative This case illustrates Judge Harrington accepted plea, sen- process called the “federal- prosecutorial him year probation, tenced to one of state laws. As the Court of ization” pay special ordered that he a fine and a stated, “prosecutions on facts Appeals assessment. generally not been like these have exacerbated brought.” The threat is 1999, July, nearly years In two prosecu- this “federalized” here because Sawyer completed probation, after his applied tion is for the first and time him, against he paid the monies assessed lobbyist who not him- against state is petitioned the district court for a writ of official. self error coram nobis on the basis of the my in grave This case raises a concern Supreme Court’s Sun-Diamond decision. a constituent ele- mind as to whether petition brought Judge This before process, namely, adequate ment of due noted, Judge Harrington Harrington. As one is notice of the offense for which writ, plea, vacated granted the his fundamental charged, and whether the record, expungement of ordered the the criminal law that crimi- principle of thereby prompting appeal by gov this strictly, expan- nal statutes must be ernment. review de novo the court’s complied been sively, construed have writ, legal granting conclusions in plainly ap- with. A defendant must be Camacho-Bordes, United States v. 94 F.3d in prised advance that his conduct is (8th Cir.1996); review we its req- can possess criminal so he error, findings of fact for clear see Blanton necessary uisite “criminal intent” to be (6th States, v. United branded felon. Cir.1996). conduct, I do not condone defendant’s but assert that it would have been more II.

just irregularity ethical on his case, reaching In our decision in this we part specifically prescribed under state government’s do not have to rule on the payment golfing statutes fees that coram nobis relief is un- expenses pur- argument and dinner to have been fundamental errors of sued the Massachusetts State Ethics available correct Nevertheless, provide law. some back- Commission or the Massachusetts ground provide on the writ to the context punging the conviction was not considered for our fundamental error of law analysis. to be a reversal of their own judgment. See Mayer, 235 U.S. at 35 S.Ct. 16. Act, Pursuant to the All Writs fed Unlike a writ of corpus, habeas a writ of authority eral courts have the to grant coram nobis is issued petitioner once the is traditionally writs that were available at longer custody. no legal Its effect is to common law. See 28 U.S.C. 1651. The vacate underlying conviction. As its originated writ of error coram nobis4 Latin name suggests, petition for a writ century the sixteenth as a means to allow a of error coram brought nobis is trial court to correct its own mistakes of court that convicted and sentenced the de- LaFave, fact. King, See Israel & Criminal fendant. 28.1(c) Procedure, (2d ed.1991). Before coram emerged, nobis trial courts did not Although the Federal Rules of Civil Pro- authority have the to correct their own expressly cedure abolished the use of co- errors, appellate courts could consider ram nobis in civil cases in the United only alleged mistakes of law. See id. Ac States, 60(b), see Fed.R.Crim.P. the issue cordingly, originally coram nobis was de of the writ’s availability to correct funda- to fill veloped gap by correcting errors mental errors criminal cases remained of fact that the trial court could not have many uncertain for years. In United which, known but if at the known time of States v. Morgan, the Supreme Court re- trial, prevented entry judg would have solved this question, holding that coram ment. id. usage, its more modern nobis was still available in federal court for the writ was available in criminal cases 502, 512, criminal cases. See 346 U.S. law,” “whether the error was in fact or but (1954). However, S.Ct. 98 L.Ed. 248 applied “only very to that small number of nobis, Court noted that coram while legal questions which regu concerned the available, still an “extraordinary reme- larity proceeding itself.” United _ dy” “only allowed under circumstances 55, 68, Mayer, States v. 235 U.S. 35 S.Ct. compelling such justice.” action to achieve (1914) 16, 59 L.Ed. 129 (quotations omit Id. at 74 S.Ct. 247. ted).

For example, the writ was avail forty years More than Morgan, after able where the defendant was an escaped Supreme questioned Court continuing slave, trial, had been insane the time of vitality of coram nobis as a remedy for or guilty plea had entered a out of legal fear of fundamental error as well as errors LaFave, Carlisle, mob 428-29, violence. See Israel & King, of fact. See 517 U.S. at 28.1(c). Supreme Court’s most re 116 1460. Although question S.Ct. was pronouncement cent on coram squarely nobis noted not presented appeal in Car- traditionally the writ was available lisle—because the trial court had not been situations “such being writ, as the defendant’s asked to issue the and did pur- age under or having noted, died before the ver port to do so—the Court “the writ States, dict.” Carlisle v. here, United 517 U.S. would not have lain since it was 416, 429, 1460, 116 S.Ct. 134 L.Ed.2d 613 traditionally bring available before (1996). Because such errors were consid the court errors ‘material to the factual fact, ered errors of validity and not errors of the regularity legal pro- of the judges, itself,’ reversing judgment ceeding ex- such as the defendant’s be- Latin, In "coram nobis” means “before us.” The distinction between these terms is "virtu- Originally, petition was submitted in the ally meaningless in the American context.” Bench, King’s court of the the or "before us” in Duszak, Note, Post-McNally M. Diane Review being King. sense before the In con- Through of Invalid the Writ of Convictions trast, vobis, analogous the writ of coram an judges Nobis, 979, Coram 58 Fordham L.Rev. 981 n. procedure, brought was before (1990). 18 Pleas, you.” court of Common or "before

38 assume, deciding, that a writ of without died before having age under ing (em- a crimi- 429, to vacate 1460 nobis is available 116 S.Ct. eoram Id. at verdict.” added). upon stated further: a fundamen- premised The Court nal conviction phasis in a express opin- of a situation no to conceive law. We also “it is difficult tal error of writ today [a where criminal case could meet federal on whether ion necessary or be would nobis] of coram of the standard for prongs and second first (quoting United States Id. appropriate.” However, conclude that Saw- issuance. 469, 4, Smith, n. 67 475 S.Ct. 331 U.S. v. to the writ because yer was not entitled (1947)). 1330, L.Ed. 1610 91 legal fundamental error there was no his conviction. comments Notwithstanding .these Carlisle, have contin federal courts some coram nobis that writs of

ued to assume III. errors law as well as may correct errors of See, v. Tucor e.g., United States of fact. The Federal Honest A. Gratuities (9th 1 Iran, Inc., n. 836 Mail Fraud Statutes Services States, Cir.1999); 90 Martinez v. United Supreme Sawyer contends that (D.Haw.2000) (stat F.Supp.2d 1075 provides Court’s decision Sum-Diamond allows a court to coram nobis ing that In vacating for his conviction. grounds “egregious legal er judgment for vacate interpreted opinion, Court rors”) omitted); (quotation United States 201,5 statute, (E.D.Pa. gratuities federal 18 U.S.C. Rankin, F.Supp.2d must 1998) to mean nobis has been (noting that coram to a object given link between an of value in criminal errors of law used to correct Massachusetts, cases). act specific official and a official for But Tavares v. (D.Mass.1999) (“The given. of which it was F.Supp.2d or because Sun-Diamond, in federal courts for writ is not available U.S. at 119 S.Ct. law”). that the contends Sawyer argued petition errors in his error, legal while proper writ is to redress analogous gratuity coram nobis that may grant it 268A, contends Massachusetts, chapter statute based on mis ed to vacate a conviction (“section three”), should be section three only. fact The district court takes of similarly require proof construed point, ruling on this agreed official act for which the specific legal correct the writ is available to Indeed, Sawyer filed his given. since error. the district court de since petition —and. Supreme the writ—the Ju grant cided to writ, deciding grant whether to a, ruled, has dicial Court of Massachusetts three-part a peti- have used test: courts Sum-Diamond, partly on relying 1) explain must her failure seek tioner three, establish a violation of section 2) earlier, judgment demon- relief from linkage partic to a “there must be of continuing consequences collateral strate v. Ethics 3) ular official act.” Scaccia State conviction, that the prove from Comm’n, 356, 351, 727 N.E.2d 431 Mass. validity to the error is fundamental (2000). Sawyer claims that the infor States, 824 judgment. Hager See v. United (1st Cir.1993); pled guilty mation to which he based 4, see also 993 F.2d 5 Unit- three, requiring Mandanici, 519, on his violation of section 524 v. 205 F.3d ed States Barrett, (2d have demonstrated a Cir.2000); government v. United States Cir.1999). (1st 34, allegedly illegal gratuities link between his 178 F.3d 56 n. 20 We 201(c) any public offi- provides, § official ... for or because 5. 18 U.S.C. in relevant performed performed by cial act or to be such part, anyone "otherwise than as who discharge public ... be fined under this provided by proper official shall law for the two indirectly gives, imprisoned title for not more than duty directly or official offers, ... or years, promises anything any or both.” of value to

39 added). § official specific, (emphasis identifiable acts of 1346 We rec have legislators. Massachusetts Because the ognized § 1346 was intended to over attempt did not to offer such McNally by rule placing honest services proof, he believes that Sun-Diamond ren- mail fraud § within the ambit of unjust. ders his conviction disagree. See, e.g., 723; Sawyer, 85 F.3d at Grand maison, 77 F.3d at 565-66. Sawyer pled one guilty to count of hon mail in est services fraud violation of 18 Underlying applicability §§ U.S.C. 1341 and 1346.6 recog We have §§ 1341 and government 1346to officials is previously “Congress nized enacted the notion that “a public official acts as 1872, this statute in general [§ as ‘a 1341] ‘trustee citizens and the ... State proscription against using the ini mails to and thus owes the fiduciary normal duties tiate correspondence furtherance of trustee, e.g., of a honesty loyalty’ ” scheme or artifice to defraud.’ United Silvano, them.” United States v. 812 F.2d Grandmaison, 555, States v. 77 F.3d 565 (1st Cir.1987) 754, 759 (quoting United (1st Cir.1996) (quoting McNally v. United Mandel, 1347, (4th States 591 F.2d 1363 States, 350, 356, 483 U.S. 107 S.Ct. Cir.1979)). Theft of honest services occurs (1987)). 97 L.Ed.2d 292 legislative The when a official strays from this history §of suggests Congress 1341 duty: people intended to shield from “schemes to government aWhen officer decides how deprive money them of their or property” proceed in an official endeavor —as passing McNally, statute. 483 U.S. when a legislator decides how to on vote at 107 More recently, S.Ct. 2875. an issue—his constituents have a right Supreme interpreted Court has the mean to have their best interests form the ing § “incorporate “fraud” 1341 to basis of that decision. If the official meaning well-settled of the common- secretly instead makes his decision law” in the explicit absence of evidence of personal based his own interests —as Congressional contrary. intent when an official accepts per- a bribe or States, 1, 23, Neder v. United U.S. sonally benefits from an undisclosed 1827, 144 (1999). 5.Ct. L.Ed.2d 35 conflict of interest —the official has de- Before most courts interpreted frauded of his honest services. § broadly to reach schemes to de- Lopez-Lukis, United States v. 102 F.3d fraud people intangible property inter- (11th Cir.1997). 1164, 1169 ests—such as the honest services of their public officials—as tangible prop- well as B. Elements of the Honest Services Grandmaison, erty rights. See 77 F.3d Mail Fraud Statutes Supreme at 565. The Court held The must two however, McNally, § 1341 did not elements to establish a violation of 1341. reach schemes to defraud citizens their simpler of the two elements requires intangible right to the honest the defendant to have services of their used the mails public officers. See McNally, furtherance of the scheme to defraud. 483 U.S. at S.Ct. 2875. Woodward, 54; Congress promptly responded to this deci- enacting proscribes mailings sion which F.3d 723. The themselves deprive schemes “to another of the intan- need not be essential to the defendant’s scheme; rather, gible right of mailings honest services.” 18 U.S.C. the must have provides, § part: by 6. 18 U.S.C. 1341 in relevant sent or delivered the Postal Service ... "Whoever, having intending imprisoned devised or to de- shall be fined under this title or any years, vise scheme or artifice to defraud ... for not more than five both.” or Section purpose executing the such scheme arti- to defraud” or 1346 defines "scheme or artifice so, attempting places any post deprive fice or "a do in as scheme or artifice to another of any thing intangible right office ... matter or whatever to be the honest services.” 40 (cita Woodward, at 57 149 F.3d gain.” the scheme. See made to execute

been omitted).8 Sawyer, F.3d 705, also 85 States, tions See 489 U.S. v. United Schmuck (“The deprivation cases in which 1443, at 724 710-11, 103 L.Ed.2d 734 109 S.Ct. services is found Silvano, an official’s honest at 760 of 812 F.2d (1989); see also bribery of the offi involve either typically (“A closely related only be mailing need a conflict of her failure to disclose cial or reasonably foreseeable as and the scheme actions.”). interest, gain.”). resulting personal We the defendant’s a result of duty of disclo recognized that this have the defen requirement no There is statute, exclusively by but arises not the mail sure responsible for herself was dant fiduciary duty a general the also from jurisdictional hook. ing that establishes In Morrow, public. official owes public 39 F.3d United States See Woodward, noted, apart and Cir.1994). “separate (1st we 1228, 1237 statute, obligation ‘[t]he from the state mail fraud element of The second inheres material information disclose to establish that requires fiduciary duty to legislator’s general in a or scheme participated the defendant ” (quoting Saw 149 F.3d at 62 public.’ intent7 specific artifice to defraud with 17). also F.3d at 733 n. Silva yer, 85 Woodward, 149 F.3d at to defraud. See no, (stating, “the affirma 812 F.2d at 759 54; at 723. “Scheme or Sawyer, 85 F.3d duty material information tive to disclose §by 1346 as is defined artifice to defraud” official’s fidu arises out of a deprive another of “a scheme or artifice employer”). her ciary relationship to his or honest services.” intangible right of Woodward, using hos practice Because the drawing § In U.S.C. relationships pitality to cultivate business following articulated the upon Sawyer, we Sawyer, “longstanding pervasive,” § “In of the elements of 1346: formulation 741, may at it difficult to ways that a 85 F.3d become Sawyer, we noted two of the entertaining distinguish between lawful can his honest services public official steal (1) the honest services and acts that violate public employer: the official from his is thus a crucial mail fraud statute. Intent improperly influenced or otherwise can be prosecution, such aspect of his duties performance affected (2) proof of fraudulent intent is ...; “[d]irect can fail to disclose a or the official interest, States v. often difficult to find.” United resulting personal conflict of § interpretation of 1341 would be recognize "specific a le- well-settled intent" is meaning. Supreme gal particularized term of art with a with its rationale. inconsistent 1341, infra, § we the context of discuss partly in Sun-Dia- Court based its decision simply official this term means that gratuity § to read mond on desire deprive intent to must have acted statute, given way sense in a that made honest services. See of that official’s regulations, web of both adminis- "intricate Woodward, 729; also criminal, governing accep- trative F.3d at 55. gifts” by public officials. Sun-Dia- tance of mond, S.Ct. 1402. The 526 U.S. at distinguish gift given 8. We between a with the ought specifically, "we not ex- Court noted generally, action intent to official influence regulatory puzzle pand piece this one gift given required § and a under dramatically many pieces as to make other so per- act that has been because of official S.Ct. 1402. misfits.” 526 U.S. performed by a formed or will be Indeed, officer, § 201. now under Sawyer initially 9.Although describes this first Sun-Diamond, alleged has involving proof of brib- element of 1346 as interpreting apply should 18 U.S.C. recognized ery, "[t]he in Woodward analogy to services mail fraud under honest (1) quid expanded category from case government prove require § 1341 to that the general- pro quo bribery, to include a more and an official act a link between 'ongoing pattern gratuities to coax ized given. While for or because of which it was ” Woodward, 149 official action.’ favorable specifically mention Sun-Diamond does not 730). Sawyer, at affecting (quoting at 85 F.3d opinion § the F.3d 55 to read that

41 (1st Cir.1997). sarily deprive public Hav is an intent to the Rosen, F.3d of intent closely per- examined this issue an official’s A ing of honest services. that, the opinion not, however, we said Sawyer, might give an son unlaw- accused prove must that the government ful the a gratuity with intent to effect that she two kinds of intent: acted with Rather, specific quid pro quo. as the the of her hon deprive to intended here, a government person contends sendees, and that she intended to de est continuing long-term interests F.3d at Sawyer, See public. ceive the in a might engage before official Woodward, 729; F.3d at 55. also see pattern repeated, gratuity intentional kinds of intent proof of the two While ongoing offenses in order to coax favor- similar, inquiries are seem these might derogation official action in of the able at 729 n. 12. Sawyer, See 85 F.3d distinct. right impartial to official ser- public’s of a may it be difficult to conceive “[W]hile vices. right to deprive to someone of scheme Id. at 730. We reversed convic- intending to de honest services without tions for mail and wire fraud because we to deceive person, ceive that the intent jury concluded that the instructions at his established.” Id. at must nonetheless be permitted jury trial to convict him 732 n. 16.10 finding without that he intended to influ- to establish government For the official action.11 ence deprive intent to requisite Significantly, this framework for services, legislator’s a honest the first establishing honest services mail fraud un intent for honest requirements the two § require proof der 1341 does not of a fraud, mail the defendant must services violation of state law. Because the legislator have intended to influence that by govern duty of honest services owed Sawyer, 85 F.3d in her official action. See fiduciary government may demonstrate ment officials derives from duties at 729. statute, many ways: this intent law as as from at common well Silvano, there no in- 812 F.2d need bribery-like, corrupt example, For § under 1341 on influence official action neces- to base tent to statute, gratuity acknowledge to Mass. Gen. We that there seems Massachusetts 10. 268A, 3,§ redundancy of ele- Laws ch. or the Massachusetts some in the formulation statute, 268B, § gift fraud. For Gen. ch. 6. of honest services mail Mass. Laws ments statute, example, proving Sawyer, gift intended that an official 85 F.3d at 726. The here, public, prohibits lobbyists official’s inten- from ‘‘[that] to deceive not at issue pro- duty gifts aggregate to disclose giving public tional violation officials with an " Sawyer, requisite year. ‘deceit.’ $100 vides the more than in a calendar value of Thus, 268B, Signifi- § seeks to at 732. when the Laws ch. 6. See Mass. Gen. pub- deprive cantly, require § a defendant’s intent 6 does not influence, by showing improper services prove "any lic of an official’s honest motive to affect, of inter- failed to disclose a conflict duties of the she or otherwise the official est, Thus, regarding that failure to recipient.” the evidence 85 F.3d at 728. automatically gift satisfies the "intent could not in itself disclose violation of the statute prong recognized § services mail fraud because deceive” constitute honest Having point prong described in Woodward. "intent to influence” through merely § that Woodward failed to disclose the evidence cannot be established lobbyists, § we gifts proof "[t]his from we then stated: of 6. See id. While of violation statute, finding supports same evidence also concluded that predicate had the intent to deceive neces- properly charged Woodward as a for honest fraud, sary conviction.” impossible for a mail and wire fraud to de- it was services mail Woodward, jury 149 F.3d at 63. state law violation termine which convicting under upon in relied Concluding that one id. at 730. 1341. See specifically, we 11. More concluded jury’s potential verdict bases for jury allowed the instructions erroneous,” "legally reversed was thus Sawyer guilty services mail find of honest See id. either the convictions. upon that he violated fraud 42 govern- also violated artifice to defraud” allowed the that the defendant

allegations point this when to “narrow the issues of intent and recognized law. We ment state direct Sawyer’s conviction on good explained we reversed faith.” Id. at 727. As 726 Sawyer, 85 F.3d at brief, See appeal. Sawyer’s argument his the crux of not re of a law violation is (“proof state prosecution coram is that for nobis of honest services quired for conviction rely continued to on violations of Massa- fraud”); v. also States DeSan United chusetts law in the information: Cir.1998) (find (6th tis, 134 F.3d 769 Thus, on remand deci- after this Court’s under 1341 ing prosecuted defendant Sawyer, had two government sion jury caution was entitled to a instruction continuing for to its options press basic they could not convict ing that mail claim “honest services” fraud merely knowingly him because he violated against Sawyer regard gra- with to the law); Brumley, States v. state United allegedly tuities that he had made. (5th (“the Cir.1997) mere 116 F.3d First, it could continue to assert what it gratuity of a statute ... [state] violation asserting along: had been all that Saw- suffice”) (en banc); States will not United yer engaged in a had “scheme or artifice (8th Cir.1976) Williams, v. 545 F.2d by violating gratui- to defraud” the state (stating, conviction for mail fraud does “[a] ty requisite, corrupt law with the intent law”); depend upon a violation of state not deprive to of an official’s hon- Bush, 522 F.2d 646 n. United States Alternatively, est services. it could at- (7th Cir.1975) (finding that a conviction tempt Sawyer’s to demonstrate that ac- mail not dependent upon for fraud is to tions were intended induce breach law.). Accordingly, violation state non-statutory of some source of state required charge government was to legislators’ fiduciary duty common law Sawyer violated three —or that section public, regard ap- without to the gratuity, gift, other state Massachusetts plication statute.... bribery law—in order to secure convic his government opted for the former. tion under 1341. concedes this point by acknowledging brief our (Footnote omitted). prosecution If a that in Sawyer. statement to effect honest services mail fraud is structured as was, the indictment using state law viola- Nonetheless, Sawyer correctly as tions as the prove “sole vehicle” to brief, say states in his of a “[t]o defraud, to failing prove scheme to required,’ state law violation ‘is not howev the defendant violated the state law be- er, saying is not the same as that it is not government’s comes fatal to the case. See added). Indeed, 'permitted.” (Emphasis Sawyer, proving way violations of state law is one prosecutor might federal choose to struc C. Structure of the Information ture a for honest services mail The district court concluded case, government fraud. Sawyer pled that the information to which adopted strategy original indict was guilty require proof structured to of a Sawyer, ment. See 85 F.3d at 726 (noting, indictment, state law violation. parties agree “the as (“the structured, re required F.Supp.2d government was prosecution] [the prove quired prove violated at violated at least one law.”). law.”). Using state the state law violations least one state We review this error,12 “the sole finding vehicle scheme or of fact for clear see Blan finding stales in his brief that this ernment means However, "inconsistent” is not clear. government is reviewed for clear error. The concedes in a foot- applies applies contends that de novo review because note that the standard of clear error the court’s the extent that the court’s deter- "[t]o determination is inconsistent district rulings Sawyer. gov- mination that the our law in What the ton, regulation 94 F.3d at and conclude that it law or concerning lobbying or clearly was erroneous because the infor related matters amounts to honest ser- predicated upon Sawyer’s mation was not vices fraud. Wire and mail fraud are violation of section three of the Massachu offenses; federal and while state viola- gratuity statute. The information it setts may role, play jury tions the should any does not refer to state law. Rath self not be slip allowed to into the misunder- er, “knowingly it charges and standing that any proliferat- violation of willfully devis[ing] executfing] ing state laws and regulations control- scheme and artifice to defraud the Com ling automatically this area amounts to a monwealth of Massachusetts and its citi federal crime. right zens of their to the honest services of Id. at Obviously, 731.13 the state violation members of the Legislature Massachusetts must correctly charged and adequately purpose for the of promoting Hancock’s proven, or on the federal charge legislative interests.” There is no lan Indeed, fails as well. See id. guage in the information we indicating itself reversed that Massachusetts state conviction on part ap- law was direct prosecution’s against case Sawyer. peal jury because the permit- instructions Thus, there is no basis for concluding that ted jury to convict him solely based Sun-Diamond undermined criminality gift violation of the Massachusetts stat- of a state law that basis for Saw ute, without a finding possessed that he yer’s guilty plea. necessary intent to influence a public Thus, official. might well government’s The decision to es concluded, deciding have in to retry Saw- chew reliance on Massachusetts law in the yer, that an charging information honest hardly surprising. information is In Saw services mail fraud without mentioning yer, we noted that “the incorporation of a state law would avoid some of the issues state prosecution law violation [a successfully appealed follow- may mail cause complications.” fraud] here, ing his conviction. In its brief Sawyer, 85 F.3d at 726. We cautioned government acknowledges ruling our further: Sawyer, noting, “this Court went on to First, concerning the theft of honest ser- any criticize attempt by instruction, vices an overemphasis define honest services terms of state law on what state law may forbids lead the requirements,” offering Sawyer as a jury to believe that state rather than crime, justification strategy federal law for its in structuring defines or more specifically, violation of a state the information. establish a power, Congress may putting violation of state stat its to its forbid having any ute could be viewed as factual post letters into the office when such acts are Thus, component.” parties agree, and we ‘done in furtherance of a scheme that it re- conclude, that the court's factual determina gards contrary public policy, as whether it regarding Sawyer's plea tions the basis for ") (quoting can forbid the scheme or not.’ See, e.g., are reviewed for error. clear Blan States, 391, 393, Badders v. United 240 U.S. States, (6th ton v. United Cir.1996). (1916)). 36 S.Ct. 60 L.Ed. 706 In a argument, Sawyer related but distinct also prosecution pro- claims that his offended due Noting interplay between state fed- giving cess him sufficient notice of area, Sawyer eral law in this criticizes "the proscribed what conduct is under federal law. government’s extraordinary attempt to 'feder- noted, already Congress weAs have enacted alize' a state ethics statute.” To the extent prohibit deprive 1988 to schemes to Sawyer posits that the federalization of of their honest ser- officials’ criminal law unjust, renders his Accordingly, Sawyer vices. had sufficient no- simply "Supreme note that the Court re- prosecuted jected argument long ago." tice that his conduct could be as a this federalism Silvano, ("Whatever 812 F.2d at 758 the lim- federal crime. reject for two rea- -argument that We

Although we noted indictment, government’s reference to “ille- sons. parties agree “the .the necessarily gratuities” does not mean structured, gal it to that Saw gratuities illegal were under law,” such one state Saw yer violated least they un- illegal because were 726, Sawyer’s plea agree yer, 85 F.3d at already law. had made clear der state guilty plea that his would provided ment proof in of federal honest in dismissal of the indictment. result the require proof services fraud does not Thus, plea when entered government of state law. As the violation the control information became guilty, the argues, phrase “illegal gratuities” the also determining for what the ling document because, “illegal” conduct that is describes sought prove. government law, it without reference to state consti- tutes the federal crime of honest services “Illegal D. Gratuities” mail fraud. does not contend ever refer- government specifically the Nonetheless, Sawyer makes sev gratuity enced the Massachusetts statute arguments support eral in of his claim that In plea hearing. at the the absence the information a violation of sec giving contextual evidence additional example, sig tion three. For he attaches meaning “illegal gratuities,” to the words it government’s nificance to the use the for was an error the district court to read “illegal gratuities” plea at the hear phrase law predicate phrase. the state into the language in ing and to the inclusion this (“PPR”), to which Prepleading Report the Sawyer posits further that we should hearing.14 at that government the referred “in interpret “illegal gratuities” to mean explaining In to the court the factual basis 268A, chapter violation of section three” Sawyer’s guilty plea, for the government the the because referred to relying “illegal gratu stated that it was on Prepleading Report hearing. plea the Sawyer gave to various ities” Massachu govern- the district court When asked legislators. Sawyer contends that identify setts factual ment to basis for Saw- “illégal gratuities” interpreted can yer’s guilty plea, the assistant United gifts gratuities given attorney to mean in viola paragraphs States referenced law, through tion of Massachusetts state 30 of the position Report”,15 “Presentence accepted by According indicating the district court. the conduct described ly, Sawyer government plea. concludes that the therein constituted the basis for the effectively incorporated Sawyer’s violations of sec Because the PPR referred to in proof required alleged gift tion three into the violations of the Massachusetts statutes, information. and claims that stated, Sawyer argues Although government has at the gov- plea hearing, relying waived reliance on the PPR because the it was on "the evi- through Paragraphs did not refer to that document dence as outlined in ernment opposition Report,” Sawyer's petition (emphasis 30 of the Presentence add- name its for assume, ed), government points A out coram nobis before the district court. re- as the brief, papers prosecutor opposition misspoke of those indicates that in its that the view expressly identify referring Report,” did not its ‘‘Presentence However, and, fact, ("PSR”) govern- reliance on the PPR. meant to refer to the ("PPR”) argued Prepleading Report in the that Saw- that had been ment district court yer’s corrupt prepared Sawyer’s plea conviction was based on his in advance of hear- PSR, conduct, ing. prepared Sawyer’s any intent and his and viola- sen- Thus, govern- tencing hearing following tion of state law. because the his conviction in PPR, appeal prepared anticipation ment’s references to the PPR on mere- and the guilty ly identify underlying are alike in all conduct it has relied of his Sawyer's through- significant respects, except that the PPR de- on to establish conviction trial, proceedings, prose- history Sawyer's out these we find that the tails the first convic- tion, argument. appeal to this Court. cution has not waived this added). part became a 98 (emphasis such violations For reasons we necessary government’s prosecu- for the already explained, have the understand- Sawyer under tion of information. ings of original district judge court However, explicitly PPR disavows Court on first appeal are notion that violations of the state laws irrelevant to the instant inquiry because necessary Sawyer guilty un- were find charging document at that time was count of mail der one fraud contained indictment, not the information. Be- introducing in the information. the dis- cause the indictment is clearly premised so gift gra- cussion of the Massachusetts on a violation of state law and the informa- statutes, states, tuity the PPR “[d]espite not, tion is the court’s interpre- reliance on laws, knowledge his detailed of both Saw- tations of the misplaced. indictment is yer repeatedly through- violated the laws We Judge Harrington’s also find reli- period out the of the time scheme and ance on understanding his own of the fac- conspiracy, which is (although evidence not tual government’s prosecution basis for the evidence) exclusive intent to his violate to similarly misplaced. be added). the federal (Emphasis statutes.” question do not the reality of that under- Therefore, alleged the PPR the treats vio- However, standing. to the extent Judge lations of state law not proof as conclusive Harrington government concluded that the violated but rather as prove could against Sawyer its case part body of a of evidence demonstrating by law, proving violation of state his deprive his intent to the of the conclusion was legally incorrect atwas honest services of certain Massachusetts odds with the unmistakable basis of the legislators. This characterization of the government’s prosecution at the time of evidence is consistent with the structure of short, the to the In information. even government’s the information and the the- Judge Harrington if relied on his under- ory prosecution of its both in asserted the standing that the government had under- on appeal. district court and taken to prove violation of state law

Sawyer also gov nobis, claims the when he issued the writ of coram ernment was his viola that reliance could change reality not tion of the Massachusetts law be government’s of the basis for the prosecu- Judge Harrington accepted cause his tion.

guilty plea theory prosecu on that of the IV. Accordingly, Sawyer argues, Judge

tion. Harrington properly granted the writ of Because a writ of error coram nobis is he, coram nobis because as the district an “extraordinary remedy,” appropriately judge Sawyer’s plea, court who took un “only issued compel under circumstances derstood that the factual basis of that plea justice,” ling such action to achieve theory involved a of the invali Morgan, 346 U.S. at 74 S.Ct. by reject dated Sun-Diamond. We this again an issue address addressed Saw argument. yer sufficient evidence existed to —whether opinion granting Sawyer support Sawyer’s the writ conviction for honest ser nobis, Judge Harrington of coram stated: vices mail fraud from a apart conclusion the conviction would stand or fall gratuities “[t]hat he violated the state law. on the If basis of the state statute the evidence would have been otherwise him, by violation was a fact understood to convict sufficient Sun-Diamond’s parties, original Judge interpretation District Court effect on the of Massachu reference to judge presided [a who setts state law does not render his convic trial], Sawyer’s Ap- miscarriage justice the Circuit Court of tion a even if the peals, and this Court at the time of the had the burden of assumed Hearing.” Sawyer, F.Supp.2d issuing Plea a violation of state law. In proving PPR dis- outstanding tion as an writ, court found that Saw- district sentencing. prior act that the material fact puted was “for an yer’s prosecution in light of make criminal” the district court made no such law does not Because F.Supp.2d objection, argues, resolve his he ruling Sun-Diamond. (D.Mass.1999). Because we find in the PPR could the conduct described to convict existed that sufficient evidence factu- part not have been considered he violated showing However, absent guilty plea. al of his basis law, by dis- characterization state meaning objection, quoted of his plain Accordingly, we court in error. trict was indicates, above, ob- merely not conviction was again conclude his jecting to the conduct to considered law. on a fundamental error based to the sentencing, the court finding might conduct the court consider Sawyer’s Objections Prep- to the A. Sawyer’s basis for sufficient factual leading Report Significantly, Sawyer did not guilty plea. first address We must object government’s on the to the rebanee objections to PPR argument that his paragraphs ten conduct described prior plea hearing prevented PPR to through 30 establish that document relying from requisite factual predicate plea.16 factual for requisite to establish the basis Sufficiency B. of the Evidence PPR, plea. the In the addendum objection: Sawyer following the stated Proof honest mail of services contends that the one count requires partici Defendant that the defendant fraud information, spe and other conduct pated in a scheme or artifice to defraud cifically to of underlying related the specific with the intent to defraud.17 See fense, necessary all provides Woodward, 54; of the Sawyer, 149 F.3d at 85 determining for appropriate information F.3d 723. In a non at and requisite the “relevant conduct” public Sawyer, govern official such as “the §' 2F1.1. Specif base offense level under target ment must that of the ically, that defendant contends deprivation scheme is the the official’s purposes “relevant conduct” of the for 85 725. Sawyer, honest services.” F.3d at Report Pre-sentence court’s government may prove this element he made sentencing expenditure is by demonstrating that in Sawyer either July over the Fourth of weekend. improperly public tended to influence a duties, official in her or that he intended Sawyer Federal Rule of Criminal cites 32(c)(1), for officials to fail to a public our in disclose Procedure decision (1st Woodward, Van, conflict of See 149 F.3d 3 interest. United States 57; Sawyer, Addi Cir.1996), that F.3d at 85 F.3d 724. proposition for the the dis objec- Sawyer have to tionally, trict court have ruled on his must intended should situation, persuade applicable Even could us were to the instant if 16. procedures in sentencing Rule explic- established court was district not to rule Van, applied finding to a and discussed in itly Sawyer’s objections to Addi- the PPR. holding guilty plea, factual a our in basis for find, record, tionally, easily we could on this necessarily Van does entitle him relief. not to implicitly that the district resolved the court opinion While we ruled in that sentenc- dispute Sawyer's objection by alleged find- ing any outstanding court resolve dis- "must ing requisite plea. factual basis for his puted they or determine that will not be facts account,” taken into we also stated that while second element of We do discuss the "explicit disputed resolution material facts fraud, requires that the honest services which preferable, we have court found accused have used the mails furtherance implicitly resolved the when the court’s facts defraud, to Wood- the scheme artifice imposed and the showed statements sentence ward, did not 149 F.3d because particular were that the facts decided in appeal that issue. Van, Thus, way.” 87 F.3d Van at 3. even if expenditures legislation about his defeat of public affecting deceive the Hancock’s legislators. on behalf of the Massachusetts interests insurance industry. Woodward, 55; Sawyer, Therefore, 149 F.3d at See Sawyer understood that his prosecution may prove at 729. The F.3d affected, part, conduct at least in the ac- through intent to defraud requisite by legislators tions taken he enter- circumstantial evidence. See United tained. These point facts to a conclusion (8th Ervasti, States v. legislators intended Cir.2000). Evidence exists in this record be expenditures. influenced his support finding acted trial, As part his defense at his Saw- fraudulent Ac- requisite with intent. yer contended that he thought these ex- guilty cordingly, supports his conduct his penditures merely part were lawful and showing even absent a that he actual- “goodwill entertaining.” ly violated the Massachusetts However, F.3d at 731. evidence described statute. in the PPR reveals his awareness gift and gratuity laws and his understand- Intent to Influence Official Action ing that might violating he those stat- PPR The conduct described office, utes. Sawyer kept binder evinces intent to enter a scheme notebooks with information about the Mas- deprive of the honest services proscribing gifts sachusetts laws legislators by of various Massachusetts in officials under certain circumstances. fluencing legislators those their official While violations of those laws need not be actions. Over the course of more than proven for there to abe sufficient factual years, Sawyer intentionally provided nine guilty basis for his plea, they provide evi- legislators over 25 Massachusetts respect dence of his intent with to the $35,000. gifts totaling Ac approximately expenditures and cast doubt on claim his PPR, cording gifts to the these included expenses that he believed the were lawful. rooms, expensive legisla “hotel dinners for spouses, tors and their rounds of at golf Moreover, any obligations aside from luxury Sawyer’s private resorts and at Sawyer and Massachusetts legislators may club, country and tickets to theater and law, public have had under state officials sporting one-quarter events.” Almost of fiduciary also have duties under common $8,500, expenditures, these about were law to ensure that the public receives their Representative used to entertain Francis improper honest service free of influence during years Woodward the five he served corruption. haveWe described 1341 as House Chair for the Insurance Commit manner, this without reference to position tee. on that commit Woodward’s law, obligations arising ethical under state him gave opportunity tee to affect See, Woodward, rulings. e.g., in other 149 Hancock’s in pending legislation. interests accep- F.3d at 58 that Woodward’s (noting significantly, paragraph More 25 of the expenditures Sawyer tance of from “consti- states, PPR “[Woodward] ‘carried’ most tuted theft of the honest services legislation by sought Hancock and oth constituents”); Woodward owed to his er life insurance companies during his ten Sawyer, (stating at 730 Chair, ure as House the bills shepherding “in with the requires, 1341 connection through the Insurance and the Committee gratuity, the intent to cause an official to full Representatives.” House of The evi performance from deviate the honest Sawyer’s gra dence further indicated that services.”). legislators tuities to Woodward and other “virtually representa ceased” after those Intent to Deceive the Public Finally, Sawyer tives left office. took credit, adequate To an factual memoranda he wrote to his su establish Hancock, Sawyer’s guilty, for the or we must pervisors passage plea basis for 48 “[Sjeparate statute. to Massachusetts he intent find that demonstrated

also statute, to respect apart his con- the state obli- public ‘[t]he with from deceive 732; Sawyer, F.3d information in- gation duct. See to disclose material Bureau, Inc. v. Heri- McEvoy Travel also legislator’s fiduciary heres in the general ” (1st Travel, Inc., 904 F.2d tage Woodward, 149 duty public.’ to the F.3d Cir.1990). analyzed carefully this re- Sawyer, at 62 F.3d at 733 n. (quoting in Sawyer: quirement 17). Silvano, F.2d at See also requisite (“[T]he intent to appears that [I]t duty materi- affirmative to disclose shown could have been either deceive al arises information out of deception through Sawyer’s own acts his or her fiduciary relationship official’s to respect public toward Therefore, employer.”). jury would not violations, statute gift/gratuity Sawyer have to find that violated Mas- ensure that through his efforts to him of sachusetts statute convict public with re- legislators deceived the pled crime he guilty; to which The latter re- spect to violations. would have to find in- only that intend- quires evidence tended for state officials to deceive the intentionally legislators ed to cause the breaching their common law material to fail to disclose information duty a conflict interest. to disclose violations, although about the evidence Our conclusion evidence ade- legislators affir- that he intended the Sawyer’s quately supported guilty matively in this misrepresent themselves strengthened by ruling our previous bottom, At would regard also suffice. rejected challenge where the evidence must be sufficient to estab- sufficiency both with evidence that, end, in the lish intent respect to his intent influence and his respect be deceived with to his In addressing intent to deceive. his chal- gifts gratuities. unlawful influence lenge regarding leg- the intent to (footnote F.3d Sawyer, 85 at 732-33 omit- acts, islators’ official we stated: ted). evidence Considering against standard, that facts we find described trial, At there was evidence that in the PPR indicate that acted to intentionally provided and repeatedly public, induce legislators deceive the or to legislators gifts with of enter- valuable public, respect to deceive to his obtaining tainment for the purpose on expenditures their entertainment. For to, “greater developing access” and of example, Sawyer organized high- when with,” relationship legislators. “certain to profile event celebrate the Boston Mar- A credit jury Sawyer’s could defense athon, steps he took to ensure that thought that his expenditures he were spending pro- would not exceed limits they lawful that meant for and were However, by law. scribed Massachusetts goodwill entertaining. Taking the evi- comply he made no such efforts to with the to light dence in the most favorable expenditures law when entertainment prosecution, jury however ... a could public, so would not be visible to the a fact infer, rationally also a reason- beyond to probative which is of his intent deceive Sawyer able that intended that his doubt the citizens of Again, Massachusetts. repeated gratuities in- gifts and would Sawyer actually whether violated state perform to official legislators duce acts laws these instances is irrelevant to our regardless to Hancock’s interests benefit inquiry because services fraud honest mail of, of, expense public or at the inter- depend does not violation of on a state law. est. Indeed, duty disclose a to conflict (footnote interest, Sawyer, at 731 and 85 F.3d cita- violation of which indicates omitted). Woodward, circumstances, intent in these tions See also deceive summarizing (noting, arises from common law as well from F.3d after at 57 intent that are Sawyer’s Sawyer, activities lawful” under federal discussion law, “slightly regarding more extreme versions “The same inferences Wood- of such conduct that can constitute can from the evi- federal ward’s intent be drawn here, Sawyer, violations.” 85 F.3d at 741. We the nature and upon dence based “every cautioned further events, transgres- explicit certain state- sequences governmental obligations” sion of ments, should of a cover- suggestions and the not be turned into a federal felony. Id. at up.”). Judge Harrington has spoken force- Similarly, Sawyer we concluded Therefore, fully point. to this we wish to the evidence was sufficient for rational be clear in only, this ease that we hold for Sawyer jury agree intended to purpose determining whether there Having citizens deceive of Massachusetts. legal was a fundamental error in con- the Mas- described awareness of viction, that there was an adequate factual laws, lobbying by pointing sachusetts Sawyer’s plea. basis for Accordingly, newspaper evidence of articles and binder Sawyer not entitled to was a writ of error legal notebooks he maintained on such ob- nobis, coram assuming availability its held, “A ligations, jury rationally could relief from such errors. cognizant infer that was of his Judgment vacated. obligations lobbying, ethical knew of the lobbying activity, awareness of BOUDIN, Judge, concurring. Circuit unlawful repeatedly gave gifts hidden publicly until was gratuities exposed.” trial, he Sawyer’s original govern- At Sawyer, Noting 85 F.3d at that this urged ment a view of honest services mail overwhelming,” evidence is “not we none- jury fraud that allowed to convict theless concluded that “the combined evi- finding gift a violation of either the or the permit dence is sufficient to a reasonable gratuity ban under Massachusetts state find, doubt, jury beyond a reasonable law. We reversed his conviction on this intended to deceive the charge because the instructions allowed expenditures legisla- about his unlawful finding to convict without Woodward, tors.” Id. 734. See also had the intent to affect official facts, (describing, 149 F.3d at 57 on similar any legislator act of who received the ben- suggestions cover-up” regarding “the of a conferring. efits that United (1st Sawyer’s expenditures on Woodward and States Cir.1996). legislators). However, other the decision also re-

jected Sawyer’s acquit- claim to a directed V. tal; we found that the evidence was suffi- him mail fraud cient to convict under the Because the information to which Saw- Id. at statute. 733-34. yer pled guilty require proof did not of a remand, a gratuity Sawyer plead violation of the Massachusetts On chose to to statute, in interpretation single of count of mail fraud set forth an Sun-Diamond's which did not refer to state analogous gratuity federal statute did information law, in- Sawyer’s a sentence that legality not undermine the he received Thereafter, jail. in conviction for honest services mail fraud. cluded no time Moreover, independently Supreme of a vio- Massachusetts Judicial Court— law, following Supreme there was Court’s construc- lation of state sufficient in Sawyer’s gratuity conviction tion of the federal state United support evidence to However, v. Cali- for honest services mail fraud. States Sun-Diamond Growers of 398, 119 Sawyer, “prosecutions fornia, in that 526 U.S. S.Ct. recognizing (1999) L.Ed.2d 576 the state generally on facts like these have not been —construed way statute in a that would have brought,” expressed gratuity our concern about to relationship lobbying government close between made it harder for the “the the basis for the new by comprised trial or the benefits conferred Saw- prove that statute. Scaccia v. constant element was not yer plea. the state The violated Comm’n, advanced; 431 Mass. it was the bene- theory Ethics earlier State (2000). Sawyer N.E.2d 827-28 fits conferred. below, proceeding In the coram nobis likely, that possible, perhaps It is even ruled, Sawyer now court

the district submitted at the first trial the evidence that extant argues appeal, on not, under and Scac woiild Sun-Diamond (based for mail fraud on his conviction cia, jury a or state to con permit federal error, legal namely, a guilty plea) rests on Sawyer a statute violation. gratuity vict legisla- that his favors to state premise Sawyer might have assumption, On this gratuity violated the state statute as tors proceeding argued the coram nobis and Scaccia. narrowed Sun-Diamond the mail fraud statute should not be read Sawyer’s conviction does not rest on But statute and broadly gratuity more than the meaningful way. premise any this Saw- therefore, that, evidence could the same guilty yer plea was convicted on his own justify his under the mail not conviction statute; to the federal mail fraud there But, course, the mail fraud statute. plea without adequate was an basis for worded, differently quite fraud statute is violated the state regard to whether he Sawyer argu not such and' has made statute; nothing Sun-Dia- sum, plea not guilty ment. does been shown to undermine a mond has legal rest on a error. a guilty to statute not even addressed in the Nothing panel opinion pres Sun-Diamond. endorsing ent case should be taken as justify Sawyer’s guilty plea, it was To broad construction of the mail fraud stat enough government pointed lobbyists’ applied ute as favors. Our evidence, facts, that would proffered reflects original decision plea. furnish a rational basis for the Fed. abiding gener concern about a too court’s 11; R.Crim.P. United States Gandia- reading ous of the mail fraud statute as (1st Cir.2000). Maysonet, F.3d routine, highly to hitherto if unat applied by pointing did so tractive, activities. lobbying Sun-Dia legisla favors conferred on state mond, although it does invalidate Saw tors and to their context. This was the statute, yer’s conviction under a different evidence that our earlier decision in same suggests Supreme Court shares already only colorably Sawyer had said not that animated the some of the concerns would, actually might, permit but original Sawyer decision. See Sun-Dia Sawyer of mail fraud. It is hard to convict mond, 406-07, 526 U.S. at 119 S.Ct. 1402. a more secure basis for imagine accepting plea. against As for evidence its overstated; strength The district court’s coram nobis decision should not be if guilty plea original Sawyer treats the it somehow decision said theory fraud legal rested the same conviction of under the mail trial, impossible, was not 85 F.3d at pressed had the first statute himself, a violation of the state statutes 733-34. not here as equating civics, enti- with a violation of the federal mail fraud candidate for award for acknowledgment: v. 74 tled at least to this statute. United States (D.Mass.1999). just But in- F.Supp.2d properly 98-99 no one knows what a very theory gov- that had been would have done if the structed retry him for mail rejected by plea. this court before the No ernment had chosen to court, decision in government, one—district or Saw- fraud after our earlier Saw- why he yer thought equa- yer presumably have —would —which one-count pressed tion could have been at a second entered into the jail that avoided for Saw- agreement yer.

Gary MAUSER, Plaintiff, B.

Appellant/Cross-

Appellee,

RAYTHEON PENSION COMPANY

PLAN FOR EMPLOY- SALARIED Defendants,

EES, Raytheon Company,

Appellees/Cross-Appellant. 99-1895, 99-1896.

Nos. Appeals,

United States Court

First Circuit. Aug.

Heard

Decided Feb.

Case Details

Case Name: Sawyer v. United States

Court Name: Court of Appeals for the First Circuit

Date Published: Jan 31, 2001

Citation: 239 F.3d 31

Docket Number: 00-1105, 00-1330

Court Abbreviation: 1st Cir.