*2 SEITZ, (1982) (“Count I”). He Before HUTCHINSON 371 was U.S.C. § ALDISERT, Judges. years’ imprisonment Circuit on sentenced to two addition, I. he received a sus-
Count probation on pended sentence and a term of OF THE COURT OPINION appeal II III. followed. This Counts SEITZ, Judge. Circuit Anthony appeals judgment II. DISCUSSION jurisdiction under 28 sentence. We 1291 U.S.C. § A. Mail Fraud argument for Piccolo’s most
I. FACTS I his conviction on Counts the reversal of participant in a commercial and III is that the Piccolo was a scheme, jury to aspects permitted court the essential the district kickback pro- Delmarva Power convict Piccolo for conduct outside which were as follows. (“Delmarva Power”) Specifi- Light scription of the mail fraud statute. Company was Engineers cally, & Con- Piccolo contends contracted with United (“United fraud if it structors, Inc., permitted convict him of mail Engineers”) for scheme to construction services. McCuen found that company’s Cupp Naughten, lation.”1 defraud United 414 U.S. 396, 400, intangible right to the honest and faithful (1973) if employee, (citing even Boyd obtaining object wrongfully money 107, 442, 443, (1926)). L.Ed. 857 of the scheme. The Court further stated that Relying Supreme on the Court’s recent de- commonly conviction is *3 — McNally in cision United culmination of a trial which includes tes- , witnesses, timony argument -— of coun- (1987), argues Piccolo that a conviction sel, receipt evidence, of exhibits in on such instructions must be re- based jury instruction of judge. the the versed. only challenged Thus not is the instruc- many instructions, tion but one of such the McNally,
In Court held that the process the but instruction itself is but clearly protects proper- statute “mail fraud components one of several of the trial ty rights, intangi- does not refer to the but may result the citizenry good of the to ble conviction. Accordingly, the ment.” Id. at McNally’s reversed conviction be- Court Id. We review the instructions jury cause the instructions at his trial Piccolo’s trial in accordance with these mitted conviction for mail fraud based sole- guidelines. ly deprive on a scheme to the citizens of summary an initial of the offenses Kentucky intangible right of their to have charged, the district court enumerated the government conducted in an state honest allegations contained in the indictment. fashion. government The court stated that the al- argues jury Piccolo that the instructions leged that the defendants “used and caused similarly trial He at his were flawed. con: the mails to be to used further scheme [a] tends his that conviction must be reversed Engineers to defraud United and Delmarva required jury unless the instructions the to Light Company money, Power and object find that the of the scheme was to Engineers of the honest and faith- deprive money property. another of of Timothy ful services McCuen.” timely objection Because there was no Subsequently, explanation in a detailed instructions, jury the our review is limited conspiracy, of the nature the offense of to an assessment of whether the instruc- alleged the district court referred to the plain tions contained errors or defects af- 1) mail fraud scheme three times: as a fecting rights. See Fed.R. Engineers scheme to defraud United 30, 52(b). if, Crim.P. We are satisfied that right to the honest and faithful services of contends, jury as Piccolo the instructions McCuen, by paying its allowed conviction for conduct outside the him and to a bribe defraud United statute, proscription of the mail fraud such $303,000; 2) neers and Delmarva Power of plain instructions would constitute both er- Engineers as a scheme to defraud United affecting ror and a defect Piccolo’s due Power; 3) and Delmarva as scheme process rights. Engineers to defraud United honest, loyal the faithful and services of its challenge Piccolo to his bases his convic- employee further to defraud particular tion on one instruction rather both United and Delmarva Pow- charge than on the jury as a whole. plain meaning that, er of of these Supreme Court has noted when deter- require jury the mining references would single challenged the effect of a wrong- conviction, object that an of the scheme was to validity instruction on the of a reviewing fully obtain before the court must view the chal- lenged jury conspiracy instruction in the context of the could convict Piccolo of charge overall rather than in “artificial iso- commit mail fraud. apply together
1. It should also be of the noted that the district each jury parts in this case instructed the to consider and all of the other of the instructions. count, argues requires the McNally the Piccolo mail fraud regard With por- because reversal of conviction there district court instructed jury to the instructions tion of allowed fraud that of mail elements are three solely on him of mail based convict reason- prove beyond a government must in a scheme the finding that a conviction. to obtain doubt order able deprive Unit- purpose of which was sole statutory offense The first element intangible right to the its Engineers of ed to de- a scheme devised that defendant services McCuen. faithful money or wrongfully obtain or to that re- Presumably to fulfill that the above- property. Even if we assume language instructed the quoted was misstatement quirement, the court context, find that present in Piccolo’s we case law the first element not, given totality of the scheme or could devised the defendant “that instructions, unless have convicted Engineers artifice object of the scheme in that an it found honest, ser- faithful *4 to obtain McCuen, which Timothy employee, its vices of In addition to con from Power. Delmarva Engi- further, both United to and defraud alleged scheme as sistently referring to the Light and Com- Power and Delmarva neers to, alia, Delmarva Pow defraud inter one of this reading money.” plain A pany of clearly in money, the court er of district compels the conclusion fairly instruction that, it could con jury before structed the of mail convicted be that could fraud, it must find that of mail vict Piccolo partici- jury found that he only if the proved beyond a reason government the pated in a scheme the defendant devised a “that able doubt Power of neers and Delmarva Engi artifice to defraud United scheme ele- the three she set forth Shortly after honest, faithful right neers of fraud, judge gave district of mail the ments Piccolo bases upon which the instruction further, both defraud district conviction. The challenge to his his Power Engineers and Delmarva that judge stated money.” Accord Light Company of mail fraud scheme aspect the One of error the find no reversible ingly, we involves the charged 3 ... in [Count] concerning mail instructions jury Engineers of the defrauding of United fraud. em- services of its honest and faithful mail ployee McCuen. Travel Act B. of any plan or course prohibits statute that his conviction Piccolo contends and to to deceive others action intended because the II must be reversed on Count right of the honest of their deprive them instructing jury the erred court district individu- of certain and faithful services guilty violating find Piccolo it could that provide such obligated to who are als object of Act if it found the Travel services. honest and faithful commercial brib travel was interstate employer of its deprive an A scheme to Pennsylvania law. Be ery violation and faithful services the honest timely objection to the nowas cause there a crime employee can constitute instructions, again limit our review jury statute. the mail fraud under the instruc assessment ed to whether an any employer defects af plain errors or tions contained engages person to entity Fed.R. rights. See fecting faithful, if, honest services to form 30, 52(b). satisfied We are Crim.P. person is of that loyal, prudent services contends, as Piccolo intangible right. ... an referred to as outside the for conduct conviction allowed Act, such instruc intangi- of the Travel rights] proscription are such The fact [that error and plain both necessarily mean constitute bles, however, not tions would does process due affecting Piccolo’s are not a defect they valuable or they are rights. important. stead, of Perrin v. United light In the Court decided that “[t]he 311, 318, clearly protects fraud statute (1979) (“Congress ‘bribery intended rights, intangible but does not refer to the of the laws of the State in
in violation citizenry good government.” as used in the Travel Act which committed’ encompass of state conduct violation the McNally teachings that against It is statutes.”), bribery Piccolo’s commercial weigh we must instructions here. devoid of merit. contention is unfortunately, require And we must trial soothsayer and, to have been a Evidentiary Matters C. contrary ruling court, case law of this a number of chal- Piccolo also raises predicted something, to use Learned
lenges
evidentiary rulings
to various
made
phrase,
Hand’s felicitous
in the womb of
by the district court. We have reviewed
time but whose date of birth was not immi-
challenges
they
find that
either
these
nent. The
judge charged
district
are
merit or do not rise to the level
without
as follows:
error.
reversible
aspect
One
of the mail fraud scheme
charged
through
in Counts 3
5 involves
III. CONCLUSION
defrauding
of United
light
foregoing,
the honest and faithful services of its
will be affirmed.
sentence
employee Timothy McCuen. The mail
prohibits
any
fraud statute
plan or
ALDISERT,
dissenting.
Judge,
Circuit
*5
course of action intended to deceive oth-
Judge Thompson charged
When
deprive
right
ers and
them of their
of
1986,
appeared
in November
the law
set-
the honest and faithful services of cer-
proof
deprive
tled that
of a scheme to
an
obligated
pro-
tain individuals who are
employer, private
public,
of its
vide such honest and faithful services.
the honest and faithful services of its em-
App. at 606a.
ployee constituted a crime under the mail
ruling
Whatever had
case
been
law
Thus, in the
case
fraud statute.
celebrated
trial,
the time of
definition
this
involving
governor
Maryland,
clearly wrong,
is
crime of mail fraud
now
Appeals
the Fourth Circuit
Court
for
McNally.
gospel
according
to the
The
noted:
judge continued:
date,
At
late
there can be no real
this
deprive
employer
A scheme to
an
many
contention that
schemes to defraud
right to the honest and faithful services
intangible
and its citizens of
a state
employee can
constitute a crime
rights, e.g.,
govern-
honest and faithful
under the mail fraud statute.
ment, may
provision
not fall within the
“No, no,”
said the Court McNal-
the mail fraud statute.
in
But
ly.
The
then stated:
Mandel,
1347,
United States
591 F.2d
part,
(4th Cir.1979),
in relevant
any employer
or other
aff'd
denied,
(in banc),
cert.
entity
engages
person
a
Id. at poses the the mail fraud statute?” do with McNally.
Court court then made a comment
The trial government contends vitiated the of the misstatements:
incorrectness
Accordingly, you may find the exist- ence of a scheme JEFFERS, Frank Durant honest and faithful neers of McCuen’s Petitioner-Appellee, you if determine McCuen failed material information to Unit- to disclose the nondisclosure was ed *6 LEEKE; Medlock, William D. T. Travis causing capable actually did cause Attorney Carolina, General of South Engineers. to United business harm Respondents-Appellants. added). (emphasis at 607a-08a Id. No. 87-7112. charged govern- had Court earlier prove beyond ment must a reasonable Appeals, States Court of doubt Fourth Circuit. defendant devised a scheme or [t]hat to defraud United artifice Argued Nov. 1987. honest[,] faithful and Decided Dec. further, Rehearing Rehearing En Banc McCuen; to defraud both 20,1988. Denied Jan. Engineers and Delmarva Power Light Company of added). (emphasis at 605a emphasized I the word purposely segments
“and” in these two isolated be- presence it is of these two mono-
cause
syllabic conjunctions pages
that extended
ment insists cured the recited defects that teachings. I McNally
ran counter to do agree an incantation has the that such
power fatality. resurrect the The incor-