*1 persons Better Business Bureau or de- as their representatives;
scribed America, STATES of UNITED pub- 3. Causing permitting or to be Plaintiff-Appellee, lished or broadcast or any advertisements imply- other statements or representing Jr., CURRY, Gordon W. ing any manner, indirectly, or directly Defendant-Appellant. including suggestions but not limited omissions, through or or the use No. 81-3130. documents, affidavits or other that either Bill or has an Beverly Hickman is or been Appeals, States Court of Bu- investigator for the Business Better Fifth Circuit. limitation, reau (including, without July an either Hickmans has conducted investigation for a Consumer “National Rehearing Sept. Denied similarly Agency” Protection or des- ignated group refer to the intended to Bureau),
Better that either Business has them ever been to act as authorized investigator of the Better behalf Bureau, Business either or that of them has investigation conducted an of De-
fendants or their weight reduction cen- or
ters services on of the Better behalf Bureau; Business 4. Using or causing to used either designations “Better Business Bu- “BBB,” or designation reau” or any other thereto, similar with the connection advertising promotion of De- weight
fendants’ centers reduction services, unless in such advertisement or
promotion promi- there is set in a forth
nent manner appropriate to the media following “The Better disclaimer:
Business approve Bureau does not or en- Weight
dorse the Medical Reduction Cen- ters or their weight program.” reduction
IV. Agreeing with the court district that the Center’s ads are we affirm misleading, its decision preliminarily their dis- enjoin
semination. The injunction terms of
are modified to comport protec-
tions extended to speech by the commercial
first amendment.
AFFIRMED AS MODIFIED.
GOLDBERG, Judge: Circuit
Gordon appeals conviction on fraud,1 arguing three counts mail jurisdiction there was no under the mail statute, fraud that the evidence was insuffi- *3 verdict, guilty cient to and refusing the trial court erred in to instruct jury good defense faith was a charged. the violations While we find that the evidence was sufficient to sup- indeed fraud, mail we port convictions for con- refusing clude that trial court erred in provide the requested jury charge. Ac- cordingly, we reverse.
FACTS Gordon indictment and conviction mail for fraud arise out of his activities as political chairman aof citizens’ action or- ganization during three elections 1979. The defendant is accused of fraudulently converting to own his use thousands of himby dollars received electoral candidates politi- on behalf of his addition, organization. cal the defend- ant is said to have mailed false documents supervisory state election committee an effort both conceal his fraudulent to deny conversion of funds and the state of Louisiana true correct information con- cerning campaign finances. Gordon was chairman the politi- Marks, La., Rouge, Steve M. Baton for cal action organization committee of an in-
defendant-appellant. corporated under Louisiana law as P.E.O.P. Hill, C. Michael Asst. Atty., U. S. Baton L.E., Inc. group “P.E.O.P.L.E.” was a La., Rouge, plaintiff-appellee. black citizens the South Rouge Baton social, civil,
area who performed various political early charitable and functions.2 In group of P.E.O.P.L.E. members GOLDBERG, “political Before formed a so-called commit- WILLIAMS action GARWOOD, tee,” Judges. Circuit ostensibly support- for the Rouge 18 U.S.C. § conditions East Baton Parish coordinating people-oriented programs par-— People Encouraging 2. P.E.O.P.L.E. stands ticularly youth providing those services to People Living Everywhere. organi- Other elderly. and the seek As we to achieve these zation’s brochure states: goals, strongly encourage registra- we voter “P.E.O.P.L.E., community-based promote enlightened Inc. is a tion and education to an organization among responsibility concerned citizens estab- civil sense of our citi- together lished in November 1976. We came zens.” upgrade social, economic and tion, $14,975.00 ing political candidates chosen the or- and converted of this to his ganization. Actually, paid candidates P.E. personal Curry deposited own use. checks large en- O.P.L.E. amounts for its official from candidates into his own checking dorsement, providing array and for account, or cashed the checks. According campaign assistance services such as distrib- Government, a small only fraction of stickers, uting signs bumper printing pay these funds were ever used to for cam- ballots, and calling voters. P.E.O.P.L.E.’s paign expenses. turning Instead of the bal- presidents testified that funds received P.E.O.P.L.E., ance of funds over to he from candidates over and above the cost of do, required Curry allegedly used these election services were to be turned money for own personal expenses. over to treasury P.E.O.P.L.E.’s and used to Louisiana’s Election Campaign Finance support programs youth benefit and the (hereinafter Disclosure Act “the Election elderly. “political P.E.O.P.L.E.’s ac- *4 Act”)3 requires political committees to re- committee,” tion served both to port their campaign Supervi- finances to a organization’s political goals, and as a fund- sory Committee. Pursuant to the Election raising vehicle for organization’s Act, Curry Mr. mailed affidavits attesting programs. campaign P.E.O.P.L.E.’s finances Gordon Curry was chairman of P.E.O.P. state’s Supervisory Committee after each political L.E.’s action during committee election. The Government contends that three elections in 1978 and 1979. P.E.O.P. the affidavits by Curry Super- mailed to the supported L.E. eight Sep- candidates in the visory Committee were false and fraudulent tember, election; six candidates in the under the terms of Louisiana’sElection Act. election; November, 1978 and two candi- Government, According to the the false af- dates in the April, 1979 election. Candi- by Curry fidavits were intended to conceal dates endorsed by P.E.O.P.L.E. ran for vari- offices, from the ous Committee and from ranging from the P.E.O.P.L. United States Senate to local E.’s membership school board. In his the true amounts of money role as political chairman of P.E.O.P.L.E.’s action received Curry on P.E.O.P.L.E.’s behalf committee, with, Mr. Curry negotiated candidates, thereby prevent- received funds cash and check directly ing detection of Curry’s scheme to defraud from, addition, candidates. Curry over- P.E.O.P.L.E.
saw and managed P.E.O.P.L.E.’s support activities. Candidates testified BELOW PROCEEDINGS workers, P.E.O.P.L.E. led Curry,
provided substantial was indicted on three campaign assistance: counts5 of they placed signs in yards, violating statute, voters’ distribut- the mail fraud 18 U.S.C. ed bumper ballots, stickers and manned the pre-trial 1341. Defendant filed several § polls and up set phone banks for contacting motions, including a motion to dismiss the voters. jurisdiction, indictment for lack of trial, At were denied. the close of defend-
The Government contends that Gordon request “good ant for a submitted faith” Curry used his position as Chairman of P.E. jury charge, which was also denied. The O. P.L.E.’s political action committee to de jury Curry guilty found of all three counts fraud that organization of over fourteen The thousand of mail fraud. district court denied dollars. According to the Govern calculations, ment’s post-trial judgment defendant’s motions for Curry received an $23,777.80 aggregate on acquittal, insufficiency behalf of based on of evi- P.E.O. P.L.E. during dence; the three elections in ques- judgment, for arrest of based seq. statute, 3. La.R.S. 18:1481 et mailing 5. Under the mail fraud each separate violation. mailed, stipulated 4. The defendant that he mailed, caused to be each three affidavits described in the indictment. Kent, supra; supra at n.3. U. jurisdiction. brought on Defendant S. lack appeal.6 Carlyle, Survey K. A of Mail generally Act, State L.Rev. Memphis Fraud (1978) (discussing the intent re- 677-678 ON APPEAL ISSUES cases). According- mail quirement in fraud principal questions presented Three are good the defendant’s faith is a defense ly, First, appeal.7 assuming on arguendo the Goss, charges of mail fraud. U. S. existence of a scheme to defraud P.E.O.P. supra. L.E., we must determine whether there sufficient connection between the fraudu- of a to de The definition scheme by- lent scheme and the affidavits mailed judge quite fraud is broad. As learned Curry to constitute the federal crime of once remarked in regard this Circuit9 Second, mail fraud. we must examine the statute, mail law does not fraud “[t]he definition; fraud; record determine there is suffi- whether it is as define needs no cient guilty evidence to sustain a verdict. old as falsehood and as versatile as human Finally, we ingenuity.” language must decide whether the district the mail court refusing charge jury sufficiently erred in fraud statute is flexible to en compass “which good the issue of defendant’s faith. conduct fails match uprightness, of fun
the reflection moral
right
honesty,
play
damental
fair
deal
THE
OF MAIL
CRIME
FRAUD
ing in
general
and business life mem
*5
The
prohibits
mail fraud statute
in
S.,
v.
society.” Blackly
bers of
U.
380 F.2d
general terms the use of the United States
665,
(5th
1967).
671
Cir.
in
mails
of
furtherance
fraudulent
Thus, in
to
schemes.8
order
establish mail
Moreover, a
to defraud
scheme
need
fraud,
prove
the Government must
both the
necessarily contemplate
money
not
loss of
defraud,
existence of a scheme to
use of
and
See,
property
e.g.,
the
or
victims.
U. S.
executing”
mails “for the
of
purpose
1124,
Isaacs,
(7th Cir.),
v.
F.2d
493
1149-50
Goss,
1336,
that scheme. U.
976,
S. v.
650 F.2d
denied,
3184,
cert.
417
94
41
U.S.
S.Ct.
(5th
1981);
Freeman,
1341
Cir.
v.
(1974);
U. S.
apprehension of the defendants less and which likely are not themselves false mailings place.” fraudulent, than if no had taken U. S. regarded cannot be as Maze, 645, 650, 38 mailed for purpose executing L.Ed.2d 603 S., fraudulent scheme. Parr v. U. at 1183.14 this case three mailings in consist of Supervisory affidavits sent to the Commit- The affidavits in this by case were mailed tee charged enforcing Louisiana’s pursuant defendant requirements to the Election Act. The Government contends Louisiana’s Election Act. Under these cir- cumstances, the affidavits were “incidental Parr jurisprudence. rules our essential of Curry’s element” scheme to de- if the affidavits were true and cor- rect, fraud respects. Curry contends, P.E.O.P.L.E. several the affidavits can- First, not, since all political Parr, committees are re- under the holding of regarded quired by law to report Supervisory as mailed for of executing Cur- Committee, the necessary affidavits were a ry’s scheme to convert P.E.O.P.L.E.’s funds part of P.E.O.P.L.E.'s continued existence to his own use. committee, thus, as a political of Cur- In order to establish a violation of ry’s organization scheme to use that to ob- case, the mail fraud statute in this tain funds for words, himself. In other involves documents pursuant mailed qua affidavits were the sine non of P.E.O.P. law, state the Government prove must L.E.’s political operations, continued and something more mailing than the mere hence, fraudulent scheme. Un- proves affidavits. If the Government der this theory, the truth or falsehood of false, the affidavits were themselves
the affidavits is irrelevant: even if the
and were intended
Curry to defraud
correct,
affidavits were themselves true and
Supervisory
Louisiana’s
Committee of true
Curry
guilty
would still be
of mail fraud
and correct campaign
information,
finance
because his scheme to defraud P.E.O.P.L.E. Curry’s conviction under the mail fraud
was “dependent
way,”
some
U. S.
statute would be sustained. See U. S. v.
Kent, supra, on the documents mailed.
Isaacs,
1149-50;
493 F.2d at
U.
v.S.
We
764;
find that this connection be
Mandel,
488 F.2d at
U.
v.S.
tween the affidavits
mailed
Curry and F.Supp. at 1011. Alternatively, Curry’s
is,
scheme to defraud
P.E.O.P.L.E.
conviction would be sustained if
itself, insufficient to establish a violation of Government proved that
the affidavits
the mail
that,
fraud statute.
It
false,
is true
and that
mailed the false
ordinarily, the mailing of documents which
attempt
affidavits in a deliberate
to pre
are themselves innocent may still constitute vent discovery of his scheme to defraud
*7
the crime of mail fraud if the
Maze,
documents P.E.O.P.L.E.
U.
v.
See
S.
S.Ct. at
are mailed in execution of a scheme to
however,
either theory,
Curry’s
Under
S.,
defraud. Parr v. U.
80 good faith belief that the affidavits were in
1171, 1183,
(1960);
14. In
members of the Bena-
mailings
“we think it cannot be said that
Independent
District,
vides
School
imper-
were en-
made or caused to be made under the
gaged
on-going
in an
scheme to
duty imposed by
defraud the
ative command of
state law
taxpayers by embezzling
District’s
statute,
tax reve-
are criminal under the mail fraud
law,
nues. Pursuant
though
to state
defendants mailed
required
even
some of those who are
assessments,
proven
tax
mailing
plan
which were not
to be
to do the
steal,
for the District
to
illegal,
taxpayers
themselves
Defendants then
to
in the District.
when or after received some indefinite
illegally appropriated
large
part
moneys.”
of its
portion
S.,
tax
these
revenues for their own use.
Parr v. U.
SUFFICIENCY EVIDENCE put up signs, ers who distributed informa- tion, watchers. poll How- served A. of a Defraud Evidence Scheme ever, shows P.E.O.P.L.E. evidence replete The record with evidence deposit- of funds paid workers were not out position his Gordon abused Rather, they ed in account.16 trust as chairman of P.E.O.P.L.E.’s paid by yet demanded checks Cur- action diverting ear committee funds ry from were in- candidates. Candidates marked for P.E.O.P.L.E. own use. large structed to numbers checks write Candidates Mr. Curry testified that asked payees’ with the names for small amounts them for money, describing sums of these were then left blank. These checks distrib- sums as the pro candidates’ rata share of workers. by Curry poll uted election (Candidates expenses. who refused *8 pay endorsed.) elections, The money Thus, Curry were not was was left with after given to in from Curry ways. several Candidates collected candi- thousands of dollars they these, only testified that he identified Candidates themselves 1978 to 1979. Of provided stickers, signs, bumper pay- and other as $479.63 which could be characterized campaign expenditures. campaign materials for distribution. ments for Mr. Hahn checks, $628.00 also as cashed who’s identified Hahn, remaining agent expertise 16. Mr. with in an FBI checks was unknown. records, living personal expenses. financial examined all the checks made were out for Curry’s personal written on Mr. accounts from account; by Curry by in from candidates personal money
dates his bank endorsed P.E. pay which was not used to P.E.O.P.L.E. is Certainly, there sufficient evi- O.P.L.E. workers, or for ex- campaign dence to show that conduct did not penses. Yet both Mr. Ford and Mr. John- comport society’s concepts our of “fair money son this was testified that none of S., Blackly v. play right dealing,” U. Instead, ever turned over to P.E.O.P.L.E. supra, and thus constitutes a “scheme to Curry Mr. that reported to them P.E.O.P. that defraud” as term is used in mail shortage L.E. suffered from a of funds af- fraud statute. ter elections. sum, clearly In the evidence shows that B. Mailing Evidence of in Execution of used Curry position as chairman P.E. a Fraudulent Scheme political O.P.L.E.’s committee to so- action complicated We now turn to the more licit thousands of from dollars candidates there question of whether was sufficient for election expenses. It shows also that disbursing finding instead of for evidence to sustain a that money either defend- election expenses or to trea- P.E.O.P.L.E.’s ant the three mailed affidavits described in Mr. sury, Curry money converted the to his the indictment in a effort deliberate Moreover, own use. light testimo- P.E.O.P.L.E.; conceal his scheme to defraud ny presidents, of P.E.O.P.L.E.’s is not or in execution of a scheme to defraud Curry reasonable to assume Mr. that be- Supervisory Louisiana’s Committee true he lieved was authorized to use candi- campaign and correct finance information. money compensate dates’ for himself A brief excursion into Louisiana state campaign work. Both Mr. Mr. Ford and necessary law to understand the evidence. Johnson that Curry testified Mr. was not Act, political Under Louisiana’s Election entitled to for salary receive his activities committees such as are re- P.E.O.P.L.E.18 as political chairman of the committee. quired campaign their finances to if, contends, Even Curry as Mr. he was Supervisory Ordinarily, po- Committee. entitled to compensation for his litical committees must submit a detailed efforts, he could not been have entitled to report which contains name each the amounts involved here. According to person money politi- who contributed the Government’s analysis, which sup- cal committee and the ported by evidence, amount contributed Curry took for his by $14,975.00 person, own use that approximately as well as the total sum of of funds received from figure candidates. This far all contributions received the committee. paid exceeds amounts to other 18:1486E(1) However, P.E.O.P.L.E. R.S. there is work,17 members for campaign and cannot exception an campaigns.” “small R.S. be construed as compensation reasonable 18:1487. lieu report, of a full for even prodigous the most of election committee file affidavit stating efforts. first, that the committee did not receive from contributions one source excess a jury reasonably could conclude amount, applicable reporting that Curry Gordon intentionally used his dollars;19 position second, as case five hundred polit- chairman of P.E.O.P.L.E.’s ical action committee defraud expenditures that or- committee’s total did ganization of $5,000. thousands of dollars solicited not exceed instance, provided by Curry 17. For a list Mr. 18. Defendant does not contend that P.E.O.P. himself “political shows six P.E.O.P.L.E. members L.E. is not a committee” that term paid $1,000.00 ranging Act, amounts is defined under the Election R.S. $800.00 (As 18:1482(2). work the 1979 election. usual, money directly paid to them election, one of the candidates and not stipulated $500 Defendant has was the out of funds received Mr. from the reporting applicable amount to all candidates candidate.) in each elections. *9 contends, however, Curry that even an affidavit after as- Curry Gordon mailed suming of a scheme stating that had the existence de- each election P.E.O.P.L.E. P.E.O.P.L.E., insufficient fraud there is evi- not contributions from one received finding dence to sustain a that affida- of five hundred dollars. candidate in excess vits were mailed in an effort to conceal the However, Act the Election defines “contri- scheme. money for broadly received butions” supporting person’s of a elec- purpose According the affidavits were Curry, tion to office.20 Under the terms of public directly Supervisory mailed Commit- statute, “contributions” could include tee; they never distributed to were money political a candidate a given by P.E.O.P.L.E., of and members therefore own support committee to candidates could have been used as a device to election. misrepresent organization. that anything to Although two of the affidavits were argues The that the affida- Government by presidents presented Curry to false, were Curry patently
vits by mailed for their both signatures,22 P.E.O.P.L.E. Mr. since received far in excess of P.E.O.P.L.E. testified that they Ford and Mr. Johnson five from hundred dollars individual candi- carefully not read at did the affidavit dates of the three in each elections.21 No they signed time the documents. Moreover, reasonably could conclude jury a saw the members P.E.O.P.L.E. affida- a the false affidavits mailed in vits.23 to conceal Curry’s deliberate effort fraudu- lent scheme from P.E.O.P.L.E. members. We find there is sufficient evidence to nothing If Curry had submitted to the Su- finding Curry jury intended Committee, P.E.O.P.L.E. could pervisory his the affidavits to conceal fraudulent prosecuted have under the Election been First, Supervi- scheme. a member of the Act for failure to disclose fi- sory reports Committee testified filed Curry report, If had filed a correct nances. part with the Committee became detailing money record, the amounts of received public newspapers local candidate, from each he would have run the freqúently published campaign finance re- Thus, risk of investigation by particular P.E.O.P.L.E.’s mem- ports Curry interest. bers, possible publication and the detection of his fraud- risked of a detailed P.E.O.P.L.E., ulent had keep money money by scheme to candidate’s received he addition, a report. Curry own use. filed such argues, in The Election Act states: also a somewhat twisted fashion, have “Contribution”, that the affidavits could not been (3) except as otherwise provided Part, loan, intended to mislead Ford and Johnson because gift, in this means a patently advance, affidavits false. The money, were so rec- deposit promisso- or a ry and Johnson gift, ord shows that both Ford en- note or written contract make loan, advance, deposit money dorsed made out to P.E.O.P.L.E. from checks made exceeding supporting, opposing five candidates in amounts hundred or other- Curry, they influencing wise would the nomination or election dollars. claims imme- person public diately spot office. an affidavit the falsehood of attest- R.S. 18:1482. ing to more than five the fact that no hundred dollars had P.E.O.P.L.E. been received analysis, sup- 21. The Government’s which is any one candidate. ported evidence, by the shows that P.E.O.P.L.E. argument The weakness of this is immediate- $10,650.00 eight received candidates ly apparent: neither Ford nor Johnson fact election, $7,850.00 the first from six candidates discrepancy noticed the in the affidavit. This is election, $5,052.80 in the second from two because the affidavit does not mention dollar candidates the third election. Instead, states, amount. “the committee did not receive a contribution excess re- president 22. Mr. Alton Ford was of P.E.O.P. porting applicable amount to such candidate early signed L.E. the affidavit “reporting ...” committee [or] pertaining to the first election. Mr. Johnson Act, amount” in the Election but defined president signed became in late appear does not on the affidavit. second The third affidavit. affidavit signed Curry. Gordon *10 correct, obtaining could not be assured of davits in compliance Ford’s were and were signatures and Johnson’s aon detailed cam- Act, jury a Louisiana’s Election could paign risking finance without inves- reasonably conclude that affidavits tigation. The jury have could reasoned were intended to the Supervisory defraud that and signed Ford Johnson each a short campaign Committee true and correct affidavit without questioning Curry as to addition, Curry’s finance information. In nothing its contents because on the face of good faith belief that affidavits were However, the affidavit aroused suspicion.24 correct relevant to the whether issue Curry presented president had long to the a affidavits were mailed defendant in an report showing the total amount of funds effort to conceal his scheme to defraud P.E. candidates, received him from sums faith was an availn- Because-good O.P.L.E. $10,650.00, $7,850.00 totalled defense,-Cur-p-v-was toagood ble entitled $5,052.80for the question, three elections in if was faith-juryjnstruction there evi- any president might well have demanded an to support charge, “regard- dence at all explanation of Curry as to the disbursement weak, less of how inconsistent dubious of those funds. Certainly, neither Ford nor good evidence faith have been.” Johnson would likely accept have been Goss, U. S. F.2d at 1345. representation Curry’s that P.E.O.P.L.E. was left with a shortage of funds after each record, say On this we cannot there was election. support finding no evidence to Curry a that sum, In there ample was evidence to sus- prepared good the affidavits in a faith be- tain a jury finding Curry that mailed the they lief that were true correct.25 The a affidavits in attempt deliberate to conceal supporting most evidence a finding obvious his fraudulent scheme from P.E.O.P.L.E.’s of good faith is the ambiguity Louisi- members; thus, the affidavits “a, ana’s Act.' Act Election defines executing mailed purpose loan, advance, gift, as “a contribution” Curry’s Moreover, fraudulent scheme. the deposit money ... made for the finding same supports evidence that Cur- supporting, opposing or otherwise influ- ry falsified the in order affidavits encing per- the nomination or election of a Supervisory conceal from the Committee public supra. son to office.” Note the true amounts collected from candidates. requires The Act also “contribu- jury Curry could find that intend- tions” a political received committee ed to Supervisory defraud the Committee of However, must be reported. jury could correct finance information. not, Curry well did decide Gordon good faith, regard money he solicited
C. Evidence of Good Faith political received from candidates as Having concluded that the evi ordinary parlance, “contributions.” dence was sufficient to sustain con contribution is understood a do- viction on mail we charges, fraud turn now nation, by a voluntarily given26 citizen to a to the question whether was evi there candidate, in order to assist the candi- dence good jury charge. faith Ordinarily, As date’s election efforts. one ex- supra, noted is a good faith defense to charges pects Hence, money of mail no return for his than fraud. if Gordon more Curry believed in good that the affi- faith that the candidate of his choice is elected. proved by The affidavits into evidence were introduced circumstantial evidence. To hold jury for the effectively to examine. would the ac- otherwise eviscerate right testify not to criminal cused’s mat- position 25. The Government good takes ter in which faith at issue. good there finding can no faith this case because did defendant not take the dictionary, According a “contribu- testify subjectively stand to that he believed thing voluntarily tion” is sum or contribut- “a reject argu- affidavits to be true. We Dictionary. ed.” Third Webster’s International faith, just faith, ment. Good like bad can be *11 sum, reveals sufficient cir- In the record they that case, testified In this candidates good ex- a justify to in to faith funds P.E.O.P.L.E. evidence transferred cumstantial P.E.O. set of services: change for definite judge read to the jury charge. The trial endorsement, workers’ cam- and its P.L.E.’s Louisiana’s portions relevant jury the candidates efforts. As far as the paigning however, instruct not Election Act. He did concerned, simply expend- they were were candi- even if the funds from jury that Accord- necessary funds for services.27 ing “contributions,” jury should dates to given amounts ingly, candidates listed Gordon Currv h&J consider whether still on their “expenditures” P.E.O.P.L.E. as that, the affidavits were good in faith lieved Thus, money campaign reports. finance on the corLgcty-m--reaching their decision was seen as no more a “contribution” affidavits were whether question payment P.E.O.P.L.E. than a candidate’s concealing Cur- for the mailed to a posters would be a “contribution” Nor scheme to defraud P.E.O.P.L.E. ry’s fact, in re- printing shop. And candidates judge jury trial instruct the that did the they specifically testified that had peatedly veracity Curryis-good in the faith belief members refused to authorize P.E.O.P.L.E. charges was ^defense to that. affidavits “contributions,” meaning dona- to solicit ~ Supervisory to defraftd the intended he citizens, be- tions from on the candidates’ and correct of true Committee half. Because there was finance information.29 is that funds position The Government’s defense, faith it support good evidence to “expenditures” given to P.E.O.P.L.E. were the in- error to not include was reversible time, same to the candidates and at the jury charge. structions This inter- to P.E.O.P.L.E. “contributions” well be Election Act pretation however, is Curry, correct.
legally
Gordon
CONCLUSION
non-
The issue whether a
lawyer.
not a
there was sufficient
We have found that
that
reasonably have believed
lawyer might
for mail
uphold a conviction
evidence to
exchange
in
for services
money received
gross
misuse
fraud. The record reveals
regard
In
to this
was not a “contribution.”
part
of de-
personal gain
funds
question, there is evidence that leaders
evidence
The record also reveals
fendant.
that
thought
committees also
jury that defendant
which could convince a
exchange
funds received
candidates in
reports
finance
campaign'
mailed false
reported as
for services did not have to be
conceal
in order to
of Louisiana
State
“contributions.”28
signed
surrounding
that he
Mr. Livors testified
amounts.
Indicative of the confusions
had
did not think he
Election Act’s definition of “contribution”
the affidavits because he
questions
response
one
on cross
from candidates.
candidate’s
“contributions”
received
money
given
had
examination.
The candidate
exchange
campaign serv-
to P.E.O.P.L.E.
judge
jury, the trial
In his instructions
ices,
reported
disbursed as
the amounts
Act in the follow-
on the Election
did comment
“expenditures.”
ing terms:
you
your
it come to
that
[D]id
attention
“Q
candor,
gentlemen,
I must
ladies and
“In all
report
might
these
as contributions
[funds]
Campaign
you
Fi-
Louisiana
tell
any place?
poor-
the most
Act is one of
nance Disclosure
A It was never a
consideration to
twenty-nine years
ly
statutes that
drafted
as contributions....
I couldn’t even afford to
many
are
There
I have ever seen.
at the bar
race,
my
run
own
much less contribute
ambiguous provisions of this
unclear
someone else’s benefit.”
however,
add,
Let me hasten to
statute.
Livor, president
28. Mr. Sam
of another South
entirely
disregard
you
free to
are
committee,
Rouge political
out
Baton
also filled
just
which I have
stated.”
group
stating
re-
whole,
his
had not
affidavits
charge
how-
In the context of the
report-
ceived
in excess of the
“contributions”
ever,
adequately in-
this comment does
fact,
given
ing
had
amount.
candidates
jury
relationship
between
on the
struct
money
exchange
group
for the
to Mr. Livor’s
faith,
charges
any,
good
if
and the
type
provided
P.E.O.P.
same
of services as
in the indictment.
contained
L.E.,
reporting
and these amounts exceeded
deprive
ments he knew be false to the Commit-
of funds and to
the citi-
misuse
tee,
any proof
even
the absence
campaign fi-
zens of Louisiana of accurate
Curry,
anyone
P.E.O.P.L.E. or
else was
However,
information.
we find that
nance
any independent
at-
guilty of
actual or
there was also
some evidence
tempted
might
fur-
wrongdoing which
defense,
good
and that
defendant’s
faith
thered or
falsity, merely
concealed
such
refusing
the trial court
to instruct
erred
*12
reports deprived
because the false
the Com-
Therefore,
jury
the
as to this
this
defense.
mittee of the true information.
case must be remanded
a new trial in
to give
proper
order
the
faith instruc-
good
it,
As I understand
there is no contention
today
say,
tion. Needless to
decision
our
that either
or
of
“con-
any
P.E.O.P.L.E.
defendant;
instead,
exculpate
does
tributing”
any
law or
candidates violated
anyone.
majority
defrauded
Yet the
holds
provides
roadmap
a
for retrial.
Curry
even if
guilty
that
had been
of no
REVERSED and REMANDED.
wrongdoing respecting P.E.O.P.L.E., he
nevertheless would have violated section
GARWOOD,
Judge, concurring:
Circuit
to
by mailing
reports
1341
the Committee
I concur in the
and
I
reversal
remand.
be
holding
he knew to
false. This
is made
holdings
likewise concur in
is
that there
despite the fact that in such situation the
Curry
sufficient evidence that
18
violated
reports
false
would not have been intended
by mailing
U.S.C.
1341
§
false documents
(i)
or calculated to cause either
the Commit-
to
Supervisory
the Louisiana election
Com-
(or any part of
govern-
tee
the Louisiana
mittee
in an effort
to
[the Committee]
ment)
differently
to act
than it would have
conceal his scheme to
P.E.O.P.L.E.
defraud
reports
if true
had been
or
filed
to
funds,
of its
that in order to convict it was
whatever,
deprived
any thing
of
or benefit
necessary to find the documents were false
economically
other
simply
than
worth-
it,
and Curry knew
the trial court
information,
(ii)
or
any
party,
less
other
by
erred
denying Curry's request for an
including Curry,
either receive or be de-
faith,”
“good
instruction on the defense of
prived
any tangible thing
of
or
actual
and that
contentions referenced in
potential
or
economic benefit.
majority opinion
note 7 of the
are without
I am
the Su-
of
aware
of no decisions
Further,
with,
in,
join
agree
merit.
I
and
preme
of
Court or
this Court which have
all portions
opinion
majority
of the
which
1341
extended
section
to situations where
holdings.
concern the above
contemplate
perpe-
the scheme did not
I
solely
my
write
separately
express
acquisition
depriva-
trator’s
or the victim’s
disagreement
holding
ma-
or
something
tangible
tion
either
some
jority opinion
would have violat-
potential
actual or
economic benefit.1 Deci-
ed
mailing
18
by
U.S.C.
1341
the state-
§
have, however,
sions
in
ex-
circuits
majority opinion
prediction
The
cites no decisions of the
to win Cad-
football score
contest
Supreme
words,
support
case,
plainly
United
in
Court
of its
in-
illac. Each
in other
holding
regard,
something
obtaining
this
and I
aware of none.
am
volves
value
material
by
(in
money,
from
on
decisions
this Circuit relied
one
two cases
case
automo-
majority
bile) by
language
in such
v. Unit
connection are Weiss
means. The broad
deceitful
States,
denied,
(5th Cir.),
ed
plainly expressed
Nor do
construing 18
371
Supreme Court
§
U.S.C.
causing
pecuniary
property loss”);
or
a result at vari-
predecessors
and its
dictate
States,
209,
Bridges v. United
346 U.S.
220-
analysis.
such
ance with
above
While
n.19,
n.19,
1055,
97 L.Ed.
S.Ct.
do
that a
proposition
decisions
stand for the
(1953) (distinguishing cases under the
pecuniary detriment
United States
basis
371 on the
of its
predecessor to section
necessary
not
out a
“to
conspiracy
make
any purpose”
any
broad “in
manner or for
States,
any agency
defraud
United
or
language).
any purpose”
thereof in
manner
reasoning
suggests
also
sec
Similar
371,
none of them has
contrary
section
broadly
tion
should not be read as
gone so far as to
the United
hold
merely by knowingly
States is
section 371. While the former does de
defrauded
furnishing
information, where,
it
false
“any
nounce
scheme or artifice to defraud”
itself,
apart
deception
from this
there is no (emphasis added),
“any” may
the word
deprivation
collateral
or benefit
material
properly
indicating
understood as
ex
Indeed,
Supreme
intended.7
has
Court
pansive
reading
“scheme or artifice”
rejected
predecessor
to section 371 as a
Accordingly,
rather
than “defraud.”
it is
basis on which
prosecute
“fraudulent”
range methods,
objects,
which is
interference with
process.
the electoral
See, e.g.,
thus broadened.
Durland v. Unit
Gradwell,
476,
United
v.
States
306,
508,
ed
161 U.S.
S.Ct.
Moreover,
“Quite ‘defraud,’ as section 1341 which does so limit likely the word ordi- its use of law, used in the and narily common as majority opinion “defraud.” The has in English in used statutes and in the stat- Curley effect stood the rationale its states, object utes our of enacted with the head. of protecting property and property Curley fur- analysis While the made in rights individuals, of communities and persuasive support for its construc- nishes well as of municipal governments, which of the it predecessor tion to section largely purpose exist for the of adminis- be such is must noted that construction affairs, has refer- tering local financial A. many problems. without serious to relating money ence frauds to and The Goldstein, Conspiracy To Defraud Unit- so, property. If this is it is because the States, ed 68 Yale Law Journal 405 sense, is it may word used in that but enough sense, well To extend such to section have a broader and be a construction for a Id. purpose.” used broader at 6-7 is not act only to without the (emphasis added). Curley, given of the reasons and indeed Curley, where the sole hand, contrary On to but purpose every the rationale of is of protect govern- the statute was to the to add to problems the inherent section ment, reading given.10 a broader should be 371 those a posed by significant expansion federal of law enforcement into matters of Curley sum, every reason given for concern, a traditionally construction of the local all without predecessor to section 371 so as not to limit its use of “defraud” to clear to do Congress command from so. Curley suggests, proach question interpretation 10. As the Court the of the of which, standpoint terms, general “A statute the word ‘defraud’from the same has for its object protection proper- question the of the individual which the would be considered ty rights body, of the members of the civic if the in a word ‘defraud’ were used state thing; object one the a statute which has for its protection ordinary for the of statute enacted property rights protection government and welfare of the constituting of individuals alone, purpose the admin- exists for state; and so for that in this is the reason istering might might public, itself in the interests of the ordinary accep- one instance statute in its quite purpose thing. be another property property tation has reference and broadly different in the two cases. rights alone, while in has the other it refer- personal rights “The and of indi- interests purpose, protecting ence to a broader that of society needing protection vidual members of government in its administration under thing; rights are one and interests of a law, protecting property as well as government protection needing quite are an- government an which holds as incident thing. other the This results from the fact purpose to the fundamental which the for rights and interests of individuals and government (em- at 7-8 was instituted.” Id. governments are different. The individual phasis added). rights life, liberty, pursuit relate to and the signifi- The Court’s also reflects happiness, right acquire and the and hold “defraud,” cance to a broad construction of property. Governments are instituted for the any purpose” language the “for of the fact protecting rights, such individual against that the commission offense they may protect and purpose themselves for that object United States an alternative safeguard their own existence. conspiracy Therefore denounced the statute: the word ‘defraud’ have a meaning clearly protec- expressly different tion of in a “The statute car- statute for thus government beyond provisions wrongs and its administration ries its which had designed than when used in statute expressly for the been declared to be offenses protection personal rights. against the United and extends its provisions so as embrace fraud considering “In a statute enacted any purpose, manner for would and it thus protection which, government, entity apparent seem that it was intended Con- right in its to render service gress beyond carry meaning statute people laws, under beneficent wise and holds respect property frauds in property only governing, as an incident of property rights by declaring against fraud for penal and which declares it offense to con- ” any purpose (emphasis Id. at 4 add- . . .. spire government pur- defraud the *18 ed). pose, think, necessarily, ap- we need not we
425 629, 200, 443, is, 620, 202, essen- 47 S.Ct. 71 L.Ed. dealing We are here with what Edwards, (1926); United States v. 458 445-46 local traditionally, a matter of tially and denied, cert. 875, Cir.), U.S. F.2d require- local law compliance with concern — (1972). As 891, 118, 34 L.Ed.2d 93 S.Ct. report- contributions ments for us, especially is Bass and Rewis teach it authorities. by local ing -normally handled — setting a sort because applicable contrast, under section By prosecution traditionally “renders broader construction the United conspiracy to defraud States for federal conduct a matter local criminal which is essen- obviously relates to matter 350, enforcement,” at at 92 S.Ct. 404 U.S. Supreme tially of national concern. 523, relation federal-state alters “sensitive occasions admon- Court has on at least two relatively minor ships” and “transform[s] rule a strict requiring ished us that federal felonies.” state offenses into spe- construction of criminal statutes is 812, 91 Accordingly, at I at cial force where a broader construction agree majority with the cannot traditionally local criminal conduct “renders the Louisiana Committee of mailing to enforcement,” United a matter for federal report violates knowingly false contribution Bass, 336, 350, v. 92 S.Ct. 404 U.S. 1341, is or where there no fraud section 488, (1971), or 30 L.Ed.2d (such illegal contribu illegality as either an rela- alter sensitive federal-state “would con diversion funds wrongful tion or relatively minor tionships” “transform[s] advantage, tributed), deprivation nor Rewis state offenses into federal felonies.” incorrect infor apart giving from the States, 808, 812, 91 S.Ct. 401 U.S. necessarily concomitant mation 1059, 28 L.Ed.2d the correct information. concealment of goes reprehensible I not that the word “defraud” That such conduct dispute do it is criminal under saying. Indeed just as far as one without can be stretched about law, prosecuted by Louisiana apply it. it wants to stretch But my it authorities. But Louisiana know context of section 1341 to mere not sec defrauding and violate is not does gov ingly false information to giving of tion 1341. more, is indeed agency, ernmental without only indeed beyond to stretch but pri sight
almost out of of its “usual mary interpretation sense.” sim Such long-settled rule ply irreconcilable with the concerning ambit of “ambiguity be resolved fa criminal statutes should States, Rewis v. United vor lenity.” also U.S. at 91 S.Ct. at States, - U.S. Williams v. United -, 3088, -, -, 73 L.Ed.2d It cannot be doubted applicable rule of strict construction is to sec tion 1341. Fasulo United notes ployees Department Agriculture get proceeded, union thereafter “[t]he sev- crop advance information of its cotton esti-