United States v. Michael Bryant Brumley

sum, developed panel as opin- er. In III. 459, ion, summary judgment 65 F.3d ensuring prompt To assist in compliance, USAA record shows that more than satisfied again, we state our supervisory pow- under summary judgment its initial burden of ers, appellate our new forfeiture rule for pointing out the of material absence fact unobjeeted-to accepted proposed findings regarding Douglass’ for issues reason conclusions, and requirement as well as the programmer position. from his removal that our new rule be included in a magistrate personnel filed affidavits and USAA records judge’s report and recommendation: documenting Douglass’ poor perfor- work party’s A1. failure to file ob- written improvement. mance his and need for jections proposed findings, to the conclu- response, Douglass nothing offered to rebut sions, and a magistrate recommendation in evidence, only personal and offered his judge’s report and recommendation within

perceptions speculation that USAA’s de- days being after copy served with a position cision to remove him from the party, except upon shall bar that grounds age. based on his error, plain attacking from on appeal the unobjected-to proposed findings factual It is more than well-settled that an em legal accepted by conclusions the dis- subjective ployee’s belief that he suffered an court, provided trict party has employment adverse as action a result of been served with notice that such conse- discrimination, more, enough without is not quences object. will result from a failure to summary judgment motion, to survive judicial 2. The officers our circuit proof showing the face of an adequate non- are to appellate revise the forfeiture warn- See, diseriminatory e.g., Ray reason. v. Tan ing magistrate judges’ report rec- Inc., (5th Computers, 429, dem 63 F.3d ommendations so that it states this new Cir.1995) (“bald age assertions of discrimina rule. inadequate permit tion are finding reasons, For foregoing summary proscribed discrimination [defen motivated judgment AFFIRMED, is the superviso- against [plaintiff]”); dant’s] actions Grizzle v. ry powers directives are ISSUED. Inc., Network, 261, Travelers Health 14 F.3d (5th Cir.1994) (employee’s “self-serving generalized testimony stating subjective her

belief that discrimination ... occurred

simply support jury insufficient to verdict favor”); plaintiff’s Republic v. Little Re (5th Co., Ltd., 93,

fining 924 F.2d Cir.

1991) (“[a]n age plaintiff’s discrimination own good age faith belief that his motivated his America, UNITED STATES of employer’s value”); action is of little Horns Plaintiff-Appellee, Conoco, Inc., (5th v. 777 F.2d v. Cir.1985) (“[w]e subjective cannot allow belief Bryant BRUMLEY, Michael judicial the basis for relief when an Defendant-Appellant. adequate nondiscriminatory reason for the discharge presented”); has been Elliott v. No. 94-40560. Group Serv., Surgical Medical & 714 F.2d Appeals, United States Court of (5th Cir.1983) (“generalized testimo Fifth Circuit. ny by employee regarding subjective an his discharge belief that his age was the result of March discrimination is insufficient to an make issue jury proof showing the face of adequate, nondiscriminatory reason for his denied,

discharge”), cert. 467 U.S. (1984).

S.Ct. 81 L.Ed.2d 364 Jamail, Bernsen, Jamail, George Michael BACKGROUND Goodson, Beaumont, TX, Hartley ap- & Brumley began working for the In- Texas pellant. (IAB) July, dustrial Accident Board pre-hearing July as a examiner. 1988 he Kenner, Johnson, K. Carol L. Traci L. promoted position regional to was the Platt, Attys., TX, Tyler, Asst. U.S. Stuart director for part the Houston area. As Bradford, Beaumont, Atty., TX, Mike U.S. compensation law, the state’s new workers’ appellee. for re-organized the IAB was in 1990 as the Compensation Texas Workers’ Commission (TWCC) Brumley appointed was the (essen- regional TWCC’s associate director tially position the same he had held with the IAB). Beginning Brumley in solicited DeMOSS, Before WOOD JOLLY accepted $40,000 approximately in loans Judges. Circuit attorneys, from local which he admitted was guidelines. a IAB violation of ethical DeMOSS, Judge, Circuit 1992, Brumley Between 1987 and ac- also Brumley appeals his Michael conviction at $86,000 cepted over in “loans” via trans- wire fraud, a bench trial on three counts wire attorney, from Cely. fers another local John money laundering three counts and one Although Cely money understood that the conspiracy count of to commit mail fraud and repaid, would never be he continued to make Brumley appeal wire fraud. not does his Brumley. Cely to money loans wired the making on conviction two counts false Lufkin, from the Western in Union office institution, to a financial statements but he Texas, Beaumont, Brumley to in Texas. appeals opinion sentence. in his The procedure making The for the Western 18, 1995, July under case issued date Cely, Union wire transfers involved or one of pretermit withdrawn. We resolution of the employees, filling listing his out a form evidentiary insufficiency by claim of Brumley recipient and the amount of the transfer. rehearing since we concluded on have that a Cely paid for the wire with transfer checks more fundamental defect exists as to counts Walker, payable to H.C. the Lufkin Western conviction, 1-7 of the i.e. the statutes in agent Union franchisee. The Western Union (18 1346)2 §§ question U.S.C. 1343 and do then, through personal computer, a dialled proscribe the not conduct described these into computer Western Union’s main counts of the indictment. We affirm as to Bridgeton, Missouri. The Western Union making two counts false statements to agent -unique number, would ten-digit write a financial judg- institution3 and vacate the through which he obtained computer fraud, on ment of conviction the wire Missouri, mail on the back of gave the form he to fraud, money laundering conspiracy Cely. This would receipt. serve as the counts and for Brumley remand dismissal of the in- immediately pick was then able to dictments up money. as these counts. Circuit, Judge sitting Circuit of the Seventh years, oned not more than five or If both. designation. institution, violation affects a financial such $1,000,000 person be shall fined not more than provides:

2. 18 U.S.C. 1343 imprisoned years, or not more than 30 both. or provides: U.S.C. Whoever, having intending devised or to de- purposes chapter, For the defraud, of this term vise scheme or artifice to or for “scheme or artifice defraud” obtaining money property by includes means of false deprive scheme or artifice pretenses, representations, another of the fraudulent intangible right promises, of honest transmits or causes to be services. transmitted wire, radio, means or television commu- commerce, 3. Brumley foreign prison nication in interstate or was sentenced to 24 months in writings, signs, signals, pictures, making for each of the two counts of state sounds for false institution, purpose executing or arti- ments to a financial scheme to be served fice, impris- be concurrently. shall fined under this title or only be a money conduct under state law would transfer ble being notified that a After him, go while such conduct would Brumley would to a misdemeanor waiting for was punishable felony pick up as a under Union office Beaumont Western judge identi- States statutes. trial overruled fill out a form He would the transfer. Brumley on all such motions and convicted recipient and the Beau- fying himself as agent call nine counts the indictment and he would mont Union Western Brumley prison. Bridgeton, Mis- to months computer in sentenced Union Western souri, Brumley appeals. verify information. now given a check the amount

was then AND McNALLY CARPENTER transfer, he would cash at either grocery bank or a store. thorough with a under- We must start standing Supreme the Court’s landmark of 1988, pursuant complaint from one In to States, McNally in decision v. United clients, began investiga- the LAB an Cely’s of 350, 107 97 L.Ed.2d 292 U.S. S.Ct. Brumley practice. on Cely’s tion into law (1987). prosecution of This case involved urged the IAB to reconsid- several occasions Kentucky of and a former official formally investigate Cely, decision to er its private alleged for individual violation Cely altering Brumley in sub- assisted and statute, § federal mail fraud U.S.C. Finally, Brumley documents. aided poenaed theory prosecution in principal The of property in Cely’s to TWCC efforts lease McNally, accepted by the courts which was lease, it been consum- Lufkin. if had The below, participation that the was defendants’ mated, guidelines, have violated ethical would self-dealing patronage scheme defrauded in a Never- Cely practiced before the TWCC. as Kentucky of government and of the citizens theless, building Brumley that the directed “intangible rights,” right as certain Cely’s office specifications be faxed to have the commonwealth affairs conducted clients, Cely’s one James Fredre- name of of honestly. jury The convicted defendants and employee later mailed the gill. A TWCC Appeals the convic- the Court of affirmed Fredregill. prop- specifications lease tions, relying of decision from the upon line ultimately erty leased to a disinterested Appeals holding of that the mail fraud Courts party. proscribe to defraud citizens statute schemes Brumley in Novem- was indicted Michael intangible rights im- to honest and of their conspiracy to the citi- for defraud ber 1993 Supreme partial government. The Court the honest use zens of Texas of of state and reversed. The most granted certiorari and wire communica- of services via mail his majority opinion illuminating language of the (18 (18 371), § fraud U.S.C. tions wire U.S.C. U.S., and the page 360 of 483 is that found (18 1343, 1346), laundering money §§ U.S.C. reads: top page 2882 of 107 S.Ct. which 1956) making § false statements to a and [mail than construe statute Rather 1014). (18 U.S.C. financial institution fraud, § in a that leaves its manner 1341] during his trial Both bench before ambiguous and involves outer boundaries Brumley counts 1-7 moved dismiss setting stan- the Federal Government (1) grounds that such counts indictment on government good disclosure and dards of impermissi- “constitute unwarranted officials, we read local and state for into affairs of the Texas ble intrusion federal protection in scope to the 1341 as limited (2) Board;” the Tenth Industrial Accident If property rights. desires to the United States Constitu- Amendment further, clearly speak more go it must rights all to the not tion “reserves State added) (emphasis than it has. Federal Govern- specifically entrusted to the (3) majority opinion over- ment;” Brumley This two prosecution seven to that upon large num- which a right his turned the theories under these counts “would violate been prior court decisions had 14th circuit equal protection of under the ber law dissent identifies “the 7th based. Justice Stevens’ Amendment” and would violate cate- prior court cases arid circuit prohibiting the infliction cruel detail Amendment separate as follows: any culpa- gorizes footnotes punishment” in that them and unusual 362-63, 1, page States, 19, 108 page 107 S.Ct. Footnote 484 U.S. S.Ct. 98 L.Ed.2d (1987). Carpenter, In a unanimous Su preme holding Court described their and federal officials convicted of State de- McNally as follows: right frauding of their to the citizens hon- officials; governmental of their est services McNally held in We the mail fraud 2, page page statute does not reach Footnote “schemes to defraud S.Ct. intangible rights citizens of their to honest campaign Elected officials and workers government” impartial and that using mail convicted of fraud the mail scope statute is protec- “limited to the votes, falsify defrauding thus the citizen- property rights.” tion of ry election; its to an honest 363-64, page (internal page Footnote 107 S.Ct. Id. at 108 S.Ct. at 320 citations omitted). 2883-84 sector, agents private In the with clear Carpenter Court found fiduciary duty employers to their or un- property rights, though intangible ions, guilty defrauding accept- found (i.e. right employer of an to make exclusive ing selling kick backs or confidential infor- generated use of confidential information mation; and employees), its were property none the less 364, 4, page page 107 Footnote S.Ct. 2884 rights and “McNally that did limit not the sector, private scope § In the defendants of tangible distinguished convicted 1341 to as defrauding of rights intangible individuals their property rights.” from Further- privacy non-monetary rights. more, other Carpenter, and the Court characterized employer’s employ- contractual to an key language McNally The from quoted ee’s honest and faithful service as inter- “an clearly majority above states that the over- est too ethereal itself fall within the body ruled the of case law referred to in protection of the mail fraud statute.” Id. Justice Stevens’ footnotes for two reasons: Therefore, Carpenter clearly reaffirms the majority 1. The did not want to con- majority opinion McNally simply and rec- involving strue the statute as the federal ognizes that tangible intangible both government in setting of standards disclo- property rights protected by are the mail good government sure and for local and fraud and wire fraud statutes. healthy state This is a recogni- officials. of our system tion the realities of federal § PASSAGE OF 1346 pulls rug the out from under the con- analysis ceptual by used the circuit courts day On the last of Congress the 100th deciding the cases footnotes 1 1988, Congress passed October the highly dissent; of the publicized and much drug debated omnibus bill, bill 2. and attached to that majority not as did want to con- one some provisions, unrelated a provision strue the mail fraud was con statute in manner taining the ambiguity that text of what would create in its has now been codi outer (See limits, § fied as so it said U.S.C. Pub.L. 100- apply the statute would 690, VII, 7603(a), only 18, 1988, § Title “protection Nov. property rights,” the 4508.) Stat. thereby provision The text pulling rug the out of this from under placed in category Drug the Omnibus Bill of cases described in on the same footnotes 3 day passage as the ultimate and 4. that bill and legislative history provision is majority Both opinion and the dissent Therefore, minimal. our first task tois de in McNally Congress indicate that might cide whether language used the Con change construction; the Court’s but the ma- gress §in 1346 satisfies the admonition of jority absolutely made it clear Supreme McNally Court in Con speak clearly “must more than it has” if it gress “speak clearly more than it has.” changes. desired to make Shortly its in McNally, any after decision statutory As with question, we Supreme Carpenter Court v. begin language decided with the statute. Kel- (In meanings States, among the We note that re West Texas logg v. United (5th I, 1194, in Section Title there word “whoever” is Corp.), F.3d Marketing - remotely denied, U.S. -, nothing that be inter- Cir.), 116 S.Ct. could even cert. state,” (1995). preted mean “a determining or construed to “a 523, 133 L.Ed.2d state,” that, political govern- of a “a meaning, subdivision we assume plain a statute’s ment,” definition, agency,” “Congress governmental in “a or “the citi- contrary absent carry body politic.” zens of a state as a in its enactments the words tends contemporary, common mean ordinary, their pronoun if “who- So we substitute for v. Bruns Services ing.” Pioneer Investment statutory if its definition and we insert ever” 380, 388, Associates, 113 S.Ct. 507 U.S. wick language of 1346 in the definitional (1993) (internal 1489, 1495, 123 L.Ed.2d (Wire Fraud), is the relevant section which omitted). As the quotation marks Brumley, here in the statute would involved is, course, no “There has stated: Court as follows: read purpose of a persuasive more evidence individual, [any corpora- person, WHO legisla than the words statute firm, association, tion, company, partner- expression to its give undertook ture society joint company ship, stock Contractors, v. Oceanic wishes.” Griffin who], having intending to de- devised 3245, 3250, Inc., 571, 102 S.Ct. U.S. deprive [to scheme or artifice vise (internal (1982) quotation 73 L.Ed.2d 973 intangible right of honest another clear, omitted). language If the marks added) (emphasis ] services end.” United inquiry should then “the transmits or causes to be CONDUCT Enterprises, Pair 489 U.S. States v. Ron wire, radio or transmitted means L.Ed.2d 109 S.Ct. in interstate or television communication (1989). foreign commerce any signs, signals, pic- question writings, is one sen The in WHAT statute tures or sounds length: tence chapter, purposes purpose executing this the term the of For the of MOTIVE for artifice; to defraud” includes such scheme or etc. “scheme or artifice deprive another of to scheme artifice to question The critical we have answer is: services. intangible of honest the pronoun the “anoth- To whom or what does § is chapter referred to 1346. U.S.C. “another” is not de- refer? The word er” Chapter 63 Title 18 entitled “Mail Fraud” of anywhere in Code. fined the United States or artifice to defraud” and the term “scheme says that the first and most fre- Webster’s 1341, Mail appears in sections: four Section pronoun as a is “one quent use of “another” Fraud; Names or Fictitious Section more; grammari- But additional one.”4 Addresses; Wire, Section Fraud the “another” when tell us that word ans 1SH, Television; and Bank Radio or Section pronoun pronoun is an indefinite used as a pronoun that the It should be noted Fraud. meaning its specific no but draws which has operative the word used the “whoever” is in which it is used. meaning from the context beginning of each of these sections. Section made, therefore, logical argument could be A I 1 of Title of the United States Code relat pronoun incorporated “another” as that the construction, ing contains the rules of to § § have into 1343 would the same following definition: are meaning pronoun as “whoever.” We the any however, of of determining meaning reluctant, In the Act this issue on to decide indicates oth- Congress, stacking pronoun unless the context on of one another the basis (no intended) lan- pun erwise— that the and conclude sufficiently on its corpora- § is not clear “person” guage of 1346 and “whoever” include firms, associations, look at tions, so as to eliminate the need companies, part- face passage history of of societies, joint compa- legislative the nerships, stock the individuals; nies, § .... 1346. as aswell House, 1992. Random Collegiate Dictionary, Webster's Drug finally passed by

LEGISLATIVE HISTORY was both the Bill House and the Senate. The text of what may that the word Recognizing “another” § any now 1346 was never included bill sufficiently ambiguous justify to a review be Representatives filed either House the of history passage legislative the the or the Senate and as a result the text of light § turn to that task to see what we any § 1346 never was referred to committee history might shed on the issue “to that Senate, of either the House the was never pronoun the whom or what does ‘another’ subject report the committee from task, undertaking In refer?” we have either the House or the Senate and (1) kept square in our minds the admonition subject report- never the floor debate Supreme McNally the “if Court that Congressional ined Record. There are further, go speak it desires to must only history of legislative pertinent two items (2) clearly than more it has” and the fact that actually passed. to text 1346 as Brumley very involves case federal First, there are remarks on the floor of the government “setting standards disclosure by Representative Conyers House entered good government for local and state regarding various items in the Omnibus Supreme officials” which the Court Drug including Bill the section of that bill McNally recognized requiring as “clear and which would add a new Title 18. language.” McNally, definite Su describing After Court Bass, decision preme Court cited v. United States McNally prior and its effect on (1971), various U.S. 92 S.Ct. L.Ed.2d 488 opinions, Representative federal circuit court policies underlying states two Conyers stated: construing task of passed criminal statutes by Congress, as follows: This amendment restores the mail fraud provision given provision

A fair that warning should where was be- be language McNally world in fore the the common world decision. The amend- applies will ment provi- what law also the wire fraud understand of intends to precludes sion passed. McNally do if a certain line is To make the result provision. warning regard with possible fair so far as line should clear.... The amendment adds a new section to principle supporting There is a second to- 18 63 that U.S.C. defines the term “scheme day’s Congress conveys result: Unless its or to artifice defraud to include a scheme purpose clearly, will it not be to deemed artifice to of defraud another the intan- significantly changed gible have Thus, the of right federal- honest services.” it is state necessary balance.... longer no to determine whether or not the scheme artifice to emphasized only As this defraud court last term money property. involved 808, This amend- Rewis v. [401 United States U.S. 91 1056, ment (1971) merely is intended ], to overturn the S.Ct. will L.Ed.2d 493 we McNally change decision. No other quick not the Congress be to assume that has law is intended. significant meant to effect change a in the sensitive relation between federal and H11, Cong.Rec. (daily 21, 108-01 ed. Oct. jurisdiction. traditionally state criminal 1988). areas, legislation sensitive such as affect Second, passage after the of the Omnibus ing balance, requirement the federal the of Drug Bill, Judiciary the Senate Committee clear statement legisla assures that the prepared Congressional and entered into the faced, ture has fact intended report regarding provi- Record all of the issue, bring into the in critical matters Anti-Drug sions in the Abuse Act of judicial volved in the decision. jurisdiction which within were the of the 348-49, (footnotes at Id. at 522-23 S.Ct. Judiciary purpose Senate Committee for the omitted). and cited cases detailing “Congress’ enacting of intent specific The text what provisions.” has become 18 these Regarding the text of § 1346, U.S.C. 1346 was inserted in the report § Omnibus what is now U.S.C. this Drug very day Bill on the that the Omnibus states as follows: provision mail for Mail section “restores the fraud Intangible Rights Section McNally provision was before the where that and Wire Fraud. is intended “to reinstate all decision” or decision of overturns the This section law mail pre-McNally pertaining the case the in which McNally v. United States change.” and wire fraud statutes without held that the mail wire Supreme Court Particularly in the statute case a criminal protect property but not fraud statutes amendment, Supreme previously the has held which Court intangible rights. the Under person’s protect will not or reach conduct which those statutes does extend to services of intangible right criminal, to the honest may the Congress want to make another, including right public to the Congress the that burden is on to amend officials. the honest services (i) speaks clearly that “it statute so more pre-McNal- is to reinstate all the intent (ii) (McNally); “gives than it has” fair warn- the mail and wire ly pertaining law case language the ing to the world that common change. fraud statutes without will that a crime will be world understand” (Bass); 10, passed, if a line is S17,360-02 committed certain Cong.Rec. (daily ed. Nov. (iii) 1988).5 “the in the area of sensitive relation jurisdic- federal and state criminal between legislative items of We find these tion,” language a “clear state- the makes First, history unpersuasive for two reasons. legislature that has ment” which “assures foremost, Supreme has never Court ... in- in fact faced the critical matters significance to con great deal of attributed (Bass). that one We conclude volved” legis temporaneous sponsor remarks of accomplished by pas- sentence addition Safety lation. Consumer Product Commis sage not meet the 18 U.S.C. does Inc., Sylvania, 447 U.S. sion v. GTE required by Court insofar test 2051, 2061, 64 L.Ed.2d 766 100 S.Ct. by the charged to criminal as the conduct Brown, (1980); Chrysler Corp. v. U.S. case, of a government i.e. conduct 1705, 1722, 60 L.Ed.2d S.Ct. alleged deprivation official to constitute (1979).6 state Similarly, post-enactment state public’s to honest services not congressional of a committee are ments government. Sylvania, good weight. GTE entitled much Inc., 2061; supra, at 100 S.Ct. Wein regard is conclusion in this bolstered Our Rossi, 25, 33-36, 102 berger S.Ct. v. U.S. history show legislative which does (1982). 1510, 1517-18, 71 L.Ed.2d Sec passed Congress same which ond, principle know no of constitutional we had it at least new 28 U.S.C. before contemplates law spoke expressly to the other bills which two overrule, by simple legislative can fiat over subject public which of conduct of officials turn, nullify render ineffective a decision or gov- public right good the to the of defraud Any process of the Court. 3050, of these was H.R. ernment. first separation of would be a serious breach the Sess., 29, 1987, July Cong., 1st 100th filed powers in of doctrine inherent our Constitu provided a for the addition of new which any per Consequently, give tion. do not we Chapter 63 of Title 18 of the section portions Repre both suasive effect to the would read as Code which United States Conyers’ the sentative statement and Senate follows; this Judiciary report Committee that new Moohr, “including the In- right Szott Mail Fraud and phrase the Geraldine 5. We read the public public to the services of officials” tangible Rights honest to Someone Watch Over Doctrine: thinking. Surely report pure as wishful 153, (1994). this Us, Harv.J.Leg. 169 Fur- n. 69 Judiciary knew the staff of the Senate Committee thermore, Representative Conyer’s that we note rejected by 2 of S. was the that Section explain say nothing to the substitution remarks Representatives; see discussion of House of our say "organization;" noth- and of "another" < S. 2973 hereinafter. state” ing or of a about a "state” "subdivision right good, intangible being deprived to of "an Conyer's Representative re- 6. In the case of service;” dubious, see our discussion marks, faithful and honest weight affording them as against drug S. hereinafter. he the omnibus bill. voted final Definition of Defraud for concurred in 1346. those amendments later on Oc- Section 22,1988. tober Certain Sections. 1343, As used in Sections and the Because of the direct of S. relevance defrauding includes the

term “defraud” text ultimately passed the of what was as politic— a body the citizens of 1346, we append copy U.S.C. a of that conscientious, right 1. of their to the opinion point bill as addendum to this faithful, loyal, disinterested and unbi- out that bill (pages Section 1-6 of addendum) performance by of official ased duties would have created a new Section thereof; Corruption” public official 225 entitled “Public be insert- Chapter ed Title 18 of the United 2. of their to have the (a) States Code which makes criminal: de- honestly, impartially, business conducted priving defrauding the inhabitants of a bias, bribery, corruption, free from dis- political or a state subdivision of a state of deceit, honesty, official misconduct and employee honest services an official or fraud. subdivision; (b) depriv- of such state or This bill was referred to the Commit- House defrauding ing or the inhabitants of state Judiciary tee on the but was never further political subdivision of a state of a fair and upon. acted impartially process conducted election Second, comprehensive the most vehicle runoffs, primary, special general election. sought change which the On fairly its face Section of S. 2793 ais McNally decision a manner sufficient to comprehensive, attempt articulate and clear McNally satisfy the tests was Senate Bill to define criminal which conduct would satis- (S. 2793), “Anti-Corruption titled the fy requirements McNally 1988,” Act of which was introduced the Congress speak clearly “more than it has” 7,1988, September Senate on referred and, relations, in the area of federal/state Committee, Judiciary reported favorably by Congress clearly express its intention to report, passed that committee without a affect such relations. If Section of S. 2793 later on October Senate 1988. adopted by Represen- had been the House of This bill then was sent the House of tatives, charged we would not now with Representatives was where it referred to the determining meaning of the statute. Judiciary House Committee on October Section of S. entitled “White Collar Concurrently passage by with its Crime,” contemplates of a the addition new Senate, designated by S. 2793 was a unani- § 1346 entitled “Scheme or Artifice to De- agreement of mous consent the Senate as Chapter fraud” would be added to a large one of number of amendments to of Title 18 of the United States Code. It is joint “comprise leadership package” apparent that pro- Section 3 of S. 2793 is a which'would as be attached amendments to genitor in respects of some the text of 18 Drug H.R. Initiative ofAct ultimately adopted U.S.C. 1346 which was Omnibus, which was then before the Senate Change “organi- both Houses. the word House., having passed by earlier been zation” to “another” put period after (with included) H.R. 5210 S. 2793 was then you words “honest services” and would passed by the Senate and sent back to the passed. have the text what ultimately 22, 1988, House. On October the House of report legislative There is no in history the Representatives reconsidered H.R. 5210 with explaining why of Representatives the House package leadership the of amendments at- accept to declined the full text of S. 2793 as and tached the Senate made various part Anti-Drug of the omnibus thereto, Act of passed amendments and then the (H.R. 5210). However, legislative history the of revised bill. One the amendments made following does indicate the facts: by Representatives House the was to de- text companion lete the of S. 2978 and substitute there- A. No bill to S. 2793 was language appears for the which now codified Representa- introduced in the House of as 18 U.S.C. 1346. H.R. 5210 as then either tives before after the time when amended was back to sent the Senate who S. 2793 was introduced the Senate. Ac- Judiciary But persons. not mean individual the the House does cordingly, the earliest for- possibly given inquiry have to our is question could critical here wheth- Committee to the of S. 2793 making change mal content simply by consideration er one word this day in the window four have been would accomplish House intended to the same the by passage of S. 2793 the Senate following accomplished would if results that have been Judiciary the Com- and to House referral adopted. 2 of S. 2793 had also been Section final consider- October and mittee on Simply pose question We think not. to the is Drug Bill in the the Omnibus ation of Representa- it. If the to answer House 22,1988. House on October truly agreed with that “de- tives the Senate only previously pending bill B. The political priving the of a state or inhabitants during Representatives the the House of a state subdivision of of the honest services creating a Congress which dealt with 100th employee of an official or of such state or define term “defraud- new 1346 to the subdivision” should become a federal crime (1341) ing” in the mail fraud and as used made of when use was the mails interstate (1343) H.R. 3050 wire fraud statutes was wire, communications, radio television opinion. The to earlier referred comprehensive clearest and then the most any legislative does not indicate record (and satisfy way to do that the by the on hearings held House Committee adopt McNally) tests in be to Court’s would Judiciary H.R. and likewise the on entirety of Section of S. The legislative no indication there is clearly Representatives refused House Judiciary the House Commit- record that therefore, are not prepared, do that. We any report on tee this bill. issued changes House say that the intended that the facts we that the House From these conclude adoption made to Section 3 of S. 2793 and the clearly join Representatives refused accomplish changed would of that section comprehensive in the definition Senate through they back door had what decided involving “public corruption” as set crime through do the front door.7 not to forth in of S. 2793. Section legislative history, we Given this draw history not does legislative likewise conclusions: these express report or as to reveal statement why Representatives opted to House of 1. Both the and the Senate cer- House change “organization” to the word the word clearly tainly “speak how knew period put after the words “another” definitively” subject depriv- fraud on the portion in the “honest services” Section political subdi- ing citizens of state or Representa- of S. which the House of good intangible right of vision of the tives as Section 7603 of the Omnibus retained House government, but the refused honest “organization” is de- Crime Bill. The word so; and to do meaning Title “a fined in 18 of 18 as Section containing 2. None bills person than an individual.” The sub- other majority provisions vote express received pronoun “another” for the stitution of Instead, Congress. houses of what of both en- “organization” noun would work some Congress victims, by passed both houses of largement potential of the class minute, compromise “organization” by definition was a last “bobtailed” since word proposals adopted Representa that the these Senate were 7. Our conclusion House of view, Representatives. there In our during 100th in 1988 con House of tives Congresses pass over a number of that sciously 2 of S. 2793 is clear evidence refused Section Representatives agree subsequent not with Con House of does the fact corroborated gresses corruption” "public passed as to the need in its the Senate the Senate and included Likewise, legislation. the continued ef provisions almost we read of various crime bills version pass provi provisions the Senate to introduce the same as the of Section forts verbatim 12,430-32 dealing corruption” Cong.Rec. (daily expressly "public with of S. S sions 2793. See 3, 1989) (statement Biden); least has at some ed. Sen. as an indication the Senate Oct. 21, 1990) § (daily May efficacy 28 U.S.C. 1346 as Cong.Rec. (statement doubts as to S6638-39 ed. Biden); Cong.Rec. accomplish passed in 1988 to the criminalization Sen. 9, pub 1991); public depriving the July Cong.Rec. (daily of "conduct of officials S9382-83 ed. 1992). good government.” (daily May -, honest service ed. None lic of S.6911-12 subject are, therefore, had never been the which of hear- dicta. Two Fifth Circuit house. ings in either examples cases that are of this commen- tary Little, are: United v. States 889 F.2d Therefore, wording we conclude that the 1367, (5th Cir.1989); and United 1346, (perhaps § on its face but for sure (5th Holley, 902, States v. 23 F.3d light in interpreted legislative when of the Cir.1994). history), simply change does not effect a in portion McNally opinion of the which D.There are two circuit court cases dealing occurring held that the mail fraud statute with conduct does not after the passage § reach of 1346 involving “schemes defraud citizens of their conduct of intangible rights impartial gov- to honest and official. The first is United States (4th Cir.1995). Bryan, ernment.” v. 58 F.3d 933 principal Bryan issue was whether an SUBSEQUENT CASE LAW § indictment by under 1341 as amended (to § deprive another intangi- of the hopes finding In prior some review services) ble required of honest proof legislative history by courts, of this other we underlying violation of some predicate diligently have Supreme searched all Court law, regulation. statute or holding § and Circuit cases in Court 1346 is the mail fraud statute contains predi- no mentioned. We find: requirement, cate violation the Fourth Cir- only A. There is one Court cuit pre-McNally relied on its case law to § ease which contains a mention of effect, 940, and in page footnote Virginia University and that is West Hos concluded that: 83, pitals, Casey, v. Inc. 499 U.S. 111 S.Ct. (1991). 1138, 113 appears [I]t L.Ed.2d 68 that McNally That mention has since page by occurs at been through the dissent of nullified Jus statute Con- gress’ tice Stevens where he enactment of McNally § cites the 18 U.S.C. 1346. points Dischner, “quickly decision and out that it United States v. 974 F.2d 1502 (9th Cir.1992); Congress.” corrected the 100th see also Justice United States v. DeFries, Stevens, dissent, majori (D.C.Cir.1995); his accuses 43 F.3d 707 Thomas, ty of excessive literalism and United States v. cites McNal 32 F.3d 418 (9th ly Cir.1994); § example 1346 as an thereof. Holley, States v. (5th Cir.1994); 23 F.3d 902 see also West many B. are There circuit court cases Virginia University Hospitals, Inc. § v. which hold that given cannot be Casey, 83, 114, U.S. 111 S.Ct. effect, retroactive including a case (1991) (Stevens, J., 113 L.Ed.2d 68 from the Fifth Circuit. See United States dissenting). (5th Loney, Cir.1992). v. 959 F.2d We mention this “no retroactive effect” pointed earlier, As out the comment about because the counts of the indictment passage 1346 in the Fifth Circuit Brumley contain allegations numerous Holley ease of pure dicta. The same is go “misconduct” which back in time some true for the other circuit court cases cited years six or seven before the effective date by the Fourth in Bryan, Circuit i.e. Dis §of 1346 which is November 1988. chner, 16; DeFries, 974 F.2d at n. Specifically, count, count conspiracy 1; Thomas, F.3d at 709 n. 32 F.3d at conspiracy states that the started “from on think We it unusual that the Fourth 2-4, about a in 1987” date and counts rely, Circuit would authority, as on the counts, allege wire fraud that the wire comment Justice Stevens in his dissent began fraud “on or about a date 1982.” Also, Casey. we note the use of the

C. quite There are a few circuit court term “nullified statute” which the cases which have commented on the effect Fourth Bryan Circuit in quotes favorably passage but these com- from the Ninth Circuit decision in Dis ments have occurred in cases where the chner and which for reasons discussed ear alleged criminal conduct occurred before recognize lier we decline to as a viable the passage §of 1346 and these theory. reasons, comments For these we do not view

1441 Waymer opinion Bryan as in cited at the end of foot in court the Circuit Fourth § authority. proposition for the persuasive note 3 was intended to restore the mail fraud statute of dealing conduct case with The second e-McNally terribly pr position, its is a § 1346 is public passage after of a official precedent proposition for Waymer, F.3d 564 weak v. United States (i) (11th Cir.1995). case, Waymer, In the defen these reasons: neither of Atlanta member of the in who was an elected dants Martinez were state officials or (ii) Education, agree- into an entered employees;

Board of the criminal conduct state Allen, provided who sanitation Supreme ment with the in Martinez occurred before At- all of the pest and, therefore, control services to McNally in Court decision schools, Waymer (iii) which 1346; lanta under passage §of the the court before all a 15% commission on would receive recognized that expressly in Martinez its system. April In with the school contracts commentary § 1346 passage about the of 1993, charged superseding indictment “not determinative of the issue before in 24 counts mail fraud Waymer (iv) with of therefore, and, dicta; only the us” §§ U.S.C. 1341 and 1346 violation of 18 legislative history upon of relied evidence money laundering. The counts of and 11 in the state the court Martinez was (1) alleged a scheme to mail fraud counts Representative Conyers ment of referred Way- of citizens Atlanta of defraud the opinion. in this like to earlier Just the (2) scheme to honest services and mer’s Cir Bryan, Fourth Circuit the Eleventh property. money defraud Allen Waymer simply has relied on con- cuit jury guilty not the Waymer pleaded but clusionary dicta from other Circuit Court guilty verdicts on most returned none of which made effort opinions, based the scheme mail fraud counts on language to evaluate the whatsoever Way- the citizens Atlanta of defraud process by peculiar § 1346 itself nor the the issues honest services. One of mer’s stand, adopted. § 1346 was We by Waymer appeal on was “whether raised comfortably and with some confidence as unconstitutionally vague § or over correctness, analysis of on the the to its contention, responding In to this broad.” history statutory language legislative Court stated: Circuit have set which we forth earlier. to the “honest services amendment” conclusion, lan again In note we statute, 1346, al mail fraud U.S.C.A. in this ease which guage of the indictment a mail predicate States to lows the United alleges: or artifice prosecution on “scheme fraud (a) (conspiracy) As to Count intangible deprive another services.”[FN3] of honest and artifice defraud scheme [T]o Texas, including 1988, citizens of State of [FN3] enacted section 1346, overriding Court’s decision Acci- of the Texas Industrial members States, McNally v. U.S. (and successor, dent Board it (1987). McNally S.Ct. 97 L.Ed.2d 292 T.W.C.C.), agency of the State of that the mail did not had held fraud statute Texas, intangible receiving from schemes to defraud citizens of their criminalize rights government. to honest Id. at services; right to honest Congress' enacting purpose S.Ct. at 2881. 2-4, (wire (b) fraud) Counts to restore fraud stat- section 1346 was the mail pre-McNally position by allowing ute mail to its willfully de- [Hjaving intentionally and predicated depriva- convictions to be on fraud the scheme and artifice described vised States v. Mar- tions of honest services. United tinez, (3rd Cir.1990). 905 F.2d through and B-l paragraphs A-l periods through cover time Waymer, [which F.3d at 568. United States v. passage to de- prior 1346] col- to the respect With for the views of our Circuit, deprive citizens do not fraud and leagues on the Eleventh we Texas, including Industrial analysis passage State find their the effect (the Board successor persuasive. Accident and its §of The case of United Martinez, Commis- Compensation which the Texas Workers States v. F.2d sion), agency, intangible a state including members of the Texas Industrial faithful, (and good, and successor, honest ser- Accident Board its TWCC), vice. agency Texas, an of the State of receiving from intangible right to honest allegation any no There is kind as to 1341, §§ services” and cites 1343 and 1346. interest, property concept other than the Since we have concluded opin- earlier this faithful, intangible right good, “the and ion amendatory language § that the service,” allegation honest and there is no does not reach conduct of officials in except “the citizens of the State Texas” depriving a state or the citizens thereof of agency” and “a as the state entities from services, honest conspiracy we hold that the deprived. whom the honest services were count is defective for the same reasons. question We do not reach the of whether § 1346 is constitutional. If and when Con-

gress clearly says expressly they and want to MONEY LAUNDERING COUNTS put government in the federal the business of “setting Brumley good standards disclosure and was convicted of three government officials,” money for local and counts of laundering. money state The question statute, power laundering of whether has 1956, § 18 U.S.C. re quires do that would have to be faced. As we a financial transaction involving the McNally, proceeds read Court has left specified of a activity. unlawful question unanswered. Since we read “specified The term activity” unlawful is de § it reaching 1346 as now exists as not 1956(c)(7)(A) § fined in 18 U.S.C. to include government officials, conduct state we racketeering offense listed 18 U.S.C. 1961(1). need not address constitutionality § issue One of the racketeering offenses posed which would be when and if Congress 1961(1) § identified in 18 U.S.C. is wire fraud speaks expressly proscribe such conduct. under 18 U.S.C. 1343. Each of money laundering against Brumley counts makes a CONSPIRACY COUNT cross-reference to the wire fraud counts as “specified activity5’ unlawful and identi Brumley was convicted of one count of identically fies the same wire transfers conspiracy to commit mail fraud and wire named the wire fraud counts as the trans fraud. The essential elements of conspiracy producing “proceeds actions speci of a fraud, to commit mail fraud and wire fied activity”. unlawful Since we have earlier 371, (1) agreement U.S.C. are: an between opinion concluded language that the (2) persons; two or more to commit inter § 1346 does not extend the wire fraud stat fraud; (3) state mail fraud or wire ute to conduct of state depriving officials in overt act committed one of the conspira the state or the citizens thereof honest ser tors in conspiracy. furtherance of the Unit good vices government, we hold for the Hatch, (5th ed v. States 926 F.2d same money reasons that laundering Cir.), denied, cert. 500 U.S. 111 S.Ct. counts are defective. (1991); L.Ed.2d United States (5th Massey, v. Cir.1987); 827 F.2d Gordon,

and United v. States 780 F.2d SENTENCING (5th Cir.1986). “Conspiracy to commit particular substantive offense cannot exist Brumley raises two issues related to sen- degree without at least the of criminal tencing intent only fraud, concern the wire necessary for the substantive money offense.” Mas laundering conspiracy to commit sey, 827 (quoting Ingram F.2d v. mail fraud and wire fraud counts. Since we States, 672, 678, 360 U.S. 79 S.Ct. have Brumley’s reversed conviction as to 1314, 1319, (1959)). 3 L.Ed.2d 1503 counts, those we need not Brumley’s consider conspiracy count in this case identically uses sentencing Brumley issues. appeal did not language same as used the substantive his conviction on the false statements to a counts, wire fraud i.e. “to defraud scheme financial institution sentencing counts nor his Texas, artifice the citizens of the State of under those counts. entry of an of dismissal as court order

CONCLUSION Brumley’s those counts. conviction and sen- herein, Brumley’s For stated the reasons tence of months for the two counts of conspiracy, 1-7 for wire counts convictions on making false statements to a financial institu- laundering money VACATED fraud are district is AFFIRMED. REMANDED to the tion case is 100th CONGRESS q 0*7f>0 d»£i|«7a corruption. punid» St*te*Code of United

To troendUtlo 16 the THE UNITED STATES OF IN THE SENATE Samuga 7), day, J9B8 BxPTkmbicb (legislative Simon, Metssnhavm, (for Mr. Mr. Mr- McConnell, h'muelt, Mr. Bi&bh Mr. bill; DbConcini) following whichwas TkubmOhjj, Mr. introduced Judiciary on the Committee roadtirio»nod roierred the BILL A Code punish

To United States amend title corruption, Representa- Re it entwied the.Senate House assembled,

2 Uves United Slates America t, SECTION SHORT TITLE. Act o! This “Anti*Corruption Act as the cited may 1988”, 6 SEC. OFFENSE. Code, is 11 of title States amended Chapter new at the section: adding following end thereof Corruption

1 “8 Public 22S. in subsection dosoribod “(a) circumstanoe Whoever, in a defraud, defrauds, (c), deprive or attempts deprives artifice, State or pollti- inhabitants of a scheme anof honest services official a State oal subdivision of subdivision, bo finod under shall 6 or State of such employee (or, ten if the title, moro than net years or imprisoned or com 8 artifice promote scheme defendant intended 8 an offense under laws duct constituting imprison- 10 a for whioh maximum term States or State shall greater imprisoned as re- 11 ten years, than ment is 12 law such or for offense by quired punishing or authorized lose), or 18 not moro -whlohovDris both. than twenty years, 14 “(b) Whoever, in circumstance subsection described defraud, (c), or defrauds, 15 deprive or attempts or deprives artifice, 16 of Stato or politi- inhabitants scheme or any fair 17 cci conducted of a State impartially subdivision run-off, or special, general 18 primary, process election in any election, or 18 tabulation procurement, casting, through false, fictitious, 20 forms whioh ballots voter are or registration fraudulent, 21 the laws the State under illegal or false, or held, fictitious through any filing 22 or election bo filed under State law regard- fraudulent report required titlo bo under this or fined shall ing election campaign, than ten or not more both. years, for imprisoned (a) and in subsections “(c) referred The circumstances (b) are that— "(1) concealing executing or purpose of for the so, artifice- or to do or attempting such scheme actor— fleo "(A) authorised io or post places any matter, matter thing mail depository e dolivered ha Postal sent whatever therefrom, Service, or receives takes to be deliv- causes or knowingly matter thing, thereon, or direction m&il to the ered according delivered to it is be directed at which placo addressed, 13 is perBon whom such it any to matter or thing; 14 be

16 “(B) transmitted or transmits cause* 16 wire, radio, or moans of television communication 17 or commerce foreign any writings, interstate IB sounds; signs, pictures, or signals, 19 “(0) be or causes to transported transports person or or induces any any thing, person in, travel in or be or interstate for- transported commerce; or eign “(D) interstate uses foreign or facility any commerce; or "(2) manner or scheme artifice affects if concealed so affoot, or would or executed or degree, commerce. interstate or foreign defrauds, or “(d) or attempts deprives Whoover de- defraud, artifice, or scheme inhabitants of prive ft or a public or States honest services official h&8 who bean selected bo official shall person or nut 8 fined under this title for moro imprisoned than ten if tor, intended that defendant scheme arti* years an offense under the fice oonduct constituting promote laws 11 of for the maximum a State term the United States 12 of shall be is ten than imprisonment impris* greater years, 18 onod as law authorized by the required punishing 14 offense, years, mere than not whichever twenty less), 15 or both. “(e)

16 nr official, official, or being Whoever public 17 offioial, person has who been seleoted dirootly demotes, threatens, 18 or hor- suspends, indirectly, discharges, asseB, or, manner, discriminates against any any employee or official or of the United States State or subdi- political any State, so, vision or to do such ordor to attempts oarry or 22 out to conceal artifice scheme or deBoribed in this any section, this title shall under subjeot be fined imprison- ment five or both. up years “(0(D offioial Staten oí employee Any State State who is dis- any of such subdivision political threatened, harassed, demoted, charged, suspended,

4 other manner acts because lawful against discriminated 5 done oí a result as violation subsection employee (e) or because of actions on behalf of himself employee 7 or others in of a furtherance under this section prosecution for, of, for, (including investigation initiation or as* testimony action, sistanee in a prosecution) such inmay obtain civil 10 all relief necessary to make individual whole. Such relief 11 Shall include reinstatement with the samo status seniority 12 such individual would have discrimination, hod but for tho 18 two times the of back on amount interest the back pay, pay, 14 and compensation for as a special sustained damages 15 result discrimination, ren- costs and including litigation 16 sonable feos. attorney's “(2) An it individual not if eligible sued»relief

18 individual violation participated of this with section respect relief which such would be awarded. 20 "(g) purposes For this section— "(1) 21 term 'State' means a the United State 22 States, Columbia, tho Rico, Dietriot Puerto and any 28 other or possession States; territory United 24 "(2) the term a means 'agency' subdivision of the 2ü (executive, legislative, judicial, or other branch ef gov-

1449 6 department, independent estab* eminent, including

1 board, administration, commission, authority, 2 Hshmont. ee- other bureau, logal entity or & corporation

ft and or to control 4 government tablishod subject oí a governmental the execution 5 governments 6 program; intergovernmental "(3) who ‘person official’ 'public

7 terms to be a have official' public selected has been title; this torraB set forth section meaning official', who has se- ‘person been ’official’, 'public official’ shall also include ll lected be authority; color official person acting under who has H(4) includes r ‘official1 person the term on official who to be or appointed been nominated will so he or she informed that has been officially official of an and Inoludes nominated appointed, tribal Indian government.". 18 SEC. 8. CRIME. WHITE COLLAR States Code 18 of of Title Chapter a new section as follows:

20 amended adding "§ to defraud artifice Scheme 'scheme or chapter, “For term purposes deprive 2ft to artifice to a scheme or artifice includes defraud’ intangible honest services organization of the receive, te for attempted or 25 which received the defendant or in which defendant oí value or another anything pBrsdh, w to loss harm the defendant intended contemplated to to organization.”. 4.

SEC. AMENDMENTS. TECHNICALANDCONFORMING (a) Table of Vt for table of sections Sections. —The Code, is title amended United States chapter b.v adding following end item: at thereof “226, Corruption.''. Public (b) Table of table of sections Sections. —The Code, United is States amended by

OS chapter 63 of title Riding the end thereof the following item: Or "1818. Arilfir* To Sch«m*

H » n * (c) 1961(1) RICO..—Section title United States

Code, is amended ''section 225 (relating inserting public after corruption),'' (relating "section sports bribery),''. Interruption (d) of Communications. —Section

o 25l8(l)(c) Code, ^4 O of title United amended States “seotion t- inserting after (relating corruption),” *H a) w-4 contest*),". "section 224 (bribery sporting MCD SBC. INTERSTATECOMMERCE. (sl O ifi, of title GhENBBAL.—Section

Oí Code, is States "transmits amended causes to striting radio, transmitted wire, by meant» or television commu- to to nication commerce, in interstate or foreign writings, to * signe, signals, pictures, or sounds" “uses inserting of interstate foreign facility used causee 2 commerce’’. Ampndmkntb.(1) CoNfOHMLfj (b> — The heading is Code, amended United States of title section 1848 wire, radio, and inserting or television*’ “Fraud striking of interstate commerce". use of facility “Fraud by (2) 68 of title for chapter The chapter analysis Code, analysis amended by striking United States the following; section inserting

“18*8, fBclitty of infentue comnwoe"- Fmiá mb WOOD, Jr., HARLINGTON Circuit luted fraudulent schemes which are de- dissenting. Judge, signed deprive non-proprie- another of the tary right of honest services. majority Judge DeMoss for the has writ- thoughtful comprehensive very a ten charges Brumley The indictment with a statutory interpretation analysis prob- continuing precedes offense that both arising in this case. I view it lem as a close § follows the effective date of 1346. While call, revisiting I after this case cannot but may the indictment technically therefore be majority. come the same conclusion as the flawed, previously this circuit has held that a Therefore, respectfully I dissent. similar error was not sufficient to invalidate a legislative the —albeit In view of limited — Fargo conviction. See United v. States Wells meaning that history I believe (5th Corp., Armored Serv. 587 F.2d given should be term “another” broader Cir.1979) (holding that the indictment’s fail- interpretation adopted by than the one ure to delineate overt acts after the date majority. Representative The comment of question when the offense in was made a Conyers Judiciary and the Senate Committee felony pro- did not violate the Constitution’s report agreement. legislative are Both laws). against post hibition ex facto expressions explain § that 1346was intended McNally. Congress unques- to “overturn” sufficiently This short dissent I believe right tionably change has the the statutes expresses my general problem. view the It significant which it has enacted. is also McNally, In Court stated: expressed legislative no there are com- § read scope “[W]e 1341 as limited in to the contrary. Congress perhaps ments to the protection property rights. Congress If precise, more could have been but what Con- further, go desires to speak it must more gress considering did I view as sufficient clearly than it has.” 483 U.S. at language of both the the statute itself and By S.Ct. at language the Su- accompanying explanations. In preme Congress Court advised it could do event, majority I do not believe the succeeds exactly view, what it has now done. advancing analysis by its own restrictive therefore, of what merely discounting legislative both did and history. said I would not frustrate its latest efforts. § By enacting Congress expressly passed It 1346 which protec- extended the extended the reach of the wire fraud statute tion of the beyond relevant fraud statute deprive “include[ ] a scheme or artifice to tangible intangible limits of property intangible right another of the of honest ser- rights expressly intangible include “the agree I majority vices.” with the that the right services,” honest given term which can ordinary “another” should be its important meaning usage property right. and that the most be as as a common pronoun “another” as is “an additional one” I would affirm the district court in all my ordinary reading “one more.” Under respects. 1346, however, §of easily “another” can read to refer to a state citizen where the

perpetrator of the governmental fraud is a acting

official in his or capacity. her official

Therefore, light my less restrictive “another,”

reading I conclude that §by

as amended Brumley’s does reach

illegal I conduct. believe the Fourth and Bryan

Eleventh Circuits were correct in

Waymer I totally so would not discount those Through

decisions. this amendment Con-

gress protection extended the offered to in-

terstate wire prevent facilities order to

these being facilities from pol- burdened and

Case Details

Case Name: United States v. Michael Bryant Brumley

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 28, 1996

Citation: 79 F.3d 1430

Docket Number: 94-40560

Court Abbreviation: 5th Cir.