United States v. Nelson Italiano

HATCHETT, Before VANCE and *, Judges, Circuit and OWENS Chief Judge. District HATCHETT, Judge: Circuit appeal, In this criminal we are called upon to determine whether interpretation Court’s recent of the federal McNally v. United mail fraud statute in States, -, (1987) applicable slightly in a Holding different factual scenario. McNally applies, we vacate the conviction judgment. FACTS Appellant, Nelson A. Italiano worked for Suncoast, Coaxial Communications of the (Coaxial Communications), corpora- Inc. obtaining tion formed for the cable television franchise contract with the Tampa, city seeking Florida. to ob- franchise, city Tampa tain the Coaxial Communications decided to establish a presence by securing in the area franchises neighboring city Temple in the Terrace Hillsborough County. Although and in * Owens, Jr., sitting by designation. Honorable D. Chief U.S. Dis- Wilbur Georgia, Judge trict for the Middle District of with corporations rack- and five individuals lucrative, Communications’ Coaxial less extortion, of fraud, obstruction eteering, the establish- that believed management Act offenses Travel enhance several justice, franchises of these ment city bribery obtaining widespread the relating a of to company’s chances the Hillsborough County, Florida. The franchise. within Tampa of Italiano, charged appellant, with grand jury 1980, ap- Italiano spring of In the fraud in violation single of mail count a Hillsborough Bean, a F. Charles proached 18 U.S.C. § to commissioner, indicated County in- Communications Coaxial Bean that to dis- 10, 1985, Italiano moved July On television obtaining a cable the ground terested that on the miss the indictment own- that the Bean told Italiano franchise. to only intended statute “was mail fraud awas Communications Coaxial er of goal an as their have that reach schemes might antic- that Bean wealthy man and victims the loss suffered economic sup- if he amassing great wealth ipate good govern- right to intangible not an efforts Communication’s Coaxial ported 10, court, on December district ment.” The After franchise. television the cable obtain motion, along all with 1985, that denied fellow-commis- conversations having juryA found pending. were which others Bowmer, Jerry Curry Robert sioners charged in fraud, as of mail guilty Italiano were Curry Bowmer that learned Bean The district the indictment. Count IV Com- supporting Coaxial also committed confine- years to two him sentenced court the awarded to be efforts munication’s Attorney Gener- custody the ment in the franchise. al. three- 1980, margin of by a On June County Board Hillsborough

to-two, the ISSUE a grant voted County Commissioners is whether appeal Com- to Coaxial issue in this franchise The sole cable television Bean, denying Itali- County Commissioners court erred the district munications. on Com- the indictment for Coaxial voted to dismiss and Bowmer Curry, ano’s motion Da- the allege that munications; Platt it failed ground Commissioners that the deprived of Communications. against Coaxial state was county or vin voted Hillsborough scheme. alleged the July money by the On contract between ratified Commission Coaxial Commu- County and DISCUSSION vote. three-to-two identical by an nications Italiano, upon the relying awarding of the the time Between McNally pronouncement recent Court’s ratification, Itali- and its contract

franchise U.S.-, S.Ct. v. United $2,500 containing envelopes gave Bean ano the federal that 97 L.Ed.2d each On least two occasions. on at in cash implicated based not statute fraud mail money that occasion, told Bean Italiano citizenry to right of the intangible on McGillicuddy, principal Dennis was from district argues that good government, Communications. of Coaxial indict- dismissing the by not erred court did Communications Ultimately, Coaxial indictment that argues ment. Italiano for franchise television the cable not obtain mail fraud he violated charged that Communica- Tampa. Coaxial city of charge the state that statute, did not but franchise tions, having obtained prop- money any deprived county was franchise Hillsborough, sold county thereof. result erty as a the area. and left admits response, HISTORY depriva- charge a PROCEDURAL does indictment argues, how- It money property. tion jury grand federal May, is still bribery violation ever, a state forty- returned of Florida District Middle statute, mail under actionable twenty-five charging five count light McNally, if it is theory even in calculated the mail fraud statute. One deprive property. emerged its victim result of interpreta as a liberal tion of the mail fraud statute is the “intan

A. Indictment doctrine, gible rights doctrine.” This based theory on the that citizens have a grand set “A indictment must forth impartial government, honest and essential element of an offense in has his each resulting torically to stand.” order for a conviction served as a vehicle which the Outler, v. 659 F.2d 1306 government sought has mail fraud convic (11th Cir.1981) (citing Russell v. United See, against government tions officials. States, 749, 1038, 8 369 U.S. 82 S.Ct. Barta, e.g., United States v. Von 635 F.2d (1962)). L.Ed.2d 240 This rule serves a 999, 1005-06 (2d Cir.1980), denied, cert. 450 First, comports it twofold function. with 998, 1703, U.S. 101 S.Ct. 68 L.Ed.2d 199 requirement the sixth amendment that Keane, (1981); United States v. 522 F.2d informed of each criminal defendant “be denied, (7th Cir.1975), cert. 534 424 U.S. the nature and cause of the accusation.” 976, 1481, (1976); 96 S.Ct. 47 L.Ed.2d 746 Inclusion of the essential elements of the States, United States v. 761, 488 F.2d 766 provide in indictment will the offense denied, (8th Cir.1973), cert. 909, minimal nec- accused with the information 2605, (1974). 94 S.Ct. 41 L.Ed.2d 212 Second, satisfy requirement. essary to this explained by As the Sixth Circuit in case, to the facts of and more relevant Gray, United States v. (6th 790 F.2d 1290 that the fifth amendment to an nom., McNally Cir.1986), rev’d sub charged for defendants States, -, United 483 U.S. 107 S.Ct. only serious crimes is furthered where the 2875, (1987), 97 L.Ed.2d 292 these cases grand properly perform jury is able to its premised are underlying theory on an fact-finding function. As we stated in Out- public that a official acts as ‘trustee for ler, grand jury perform can its func- “[a] the citizens and the State ... and thus determining probable tion of and re- cause fiduciary owes the normal duties of a turning only a true bill if all elements of trustee, e.g., honesty loyalty’ in the offense are contained the indict- Outler, logic citizens and the State. The contin- ment.” 659 F.2d at 1310. cestui, that, public ues as the the mind, With this view in we review entitled to the faithful and disinterested Count in IV of the indictment which Itali government services of servants and em- charged ano is with mail fraud in violation ployees, public may and a official not of 18 1341.1 The essential U.S.C. ele § deprive public rights. the of its (1) prosecution ments of a mail fraud are Gray, (quoting 790 F.2d at 1294 scheme to defraud the use of the Mandel, 1347, (4th States 591 F.2d 1363 in mails execution or furtherance of that Cir.), part, relevant 602 F.2d 653 scheme. Pereira v. United 347 aff'd denied, (4th Cir.1979) (in banc), cert. 1, 8, 358, 362, U.S. 74 S.Ct. 98 L.Ed. 435 961, (1954); U.S. 100 S.Ct. 64 L.Ed.2d 236 Sawyer, United States v. F.2d (1980) (citation omitted)). denied, (11th Cir.1986), cert. 1501-02 — -, L.Ed.2d McNally vitality has emasculated (1987). McNally, intangible rights doctrine. public Supreme pronounce- Prior to the official of the Commonwealth Court’s McNally, Kentucky ment in several and another were indicted circuit courts of appeals engaging had affirmed mail fraud scheme where- convic- in a kickback official, expansive interpretations acting tions under on be- statute, executing promises, 1. The federal mail fraud 18 U.S.C. for the ... 1341, provides pertinent part: attempting so to do such scheme or artifice or Whoever, having used,] intending devised to de- the mails or causes them be [uses defraud, any $1,000 vise scheme or impris- artifice to or for shall be fined not more than obtaining money property by means of years, or both. oned not more than five pretenses, representations, false or fraudulent rights.” protection scope to the politi- commonwealth, his used half of -, S.Ct. at McNally, at insur- governmental to direct cal influence companies at 302. L.Ed.2d to insurance business ance fi- had undisclosed the defendants the mail fraud that Having determined convicted jury After interests. nancial protect not intended was statute conspir- fraud and on mail the defendants citizenry to have intangible right appeals af- the court acy counts and honest- perform their duties officials public convictions, defendants those firmed nothing that observed ly, the Court alleged ground on the appealed find jury to charge required the jury cognizable under was scheme kickback deprived of was the commonwealth statute.2 federal mail at-, 107 S.Ct. at McNally, property. McNally observed Neither, Court at 302. underly- history legislative charged sparse continued, Court original that the “indicates ing alleged section 1341 in the absence “that was statute fraud the mail behind impetus paid a have low- the Commonwealth to de- from schemes people the to protect secured better insurance” premium or er property.” money or their prive convict, them of jury “must find the that in order to -, at 107 S.Ct. 483 U.S. at McNally, of deprived was the Commonwealth that Furthermore, the 300. 2879, at 97 L.Ed.2d money spent.” how its was over control continued, v. United Durland 2882, Court -, 97 S.Ct. at at 107 McNally, 508, 306, 40 L.Ed. States, 16 S.Ct. 161 U.S. Rather, un- Court as the at 302. L.Ed.2d in which case (1896), [the] “the first 709 charge, it sufficient was jury the derstood phrase meaning the the construed Court had the defendants find that jury to for the defraud,’ held or artifice ‘any failing to dis- duty of fiduciary breached broadly interpreted is to be phrase the that interest, thereby de- conflicts their close concerned, are rights as insofar right to a of its priving the commonwealth had the statute that not indicate but did Hence, find- government. honest fair and McNally, reach.” extensive more the mail on jury instructions ing that 2879, at L.Ed.2d 97 at-, at for con- a conviction permitted count fraud ultimately concluded Thus, Court 300. the mail purview not within duct in statute than construe that “[r]ather the con- statute, reversed the Court fraud outer boundaries its that leaves a manner at at-, S.Ct. 107 McNally, victions.3 Federal involves ambiguous and at 303. 2882, 97 L.Ed.2d of disclo- standards setting in Government fatally case in this The indictment and state for local government good sure jury that same reason for the in flawed limited 1341 as officials, read section we property”); Unit (6th out States United 1290 Cir. Gray, F.2d 790 v. 2. Cir.1987) Cook, (7th States, 109 F.2d 833 McNally v. v. United ed States (reversing judgment 1986), nom. rev'd sub 2875, mail and part where -, L.Ed.2d 292 97 S.Ct. 107 U.S. 483 upon premised "de (1987). were fraud convictions wire rights” intangible body of frauding an official has Court McNally, the light In services”); United "loyal and faithful such for mail judgments of conviction vacated also fraud 621, (7th Gimbel, Cir. 626 F.2d 830 States v. rights intangible doctrine based on convic wire fraud 1987) (reversing and mail U.S.-, —States, S.Ct. 108 v. United Holzer alleged defendant indictment where tions vacating (1987), States United 18 L.Ed.2d 98 Treasury De deprive the a scheme devised Cir.1987) (7th Holzer, F.2d 304 v. 816 Reports and “Currency Transaction partment of -, - 107 v. United McMahan ”); Sig information' and truthful other ‘accurate (1987), vacating Unit S.Ct. Cir.1987) (9th Brown, F.2d (4th v. mond McMahan, Cir. F.2d States ed granted in favor summary judgment (affirming addition, courts of 1986). circuit various predicate acts of alleged where or wire fraud of defendant mail overturned also appeals have "failed action plaintiffs RICO the intan predicated on mail fraud were convictions gible Herron, defend See, e.g., States evidence that any plausible rights present doctrine. Cir.1987) (reversing any proper (5th [plaintiff] deprived F.2d 50 conduct ants’ jury not re where convictions money”). ty wire "defrauded defendants find that quired to McNally executing instructions in were infirm. Far And for the scheme, defendants, than our mere aforesaid more instructive statements James however, Gray E. McNally, Charles J. applying McNally, are the revela- Hunt, Jr., ‘Sonny’ others, Howard P. gained through comparison tions place placed post did and cause to be in a McNally and the indict- instructions deposit office or authorized for mail mat- III of ment in this case. Count the Italiano ter, things matters and to be sent and Italiano, alleges along Service, by the delivered Postal and did others, take and receive and cause to be taken knowingly willfully devised and in- and received therefrom such matters and tended to devise a scheme and artifice to things knowingly and did cause to be citizens of defraud the place delivered thereon and at the County, citizens of and the the State which it was directed to be delivered generally Florida of their addressed, to whom it was following: things. matters and conscientious, faithful, loyal, a. disinter- McNally, at-n. 107 S.Ct. at services, decisions, ested and unbiased 2878 n. 97 L.Ed.2d at 298-99 n. 4. performance actions and of official attempting distinguish this case duties of the Board of Commis- from McNally, argues sioners, Florida; Hillsborough County, prosecution having a mail fraud state brib- ery predicate aas is still viable in the to have the of the Board b. business aftermath of McNally. To buttress Commissioners, claim, upon para- relies Florida, County, and its affairs conduct- graph 2 of Count of the IY honestly impartially, ed and free from incorporates by paragraph reference deceit, craft, fraud, trickery, corruption, Paragraph fourteen of Count II.4 fourteen influence, dishonesty, undue conflict of alleges that: interest, unlawful obstruction and im- January, 14. in Between or about pairments and accordance with the December, and in or about Nelson laws of the State of Florida and Hillsbor- others, offered, corruptly Italiano and ough County. promised gave and Charles Frank Bean In McNally, the district court informed CURRY, III public and ROBERT E. ser- charges by the indictment vants, III and Charles Frank Bean and instructing them that: corruptly request- ROBERT E. CURRY charges Count of the Indictment solicited, ed, agreed accept accept- and part the defendants devised a ed, a benefit with an intent and scheme or artifice to: to influence an act which Nelson Italiano be, believed to and Charles Frank Bean (a.)(l.) the citizens defraud of the Com- represented being, III as offi- within the Kentucky govern- monwealth of and its III cial discretion Charles Frank Bean departments, agencies, mental officials relating E. and ROBERT CURRY to Ca- employees right of their to have the Agreement ble Television Franchise No. Commonwealth’sbusiness and its affairs 80-563; chargeable under Florida Stat- honestly, impartially, conducted free utes, Sections 838.015and an act of rack- bias, corruption, deceit, from dishonesty, eteering involving bribery by as defined misconduct, fraud; official Code, Title Section (2.) (directly indirectly) obtain 1961(1). things value, by and other pretenses, government’s argument means of false and fraudulent premised The is representations, promises, validity upon by and the of remarks Justice of facts. dissenting opinion concealment Stevens in his in McNal- 4. government's argument charged.with bribery any must be con- other offense in light sidered in of the fact that Italiano is not Count II. appropriate the Wall Street dissenting addressed Stevens ly. Justice business information confidential Journal’s on cases holding McNally’s effect cognizable protected awas than the rights other intangible involving statutes, and wire the mail under to a fair and citizenry right of general any it did not render intangible nature its par- Addressing, government. impartial — at-, U.S. Carpenter, less so. holding on McNally’s ticular, the effect holding, the Court In so S.Ct. at fraud, employee involving Justice cases limit “McNally did not reasoned wrote: Stevens distinguished tangible as scope of 1341 to salary for being paid a aWhen rights.” Carpen- intangible property from services, of that any breach loyal his — -, at 320. 108 S.Ct. ter, at carry with it appear loyalty would revealing pre- claim that refuting the employer— money to loss of some amounted noth publication information paid he for. what getting who place a violation work ing than more any- agent receives Additionally, ‘[i]f proscribed rather than conduct rules duty aof violation of his thing a result as statute, that the the Court noted mail fraud subject to he is principal, to the loyalty in section 1341 defraud” used term “to value, it, its its liability to deliver according its “com interpreted must be Restatement principal.’ proceeds end, To understanding.” mon (1958). This Agency, (Second) “ is well estab recognized that ‘[i]t Court ‘money or the Court’s may fulfill duty per proposition, that lished, general as a kickback in most requirement property’ knowledge or in special acquires son who schemes. a confidential virtue formation 10, 107 2890 n. S.Ct. McNally, at-n. is not another relationship with fiduciary J., (Stevens, n. 10 at 313 knowledge or informa exploit that free to case, subsequent Car dissenting). In a benefit but must personal his for own tion — U.S.-, penter United any profits de principal account his (1987), the L.Ed.2d 275 Su ” S.Ct. — U.S. at Carpenter, therefrom.’ rived Justice arguably embraced Court preme (quoting Diamond at 321 -, employee regarding remarks Steven’s 494, 497, 301 N.Y.S. Oreamuno, 24 N.Y.2d fraud. (1969)). 910, 912 78, 80, N.E.2d 2d of a Winans, the co-author Carpenter, In language Car- foregoing on the Based column, because which Journal Street Wall government con- the case in this penter, integrity had quality and perceived its having prosecution a mail fraud tends market affecting stock potential the law, its as by state bribery, as defined other a scheme with into entered prices, the under cognizable is still predicate ad- they employed whereby individuals requirement property” “money or information, as the such confidential vance ar- government the Specifically, McNally. column, buy the and contents timing commissioners, by county the gues that prob- upon the market based the sell in and Italiano, breached from accepting bribes conse- As a of the column. impact able county; relationship the fiduciary their and others scheme, Winans of this quence county to the hence, accountable they were variety a having violated for indicted were were de- which any profits for government wire fraud and and mail laws of securities Not- bribery transactions. from the rived guilty as defendants finding the In laws. acknowl- Court’s Supreme withstanding the found, and the court charged, the district liable generally agent is an edgement agreed, that Winans appeals court derived any profits for principal to his misappropriated fraudulently had others fiduciary rela- his exploits agent the where meaning of the mail the within “property,” need gain, we personal own his tionship for statutes, releasing the argument wire this merits the not address information. prepublication This in this case. it is irrelevant because grand the theory upon which mail and not convictions for affirming the case, the indictment. its returned held fraud, Supreme Court wire by, perhaps presented to,

grand jury stated what it found citizen- not even good government. deprived ry grand jury indicted him. of— provides that “No The fifth amendment Russell, 1050; 369 U.S. at 82 S.Ct. at capital, for a held answer shall be Outler, 659 F.2d at 1310. accord crime, unless on infamous a or otherwise reasons, express judg- For these we no Jury, indictment of a Grand presentment or cogency govern- ment as arising in the land or naval except in cases argument ment’s mail that the fraud stat- Militia, forces, when actual or in the employee ute is when an violated uses the public danger; War or in time of service accept mails furtherance of a scheme to _” Although it is seldom that an indict compensation. Having unauthorized re- purpose fulfill its inform ment fails to —to indictment, viewed it is obvious that the charges the nature of the the accused of present facts, pur- did not such well-recognized that an against him —it is theory presenting is to be served the re sue this when other facts to quirement that an indictment set forth the grand jury, grand jury or lead the elements of an offense. “This essential ultimately to return its indictment on such States v. purpose, as defined in Rather, theory. previously mentioned, as Cruikshank, 542, 558, U.S. Otto] [2 gravamen that the L.Ed. 593 is ‘to inform the court of the Hillsborough County citizens of were de- alleged, may it decide whether facts so that prived their to have the affairs of support they in law to are sufficient county honestly impar- “conducted ” conviction, if one should be had.’ Russell deceit, craft, tially, trickery, free from cor- States, 369 U.S. 749, 768, v. United fraud, influence, ruption, dishonesty, undue 1038, 1049, (1962) (quot L.Ed.2d 240 S.Ct. interest, conflict of unlawful obstruction Cruikshank, ing impairments accordance with (2 (1876)). Otto) 23 L.Ed. 588 the laws of the State of Florida and Hills- light, in this it is evident that the Viewed borough County.” The Court has designed only protection for the rule is language almost insufficient held exact defendant, for the benefit of “but a mail fraud conviction. well, prosecution by making possi it upon pass ble for courts called on the indictment, allegations in even validity of convictions under statute to [a] given only interpretation, a broad are sus- bring enlightened judgment an to that interpretation: ceptible of one that the citi- Russell, task.” 369 U.S. at 82 S.Ct. at Hillsborough County deprived zens of were greater 1050. Of even relevance here is intangible right “good govern- of their reviewing that it would hinder our task in Accordingly, government may ment.” conviction as well as serve as an affront to uphold not now seek to Italiano's conviction justice system permit our criminal theory on facts and different from that subject jeopardy accused to be based on charged by grand jury. the We will presented facts which were not to nor plain language of the indict- overlook the grand jury: found the ment. As the Court admonished grand jury, A in order to make ... [a] century ago: “If it lies the over a within determination, necessarily must deter- change charging province of a court to the question inquiry mine what the under part its no- of an indictment to suit own prosecutor, was. To allow the or the been, ought of it to have tions what court, subsequent guess to make a as to probably grand jury the would have what grand jury what was in the minds of the made it if their attention had been called they at the time returned the indictment great importance suggested changes, the deprive the defendant of a basic in- law attaches to an which the common protection guaranty which the of the in- by grand jury ... be frit- dictment grand [would] jury designed tervention of a almost away tered until its value For to secure. a defendant could then be [was] Bain, 121 parte Ex destroyed_” convicted on the basis of facts not found 1487 generally of their Florida (1886).5 of of the state 849 30 L.Ed. 1,10, 7 S.Ct. conscientious, A, loyal, the to: Jury Instructions ser- faithful, and unbiased disinterested B. decisions, perform- vices, actions jury instructions the that note also We Board of duties of the of ances official exacerbate, ame than rather only to served Hillsborough, of County Commissioners the permeated which liorate, infirmities the Florida; and, B, to have the business sufficiency of reviewing the indictment. Commissioners, the Board said instructions, previously have we jury Florida, County, and its af- Hillsborough entire the to “examine our task that fairs, honestly impartially, conducted whether, as a taken charge to determine craft, corrup- deceit, trickery, from free issues presented the whole, adequately it influence, fraud, dishonesty, tion, undue States jurors.” United and the law Cir.1984), interest, obstruction unlawful conflict (11th 1302, Hewes, F.2d v. with the impairments, in accordance nom. Caldwell sub rt. denied ce Florida, and Hillsbor- of the state laws 1110, 105 S.Ct. United end, ough County. the (1985). To this latitude granted wide must be court only district we need point, the as not to belabor So will “and jury instructions wording the in- jury court’s that the district comment charge cor long as the so not be reversed heavily intan- structions, rely on the which law.” of the the substance rectly states citizenry to honest gible right the (quoting United Hewes, F.2d at 1316 for same the government, are defective fair 1522, 1531 Sorrells, 714 F.2d States the condemned the Court reasons which Cir.1983)). (11th McNally. given instructions jury also instructed district court fact that the jury instructions Turning to the find a violation it must also jury that case, instructed district court this predicate offense as a bribery law state jury as follows: insufficiency jury not cure does know, case, the indictment you In this instructions. count, single in a defendant charges the aof Four, commission with the Count CONCLUSION it is al- Specifically offense. mail fraud grand the time the emphasize that Itali- We Nelson the Defendant leged that indictment, several this returned Curry E. Robert ano, together public offi- had held appeals courts of partici- willfully others, knowingly and un- successfully prosecuted cials could be citizens defraud a scheme to pated in depriving fraud statute mail der the citizens County and the princi- duty fiduciary owed to the of a concerning breach express no view Although we finding support a scheme, pal, bribery is in itself sufficient that a government’s assertion U.S.C. 1341. guilt alone, upon under basis standing is a sufficient so, why it is useful this mail To understand under federal to sustain conviction of a conviction relevant elements statute, court consider the at least one we note (2) (1) a scheme section view. under See appeals endorsed has First, property. Cir.1987). (6th Runnels, by deceit obtain 833 F.2d States v. breaching fiduci- Circuit, Runnels, agreement between acknowl- after the Sixth paying him constitutes is no intangible rights ary doctrine and the edging Second, provides itself it McNally, what the breach launched longer after scheme. viable Third, rationale, necessary deception. bribe on based alternative called “an through of a fiduciary acquired his a breach profit a breaches occurs when fraud that undue belong to the that duty properly by appropriating fiduciary economic benefit does not duty an fiduciary. At principal’s_” be the properly breaching should (footnotes omit- concluding, Runnels, reasoned and citations the Sixth Circuit 1187 In so thusly: Fagan, F.2d 821 ted). See also Cir.1987) (affirming (5th and n. 1010-11 kickback a bribe or The ... existence based, part, evi- on convictions mail fraud intangible unnecessary to invoke the it makes deprived of been corporation had dence that a fiduciary’s acquisition of rights The doctrine. employ- its rights kickbacks "to the belongs its properly which benefit an economic defendant]”). [the from Riley received ee through intentional principal, an good government; government, citizens of unfortunate- completely ignoring changed ly, lengthy the law after the return of this remainder of the indictment which It is too late charges appellant indictment. now in essence Italiano in vio- its to claim indictment lation of 18 U.S.C. 1341 and §§ by grand jury cognizant was a having returned participated in a scheme and used acting in with the accordance new the United States’ mails to publicly bribe teachings Supreme of the Court. elected commissioners of Hillsborough Florida, County, to vote in favor of award- by that the district court erred We hold ing county a cable television franchise to a motion denying Italiano’s to dismiss the particular entity, Coaxial Communication of allege it failed to indictment where Suncoast, (“Coaxial”), Inc. conduct that county either the or state was defrauded of McNally according Supreme and the alleged property by the scheme. Carpenter Court’s recent decision of Accordingly, Italiano’s conviction of mail — States, U.S.-, United 108 S.Ct. fraud in violation of section 1341 is re- (1987), by L.Ed.2d 275 is criminalized judgment is vacated. versed and mail statute. and VACATED. REVERSED FACTS: OWENS, Judge, Chief District began This case with an indictment is- dissenting: May sued on 1985. Count Four of that charged indictment Nelson Italiano with vi- Respectfully, I dissent. olations of 18 U.S.C. 1341 and 2. Count §§ convoluted, Having been indicted a specifically realleged Four incorporat- lengthy charging on indictment one count by “paragraphs ed reference through one of 18 violation U.S.C. §§ three of Three” “paragraph Count having unsuccessfully moved the trial turn, paragraph of Count Two.” In one of court to dismiss that count of the indict- specifically realleged Count Three and in- offense, allege appel- ment for failure to an corporated by reference “the Introduction appeals lant Nelson A. Italiano his convic- Paragraph of the Indictment.” three of tion, assigning only as error the trial realleged Count Three likewise and incor- judge’s grant failure his motion to dis- porated by “paragraphs reference miss that count of the indictment —Count through 11 of Count One” of the indict- Four. ment. convoluted, lengthy Count Four of brevity Aware of risks both to and to entirety the indictment is set forth in its clarity reciting long passages inherent Appendix. Appellant Italiano contends indictment, para- from the the relevant uncoiled, that Count unwound and Four — graphs syn- of the various counts will be charges distilled its that he essence — possible. However, light thesized where participated in and used the United States’ Supreme explanation Court’s recent deprive mails in furtherance of a scheme to in McNally, of 18 thorough U.S.C. 1341 Hillsborough County, the citizens of Flor- imperative examination of the indictment is ida, of their county’s to have the sufficiency determine the of the indict- honestly by affairs conducted county its ment the instant case. commissioners, intangible right dep- The Introduction of the Indictment sets rivation which the Court of the out the Board of McNally Commissioners as v. United United States in legislative -, policy-making the chief 97 L.Ed.2d (1987), Hillsborough County, Board for held is not Florida. criminalized among Appellee mail Included the Board’s fraud statute. described re- points sponsibilities response decision-making States out in authori- so ty contending, appellant for the award Italiano focuses nar- of cable television fran- rowly portion rights on the limited chise within County. of Count Four After alleges briefly identifying violation the citizens of the individuals and enti- indicted, County’s rights good quoted ties the certain for mail ...” a letter depository authorized statutes, which was Section one relevant scheme. Such con- of that furtherance sec- in That Statutes. of the Florida 838.015 duct, alleged, was viola- the the it defines bribery, and proscribes tion 1341 and 2. Section of 18 U.S.C. tion §§ follows: as offense states: applicable here 1341 as give, corruptly to (1) “Bribery” means servant, intending Whoever, having or devised any public offer, to promise or artifice to de- servant, corruptly any to re- scheme or devise or, to public if a accept fraud, obtaining money proper- or agree for solicit, accept, or to or quest, or another, pecuniary pre- fraudulent any means of false or ty by or for himself ..., purpose to tenses, promises or or representations, an intent with other benefit or any executing act such performance purpose the influence be, do, to person attempting so to believes or which or artifice scheme omission being, represents any post servant office or authorized public places or the public matter, of a any discretion matter or the official mail depository for within duty, or public by of a servant, in violation to be sent delivered thing whatever public duty. Service, of a or receives performance Postal takes thing, or therefrom, matter or any such Three, the Count two of paragraph by mail knowingly causes to be delivered Italiano Nelson alleged that thereon, ator according the direction to willfully devised “knowingly and others to be it directed at which place and arti- a scheme devise to and intended to whom it delivered the citizens fice to defraud thing, addressed, any such matter things, right of, among other County” $1,000 or than not more be fined shall Board conduct- business of to have the years, or five not more than imprisoned out- The indictment fraud. free from ed both. de- to the scheme substance of lined the One, three paragraphs in Count fraud Discussion: essen- paragraphs Those through eleven. has had Supreme Court Eecently, the cer- conspiracy which tially described upon prosecutions to occasion comment through indi- individuals, other by and tain statute. mail fraud under the pursued benefits, including pe- viduals, certain gave Supreme Court stated supra, the McNally, benefits, county commissioners to cuniary clearly pro- statute mail that “[t]he influencing com- purpose of not refer to rights, but does property tects discre- of certain performance missioners’ good citizenry to intangible acts, including acts which tionary at-, McNally, 483 U.S. government.” “proper- interest in persons with an benefit at 299-300. 97 L.Ed.2d at S.Ct. ty-” 1341 “as read section chose Court The al- Two proper- of Count protection fourteen Paragraph scope limited gave a “benefit” manner Nelson Italiano leged than “in rights” ty rather “with an ambigu- county commissioners certain boundaries its outer leaves ... an act at-, influence purpose intent and Id. ous....” com- discretion ex- official Court [those within at 302. Television relating statute, to Cable mail fraud missioners] that the plained 80-563_” No. Agreement ‘to de- Franchise or artifices “schemes criminalizes alleged, was conduct, the indictment property obtaining Such or for fraud’ Statutes, Section under Florida chargeable pretenses, or fraudulent means of false 838.015, supra. ...,”1 promises should representations, establishing types of two read as be Four, not the in- returning Count Finally, depriva- involving the latter schemes—the Italiano alleged Nelson dictment and the former money or executing the tion others, “for the de- deprivation. “To involving such defraud artifice to aforesaid “ wronging one ‘to generally refers fraud” placed in an be knowingly caused ... at-, L.Ed.2d at 301. S.Ct. at McNally, rights property by in his dishonest methods tions could have been affected the dis [signifies] ‘usually dep- 9, 107 or schemes’ Id. closure.” at-n. S.Ct. at 2882 trick, something of value rivation Commenting n. 97 L.Ed.2d 303 n. at Id. at deceit, overreaching.’” chicane or upon Congress’ power to criminalize the 2880-81, -, S.Ct. at 97 L.Ed.2d at profit efforts a state official to from 301, quoting Hammerschmidt v. United governmental decisions the absence of States, 182, 188, 511, 512, S.Ct. contrary, state law to the the Court said (1924). Therefore, “[a]ny 68 L.Ed. 968 ben- that “it would take a much clearer indica efit which the Government derives from tion than the mail fraud statute evidences must be limited to the [section 1341] having concealing to convince us that property Government’s interests as hold- such an interest defrauds the state and is er.” Id. at U.S. at-n. 107 S.Ct. forbidden under federal law.” Id. Implicit 301-02, 2881 n. 97 L.Ed.2d n. 8. How- concept within this discussion lies the ever, phrase the Court stated that encompass the mail fraud statute does “property rights” interpreted should be involving deprivation money at-, 2879-80, Id. broadly. 107 S.Ct. at or of state violation law. L.Ed.2d at 300. subsequent In opinion, the Court ex- convictions, reversing appellants’ In plained McNally and said that section 1341 McNally jury charges found the Court “any deprive reaches scheme to another of jury insufficient “the was not re- because money property by or means of false or quired to find that was de- [victim] pretenses, representations, fraudulent any money Id. property.” frauded of Carpenter v. United promises.” -, 107 S.Ct. at 97 L.Ed.2d at 302. — U.S.-,-, 316, 321, The Court continued: (1987). Carpenter, L.Ed.2d 275 charged It was not that in the absence of upon position Court acted its articulated alleged scheme the Commonwealth property rights interpreted are to be paid premium would have a lower broadly. object of the scheme in Car- The secured better insurance. Hunt and penter was “to take the Jour- Gray part received of the commissions [Wall Street] nal’s confidential business but those commissions were not the informa- Com- — _” Carpenter, money. at-, monwealth’s Nor was the tion charged that to it must convict find that S.Ct. at 320. The Court found that “[con- deprived the Commonwealth was of con- long fidential business information has money spent. trol over how its was In- Id. [cita- recognized property.” been deed, premium for insurance would tions omitted]. paid agency, been some have and what In this case it must first be determined Gray Hunt and did to assert control sufficiently alleged whether the indictment might that the Commonwealth not other- participated that Italiano in a scheme to wise have made over the commissions deprive property by another of paid by company the insurance to its pretenses, of false of means fraudulent (footnote omitted). agent, representations, promises. If the indict- Id. respect, ment is sufficient in this the next expand- footnote Court consideration becomes whether the inclu- upon ed the ideas contained within the “good government” allegation sion quote. above The Court stated that it prejudiced ap- the indictment somehow assume, alleged, should it was because pellant. McNal- principals in that the actions of the again, grounds Once the narrow ly did not violate state law. The Court appeal Appellant must be noted. attacks noted that “violation asserted is the only sufficiency interest, indictment. He failure to disclose their financial it, require sufficiency if attacks neither the of the evi- even state law did not to other parties judge’s in the state ac- whose dence nor the trial instructions to greater variation has convictions where sufficiency of an jury.2 the Mullens, v. See appeared. Sixth with the in accordance is measured Cir.1978).3 Mullens (5th In 134 be 583 F.2d guarantee that a defendant Amendment acknowledged that the accusations the Fifth Circuit government’s the informed (21 662) v. United itself U.S.C. failed to him. See statute Russell against § 1045, 1038, 8 749, 761, element of offense. 82 S.Ct. include the “[A] an 369 (1962). general, an indict- is created the problem “In difficult 240 more only language requir those facts in the statute need contain absence of ment necessary alleged thing offense to be in ing receipt of the the of a value elements of the the accused sufficiently performance inform of official connection with the Mullens, accused from safeguard the charge and to at 140-41. duties.” 583 F.2d Gold, v. States jeopardy.” United opinion Circuit The considered a First double court Cir.1984), citing (11th 800, missing 812 engrafted F.2d the 743 in which that court States, 418 U.S. 87, v. Hamling United United requirement upon the statute. See 590, 2907, 2887, 41 L.Ed.2d 117, Cir.1973), Seuss, (1st 94 S.Ct. 385 v. 474 F.2d States an (1974). it is axiomatic that 2751, While denied, 928, 620-21 37 cert. every element must contain (1973). history Legislative indictment L.Ed.2d 155 com- law does not charged, the offense supported the interpretation the administrative statutory the track the indictment pel that The in that case. First stance Circuit’s Stefan, v. 784 States language. United judicially adopted the Fifth likewise Circuit Cir.1986). (11th “[W]hen F.2d Then, Fifth Circuit created the element. to the specifically refers indictment the Though the in indictment. the examined based, the charge was on which the statute language identical contain did not dictment deter- may be used to statutory language formulation, the court found to the Seuss ade- received the mine whether defendant facts to estab sufficient it contained Chilcote, v. States quate notice.” United we at element. “Unless required the lish Cir.1984), (11th cited 724 F.2d significance talismanic tach some Stefan, F.2d at 1101- approval in Seuss, with indictment the language of precise Mullens, 141. F.2d at sufficient.” 02. Chilcote, the stated that this court In standards The above-discussed language of “slight variation between applied to may analyses properly be statute itself indictment and ex- must be The indictment present case. reference to by the indictment’s cured whole, need not recite and it amined as Chilcote, 724 F.2d 1505. Four, statute.” Count “magic words.” certain specifically likewise Stefan, the indictment charged Italiano specifically statute, said the court referred a scheme with mailing conjunction awith he did not claim that “Stefan cannot “Title defraud, in violation or artifice charges of the adequate notice receive Code, 1341 and Sections States 1102. Stefan, 784 F.2d at him.” against section 1341 reference specific 2.” This technical consider- rather “[Practical, than statutory to examine court permits the validity of an indict- govern ations appellant whether language to determine Chilcote, Id.; F.2d at 1505. see ment.” charge of the notice adequate received Stefan, su- Chilcote See against him. between statute Though the variations the statute quoted, pra. As previously “slight” in the above- indictment were may not that one ample notice provides cases, court has affirmed discussed particular law, from a pated to obtain post-McNally of the state 2. Given Piccolo, 835 F.2d may entity. been States case have See United in this instructions However, recently Cir.1987). (3rd Circuit the Third erroneous. despite jury mail conviction affirmed disap- language heavily with laced instructions of the former adopted all decisions This 3. court given McNally. The court said that proved of prior to Appeals decided Court Fifth Circuit circumstances, jury could totality of the Prichard, Bonner See October 1981. appellant found unless it convicted the have Cir.1981). (11th F.2d 1206 partici- object in which he Congress legislation “any scheme or artifice to has enacted to “es participate in defraud, obtaining money proper- concerning policy or for a national tablish cable pre- or fraudulent ty by means of false communications.” See 47 U.S.C. et tenses, promises....” representations, Among seq. purposes other identified in McNally opinion 18 U.S.C. § section 521 are both the establishment of is not to be clear that the statute makes procedures franchise and standards and the Discussion, disjunctive. See read in the guidelines for the establishment exercise then, through the supra. The Federal, authority State and local statute, informs Itali- incorporation of respect regulation systems. to the of cable using charged with ano that he was Section 522 defines a franchise as “an ini in furtherance of a mails United States’ authorization, ..., tial or renewal thereof money or deprive another of scheme “to franchising authority gov issued [a of false or fraudulent property by means entity], ernmental authorizes the ... which promises.” pretenses, representations, or operation sys construction or of a cable — at-, Carpenter, U.S. 108 S.Ct. _” 522(8). tem 47 U.S.C. Pursuant to § However, up- light of the recent legislation, held this courts have that local McNally pursuant in the heaval law franchising processes acceptable are an beyond specific opinion, scrutiny refer- regulating means of the cable television necessary to make certain of the ence is industry. e.g. See Tribune-United Cable sufficiency of this indictment. (4th Montgomery County, 784 F.2d 1227 v. Though each count of an indictment Cir.1986); Cablevue, Rollins Inc. v. Saien sepa if generally considered as it were a (D.Del. Enterprises, F.Supp. 633 1315 ni indictment, Dunn v. United rate 1986); Telecommunications v. Central 393, 189, 190, 76 Cablevision, (W.D.Mo. F.Supp. 610 891 TCI 356, 359, “[ajllegations made one L.Ed. 1985). objective legis An additional may incorporated by reference in count be orderly of “an lation is the establishment Wright, 1 other counts.” Federal Practice pro process for franchise renewal which 123; Criminal 2d and Procedure: § operators against unfair denials tects cable (E.D. F.Supp. 210 Kilroy, 523 States renewal_” 521(5). Both 47 U.S.C. § However, Wis.1981). incorporation by such the use of the term “franchise” and expressly. reference must be done Davis provided against specifically protection (5th States, 357 F.2d 438 Cir. v. United of such clear arbitrary denial or revocation 1966). Assuming arguendo that the refer ly bring franchises within indictment to section 1341 does cable television ence suffice, requisite specificity is ac concept the common law of a “franchise.” complished by realleging incorporating and property and are fre- “Franchises are para by reference the relevant counts quently the attributes of invested with graphs of the indictment. property generally.” 37 C.J.S. Franchises light McNally Carpenter, added). (1943) (emphasis The term 8§ the crime of mail fraud include elements of been used to refer to “a “franchise” has (1) a scheme to defraud the existence of grant by person, to some natural the state money property, some or victim[s] privilege power, or corporate, some the mails in furtherance of the use of people generally, not common to the the scheme. Accord United States v. property rights subject to the respect to Cir.1987). Cimbel, (7th 830 F.2d agency or of some control of the state plain reading A this indictment (1943). Franchises the state.” 37 C.J.S. appellant that he had been have informed regards franchises Importantly, Florida using charged with the United States’ “A owes its exist property. as franchise of a scheme to bribe mails furtherance sovereign between the ence to a contract county to award a cable commissioners Nevertheless, grantee. it is power and the not on television franchise to Coaxial based regarded property within the by the law company’s competitiveness of that bid Constitution_” 27 Fla. upon meaning of the but rather Coaxial's bribe. no money property. Fiduciaries have From Government § Franchises Jur.2d acquired to economic benefits therein. cases cited (1981) and fiduciary through the breach of their franchise cable television Clearly the belongs properly benefit duties. “[T]he Hillsborough for the County of by the held fiduciary has a entity to whom county to be awarded of that people Runnels, duty.” entity “property,” commercial some (6th Cir.1987). Justice Ste- F.2d the com- to defeat attempt by appellant McNally “prosecu- pointed out vens process and to secure bidding petitive mails corrupt officials who use the tions by bribery is franchise television cable may schemes continue further their people county its deprive possible prove frequently be it will since Therefore, assum- even property. McNal- money property.” loss of some specific reference ing the indictment’s at-, 107 S.Ct. at ly, notice, the not sufficient the statute (Stevens, J., dissenting). at 313 para- incorporated counts specifically can be loss of Such required to specificity provide graphs official) (a public agent where an found indictment. sufficiency of the the ensure result of a accepts or kickbacks bribes distinguishable from case is The instant duty princi- fiduciary to his of his violation (7th Gimbel, 830 F.2d 621 States at-, at 2890 n. Id. n. 107 S.Ct. pal. consisted Cir.1987), “the ‘scheme’ in which J., (Stevens, at 313 n. 10 97 L.Ed.2d Treasury Department depriving the dissenting). Reports and other Currency Transaction county commis- acceptance by the The information and truthful ‘accurate ” such bribe constitutes of Italiano’s sioners Gimbel, McNally, like Id. at 626. data.’ fiduciary of the commissioners’ breach pro- of individuals the failure involved county the duty principal their officials government information —the vide follows, then, commis- that It the public. by affected might have been actions whose to their are account required sioners 627.4 The Gimbel Id. at disclosure. the they received. for the principal the de- indictment, then, alleged not that Carter, See of mon- government the defrauded fendant (1910). 515, 520, 54 L.Ed. 769 306, 30 S.Ct. failed to that he rather ey property but Italiano, then, and abetted aided Appellant In government. to the information provide the viola- in county commissioners certain consideration, ap- presently under case the See fiduciary duty. U.S.C. of their tion States’ utilized the United Italiano pellant the paid to commissioners 2. The bribe fran- § of a the to defraud mails failing By county. belonged the rightly pro- chise, i.e., conduct property. Such commission- county, the account 1341. by section hibited Italiano, county deprived the ers, hence by incorporated Finally, the indictment money. statutes,5 bribery the Florida reference like the not all at case is therefore This he was noticing appellant that clearly thus McNally. The Su- in presented in con- situation bribing public officials charged with pointed out specifically Court allegation preme An acts. with official nection McNally in principals actions of the law, a fatal state charging a violation That law. of state a violation not Court were Supreme identified omission paid to the case, commissions being the conspicuously included McNally, thus funds be- McNally were not Fur- individuals this court. before the indictment state. longing to or controlled stat- those ther, defined in the violations com- corrupt county case, the instant deprivation inherently involve utes conduct conviction for permitted a count states that Gimbel court 4. McNally, 483 U.S. 1341.” §of within the reach McNally defi- found the Court at-, at 303. jury instruc- reality, held the Court cient. therefore, hold, that the improper. "We tions Appendix. See mail fraud the substantive on instruction Italiano, tions, appro- allegations may missioners, and those be stricken and therefore negating the conviction. without money in the form bribes priated county. The belonged to the properly properly grant The trial court failed to expressly forbade relevant Florida statutes appellant’s motion to dismiss the indict- statutes, in con- These appropriation. appellant’s such I affirm the con- ment. would doctrine, fiduciary duty clear- viction. cert with county and the ly that both establish APPENDIX deprived “money,”

public were indictment, which incor- Count Four of COUNT FOUR bribery statute porated by reference realleges Jury 1. The Grand and incor- alleged a of 18 specifically violation porates by paragraphs one reference 2, sufficiently appellant notices U.S.C. through three of Count THREE of this allegation. such Indictment. reasons, the indict- all of the above For (COUNT THREE) constitutionally suffi- ment in this case is realleges charge Jury The Grand and incor appellant of the to inform cient both porates by reference the INTRODUCTION plead an to enable him to against him and of this Indictment. of future acquittal or conviction bar prosecutions. United States v. Good- See (INTRODUCTION) (5th Cir.1979); man, 870, 885 605 F.2d At all times material to this indict Varkonyi, 645 F.2d United States v. ment, 1981). Therefore, (5th A Cir. Unit appellant question becomes whether The Board of Commissioners Hillsborough County, by inclusion in the of Florida served prejudiced somehow policy making legislative the chief improper “intangible indictment of the now County (a Hillsborough non-char- board allegations. rights good government” county), ter as established the Constitu- grand jury “right A to a is defendant’s tion and the statutes of the State of Flor- normally by the fact that the violated ida. or other alleges more crimes (2) legislative policy As the chief committing means of the same crimes.” making Hillsborough County, the body for Miller, 130, 136, 471 U.S. United States Commissioners, County among of Board 1811, 1815, (1985). L.Ed.2d 99 responsibilities, final other served as the Striking allegations from an indictment to authority zoning, applications for alco- on alleged scope of the scheme narrow (so-called beverage hearings holic wet-zon- Lee, permitted.” ing), pit permits, borrow cable television 1404, (D.Colo.1987), citing F.Supp. agreements, paving con- franchise road 136, Miller, at 105 S.Ct. at 1815. tracts, recovery projects, waste resource Lee, case, the post-McNally a court agreements, hauling gar- franchise waste intangible allegations relating to the struck disposal bage rate increases and waste rights theory. “enterprise” as sites and constituted an in Title term defined Clearly, the of the scheme to essence 1961(4), Code, the activities States Section “good public defraud the of its of which affected interstate commerce. government” consisted of the scheme to (3) Hillsborough County Board of procure television franchise the cable County composed was of Commissioners exorcising “good fraudulent means. (5) commissioners, time, any five one language from the government” indict- representing geographical in each a district ment, merely remove the this court elected, Hillsborough County gener- leaving intact the essential ele- gloss while elections, four-year al terms. Thus, it could not be ments the crime. appellant prejudiced by (4) said that was E. was a ROBERT CURRY Hillsbor- allega- ough County representing “good government” Commissioner inclusion

(17) was an at- DAVID DEMMI JOHN practice law the State torney, licensed to November, or about 1 from in No. District Florida. November, 1980. through in or about an (18) I. was LAURENCE GOODRICH awas ANDERSON (5) FRED ARTHUR in the practice law attorney, licensed repre- Hillsborough County Commissioner of Florida. State in or about 1 from senting District No. (19) an attor- Febru- B. JOHNSON was November, in or about PAUL until State of practice ney, licensed law ary, 1983. Florida. Hillsborough a (6) Bondi was Robert District representing (20) SIERRA was attor- MICHAEL County Commissioner November, 1974 practice the State ney, in or about licensed law

No. from November, 1978. in or about until Florida. Hillsborough County ANDERSON, (7) a JR. (21) Platt was HENRY Jan JOSEPH 2No. District representing Director Commissioner a was President November, COMPANY, or about having office in taken CONTRACTING ANDERSON INC., engaged in the corporation a Florida contracting, and was general business Hillsborough a (8) Koford was Joel PAVING, of COLUMBIA Vice-President District representing County Commissioner engaged in the INC., corporation a Florida October, until in or about 3No. from of road construction. business March, 1978. in or about (22) was resident LOIS BAILEY III, Bean, a Hills- was (9) Frank Charles Park, Georgia. College represent- borough Commissioner April in or about 3 from ing No. District was resident DeCARLUCCI JOHN November, 1980. in or about until County, was President Hillsborough Dee Construction of John Director JR., KOTVAS, was (I) HENRY JOSEPH corporation en- Inc., a Florida Company, rep- County Commissioner Hillsborough contracting. business in the gaged about from or District No. resenting Febru- November, in or about until ECHEVARRIA, (cid:127) (24) MARCELLINO ary, 1983. ECHEVARRIA, MARCELO known as also County, and a resident a Hillsbor- Davin was (II) H. Francis of REAL- President SCAN owner representing was County Commissioner ough INC., Corpora- SERVICES, Florida a November, TY 4 from in or about No. District brokering of business November, engaged in the 1982. tion in or about 1974 until estate transactions. real Hillsborough was a (12) Rodney Colson a resi- was (25) FERNANDEZ District MANUEL representing County Commissioner did November, Hillsborough County and busi- in of having taken office dent 4No. of Florida. in the State contractor as ness a Hillsborough was D. FULLWOOD (26) was a (13) Lester RONNIE Robert was Hillsborough County District representing County of resident Commissioner November, 1976. of Fulwood in or President about No. 5 until owner engaged Farms, Inc., corporation Florida a Hillsbor- was a (14) Jerry Merle Bowmer farming. of commercial the business representing County ough Commissioner GONZALEZ, or about November a No. 5 from on District JR. was (27) R. LEROY February, 1983. in or until about did County and Hillsborough of resident tires of automobile a seller as business Zoning Argintar was a (15) Andrew and Ser- Tire Bay Area of the name under County Board of for the Hearing Officer Center. County, vice Hillsborough Commissioners Florida. awas (28) D. GUAGLIARDO RICHARD County did Hillsborough resident was (16) A. CANNELLA ROBERT oil in the fuel supplier as a in the business practice law attorney, licensed to FUELS. name RICHARD’S Florida. State of other benefit with an intent or to performance influence the any act or (29) ITALIANO was a resident NELSON person be, omission which believes to Hillsborough County and President of public represents being, or the servant as Inc., Baldwin-Italiano, corpora- a Florida public discretion of within official tion, insurance business. engaged in the servant, public duty, in violation of a or (30) T. NOYAK was a resi- MICHAEL performance public duty. of a Hillsborough and was Pres- dent of (2) Prosecution under this section shall Investments, Inc., Noport a Florida ident of require any allegation proof engaged in the of real corporation business public ultimately sought servant development. estate unlawfully qualified influenced be was RAPPAPORT, (31) ALEXANDER G. way, act in the desired that he had as- RAPPAPORT,

also known as SANDY office, prop- sumed matter was Hillsborough County and the a resident of erly pending might by before him or law Investments, Noport Inc. Vice-President him, properly brought be before that he matter, (32) possessed jurisdiction RODRIGUEZ over the CESAR AUGUSTUS Hillsborough County. necessary that his official action was was a resident person’s purpose. achieve (33) was a resident of LOUIS ROCHA (3) Any person bribery commits who County, as a and did business guilty felony degree, of a in the third developer. real estate 775.082, punishable provided in § ROSSITER, (34) HAROLD L. also 775.083, or 775.084. § ROSSITER, as HAP hereinafter known herein, At all times material Florida sometimes referred to as HAROLD L. provided: 838.016 Statute § ROSSITER, of Hills- “HAP” was a resident (1) any person It is unlawful for cor- borough County, President of Environmen- offer, give, promise any ruptly to Inc., Housing, corporation Florida en- tal servant, or, servant, public public if a gaged housing in the construction business solicit, corruptly accept, request, business, material herein did and at times agree accept, any pecuniary or other attempted to do under the ficti- business law, not authorized for the benefit tious trade name of Technical Assistance past, present, performance, or future Consulting Service. nonperformance, any or violation of act (35) TANNER was a resident CLAUDE or omission which the believes to Hillsborough County and President of been, public repre- have or the servant SERVICE, INC., SUBURBAN DISPOSAL been, having sents as either within the corporation engaged a Florida the waste servant, public official discretion disposal Hillsborough County. business public duty, per- or in violation of a was a resi- EUGENE THOMASON public duty. Nothing formance of a Hillsborough County, doing dent of busi- preclude herein shall be construed to Country ness as Kitchen. Gene’s public accepting from rewards servant (37) WILLIAMS, performed apprehending CULLEN H. also for services WILLIAMS, any known as BUSTER herein- criminal. after referred to as sometimes CULLEN }}:>}: j}¡ $ >j< WILLIAMS, H. “BUSTER” was a resident (3) under this section shall Prosecution Hillsborough County, and President of require that the exercise of influence

ALAFIA LAND DEVELOPMENT COR- discretion, violation or official or PORATION, INC., Corporation. Florida public public duty performance or of a herein, all times material At Florida duty, pecuniary for which a or other ben- provided: 838.015 Statute offered, promised, § given, re- efit was

(1)“Bribery” corruptly accomplished or give, quested, means or solicited was influence, offer, servant, promise any public official discre- or was within or, servant, tion, duty public public corruptly public if a servant to re- or solicit, sought quest, accept, agree or omission was accept or whose action another, compensated. any pecuniary for himself or or rewarded or be From in or about November

[2.] continuously up thereafter to the date (4) provisions violates the Whoever Indictment, of this in the Middle District of guilty felony of a this section shall be Florida, elsewhere, degree, punishable provided the third 775.082, 775.083, 775.084. § § § ANDERSON, FRED ARTHUR herein, Florida At times material ANDERSON, JR., required disclosure of JOSEPH HENRY Statute 112.3143 § private pro any personal, the nature ANDERSON CONTRACTING public fessional interest a officer had which COMPANY, INC., special private gain inured to his within days after the vote occurred. PAVING, INC., COLUMBIA material herein Florida At times BAILEY, LOIS required 112.3145 Statute disclosure CANNELLA, A. ROBERT interests of local officers includ financial of 5 ing all sources of income excess CURRY, ROBERT E. gross except income a busi percent of his income; partners’ sources of and a list ness DeCARLUCCI, JOHN persons, of all business entities or other DEMMI, JOHN DAVID cer organizations from whom he received gifts in excess of value. $100.00 tain ECHEVARRIA, MARCELLINO times material herein Florida At Echevarria, a/k/a Marcello Financing pro regulating Campaign laws FERNANDEZ, MANUEL vided, pertinent part: Reports; 106.07 certifi- Florida Statute GONZALEZ, LEROY R. JR. filing.— cation and GOODRICH, LAURENCE I. (1) campaign designat- Each treasurer political ed a candidate or committee GUAGLIARDO, RICHARD D. regular pursuant to s. 106.021 shall file ITALIANO, NELSON received, reports of all contributions all (sic) made, expenditures all or on be- JOHNSON, PAUL B. political half of such candidate or com- KOTVAS, JR., HENRY JOSEPH mittee.

NOVAK, T.

MICHAEL Contributions; Florida Statute 106.08 RAPPAPORT, ALEXANDER G.

limitations on.— Sandy Rappaport, a/k/a political No committee any shall make contributions to candidate ROCHA, LOUIS state, political committee in RODRIGUEZ, CESAR AUGUSTUS election, any following in excess of the amounts: ROSSITER, HAROLD LEONARD (a) countywide of- To a candidate for Rossiter, Hap a/k/a any fice to a candidate in election SIERRA, county conducted on less than a wide MICHAEL basis, $1,000. TANNER, CLAUDE THOMASON, EUGENE

Florida Statute 106.09 Cash contribu- and tions contribution cashier’s and checks.— WILLIAMS, H. CULLEN accept No shall make Williams, a/k/a Buster cash contribution or contribution and others who are both known and un- means of a cashier’s check in excess of Jury, knowingly and known to the Grand $100. through charges, rectly fees or other and insulate, foster, protect, promote, to fur- to willfully and intended devise devised ther, enlarge conspiracy. facilitate and to defraud the citizens scheme and artifice Hillsborough County, and the citizens of (5.) part conspir- It further a generally Florida of their the State of acy give that defendants and others would following: Hillsborough County Commissioners bene- conscientious, faithful, a) loyal, disinter- fits, benefits, including pecuniary pe- some services, decisions, ac- unbiased ested and cuniary disguised benefits as cash cam- performance of official duties of tions and contributions, repairs, paign free free vaca- Commissioners, County Hills- the Board of accommodations, meals, tion and ben- other Florida; borough County, and general efits maintain to influence over the b) to have the business of the Board performance of acts within the official dis- Commissioners, County Hillsborough Coun- Hillsborough County cretion of Commis- Florida, ty, conducted hon- and its affairs sioners, foster, further, promote, and to deceit, estly impartially, free from and enlarge conspiracy. facilitate and fraud, craft, trickery, corruption, undue in- (6.) part conspir- It was further a of the interest, fluence, dishonesty, conflict of un- acy per- that defendants and others would impairments lawful and obstruction insulate, designed protect, pro- form acts accordance with the laws of the State of mote, foster, further, enlarge facilitate and Hillsborough County. Florida and conspiracy, including monitoring of which scheme to substance progress allegations might expose its manner and means are set defraud and portions enterprise of the or its racketeer- paragraphs through 11 of Count forth ing generate activity, political harm to grand jury One of this Indictment and corrupt Hillsborough County Commission- realleges incorporates by reference ers, that had been referred Hillsbor- though paragraphs fully those set forth ough County, Attorneys Florida State Of- herein. fice. The Manner and Means of (7.) part It conspir- was further a of the Conspiracy acy use, that defendants and others would

A. In General use, rules, manipulate regula- fail to (3.) part conspiracy It was of the tions, procedures ordinances or of the Hills- directly the defendants and others would borough County County Board of Commis- offer, solicit, indirectly promise, give, insulate, protect, promote, sioners to fos- request, agree accept accept bene- ter, further, enlarge facilitate the di- fits, benefits, including pecuniary pe- some offering, promising, giv- rect and indirect cuniary disguised benefits as cash cam- soliciting, ing, requesting, agreeing to ac- paign per- contributions to influence the benefits, cept acceptance including past, present formance of an act or for the pecuniary benefits. performance or future of an act within the (8.) part conspir- It was further a of the official discretion of members of the Board acy that defendants and others would ob- County Hillsborough Commissioners of tain, obtain, attempt corrupt majori- insulate, County, protect, Florida and to ty County of the members of the Board of foster, promote, further, facilitate and en- Hillsborough County, by Commissioners large conspiracy. means which included: (4.) conspir- It part was further a (a) supporting the election or reelection acy that defendants and others would intro- corrupt Hillsborough County Board of duce, bring refer or otherwise atten- County Commissioners; (b) causing or other, individuals, including tion of each cause, attempting corrupt themselves, candidates willing per- to influence the for the Board of Commissioners formance of an act within the official dis- Hillsborough County, against cretion of to run County Commis- by paying directly, non-corrupt sioners indi- bribes candidates for the Board of

(d)recruiting Hillsborough County County Board of Commissioners into the Hillsborough of County Commissioners conspiracy. County; (9.) part conspir- It further a of the discrediting impair- (c) discouraging, acy defendants and others would and non-corrupt ability of Hillsbor- ing the perform acts for the of ac- did County ough County Board of Commis- maintaining, quiring, protecting and con- duties; public their or perform sioners interests, proceeds cealing profits and de- Hillsborough County (d) recruiting benefits, giving including from the of rived County into the of Commissioners Board pecuniary benefits as described in the conspiracy. paragraphs. above (6.) part conspir- of the further a It was (10.) part conspir- It was further a of the per- others would acy defendants and acy that defendants would and did misre- insulate, protect, pro- designed to form acts hide, present, conceal and and cause to be foster, further, enlarge mote, facilitate and hidden, misrepresented, concealed and including monitoring the conspiracy, objectives of and acts done furtherance might expose allegations which progress of including engaging in conspiracy of the enterprise its racketeer- portions or of justice obstruction of and criminal investi- generate political harm to ing activity, or gations. County corrupt Hillsborough Commission-

ers, to the Hillsbor- that had been referred B. Roles Attorneys County, Florida State Of- ough of Defendants fice. (11.) conspir- part It was further a of the played one or of acy that defendants more conspir- (7.) part of the It was further roles, others, among in fur- following use, would and others acy that defendants enterprise: thering the affairs of rules, regula- use, manipulate the or fail to tions, Hills- procedures ordinances Hillsborough County Corrupt Com- a. County of Commis- borough County Board missioners who: insulate, protect, promote, fos- sioners to (1) represent, and would and did would ter, further, enlarge the di- facilitate and cause, repre- others to use and authorize offering, promising, giv- indirect rect and sent, they and/or influence had control agreeing soliciting, requesting, to ac- ing, offi- disposition of acts within the over benefits, including cept acceptance County of the Board of Com- cial discretion pecuniary benefits. County; missioners (8.) part conspir- It was further a solicit, request, agree (2) would and did acy that defendants and others would ob- accept, and would and did accept and obtain, tain, corrupt majori- attempt to defendants, cause, other and authorize use County members of the Board of ty of the solicit, agree others, request, Hillsborough County, by Commissioners benefits, including pecu- accept accept and included: means which benefits, and others niary for themselves (a) supporting election or reelection influence over acts within of their because Hillsborough County Commis- corrupt the Board of Coun- discretion of the official sioners; Hillsborough County; ty Commissioners cause, (b) causing attempting to cor- (3) their discre- and did exercise would County for the Board of rupt candidates acts within their official discretion tion over Hillsborough County, Commissioners giving of ben- promote and facilitate against non-corrupt candidates to run efits, including pecuniary benefits County the Board of Commissioners purpose to given an intent and were Hillsborough County; over general influence specific obtain (c) discouraging, discrediting impair- official discretion. acts within their ability non-corrupt Hillsbor- ing the to other Hills- act as a conduit

ough County Board of Commis- Commissioners, for bene- duties; borough County public perform sioners to their insulate, foster, further, protect, promote, enlarge conspiracy; facilitate and benefits, fits, influ- including pecuniary to acts, past, present or future or for the ence (4) manipulate, together would use or their official performance of acts within others, rules, regulations, proce- with discretion; County dures or ordinances of the Board of (5) Hillsborough County; or introduce indi- and did refer would Commissioners others, accept would and did and viduals (5) would, together themselves or with introduction of individuals from referral or insulate, foster, protect, promote, others others, purpose of soli- an intent and with further, enlarge conspir- facilitate and agreeing accept and citing, requesting, acy. benefits, including pecuniary accepting payors, c. Source and bribe who would benefits, within their offi- to influence acts perform following: did one or more of the insulate, protect, pro- and cial discretion mote, foster, further, enlarge facilitate and (1) locate, seek, for, pos- would contract conspiracy; sess or have an interest which would bene-

(6) manipulate, among influencing would use or fit from acts within the official themselves, together with others the County discretion of the Board of Commis- rules, procedures or ordi- regulations, Hillsborough County, sioners of in real es- County nances of the Board Commis- tate, businesses or other insulate, Hillsborough County to sioners of were, brought or which could be within the foster, further, protect, promote, facilitate County official discretion of the Board of enlarge conspiracy; and Hillsborough County; Commissioners for (7) would, together themselves or with (2) for, petition, request, apply would bid insulate, foster, protect, promote, others propose upon, in- or otherwise have an further, enlarge conspir- facilitate and petitions, applications terest or other acy. matters or actions which were within the (b) Brokers, middlemen, or insulators County official discretion of the Board of do, perform and one or more who would did Hillsborough County; Commissioners for following: (3) seek, accept, would and introduction (1) they represent would had the corrupt Hillsborough and referral to Coun- ability to control and/or influence the dis- others, ty in- Commissioners and with an matters, position petitions, applications offer, purpose promise give tent and and discretionary and actions of the other benefits, including pecuniary to in- benefits County Board of Commissioners of Hills- fluence acts within the official discretion of borough County; corrupt Hillsborough County Commission- (2) offer, promise, give, would and did ers; solicit, request, agree accept accept (4) offer, promise give bene- benefits, benefits, including pecuniary with fits, benefits, including pecuniary with intent purpose to influence discretion- purpose per- intent and to influence the ary County acts of the Commis- Board of of, past, present formance for Hillsborough County sioners of Commis- of, performance future an act within the pur- Hillsborough County sioners of for the County official discretion of the Board of pose receiving for themselves a benefit Hillsborough County Commissioners others; purpose receiving a benefit for them- (3) accept referrals and would make and others; selves or with an interest introductions of individuals would, (5) manipulate, together use or offering, promising, giving, corrupt Hillsborough County with Commis- soliciting, agreeing accept requesting, sioners, rules, regulations, and others the benefits, accepting including pecuniary procedures or ordinances of the Board of benefits, acts within the offi- to influence County cial Commissioners discretion of the Board of Com- Hillsborough County County; missioners of and to

Rudy Spoto

Mr. together would themselves Rudy Spoto, Inc. foster, insulate, promote, protect,

others P.O. Box 393 further, enlarge conspir- facilitate and acy. Tampa, Florida 33601 In violation of Title United States Mailing and the Code, Sections 1341 and 2. Defendants part of the further a

2. It was CURRY, E. NEL- that defendant ROBERT did ITALIANO and others SON paragraph engage in acts set forth Indictment, of this 14 of COUNT TWO incorporated by paragraph is refer- ence herein. KJI, TOWING, INC., Inc., SELF (14.) January, in or about Between Plaintiffs-Appellees, December, 1980, in or about Nelson others, offered, corruptly

Italiano and gave III promised and Charles Frank Bean SERVICES, INC., BROWN MARINE CURRY, servants, public E. and ROBERT Defendant-Appellant, Bean III and and Charles Frank ROBERT Cross-Appellee, CURRY, solicited, requested, corruptly E. Wausau, Employers accepted, Insurance of agreed accept a benefit Intervenor, Cross-Appellant. purpose to influence an with an intent and be, act which Nelson Italiano believed to No. 87-7031. represented Frank Bean III and Charles Appeals, United States Court of being, within the official discretion of Circuit. Eleventh III and E. Charles Frank Bean ROBERT relating to Cable Television Fran- CURRY 22, 1988. Feb. 80-563; Agreement chargeable chise No. Statutes, 838.015,

under Florida Section racketeering involving act of brib- and an ery as defined Title Code, 1961(1). Section 8, 1980, August or about the de- On fendants, E.

ROBERT CURRY ITALIANO, NELSON both known and un- and others who are Jury, for the known to Grand executing the aforesaid scheme and arti- so, defraud, attempting to do fice to placed in knowingly caused to be an autho- depository rized for mail matter to be deliv- Service, ered the United States Postal envelope containing Rudy a letter Spoto McGillicuddy from Dennis J. ad- dressed to:

Case Details

Case Name: United States v. Nelson Italiano

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 22, 1988

Citation: 837 F.2d 1480

Docket Number: 87-3201

Court Abbreviation: 11th Cir.