United States v. Photogrammetric Data Services, Incorporated, United States of America v. David G. Webb

bottom, At the INS’s decision to arrest clearly

Medina was in public clothed UNITED policy America, STATES of considerations. Faced with a Plaintiff-Appellee, record evincing the undisputed fact of his convic- v. tion, made, a decision was based on Medi- na’s special relationship victim, with his PHOTOGRAMMETRIC DATA SER- assert that Medina’s conviction constituted VICES, INCORPORATED, De- a CIMT under the immigration laws. fendant-Appellant.

Even though the ultimately INS decided pursue not to deportation Medina, America, States of fully we are satisfied that the initial deci- Plaintiff-Appellee, sion to initiate proceedings arrest him v. type was the of agency conduct Congress intended to immunize in the discretionary WEBB, David G. Defendant-Appellant. 2680(a). function exception found 00-4498, Nos. See, 00-4499. e.g., Sloan v. United States Dep’t of Dev., Housing and Urban 236 F.3d United States Court of Appeals, (“The (D.C.Cir.2001) decision to initi- Fourth Circuit. ate a prosecution long has regarded been function.”). as a classic discretionary Argued March 2001. Decided July

III. Pursuant to the foregoing, we vacate order below and remand to the district court with instructions that the complaint be dismissed.

VACATED AND REMANDED WITH INSTRUCTIONS. 1971) (Eisele, J., Cir. dissenting); Tillinghast quality whether the moral of an act can be Edmead, (1st Cir.1929) apart impact assessed from of attendant (Anderson, J., Holland, dissenting); Zgodda v. circumstance. Unfortunately peti this (E.D.Pa.1960) ("Coun F.Supp. tioner, question open is not an one. We argument sel's powerful appeal free, makes a regret that we are not as we understand law, reason poses and conscience. question It go convictions."). back Mills,

ARGUED: Laurin Howard Nixon Peabody, L.L.P., DC, Washington, for Ap- pellants. Hanly, Jack I. Assistant United Alexandria, VA, States Attorney, Ap- for pellee. Miller, ON BRIEF: Laura Ariane L.L.P., Nixon Peabody, Washington, DC, Webb; for Appellant Geneson, David F. Zick, Williams, Lara S. Hunton & Wash- DC, ington, for Appellant Photogrammet- ric. Helen F. Fahey, United States Attorn ney, Alexandria, VA, Appellee. ' WILKINS, WILLIAMS, Before . and TRAXLER, Judges. Circuit by Affirmed published opinion. Judge TRAXLER wrote majority opinion, Judge joined. Judge WILKINS wrote opinion concurring an WILLIAMS in part concurring and in the judgment.

OPINION

TRAXLER, Judge: Circuit Photogrammetric Services, Data Inc. (“PDS”) (“Webb”) and David G. Webb ap- peal their convictions and sentences for fraud, highway project see. 18 U.S.C.A. (West 2000), fraud, see § 1020 and mail (West 2000). § U.S.C.A. We affirm. to en- in order managers to PDS allotted Facts I. dollar close to the billed that PDS sure corporation Virginia a PDS is Appellant by VDOT. pre-approved limits topo- preparing of in the business engaged ap- of PDS employee late and photography aerial from maps graphic in- officers with enforcement proached law and Between surveys. ground long-standing concerning PDS’s for formation subcontracting work performed PDS invoices. inflating the VDOT of Virginia practice having contracts firms acting employee of (“VDOT”) this theWith assistance Transportation of Department informant, including his government aas work engineering preliminary perform incriminating statements of recording Appellant construction. highway for FBI and workplace, at the made Webb photo- as the by PDS employed Webb was inves- began agents law enforcement state peri- time during this manager grammetric fraud even- billing alleged tigating States the United In December od. warrant to search a tually procured PDS Webb against indictment filed an documentation offices for fraud, in PDS viola- highway charging project fraud, fraudulent scheme. 1020, and mail § tion of 18 U.S.C.A. The of 18

in violation U.S.C.A. January morning theOn allegations from stemmed charges at the warrant executed the search agents broad, ain engaged had PDS and Webb beginning At the of PDS. offices inflated submitting practice long-term ato were directed employees search PDS contractors, who prime to VDOT’s invoices room, away from areas conference on to VDOT passed invoices in turn and, was while the search be searched payment. conducted, employees these some of being That agents. interviewed other evidence, set VDOT According to the traveled morning, agents two money that same the amount on initial limits home, he left for before arriving Webb’s particular bill for could its contractors alle- work, concerning him to interview awarded, upon estimates job based billing practices. fraudulent gations of contrac- advance hours submitted interview, made several During Webb paid ac- were then contractors tors. The admissions, including an admission number of hours cording to the actual on “padding” hours limit, had after PDS been worked, preapproved up to years, responsibility jobs for five VDOT required. was approval which additional prior VDOT assumed from that he had com- PDS, managers employees At By years previously. manager four of the amount showing sheets pleted time estimation, the PDS had increased job, which Webb’s particular worked on each hours job every VDOT amounts on almost in- billed the PDS prepare were then used to fifteen percent, ten by approximately actual jobs. The the VDOT voices for approximately of resulting overbilling in howev- employees, by PDS hours worked $200,000 year five $100,000 per for of the number er, fall short of would often seized dur- Ultimately, and, documents years. billed if by VDOT pre-approved hours PDS, as well as the at the ing search PDS resulted correctly, would have agents to the by made Webb statements table.” Conse- “money on the leaving Howev- at trial. Webb, introduced day, and predecessor Webb’s quently other PDS er, by the made no statements billings PDS responsible who were at time of search at the employees em- jobs, manipulated on the VDOT evidence. PDS were introduced of hours the amount and ployee timesheets trial, At the conclusion of the PDS motion to suppress without conducting an Webb were by jury convicted of evidentiary two hearing on the issue of wheth- highway counts of project er the fraud and three law agents enforcement exceeded scope counts of mail fraud. of Webb was sentenced warrant their actions. to 24 prison months We years and two address these claims turn. release, supervised and was ordered to

make jointly restitution with PDS in the $435,038.33. amount of In In addition to detailed affidavit filed days five joint order to make Webb, PDS, restitution with before the search at investigating PDS placed year was on one FBI probation agent outlined the suspected fraudu- $522,045.29. PDS, fined lent See scheme United States the information ob- Servs., v. Photogrammetric Inc., tained from Data the cooperating employee PDS (E.D.Va.2000). F.Supp.2d concerning PDS’s appeal long-standing practice This overbilling contractors, followed. VDOT the corrobo-

rating evidence that had been located II. Motions to Suppress VDOT, the FBI at and the corroborating information obtained from the recorded begin We with Appellants’ as conversations between the PDS employee- sertion that the district erred in court de informant and Webb. magistrate The nying their motion to suppress all fruits judge determined that there was probable January PDS, search cause to the requested conduct search at including various timesheets and hand PDS and issued search warrant. time, written notes seized at that and in denying their Appellants motion to suppress now that the affidavit assert statements faulty obtained from was Appellant it Webb because failed to inform the during the magistrate interview at judge government his home that that the had same day. grand issued a reviewing jury subpoena district to PDS for many court’s denial of a motion to suppress evi same materials on the same dence, day, we review the district that the government court’s fac intended instead tual findings error, for clear use the legal and its search warrant as subterfuge to conclusions de novo. obtain See statements from employees United States v. PDS Rusher, (4th Cir.1992). addition to requested documents, government’s cooperating employ- ee

A. witness' had stolen documents from PDS, all of which allegedly would have Appellants contend that the district question called into the credibility of the court erred in failing conduct an government and its inside witness. evidentiary hearing on the issue of wheth- agent er the FBI procuring the warrant to An affidavit supporting appli search the PDS offices made material cation for a search warrant is entitled to a omissions or misrepresentations strong presumption of validity. See magistrate in judge his affidavit to obtain Delaware, 154, Franks v. 171, 438 U.S. (2) warrant, the search failing (1978). to exclude S.Ct. 57 L.Ed.2d 667 Conse all fruits of the search quently, because the law in order to obtain evidentiary agents enforcement the permis- exceeded hearing affidavit, on the integrity of an a scope sible of the search by de- warrant defendant must make “a pre substantial taining and interviewing employees PDS liminary showing that a false statement during search, the and denying their knowingly intentionally, and or with reck- search of obvi- at the time the employees truth, included was for the disregard less probable upon no effect whether ously had affidavit.” in the warrant by affiant the PDS offices the “showing to search The cause existed 155-56, 98 S.Ct. 2674. Id. at included properly must which were eonclusory’ and documents than be more ‘must Second, the scope. offer warrant’s a detailed the by within accompanied be to appeal’ con- documents Colkley, “stolen” alleged v. States United proof.” Franks, Cir.1990) informant which (4th the (quoting one document sist of 297, 300 2674). course during “Mere the normal 98 S.Ct. had at reviewed 438 U.S. actually facts relevant took recording the but which he in employment, his negligence not desk draw- locked determination probable-cause from Webb’s Appellant to a (internal FBI, the quotation the docu- at 301 to provided Id. enough.” er. When omitted). never used. away and and locked alterations ment was marks that the no claim have made Appellants [also] must false information “[T]he in warrant affi- upon the relied documents cause determi probable the to be essential improper- or otherwise “stolen” davit were the sub ‘if, that is material when nation: showing no that docu- and ly obtained disre or reckless alleged falsity ject of from informant by the ment taken side, there remains one gard is set to upon relied was ever drawer locked desk affidavit in warrant content sufficient And, Ap- any way. in government cause, no finding a support probable to this that not demonstrated have pellants ” (quoting at 300 Id. hearing is required.’ informant part of the act on isolated 2674). 171-72, Franks, 98 S.Ct. sufficiency to defeat the operated somehow prevent to Thus, hearing “serves a Franks showing otherwise probable cause of the pursu obtained of evidence the admission undermined seriously it or that so made only be issued that to warrants ant the balance credibility as render his misled was issuing magistrate cause showing un- cause probable the substantial probable there existed believing that into reliable. Friedemann, 210 States cause.” that the dis- denied, we conclude (4th Accordingly, Cir.), cert. F.3d a refusing in to hold not court did err 124 trict 148 L.Ed.2d grant refusing hearing and Franks (2000). ob- the evidence suppress the motion court the district are satisfied We of the warrant consequence tained as Franks conduct a refusing not err did at PDS. executed a sub- to make failed hearing. Appellants FBI showing that the preliminary stantial warrant search the PDS

agent procuring next claim Appellants knowingly and any statements made false all fruits of suppressed have disregard court should with reckless intentionally, or because, detaining at PDS affidavit. the search truth, warrant for the employees, PDS interviewing alleged omissions of Nor do disregard” “flagrant agents acted probable alter complain Appellants warrant, which autho the search scope of the warrant such that determination cause documen of certain only the seizure rized judge be- magistrate was issued records, rendering the computer tary believing into he was misled cause Appel violative First, legal search fact otherwise existed. probable cause rights. See Fourth Amendment lants’ jury existed grand subpoena 376, Ruhe, 383 F.3d v. United States interview PDS the FBI intended (4th Cir.1999). We conclude that the violated agents’ the actions in doing so. agents did not scope exceed the general rule, the As a properly items seized by detaining warrant interviewing the agents executing a search warrant “may and, event, employees any PDS still be admitted even they when are ob suppression blanket of all documentary ev- tained at the same time as improperly idence seized in accordance with war- Ruhe, seized 383; items.” 191 F.3d at see required by rant would not be the Fourth also United States Squillacote, v. 221 F.3d Amendment. — (4th 542, Cir.2000), denied, cert. U.S.—, 1601, 121 S.Ct. 149 L.Ed.2d 468 premise, As an initial we find un (2001). Thus, all “[w]hile evidence which persuasive Appellant’s argument that the is not identified within a search warrant agents unlawfully “seized” the PDS em may be excluded if the executing officer ployees at the time of the search. Because exceeds scope warrant, of the such they possession were in of a valid warrant exclusion not does extend to evidence actu to search premises of PDS for evi ally named in the search warrant which is scheme, dence of the billing fraudulent discovered during the course of agents at necessarily PDS had authority to Jones, search.” United States v. 31 F.3d premises secure the and detain the em (4th Cir.1994). Properly seized ployees temporarily in order to conduct evidence will be excluded only “[i]n ex the search with minimal interference. Cf. treme ... circumstances when the officers Summers, Michigan 702- executing the ‘flagrant warrant exhibit a 69 L.Ed.2d 340 ” disregard Ruhe, for its terms.’ 191 F.3d (noting that law enforcement officers Jones, 1314). at 383 (quoting 31 F.3d at searching premises for contraband pursu extraordinary “The remedy of blanket sup to a ant valid search warrant have the pression of all evidence seized should be authority to detain temporarily the occu used when the violations of the war pants premises at the while search is rant’s requirements are so extreme that conducted); being Smith, United States v. the search essentially transformed into (4th Cir.1983) (same). search,” an impermissible general Squilla- particular, In agents PDS, suspect cote, (internal 221 F.3d at quotation widespread ing billing prac fraudulent omitted), marks such as when officers have within the tice had a company, valid inter seized “large quantities clearly of evidence est assuring that the altered timesheets not scope warrant,” within the id. they expected to find could be seized be any fore employee or manager had the case, course, this Appellants con- opportunity destroy them. Michi Cf. tend that the district court erred in admit- gan, 702-03, 452 U.S. at 101 S.Ct. 2587 ting properly seized documents ob- (noting law enforcement’s interest de tained at pursuant PDS to the valid search taining occupants in prevent order warrant agents because the also inter- “frantic efforts or destroy conceal evi employees viewed while the search was pose dence” could a risk of harm to being However, conducted. there is no police both occupants). allegation that agents ever exceeded

Even were to we conclude that scope of the search warrant in employees were improperly documents, detained seizure of the and no state- search, and interviewed during the howev ments obtained the employees from er, Appellants have not made a showing admitted during as evidence the trial. their Fourth rights Amendment were Nor is there even an any assertion that 240 obtained and other documents timesheets or admitted ultimately obtained

documents offered Appellants PDS. pro- in search at to be the only able were into evidence claim that conclusory their by support made no statements of as a result cured subterfuge” cir- was “mere the warrant day. Under the search that employees the employees. the agents’ interrogate the and cumstances, not view detain we do to documentary And, who had been the employees previously, noted interviewing of a search admit- sought of to be execution during the obtained evidence detained disre- “flagrant scope in the of taken within as acts unquestionably warrant ted was warrant. warrant, of the search the terms the of whereas state- gard” the search remedy of blanket Therefore, the extreme not were the employees taken from ments documentary evidence of the suppression into evidence. admitted warrant was of the by the terms covered proper- distinct court the required and

not B. suppress to motion Appellants’ ly denied the that next contends Webb on this basis. padding admitted in he which statements con prime invoices submitted the agents tractors, law enforcement given to reasons, reject Ap we For similar at interview January during the the that contention alternative pellants’ home, suppressed have been an eviden his should have held court should district a custodial during made they were suppress to the motion because tiary hearing on having been ad his dispute as to without interrogation a factual there was because him forcibly de not to incriminate his right were employees the vised whether coercively questioned. disagree. self. We tained Cf. 786, 789 F.3d Taylor, 13 States v. course, is, well It estab (4th Cir.1994) mate (holding “[w]hen “ into who ‘taken persons are lished of a resolution rial affect facts of [their] custody deprived or otherwise during seized evidence suppress to

motion ”way’ any significant of action freedom conflict, the are in a warrantless search warnings before Miranda given be must is the conflict way to resolve appropriate Stansbury v. questioned. being Califor hearing evidentiary after holding an 318, 322, nia, S.Ct. 511 U.S. in a posi be court will the district curiam) (quoting (per L.Ed.2d assert findings”). Appellants make tion to Arizona, Miranda factual dis a material they created (1966)). 1602, 16 L.Ed.2d 694 S.Ct. of several through the affidavits pute Miranda, afforded Supreme Court interviewed who were employees PDS privi Fifth Amendment protection However, while there during search. compelled against self-incrimination lege in the discrepancy some appear does be be that can pressures coercive “from questioning detention extent upon suspect brought bear well as in agents, as employed Ber interrogation.” of custodial context concerning employees perceptions 420, 428, 104 McCarty, 468 U.S. kemer v. time, say that we cannot rights their (1984). To L.Ed.2d 317 failing to con erred court the district volun determine whether statement if we Even evidentiary hearing. duct the confes see “whether tary, we look to set events as accept version of threats sort of by any affidavits, was extracted sion Appellants employee forth any violence, direct or obtained to suppression were not entitled promises, slight, however implied ward to block the driveway, got out of improper car, exertion of influence.” Hutto v. their speak asked to with Webb Ross, 28, 30, 97 S.Ct. 50 about employment his at PDS. Webb told curiam) (internal (per L.Ed.2d 194 agents that he needed to take his son omitted). quotation marks and alterations first, to the bus at stop a local store but police activity necessary “[C]oercive they could follow him to the store. predicate finding that a confession is The agents agreed. store, At the Webb Braxton, voluntary.” not United States v. dropped his son off and entered the store (4th Cir.1997) (internal 112 F.3d alone. After returning cup with a of cof- omitted). However, quotation marks fee, spoke briefly Webb with agents. threats, violence, mere existence of “[t]he however, agents, The told that they Webb influence, implied promises, improper would prefer to return to Webb’s home for police activity other coercive ... does-not interview, agreed. Webb After automatically render a confession involun- returning home, to Webb’s Webb and the tary. proper inquiry The is whether the agents began speak deck, on Webb’s but defendant’s will has been overborne or his weather, January because of the capacity for critically self-determination agents go asked to inside. The men then (internal impaired.” Id. at quotation home, entered Webb’s where Webb closed omitted). marks must “[C]ourts consider dog his in another room before sitting circumstances, totality including down for the interview. Webb paused also defendant, the characteristics of the to make a telephone call to employer his interview, setting and the details of let them know he would be late for work. (internal interrogation.” Id. at 781 The interview approximately lasted one omitted); quotation marks see also United hours, Howard, (4th and one-half during States v. which time Cir.1997) (“An custody’ individual is ‘in Webb admitted padding the VDOT bills on when, purposes Miranda under the totali- PDS’s behalf. circumstances, ty of the ‘suspect’s free- receiving After concerning evidence dom degree of action is curtailed to a ” day, events on that the district court found associated with formal (quoting arrest.’ that the required officers were not give

Berkemer, warnings Webb Miranda 3138)). reviewing sup- When a motion to statements made in- during Webb press admissions of a defendant on the voluntary. terview his home were Con- grounds they were during made sidering circumstances, the totality of the custodial interrogation without Miranda agree. we Prior to the interview at his warnings, we must accept the district home, placed Webb was never findings court’s of fact on under ar- the circum- rest, handcuffed, stances surrounding a confession unless or otherwise restrained. erroneous, clearly but must make an inde- Webb was interviewed familiar sur- pendent determination on the issue vol- home, roundings, in his own for a reason- Braxton, untariness. See 112 F.3d at 781. time, period able where his movements were not restricted. No threats or prom- 20th, On the morning January two ises were made to obtain cooperation, his law enforcement agents traveled to Webb’s nor brought upon was intimidation to bear parked home and on the street to wait for Indeed, him him. Webb to leave for work. testified that he Webb came out at approximately agreed speak 7:00 a.m. agents and drove down both at driveway. his agents pulled The then for- the store and on the deck of his home. was Because this to resist. come his will on

Nonetheless, appeal asserts Webb situation, the district court made volun- a custodial not not that his admissions concluding his car that Miranda got out of err agent did not one tarily because and, was conse- required when Webb not “brandishing” a sidearm warnings home, agents insisted suppress to Webb’s leaving refusing his quently, first staying on the inside instead going on statements. interview, for the they when returned

deck attorney. for an eventually asked he and C. First, own Webb’s unpersuaded. areWe challenges the separately PDS not do morning that of the events account the incrimina court’s admission district claim exaggerated Appellants’ substantiate the law by to made Webb ting statements car out of the agents got of the “[o]ne that 20, 1999, January agents on enforcement Appellants’ brandishing his sidearm.” made to the testified, well as Webb’s statements as response Brief at 17. Webb tape-recorded and he knew informant government whether question a Spe en- that time. prior car was a law by his the informant agent approaching officer, “notice[d] that he that because Webb cifically, PDS asserts forcement arm,” trial, a J.A. wearing side the admission of testify was at officer] did not [the added), claim but made no (emphasis against PDS violated statements Webb’s “brandished.” Sec- arm was that a side right to confron Amendment PDS’s Sixth court, cannot infer ond, we States, like the district Bruton v. United tation. See that the interview request agents’ that the 1620, 20 L.Ed.2d 88 S.Ct. instead of home Webb’s place take inside (1968). court ruled that The district turned the interview somehow on the deck under were admissible the statements in na- consensual opposed to coercive as 801(d)(2)(D) Federal Rules of of the Rule it took ture, the fact that especially given admission into and that their Evidence Third, and January. in the month of place PDS’s Sixth did not violate evidence matter in direct regard to the with right to confrontation. Amendment the district say cannot we dispute, can act corporation insuf- “Because a the evidence was finding that court’s an requested a statement only through employees, find Webb its ficient to certainly be clearly erroneous. ... can attorney corporate was a official corporate an admission considered sum, left with Webb’s we are at best Brothers United States defendant.” had that he felt he after-the-fact assertion (4th Co., 219 F.3d 310-11 Constr. to the to accede little or no choice but denied, Cir.), cert. interview, is agents’ request for (2000). And, under L.Ed.2d 537 given consideration entitled limited 801(d)(2)(D), state an out-of-court Rule us. of the circumstances before totality at trial is not as evidence ment offered Braxton, (“Subsequent at See if statement is heai'say “[t]he considered prior testimony by about his an accused is ... a state against party offered and reac- subjective impressions mental con agent or servant party’s ment scrutinized, as such carefully must be tions scope of the a matter within cerning by his self- testimony always influenced during the employment, made (internal agency or marks and quotation interest.” relationship.” Fed. omitted)). existence estab- failed to alterations Webb 801(d)(2)(D). dispute is no There R.Evid. agents were that the law enforcement lish made to the the statements Webb as to over- intimidating overpowering so “ (a ted). government co-employee) informant ‘The focus of the Court’s concern agents law enforcement concerned has been to insure that there are indicia of billing practices procedures reliability Webb’s which have been- widely viewed employed manag- PDS while he was as the as determinative of whether the statement Thus, photogram department. may er of the placed be jury before the though the statements concerned matters within declarant, there is no confrontation of the scope employment Webb’s and to afford the trier of fact a satisfactory PDS, during made the existence of the basis for evaluating the truth prior ” (internal employment relationship, and were admis- statement.’ Id. citation omit- 801(d)(2)(D). ted) against Stubbs, sible PDS under Rule (quoting v. Mancusi 408 U.S. Brothers, 204, 213, (holding 2308, See 219 F.3d at 309-311 92 S.Ct. 33 L.Ed.2d 293 (1972)). grand jury testimony of officer and in- From principles, these the Court corporate house counsel for defendant was has held that a hearsay statement ad- is properly against admitted as admission the missible and does not violate the Confron- defendant). Indeed, corporate PDS seem- tation Clause where the witness is unavail- ingly agrees that Webb’s statements would able and the statement bears sufficient provisions be admissible under the of Rule reliability” “indicia of in that it falls within 801(d)(2)(D), contending instead that “firmly a hearsay exception,” rooted or has admission of Webb’s against “particularized statements guarantees of trustworthi- improper 65-66, PDS was because it 2531; nevertheless ness.” at Id. 100 S.Ct. see ran afoul of PDS’s constitutional right Lilly 116, also Virginia, v. 527 124- U.S. 25, 1887, (1999) confrontation. disagree We that admis- 119 S.Ct. 144 L.Ed.2d 117 sion of the statement was error. (plurality). First,

The Confrontation Clause of the hearsay exception is guarantees right “firmly Sixth Amendment if rooted” it upon “rest[s] such a criminal defendant “to be confronted solid foundations that admission of virtual with the witnesses against ly any him.” U.S. comports evidence within [it] Const, amend. VI. But while “the Con the ‘substance protec of constitutional ” Roberts, 66, frontation reflects a preference Clause for tion.’ 448 U.S. at 100 S.Ct. trial,” face-to-face confrontation at v. example, Ohio 2531. For in United States v. Roberts, 56, 63, 2531, Saks, (5th Cir.1992), 448 U.S. 100 S.Ct. 65 964 F.2d 1514 (1980) (footnote omitted), L.Ed.2d 597 it Fifth Circuit identified several “firmly does not foreclose the admission of all exceptions hearsay prohibi rooted” hearsay statements when the declarant is tion that would serve exceptions to Bru unavailable, 64, see id. at hearsay 100 S.Ct. 2531. ton: the exception co-conspira for Rather, 801(d)(2)(E), “[r]eflecting underlying pur its “spontaneous tors Rule pose augment accuracy 803(2), in the factfind declaration” exception Rule ing process ensuring the defendant an exception the “medical examination” evidence,” 803(4) effective means to test adverse Rule of the Federal Rules of Evi 1525; Illinois, prohibit the Confrontation Clause does not dence. See id. at v. White 346, hearsay the introduction of statements of 502 112 (1992); an unavailable declarant which are L.Ed.2d 848 Bourjaily see also v. States, 171, 183, “marked with such trustworthiness that United there departure is no material from the (holding 97 L.Ed.2d general reason of the rule.” Id. at independent inquiry reliability 100 “no into is (internal quotation S.Ct. 2531 required marks omit- when the evidence falls within a ‘firmly rooted’ as hear- not rent version like that hearsay exception” firmly rooted the Confron- exception, purposes for say Rule under co-conspirators for omitted)). (internal citation (internal marks tation Clause” 801(d)(2)(E) quotation Thus, statements Shores, while contends that PDS omitted)); v. States during Cir.1994) co-employee his (4th by Webb to (observing made 438, 442 F.3d might employment fall of his if non- the course apply not Bruton does to the hear- exception the historical ad- within statement testifying co-defendant’s rule, to the law statements say Webb’s under nonhearsay statement as a missible interview during the 801(d)(2)(E)); agents enforcement Folston Fed.R.Evid.P. Cir.1982) this (4th not fall within his home would at Allsbrook, F.2d rooted,” traditional, “firmly exception (same). scope acting not within he was because meaningful distinction any Failing to see time he made the employment of his 801(d)(2)(E) Rule Rule between statements. Bruton, 801(d)(2)(D) purposes of Rule correctly notes that Although PDS exception agency court held that Saks 801(d)(2)(D) 801(d)(2)(D) original excep- the broadened equally “is in Rule forth set hearsay state- Saks, of admissibility tion for the 964 jurisprudence,” in our rooted against the by agent made an and, therefore, ments 1525, “if statements at F.2d not employer, we need decide agent’s Rule of the requirements meet to the law en- 801(d)(2)(D) whether Webb’s statements Clause ... the Confrontation home, in his which 1526; officials forcement satisfied,” see also United id. at is (5th hearsay 518, within the ex- Walker, clearly fall current F.3d 522 v. 148 States 801(d)(2)(D),would also fall Cir.1998). ception of Rule the court ruled Consequently, “firmly exception rooted” to the within a testimony of defendant’s prior that the rule. Even were we assume hearsay civil prior in a partner, offered business not, contain acts, do they that statements alleged criminal to the pertaining suit guarantees of trustworthi- “particularized the defendant against was admissible Saks, subjected they that not be ness” such need See subsequent criminal suit. his testing normally adversarial re- to the 964 F.2d at 1526. Clause. quired by the Confrontation asserts, however, Saks PDS asserting that disagrees, Webb’s current Rule PDS fact that overlooked the court prong the second 801(d)(2)(D) satisfy cannot the traditional ex- statements broadened v. Roberts test because the juris- of the Ohio our agents’ statements ception firmly general held to the rule ad- Court has for the prudence, which allowed in- accomplice’s confession agent that an “made of mission statements presumptively a is defendant employment,” his criminates acting in the of scope Illinois, 476 Lee v. U.S. to a See all related unreliable. not for “statements 2056, 90 L.Ed.2d 514 agency scope of matter within 801(d)(2)(D) (1986). recitation of the But while PDS’s Fed.R.Evid. employment.” one, it fails to note; rule is an accurate general also see advisory committee’s (2d holding this that the Court’s recognize 1174 1 King, F.3d n. States “[sjection Cir.1998) the “basic un- regal’d premised upon was (noting 801(d)(2)(D) person that when accuses derstanding one prior defini- broaden[ed] circumstances in of a crime agents,” of another under statements tion of admissible gain in- which declarant stands unnecessary to “decide finding it but another, pre- is the accusation culpating cur- renders the broadening this whether suspect subjected and must be of sumptively admitting” inculpatory statements made scrutiny of cross-examination.” Id. employee concerning very tasks words, defendant, in In other when a that “he hired to was do.” 30B Michael H. himself, hopes helping Graham, has made state- Federal Practice & Procedure spreads (2000). ment shifts blame to The inherent reliability accomplice, another defendant or and reasonableness of admitting such Court has held that statement does not fall against statements as evidence the em- firmly within a rooted exception where, ployer is even more compelling hearsay rule and falls outside the realm of here, the statement is inculpatory of the trustworthy hearsay in gener- statements and, employee thereby, employer, his but Lilly, al. See at U.S. exculpatory is not the employee. admitting Webb’s statements in- he flated the VDOT invoices were genuinely presumption unreliability, This and, self-inculpatory inculpatory while also however, just presumption. that —a It PDS, in way attempt- statements no may sup be rebutted if the statement “is ed to shift blame to curry another or favor ported by showing particularized at the expense of others. Nor are we Lee, guarantees of trustworthiness.” persuaded by argument PDS’s that we (internal at quota 106 S.Ct. 2056 regard should Webb’s self-inculpatory omitted). And, tion marks consistent with statements as unreliable because Webb upon presumption basis which the made a reference to his predecessor rests, Supreme recog Court has also engaging PDS in similar actions. Webb’s very nized that “the fact that a statement predecessor reference to his was fleeting genuinely self-inculpatory is “—rather and, at attempting best instead of to shift attempt curry than an to shift blame or blame, implicated Webb himself in criminal ‘particularized favor—” is itself one of the conduct from the moment he became the guarantees of trustworthiness’ that makes photogram manager to the exclusion of all a statement admissible under the Confron others. tation Clause.” Williamson States, 594, 605, 512 U.S. S.Ct. reasons, reject For the same we PDS’s (1994). 129 L.Ed.2d 476 claim that because Webb’s statements

We hold that self-inculpatory procured state- were either law enforcement informant, ments of Webb contain such “particular- agents presump- or guarantees unreliability ized of trustworthiness” and tion of cannot be rebutted. properly were argument premised upon admitted evidence This is the plu- First, against Lilly rality’s PDS. neither Lee nor in Lilly statement that is “[i]t question admissibility involved the of the highly unlikely presumptive unre- employee’s inculpatory liability of an accomplices’ statements that attaches to con- against corporate employer, his or the spread or blame can be fessions shift question liability of the criminal ... effectively govern- rebutted when corporate employer upon agency based ment is involved in the pro- statements’ Indeed, duction, relationship with the declarant. and when the statements describe question past subjected aside from the of whether Rule and have not events been 801(d)(2)(D) firmly hearsay testing.” Lilly, is rooted ex- to adversarial 527 U.S. at added). ception, commentary (emphasis we note that the to Re- S.Ct. statement, lying upon argues current version of the Rule itself rec- this PDS ognizes “the reliability accomplice’s hearsay reasonableness that an statement (1) not Congress did asserting a defendant against admitted cannot be apply in- fraud statute to has been intend for the mail government whenever statement. production private or commer- mailings placed in volved to are broadly, nor Lilly so read purpose We not for the do carriers cial interstate an all-encom- such adopt to we inclined if the mail- scheme executing a fraudulent self- Webb’s rule of exclusion. passing intrastate, actually travels ing itself statements, to made although inculpatory interpreted if statute is agents’ and the agents law enforcement otherwise, Congress’s exceeds the statute to “shift or informant, attempt made no under the Clause. power Commerce to another. blame” spread provides perti- The mail fraud statute are not summary, Webb’s statements that: part nent by a made those statements analogous to Whoever, intending to or having devised shift blame seeks to who defendant defraud, any or artifice devise scheme the two conduct which another for money property or for obtaining or reliability of involved, thereby calling pretenses, fraudulent into of false or co-defendant means about his statements cases, ... for the danger promises, or representations, In such question.1 “[t]he Clause or the Confrontation such scheme against executing which purpose a defendant do, places was erected —the conviction attempting so to artifice or presumptively based, part, on at least depositor or authorized any post office Lee, present. unreliable evidence—” matter, thing or any matter mail Here, 543, 106 by the to be sent or delivered whatever fairly charac- are not Webb’s statements Service, deposits or causes Postal unreliable presumptively terized as thing any matter or what- deposited be reliability” to be “indicia sufficient bore by any pri- ever to be sent or delivered employer. Because against his admissible earner, or interstate vate or commercial admissions to self-inculpatory Webb’s therefrom, any such takes or receives among those statements agents are thing, knowingly causes matter or trust- guarantees of carry “particularized by mail or such carrier be delivered worthiness,” admissi- they properly were thereon, or at to direction according the Ac- Clause. the Confrontation ble under it is directed be the at which to place in not err did cordingly, the district court it to whom is person delivered the against PDS statements admitting Webb’s addressed, thing, matter or any such 801(d)(2)(D), not vio- and did under Rule impris- under this title or shall be fined under the Confrontation rights late PDS’s or both. years, than five oned not more doing in so. Clause added). (emphasis § 1341 U.S.C.A. III. Fraud Convictions Mail case, pre- In this fraudulent invoices the

A. jobs the VDOT pared by PDS on Virgi- offices in always mailed from PDS’s their convic challenge Appellants Virgi- prime contractors nia to VDOT’s 18 U.S.C.A. for mail fraud under tions that Webb's the interview the state- substantiate claim that made 1. PDS also claims Webb perceived agents to be was setting that in his home "coercive’' ments in a Webb the two coercive, creating for possibly nature, an incentive that Webb never claimed and even may agents have to tell the what he Webb self-inculpatory proceeded state- he to make get to thought they hear to them wanted to get agents to leave. just to ments the PDS, course, failed to leave. Webb through step analyzing the United States Post- Our first nia either meaning of the statute is to “determine Parcel al or Service Service whether the language plain at issue has a (“UPS”). government Although was unambiguous meaning regard to evidence as to which present unable particular dispute in the case.” Robin any particular invoice carrier was used for Co., 337, 340, son v. Shell Oil 519 U.S. any particular actually invoice (1997). 843, 136 L.Ed.2d “If lines in route from crossed state PDS language plain is and the statutory scheme contractor, prime successfully it did consistent, is coherent and we need not that one of these interstate carriers prove inquire Big further.” Holland v. River UPS) (the always was Postal Service (4th Corp., Minerals overbilling used to execute the fraudulent omitted), Cir.1999) (internal quotation marks The district court concluded that scheme.2 denied, rt. ce jurisdictional the mail requirement (2000). 145 L.Ed.2d 814 “The plain fraud statute was satisfied because UPS ambiguity statutory ness or of the lan was a commercial inter-state carrier and guage is determined reference to the that, not although government could itself, language specific context the invoices for deposited establish used, language which that is and the delivery actually with UPS traveled inter- broader context of the statute as a whole.” state, required. agree. not such was We Robinson, 117 S.Ct. 843. rule, general As a only statutory “[i]f language ambiguous[ we look be ][do] yond the language of the statute to the Appellants’ We first address assertion Holland, history legislative guidance.” for did not intend for Congress “pri- (internal quotation 181 F.3d at 603 marks pro- vate or commercial interstate carrier” omitted). And, then, congressional “[i]f coverage vision to extend of the mail fraud intent is not apparent from examination statute to the use of interstate carriers history, legislative apply we deposited delivery when the item statutory traditional tools of construction.” actually further the fraudulent scheme (internal omitted). quotation Id. marks Specifically, they travels intrastate. Prior to mail fraud statute am- language assert 1341 is criminalized the use of the United States biguous question as to the it whether a fraudulent Postal Service to execute applies to intrastate deliveries of matters scheme, private but had no application private a things deposited or with or com- or commercial interstate carriers. See carrier, interstate or only mercial to mat- Lefkowitz, 125 F.3d United States v. interstate, things ters delivered that the or (8th Cir.1997). Then, now, the stat- legislative history adopt counsels that we ute made no distinction between intrastate construction, the more narrow and that as mailings, and interstate and it had been apply resort we should the rule of last proper extended to both as a exercise of lenity to overturn their convictions. the Postal Power. See United States v. issue, jury money property by 2. Relevant to this was instruct- obtain or means of fraudu- fraud, representations,” ed that to convict mail it must find lent that "an inter- also "beyond a reasonable doubt the use of commercial . .. en- state carrier is carrier the mails or the interstate commercial carrier gaged transporting persons property or in or furthered or advanced carried out in some across state lines.” 556-57. J.A. way plan the scheme or to defraud or to (8th Cir.1996) immediately after Elliott, or “across state lines” Instead, “sent or delivered.” phrase basis jurisdictional that “the (holding virtually identical in the elected to use grounded Congress is mail fraud statute necessarily dealing en- with the use of language as that Power and therefore Postal mail; ie., through imposing passing all items the United States compasses mails, passage any if in liability “places even their one States criminal when United intrastate”). for depository or purely post office authorized matter, any thing or luhatever mail matter 1994, however, Congress broadened the Postal Ser- be sent or delivered mail fraud statute application of the vice, deposited to be deposits or or causes causing] or criminalize “deposit[ing] also thing whatever to be sent any matter or thing matter or what- deposited any to be or commercial by any private delivered by any 'private be sent or ever to delivered ” exe- purpose interstate earner for earner” for the interstate or commercial cuting to defraud. 18 U.S.C.A. the scheme or arti- carrying out a scheme purpose of added). Consequently, § (emphasis Crime Control fice to defraud. Violent Congress, we no indication that find 1994, Pub.L. Law Enforcement Act of which criminalizes de- amending a statute 103-322, § No. Stat. things with the United States positing added). Although (emphasis interstate or delivery, Postal Service pursuant to the amendment was added intrastate, limit the extension intended to power, and was obvious- Clause Commerce interstate carri- private and commercial to extend the mail fraud stat- ly intended deliveries. On the ers for interstate who use to reach those defendants ute contrary, think obvious that Con- we it such as carriers commercial interstate prohibit pri- intended to the use of gress in lieu of the Express and Federal UPS vate and commercial interstate carriers to Service, Congress United States Postal activity way further fraudulent in the same which would serve to added no distinction mail States had such use intended reach exempt from statute’s long prohibited. been mailings pri- handled such intrastate carriers. vate or commercial interstate Although ambiguity we no discern intent to criminalize such unambiguous congressional that the We believe conduct, unpersuaded by Ap all we are also of current 1341 criminalizes language legislative his pellants’ of a fraudulent assertion that mailings furtherance tory with of the 1994 amendment indicates mailings placed if the are scheme Congress did not intend to extend the United Postal Service either States mail reach of the mail statute to situa private or commercial de fraud other interstate, private tions in which a or commercial livery operate services which particular mail interstate carrier delivers the regardless any particular of whether mailing only Had Courts are to ing actually crosses lines. Con intrastate. state beyond plain meaning of a only inter “venture gress intended to criminalize only in rare instances private such interstate statute those state deliveries carriers, clearly expressed legisla ‘a thereby create there is or commercial ” Holland, contrary.’ tive intent to the jurisdictional requirement when a different 2 v. (quoting F.3d at 603 n. Russello carriers are lieu of the United 181 such used States, 16, 20, Service, 104 easily it have United 464 U.S. S.Ct. Postal could States (1983)). 296, Although Ap L.Ed.2d 17 the drafters need 78 example, done so. For argue that were made only pellants words “interstate” references have inserted the

249 lenity inapplicable. inter- rule of is The statute history to increased legislative in the depositing causing than the act of or by prohibits facilities other deliveries state to deposited any thing Postal reason to be matter or to be States Service United statute, they candidly by any acknowl- delivered the Postal Service or amend the legislative history private is silent or commercial interstate carrier edge that the in- purpose executing amendment was for the of a scheme or whether the regarding defraud, only irrespective to interstate artifice to of whether applicable to be tended thing deposited delivery or for private such and commercial the matter deliveries actually is intended to or does travel inter- interstate carriers. state or intrastate. reasons, reject For similar we argument apply that we should Appellants’ mail lenity rule of to overturn the Having determined that the mail lenity gen convictions. The rule of fraud applies private fraud to the use of statute ambigu calls for courts to construe erally and commercial interstate carriers exe against govern criminal statutes ous scheme, regardless cute fraudulent of in favor of the defendant. See ment and particular deposited whether matter (4th Hall, 67, v. 972 F.2d 69 United States delivery actually for travels across state Cir.1992) (“Under lenity any rule lines, question we turn to the of whether ... criminal must be construed statute statute, applied the mail fraud when against gov the accused and favor of of a or commercial interstate private use However, “a ambiguous”). if it is ernment solely to deliver an item employed carrier ‘ambiguous purposes provision [not] is intrastate, permissible is a exercise merely possible it lenity [is] because Congress power of its under the Com narrow than articulate a construction more Const, I, 8,§ ” merce art. cl. Clause. U.S. urged by the Government.’ See ... (“Congress 3 shall have the Power To Ehsan, v. 857 United States among ... the several regulate Commerce (4th Cir.1998) (alterations original) ”). States.... States, 498 (quoting Moskal v. United U.S. 103, 108, Lopez, 112 449 111 S.Ct. L.Ed.2d United States (1995), (1990)). And, 115 L.Ed.2d 626 simple existence of S.Ct. 131 “[t]he identified three broad cat- statutory ambiguity Supreme ... is not suffi Court some rule, activity Congress may reg- egories application th[e] cient to warrant “First, power. are to some ulate under its commerce ambiguous for most statutes States, Congress may regulate the use of the Muscarello v. 524 degree.” Second, 125, 138, 1911, 141 L.Ed.2d channels of interstate commerce. U.S. (1998). “Rather, regulate Congress empowered there must be a is of interstate ambiguity uncertainty protect or in the the instrumentalities ‘grievous Act, commerce, things in inter- persons structure of the such language and commerce, though even the threat every after a court state seize[d] that even has derived, may it come from intrastate activities. thing from which aid can be ” authority in- Finally, Congress’s Eh- commerce ambiguous still left with an statute.’ n (alteration san, activi- power regulate cludes the those original) F.3d at States, to inter- having a substantial relation Chapman v. United 500 ties (quoting ie., commerce, 453, 463, those activities 114 L.Ed.2d state S.Ct. (1991)). affect interstate commerce.” substantially that the Because we conclude (citations 558-59, 115 Id. at meaning unambiguous, 1341 is omitted). an exer appropriate inter state facilities is The district court concluded power.” cise of the commerce to the mail fraud amendment that the 1994 (5th Marek, States and commer- encompass private to statute Cir.2001) (footnotes omitted), petition permissible carriers was a cial inter-state for (U.S. Apr. filed, cert. 69 U.S.L.W. 3673 authority under the Congress’s exercise of 2001) (No. 00-1526). i.e., authority category, Lopez second instrumentalities of interstate regulate to Marek, use a defendant’s intrastate agree. commerce. We Union, instrumentality of an of Western commerce, payment to transfer interstate inter Private and commercial hit man to sufficient to to a was found be are facilities or instrumental state carriers jurisdiction the court to exercise permit commerce, which ities of interstate Con statute, under federal murder-for-hire harm, gress regulate protect can and from (West 2000), § 1958 even 18 U.S.C.A. may threat though [particular] “even though the wire transfer was initiated activity].” only [an] come from intrastate Houston, Harlingen, Texas and received 1624; Lopez, 514 U.S. S.Ct. cf. Texas, government and the introduced no Cases, 342, 351, Shreveport Rate evidence that the transmission ever actual- (1914) (noting 58 L.Ed. 1341 S.Ct. ly en crossed the Texas state line route authority to Congress’s protect that points. between the After determin- two advance interstate commerce extends to ing language ap- of the statute interstate carriers as instruments of inter plied to such intrastate uses of interstate commerce: “the fact that carriers state instrumentalities, court concluded commerce, are instruments of intrastate as permissible the statute was also a exercise commerce, as inter-state does not der well Congress’s power under the Commerce ogate complete paramount from the support, the court Clause. As endorsed latter, authority Congress over the or the similar conclusion reached the dis- preclude power being the Federal from respect trict court in this case with opera exerted to prevent intrastate 1994 amendment to the mail fraud statute: being tions of such carriers from made a [Tjhrough passage of a 1994 amendment injury to that which has means been statute, mail to the federal fraud Con- care.”); Ry. confided Federal Southern gress expanded 18 U.S.C. 1341 to States, 20, 27, Co. v. United private reach interstate commercial car- (noting 56 L.Ed. 72 riers, DHL, Emery, such as Federal highways railroads “are of both interstate Express, in addition U.S. Postal commerce” and that and intrastate Although Service. no circuit court has Safety may Act made Appliance appli be addressed whether amendment re- vehicles, railway to all even cable those quires crossing of state lines to es- commerce, only in used intrastate under jurisdiction, one district court re- tablish Congress’s plenary power regulate in cently held that the amended statute commerce). Thus, Congress terstate when “purely delivery does cover intrastate regulate or protect acts instrumen or by private mails commercial carriers tality of interstate commerce under the long engage as those carriers inter- Lopez category, jurisdic second “federal jurisdiction" state deliveries.... While supplied by tion nature instru lies under the Commerce Clause used, mentality facility by separate not private use commercial movement,” carriers, proof of interstate and “feder Congress may regulate still jurisdiction they al based intra state use of their intrastate because on activities

251 (West 2000), the use of a premised upon com- of interstate are instrumentalities threat, a even telephone is to make bomb again, Here conclusion merce.” of in- was no though use evidence that because intrastate there appropriate regulated through was routed an properly threat interstate facilities terstate in- second-category Lopez telephone a is an system. Congress’s “[B]ecause under commerce,” the strumentality of interstate power. held, “this alone is a sufficient basis court (footnote omitted) Marek, F.3d at 318 238 com- jurisdiction for based on interstate Services, Data Photogrammetric (quoting 158; also States see United merce.” Id. 882). F.Supp.2d at 103 (5th Cir.1994) Heacock, F.3d v. 31 255 con- have reached courts similar Other a (holding person that “whenever uses clusions, upon convictions based upholding deposit, Post to to United Office States protect to which serve criminal statutes money, transport, parcels, and to deliver commerce of interstate instrumentalities mail, of the or other material means involved though specific conduct even unmistakably has clearly that person activities. For ex- intrastate arose from commerce,’ ‘facility a in interstate used Baker, F.3d v. in United States ample, the intrastate of irrespective of destination (8th Cir.1996), Eighth up- Circuit mailed,” that intrastate the item such under police of a officer held conviction requirement jurisdictional use satisfies 1952(a) Act, § see 18 U.S.C.A. the Travel Act); Clay- States v. Travel (West 2000), ac- upon extortion premised Cir.1997) (9th ton, 1114, 1117 108 F.3d vic- the officer escorted his tivity in which (holding telephones because cellular that arrested, tim, to an automat- man he had a ID are instrumen- cellphone numbers money in to ic teller machine withdraw commerce, protectable talities of interstate custody. being for released from return Lopez, no category of under the second of automat- an interstate network Because necessary to further was sustain inquiry interstate facility machines is a ic teller 1029(a) § conviction under 18 U.S.C.A. commerce, held, it falls within the court Kunzman, (West 2000)); v. United States subject reg- to Lopez, prong the second Cir.1995) (“As (10th 1522, 1527 though the withdrawal ulation even an instrumentality used is itself long as the intrastate triggered entirely question system, Con- of an inter-state integral part 275-76. id. at electronic transfer. See in- Gilbert, may regulate intrastate activities gress v. Similarly, in United States the instrumentali- (1st Cir.1999), volving the use of a upheld the court F.3d 152 844(e) ty....”)3 § under 18 U.S.C.A. conviction sug- knew of the interstate Appellants' defendant] that pause briefly [the to address

3. We nexus.”). Congress mail fraud gestion intended the statute, statute, to be a the wire fraud like statute, mail fraud contrast regulation of inter- of the "use channels statute criminalizes communica- wire fraud Lopez catego- under the first commerce” commerce, state providing that it tion in interstate therefore, and, look to the ry that we should be or "transmit[ ] cause[ ] is a crime statute, requires proof radio, wire, fraud wire televi- or means transmitted lines, guid- foreign wiring actually state crossed in interstate sion communication commerce, interpreting signals, pic- the mail statute. writings, signs, fraud any ance Darby, e.g., tures, executing United. States purpose F.3d See for the sounds defraud, (4th Cir.1994) (holding "while 18 U.S.C.A. or artifice” to scheme [a] added), (West 2000) prove (emphasis where- required [the Government was the act statute criminalizes phone a state line as the fraud call crossed mail defendant's deposited "any ..., causing depositing or to be prove did not the Government need carriers, form, the mail fraud stat- commercial addition to the its current Service, being United States Postal from prohibits “deposit[ing] one from or ute utilized further matter fraudulent schemes causing] deposited any to be intrastate, where the use itself is runs by or delivered thing whatever to be sent respected afoul of the federal-state bal- interstate carri- any private or commercial e.g., ance. See id. 120 S.Ct. 1904 executing er” for of a scheme purpose (holding application of federal arson § or artifice to defraud. 18 U.S.C.A. 1341. private statute to a home federalize would such, permissible it too constitutes a As and, typically thereby, “sig- a state crime Congress’s power protect exercise of nificantly. change[ the federal-state bal- ] being interstate facilities from utilized to crimes”) (inter- prosecution ance of accomplish goals. fraudulent omitted); quotation nal marks Bass, 336, 349, States v. 3. (1971) (noting policy 30 L.Ed.2d 488 language Because we find the Congress conveys purpose that “unless its unambigu of the mail fraud statute to be clearly, it will not be deemed to have sig- ous, Congress’s authority and that under nificantly changed the federal-state bal- protect the Commerce Clause extends Congress traditionally ance. has been re- the instrumentalities of interstate com luctant to define aas federal crime conduct being merce from used to further fraudu readily by denounced as criminal activity lent even if the use purely itself is States.”). prohibits The mail fraud statute intrastate, the rule of constitutional doubt use of the United States Postal Service by Appellants inapplica raised is likewise private and other or commercial interstate note, ble. As a Appellants “where statute scheme; carriers to further a fraudulent it constructions, susceptible of by two one attempt injuri- does not to criminalize such grave of which and doubtful constitutional intrastate of a private ous use or commer- questions by arise and the other of which delivery cial intrastate carrier or service. avoided, questions such duty are our is to States, adopt the latter.” Jones v. United 4. 848, 857, conclude, To we hold that the mail fraud (2000) (internal L.Ed.2d 902 quotation statute criminalizes the use of private and omitted). However, marks we do not view commercial interstate carriers to execute § language 1341 as susceptible to fraudulent schemes to the same extent the construction advanced Appellants, the statute criminalizes such use of strain; at least not without considerable jurisdictional the United mail. The States nor “grave do we discern a and doubtful element of the mail fraud statute is satis- question[ constitutional to arise from ]” fied defendant’s act depositing construction we have settled on. Id. thing matter or with a private or commer- similarly carrier, We are unpersuaded though cial interstate even the de- Appellants’ suggestion Congress’s de livery may be intrastate. We also protect private cision to criminalizing and interstate hold that such conduct is a thing language matter or whatever to be sent deliv- of the mail fraud statute re- by any private ered carrier,” or commercial interstate quires only mailing deposited that a be 18 U.S.C.A. In other signifi- an “interstate carrier.” Given these words, language of the wire fraud statute differences, cant textual we do not find the requires actually that a communication travel helpful wire inquiry. fraud statute to be to our commerce,” foreign "in interstate or whereas that a conviction It is well-settled power Congress’s exercise permissible (1) requires showing mail fraud protect Clause the Commerce under carriers in a to de knowing participation interstate scheme commercial private being fraud, used to execute in furtherance of mailing the burdens from Dozie, fraudulent schemes. States v. the scheme. See United (4th Cir.1994) curiam). 95, (per 27 F.3d however, mails, need not be The use of the B. to be element óf the scheme an essential then- challenge Appellants also Rather, of the fraud. part of the execution that grounds convictions on mail fraud to an essential only “be incident it need fraud instruction court’s mail the district plot.” or a in the part step of the scheme charges broadened the impermissibly 705, States, v. 489 U.S. Schmuck United Appellants Specifically, the indictment. 710-11, 103 L.Ed.2d 734 109 S.Ct. in fail court erred that the district assert (internal quotation citations that it must find jury ing to instruct omitted). Accordingly, Appellants’ marks in the in specified the four invoices that require the convictions did not mail fraud inter by mail or were delivered dictment invoices that the four prove to government they were false or and that carrier state were false or in the indictment referenced failure, Appellants as This fraudulent. fraudulent, placed only they but that were sert, bases for con possible broadened the fraudu in furtherance of in the mails in the grounds alleged beyond viction 715, 109 See id. at lent scheme. indictment, amend constructively thereby “ mailings (noting that ‘innocent’ —ones error constituting indictment and ing the may contain no false that information — Randall, v. e.g., United States per se. See element”). mailing supply the (4th Cir.1999), cert. de 171 F.3d nied, Also, the district court’s standard while (2000); States L.Ed.2d specifically did not mail fraud instruction Cir.1994) (4th Floresca,. 706, 710 in the indict- the invoices set forth refer to banc). (en disagree. We jury ment, provided the indictment the four and described clearly referenced with charged Appellants The indictment for the as the basis which served invoices After describ- of mail fraud. four counts and identi- mail fraud counts separate four defraud, the indictment scheme to ing count, jury separate each as a fied dates on identify specific four goes on to each it must consider that was instructed specif- four Appellants deposited which The separately. or count alleged offense inter- by mail or delivery ic invoices it jury that must instructed the court also purpose carrier “for the commerce state used Appellants that determine attempting to” execute executing and carrier commercial or an interstate mails 47. The indict- J.A. scheme to defraud. defraud, that advance the scheme the four individu- charge not ment did mails that the prove must government carri- by mail or interstate al invoices sent were carrier commercial or an interstate fraudulent, but false or er themselves were advance, further, manner to used in some scheme over-billing rather defraud. We scheme to carry out the mail- and that the fraudulent was false and instruc- court’s the district conclude scheme. furtherance of the were in ings unconstitutionally broaden tion did not require the mail fraud statute Nor does in the indictment. charges charge. such a Highway regulation § IV. Fraud Convictions federal subpt. 23 C.F.R. ¶ C, (1999), App. 5 has done so. that their Appellants also assert convic- charged The authorizing FHWA highway tions for fraud under 18 U.S.C.A. highway projects. federal-aid Under Sub- gov- 1020 must be because the reversed part of the regulation, highway C construc- prove they ernment failed acted supervision tion contracts under the direct willfully, failed to establish that the rele- of the incorporate FHWA must a form highway projects approved vant containing provi- various labor standards Secretary Transportation prop- or a sions set forth in A. Appendix its This erly delegee Secretary, authorized form, turn, provision includes a and failed that the prove false invoices reminds they “per- contractors that should in were made connection with the con- form their carefully, thorough- functions as a highway project. struction of We ad- ly, honestly possible,” as and advises each in dress claim turn. “[wjillful falsification, contractors that dis- tortion, misrepresentation or respect with A. any to project facts related to the is a violation of Federal law.” upon Id. Based begin Appellants’ We with conten this, Appellants assert that we should de- tion that an willfulness is essential element fer to the FHWA’s interpretation § of a 1020 conviction which govern § § 1020 and also read into ele- ment failed to establish. The court district ment of willfulness. We decline to do so. Appellants’ proffered charge refused to effect, instructing jury this instead us, reasons unknown to For that it Appellants must find that the made requires FHWA that the in language its knowingly. false statements direct notify construction contracts con that willfully tractors false statements are highway provision, The fraud However, a violation of federal law. even § provides U.S.C.A. in pertinent part were we to determine that this reference that ... knowingly any “[w]hoever makes Appendix in the fairly represents an agen statement, false representation, false false cy’s interpretation requir of the statute as report, or claim respect false to the ing willfulness in order to convict a con ... any cost of work performed or to be (which tractor of highway project fraud we performed ... in connection with the con not), do we would owe that interpretation any highway struction of or project related no deference. The text of the statute is approved by Secretary of Transporta unambiguous point on this and the FHWA tion ... [s]hall be fined under title or this charged is not granted with nor the au imprisoned not more than years, five thority interpret § to or implement 1020. added). Thus, both.” Id. (emphasis the Consequently, the department’s regulation language of the statute requires that a has no effect on interpret how we must false statement be made in knowingly or U.S.A., e.g., statute. See Chevron Inc. v. convict, der to but includes no element of Council, Inc., Natural Resources Defense Appellants acknowledge willfulness. 837, 842-43, However, much. they that contend we (1984). L.Ed.2d 694 In summary, we de should read an element of into willfulness cline to read an element of “willfulness” statute, primarily because the Federal plain into the unambiguous text of Highway (“FHWA”), § Administration government 1020.4 The was not re- Appellants rely upon single also involving district alleged highway court case fraud Richmond, years. Virginia, past to convict “willfulness” prove to quired on and, he was authorized that § 1020 He testified 18 U.S.C.A. under Appellants Secretary Transportation behalf did not err court the district accordingly, pay to the federal funds VDOT to commit instruc- proposed Appellants’ refusing was no evi- projects. . There for highway contrary. tion dispute to Grounds’ testi- presented dence B. approve he was authorized mony that for federal highway projects relevant asser Appellants’ next turn We And, did not Appellants chal- funding. prove failed government tion regard. in this testimony his lenge at trial were submitted the false claims was there Accordingly, we conclude pro or related “highway with a connection jury’s support evidence sufficient Trans Secretary by ject approved the false claims submit- determination prop § 18 U.S.C.A. portation,” submitted con- by Appellants ted Secretary, delegee of erly-authorized approved by highway projects nection with 1997) 322(b) (West (pro 49 U.S.C.A. see Secretary of delegee of the an authorized Secretary Transporta viding that Transportation. authorize succes delegate, and “may tion of, of powers and duties delegations sive of employee or to officer Secretary

the an C. may and that officer Department” the contend that Finally, Appellants successive “delegate, and authorize turn in highway fraud reverse their we should the of, powers and of delegations duties failed government because the convictions of employee officer or to another officer the statements prove to false Department”). the “in with the construction made connection convictions that their assert Appellants project.” 18 or related highway of [a] evi- there no because is be reversed must disagree. § We U.S.C.A. his Secretary delegated the dence in provision, sepa- highway fraud The in case to projects this approve the duty making criminalizes paragraphs, rate Slater, v. Halverson See person. natural a connection with in of false statements (hold- (D.C.Cir.1997) 180, 185-86 approval for “submitted highway projects only delegate Secretary may ing that highway projects Secretary” and a office to of the and powers duties Secretary”: by the “approved to an “administration” person, not natural any knowingly makes false ... person). natural Whoever a entity other than or statement, or false representation, false trial, testi- However, at Mr. John Grounds character, quan- quality, as to the report employed been that he had fied or to be used or cost of material tity, had been years for FHWA quality or used, quantity in or office the FHWA manager with financial added). (D.Mass.1965) (emphasis posed § in which the court under however, case, comprised of “whether is jury as question for the The Molin pertinent proved beyond publication reason- of government a the court’s nothing has more than has particular defendant also for § able doubt case which jury charge in a 1020 its willfully by state- knowingly false ... re- willfulness unexplained reasons wrote United government of the defrauded ment unambiguous text of into the quirement purpose of specific intent States with a stated, we find this the reasons § 1020. For against United accomplishing a fraud improper. to be Molin, F.Supp. States.” States 25 performed performed,

work or to be or connection with the any construction of the costs in connection highway thereof with or project approved by related maps, specifica- (em- submission of plans, the Secretary Transportation.” Id. tions, contracts, added). or costs of construction phasis Contrary Appellants’ any highway related project sub- proffered interpretation, we do not read approval Secretary mitted to the the two paragraphs seeking as to distin- for Transportation; or guish types between (prelimi- contracts nary knowingly any engineering Whoever makes false contracts a construc- statement, representation, project false tion opposed false re- to contracts for port, construction), respect false claim with “actual” but rather as seek- character, quality, quantity, or cost of ing distinguish between statements any performed performed, work or to be made in highway connection with a or re- or materials furnished or to fur- project be lated submitted for approval and nished, “claims”) connection the construc- (including statements made in any tion of highway project or related connection with a highway pro- or related approved by Secretary Transpor- ject already approved. Under Appellants’ tation; services, reading, strained their although performed in connection with an approved added), § (emphasis U.S.C.A. highway project, would fall within a gap guilty of highway project fraud. between paragraphs. the two No such Appellants were indicted under the sec- gap exists. Although the nature of pre- ond paragraph of 1020 for their submis- liminary work, engineering the work of sion of false invoices connection with the Appellants was furnished connection highway construction of projects already with the construction of a highway project approved by Secretary’s the delegee. Ap- approved by the Secretary of Transporta- assert, pellants however, that the second through tion an authorized delegee. paragraph only applicable to activities associated with actual construction of the V. Sentencing

highway, and not to preliminary engineer- ing contracts such performed by as that The district court sentenced PDS words, In PDS. other Appellants assert concurrently on each count of conviction to their convictions must be reversed year probation, $522,045.29, one of a fine of because the second paragraph does not $435,038.33. and restitution of Webb was apply to the preliminary engineering work sentenced concurrently on each count to 24 they performed. imprisonment, months years two super of We do not read the paragraph release, second of vised restitution of § narrowly. $435,038.33. 1020 so The first paragraph The sentences were based § statement^], of 1020 pertains to “false upon $435,038.33 a calculated loss of false representation^], report[s]” or false victim VDOT as a result of the overbilling made “in connection with the amount, submission of scheme. This which in resulted a plans, maps, specifications, contracts, or nine-level increase in applicable the of costs of any level, construction of highway or fense see Sentencing U.S. Guidelines project related 2Fl.l(b)(l)(J) submitted approval § (1998), Manual was consis for Secretary the of Transportation,” whereas Webb, tent with the admissions of who had § the second paragraph of pertains 1020 estimated an inflation of ten to fifteen statements], “false representation^], false percent job, $100,000 per $200,000 ” false report[s], or “in per year claim[s] made years, for five and with PDS false

257 (1970). McMillan, investigating Supreme In the Court by the reviewed records imposed found constitutional a statute that percent indicated ten agent, which years mandatory at issue a minimum sentence for a jobs for de- the VDOT $452,000. just specified over fendant who is convicted of felo- totaled judge preponder- nies when a finds a the district court assert that Appellants evidence ance “ defendant upon this improperly based their sentences ” ‘visibly possessed a firearm.’ They contend that calculated loss. 106 S.Ct. 2411. Because the statute have instead calculated their court should penalty “neither the maximum alter[ed] solely on the loss reflected sentences based for the crime committed nor a create[d] in in- invoices listed individual separate calling separate pen- offense for a dictment, $19,008 they calculate at 87-88, alty,” id. at S.Ct. which would have resulted a merely reasoned that Court statute applicable increase in the of- three-level sentencing “limit[ed] court’s discretion 2Fl.l(b)(l)(D). level. fense See U.S.S.G. selecting penalty a within the range the loss calculation called By employing already to it special available without the assert, Appellants guidelines, firearm,” finding possession of visible of a “tail which the loss calculation became the Thus, id. at 106 S.Ct. 2411. the statute offense,” wags dog of the substantive minimum merely raised the sentence that rights as process in violation of their due permissible within the imposed could be Pennsylva- under interpreted McMillan statutory range; it “tailored to was not nia, 79, 88, permit possession finding the visible to be (1986). alternative, Ap- In the L.Ed.2d 67 wags dog a tail which substan- that the amount of loss was pellants assert Id. tive offense.” element of the offenses of an essential beyond a reasonable proven conviction not however, Apprendi, the Court held doubt, their sentences be requiring imposition that the sentence excess light Supreme reversed Court’s statutory of a maximum sentence allowable in Apprendi Jersey, decision v. New offense, upon separate for an based stat- 2348, 147 U.S. 120 S.Ct. L.Ed.2d ute increase if the sen- allowing the (2000). a for re-sen- They seek remand tencing by preponder- court a determined tencing upon based the amount of loss ance of the evidence that the offense was by in the in- reflected the invoices listed racially purpose, a committed with biased Although Supreme dictment. the Court process did violate the defendant’s due Apprendi decision in was issued three rights. Specifically, the Court held that case, sentencing Ap- after in this the days conviction, prior than the fact of a “[o]ther process challenge pellants raised the due for a any penalty fact that increases the as a McMillan issue before the district statutory beyond prescribed crime the Accordingly, court. we review the matter jury, must be submitted to a maximum de novo. doubt.” proved beyond a reasonable 490, (emphasis Due Id. at 120 S.Ct. 2348 add- The Process Clause ed). But, contrary Appellants’ assertion “protects Fifth Amendment the accused effectively strips be that McMillan against except upon proof Apprendi conviction any meaningful vitality nec and counsels yond every a reasonable doubt of fact a expose we all facts that essary require to constitute the crime with which that sentencing range, whether In re defendant to a charged.” Winship, he is U.S. 358, 364, prov- by by guidelines, the be 90 S.Ct. 25 L.Ed.2d 368 statute doubt, which defen ute for the offense for the a reasonable jury beyond en to a convicted, that the factual determi expressly noted dants were Court Apprendi the law, limited the defendants’ good albeit nations which increased McMillan remains imposition the guidelines involve applicable “that do not sentences under the cases than the statu more severe process of a sentence con do not run afoul of the due Kinter, the offense established tory maximum for see by Apprendi, cerns raised limitation identi verdict —a by jury’s the (rejecting process at due F.3d 198-202 (cid:127) Ap opinion in McMillan itself.” fied findings to district court’s challenge n. at 487 prendi U.S. 530. range from ten sentencing increased the 2348; at 120 S.Ct. 2348 see also id. months). 46 to 57 also months to See (“When on a mere finding a based judge’s 662, 667 States v. United Obi — of the evidence authorizes preponderance (4th Cir.2001), filed, cert. petition for it punishment, in the maximum increase U.S.L.W.—(U.S. 2001) (No. 8,May 00- as ‘a tail appropriately is characterized 9843) (rejecting sentencing claim that the substantive wags dog which drug quantity by pre found a upon based ” McMillan, 477 at (quoting U.S. offense.’ of the evidence under ponderance 2411)). 88,106 S.Ct. . principles offends the set forth guidelines case, undisputed In it this in Apprendi). imposed imprisonment fines and terms of sentencing we view factors Nor do within the statu upon Appellants were upon based additional losses associated for the offenses tory máximums allowed with the submission of false invoices Appellants for which convicted. today dispro- great case before us as so dealing we are not with the Consequently, implicate to otherwise due portionate as by a a district court imposition of sentence McMillan; process by concerns reserved statutory applicable exceeds i.e., factors, sentencing including Rather, presented maximum. we are sentencing range those affect that serve to question of whether facts maximum, statutory within the should not sentence within increase the defendant’s permitted preponder- be to be found authorized the maximum sentence extraordinary ance of the evidence statute, of the Sen pursuant application can be to be case where factors said Guidelines, charged in the tencing must be wags dog the “tail which of the sub- proven jury beyond indictment and McMillan, 477 stantive offense.” Ap believe that reasonable doubt. We 88, 106 States v. S.Ct. pellants’ regard in this is fore argument Watts, McMillan, holding closed the Court’s (1997), L.Ed.2d 554 the Supreme Court law, good

which remains arid our recent holding appli- reiterated McMillan’s “that Kinter, 235 decision United States preponderance cation at standard (4th Cir.2000), 192, F.3d 201 cert. de — sentencing generally pro- satisfies due nied, 1393, —, U.S. S.Ct. cess,” recognized “divergence but of (2001). Kinter, In we held L.Ed.2d 316 whether, opinion among the as to Circuits the “the ‘maximum’ [sen relevant circumstances, in extreme relevant conduct the face Apprendi under is found on tence] dramatically that would increase a sen- of the statute rather than in the Sentenc Guidelines,” 201, tence be based on clear and convinc- ing that where must id. at and Watts, 156, 117 ing evidence.” 519 U.S. at imposed -by sentencing the sentences However, court are S.Ct. 633. the Court held pursuant guidelines less permitted by guideline application, than the maximum the stat- resulted sentencing range Appellants’ in the from the sentences as well an increase as their months, months to 27-33 did not 15-21 convictions. “exceptional

present circumstance[ ]” Watts, VI. Conclusion by McMillan. contemplated 156-57, at 633. Nor does S.Ct. reasons, For the foregoing we affirm the e.g., today. the case before us See United Appellants’ convictions and sentences. (4th Fenner, States v. 147 F.3d AFFIRMED. Cir.1998) (rejecting argument that increas years years es from 42 to 55 imprisonment WILLIAMS, Judge, Circuit concurring for one defendant and imprisonment from in part concurring judgment: imprisonment 115 months 210 months majority The concludes that the mail that it imprisonment profound “so statute, applied fraud when to the use of a implicate process sufficient to due con private or commercial interstate carrier give impression having cerns or to employed solely to deliver an item intra- permit application been tailored to state, permissible is a exercise of Con- wags cross-reference to be a tail which [a] gress’s Commerce power Clause under Lo- (inter dog of the substantive offense” pez category. ’s second Because I believe omitted)); quotation nal marks constitutionality that the of the mail fraud Galloway, States v. 976 F.2d 425-26 statute appropriately more is sustained un- (8th Cir.1992) (holding potential that a in Lopez’s der third I category, decline to guideline range in a from 21-27 crease join III 2-4 separate- Section A. and write months did months 63-78 not raise due ly explain my reasoning but concur in concerns); process United States v. cf. majority’s the remainder of the opinion (1st Lombard, 186-87 Cir. judgment. 1995) may court (holding sentencing depart in an “extreme downward case” I.

where application 2K2.1(c)(l)(B) cross-reference to account Lopez, United States v. charge, for a murder which defendant (1995), 131 L.Ed.2d 626 court, acquitted was in state raised the Supreme catego- Court established three guideline range from to a 262-327 months by which Congress’s ries to evaluate exer- sentence, mandatory distinguishing life but power: cise of its Commerce Con- Clause in involving “cases even sizable sentence (1) gress may regulate the “use of the uncharged quantity creases based on an (2) commerce”; channels of interstate or drugs any ... or number of kindred sen “regulate protect the instrumentalities enhancements”). tence commerce, persons of interstate or commerce, things in even when interstate imposed Because the upon sentences threat from may come intra-state Appellants statutory were within the activities”; regulate “activities that maximum sentences for commission of the substantially affect interstate commerce.” conviction, excep- offenses of and no other 558-59,115 Id. apparent tional circumstances are result, Using Lopez’s category, we hold that the ma- counsel different second jority that the mail fraud statute Appellants’ rights constitutional were not concludes employed regulation protects private offended the loss calculation is a mail carriers, impose the district court to as instruments of interstate com- sen- merce, concluding, In so Accordingly, tences at issue. we affirm from harm. 260 traffic); v. interstate Perez catego- intrastate or Lopez’s second

majority-interprets 146, 155-156, States, 402 91 un- United U.S. Congress that allows ry in a manner (1971) (“[F]or 1357, 28 L.Ed.2d 686 legislate federal S.Ct. authority to bounded (18 the destruction of an aircraft incidentally example, involve criminal laws commerce, 32), § or ... thefts from interstate interstate U.S.C. instrumentalities (18 659)”); also see which, shipments an untenable U.S.C. leads to my opinion, 319, Cobb, Babbitt, 483, v. 321 & 214 States F.3d United result. See Gibbs Cir.1998) (4th (4th Cir.2000) (“It (recognizing to our n. is essential fell within Lo- carjacking federal statute that the commerce system government category because the statute pez interstate ’s to effects on second power not extend automobiles). un- to This regulated harm so remote that we commerce that are however, is not served derlying purpose, the distinction effectually obliterate would where, here, simply pro- legislation as lo- national and what is between what is omitted)). illegal or immoral use of instru- (internal hibits quotation marks cal.” mentality directly but does not or indirect- analyzing Lo- Supreme precedent Court instrumentality protect to it ly regulate not necessitate category ’s does pez second resulting improper harm from the from interpretation of the majority’s broad use. Shreveport example, For category. Cases, involving opinion

Rate the seminal Moreover, interpreting Lopez’s second category, Supreme Lopez’s second improper all uses of an category to include Congress’s power regu- to Court affirmed instrumentality Lopez’s conflates second operations and late the instrumentalities’ first, category with its which allows Con- rates and setting varying taxes keep the channels of gress legislate states, noting importance different interstate commerce free from immoral of the in- regulation protection direct injurious uses. Because the mail fraud of interstate commerce. strumentalities regulates improper statute use of an Houston, Ry. & Texas Co. v. East West instrumentality way regulates but in no Cases), (Shreveport United Rate States itself, I instrumentality protects 342, 356-60, 833, 34 S.Ct. 234 U.S. Lopez’s category would second hold (1914). Congress’s ability to L.Ed. 1341 Instead, I inapplicable. would evaluate instrumentalities of regulate protect Lopez’s mail fraud statute under third un- statute, interstate commerce stems from the to determine whether the category rationale that harm to the instru- derlying intrastate applied to PDS and Webb’s necessarily in harm activities, mentalities results inter- has a substantial effect on generally. commerce See inter-state state commerce. States, 222 Ry. Co. v. United

Southern II. 26-27, 2, 20, 56 L.Ed. 72 U.S. S.Ct. (1911) (upholding Safety amendment proper To exercise of Con constitute Act, 531, Appliance chap. at L. Stat. activity gress’ power over an intra-state Stat.1901, 196, 3174, Comp. p. U.S. Stat. Lopez’s category, regulat under third chap. Comp. at L. Stat. con activity [be] ed must “arise out of or provided transaction, for all Supp.1909, p. nected with a commercial locomotives, cars, and similar vehicles used in the substantial aggregate, which viewed any railway engaged Lopez, on interstate com- ly affects interstate commerce.” 1624; desig- with certain equipped merce to be 514 U.S. at see also Morrison, safety appliances, regardless nated States v. 1740, 146 611, 120 moving L.Ed.2d 658

whether the vehicles were used review of Commerce Clause {“Lopez’s that in MATVIA, Plaintiff-Appellant,

case law demonstrates those cases Christina regula where we have sustained federal activity upon the tion of intrastate based activity’s substantial effects on interstate BALD HEAD ISLAND MANAGE- commerce, activity question in has MENT, INCORPORATED, endeavor.”). I

been some sort of economic Defendant-Appellee, fur difficulty concluding have no that the pur therance of schemes devised for the and can pose defrauding others be viewed as activity meaning economic within the Terbush, Richard Defendant.

Lopez and v. Bab Morrison. See Gibbs No. 00-1650. bitt, (4th Cir.2000) (“[Ejconomic activity must be understood of Appeals, States Court terms.”). Further, in in the aggre broad Fourth Circuit. gate, the intrastate use of interstate carri a ers to further fraudulent schemes has Argued May 2001. harmful substantial effect on interstate Thus, I commerce.* would hold Decided July statute, applied mail fraud and PDS activities,

Webb’s intrastate is constitution al a mailings because the fraudulent have substantial effect on interstate commerce.

III. I that Congress Because believe did not regulate intend the mail fraud statute to protect private and commercial inter- instrumentalities, state mail carriers as I majority’s disagree holding III 2-4 Lopez’s Section A. second category renders the mail fraud statute

constitutional under the Commerce Clause.

Nevertheless, regulated because the activi- ty issue has substantial effect on inter- is, therefore, commerce per- state Congress’s missible exercise of Commerce power Lopez’s catego- Clause under third ry, judgment. I concur I also con- opinion. cur the remainder of the * activity prime projects, This is illustrated the fraudulent fraud contractors on VDOT case, this wherein PDS Webb highways. used their some of which involved federal relationship commercial with VDOT to de-

Case Details

Case Name: United States v. Photogrammetric Data Services, Incorporated, United States of America v. David G. Webb

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 30, 2001

Citation: 259 F.3d 229

Docket Number: 00-4498, 00-4499

Court Abbreviation: 4th Cir.