*2 questions answer these pri KANNE, Circuit Judge, joined by vate gain had personal to be to the alleged dissenting from perpetrator of the fraudulent scheme. See the denial en banc. Hausmann, United States v. 345 F.3d
Without explicitly so, (7th saying Cir.2003); we have Bloom, left 149 F.3d at impression political use of 657. But that no longer case, for we patronage personnel in hiring by City have noted that participant “[a] in a Chicago ais crime. Although legis- scheme to guilty defraud is even if he is an latively defined criminal offense outlaws altruist all the benefits of the fraud patronage hiring by government entities accrue to in other participants.” United Illinois, hiring such is now seen as a v. Spano, (7th crime States 421 F.3d because it Cir.2005). violates the Shakman decrees— The debate seems to be wheth never mind that Shakman is simply a er private gain ser- must accrue partic to a ies of civil consent decrees subject ipant in only or, fraudulent scheme alterna penalties, civil imposition tively, of contempt whether it is enough that some sort if wilfully Now, violated. by judicial fíat, gain accrues to person some operate decrees can to cre- somewhere. panel decision, relying ate a fiduciary which, if violated, Spano, on concludes that gain appreciated deprives “honest services,” any individual—even an individual un and thus ais basis for a federal crime aware of the fraud—suffices for the pri under the statute, mail-fraud vate gain limiting U.S.C. principle of the honest- § 1346. services mail-fraud statute that we have fashioned in our circuit. See United States We have recognized that the honest- Sorich, (7th Cir.2008). statute, mail-fraud construed broadly, would sweep within its reach a view, In my decision greatly host of violations of expands scope of honest-services mail duties simply because the mails are used fraud. In United States v. Thompson, we process. See United States v. noted that “an increase official salary, or Bloom, 149 Cir.1998). psychic benefit such as basking in a But because all deceits are not superior’s criminal (and approbation thinking one’s frauds, we have decided to limit job secure), lan- more is not the sort ‘private guage §of 1346 to only criminalize gain’ frauds that makes an act criminal under that result in a private gain. Id. at 1341 and 1346.” 484 F.3d duty must stem rule, in official’s light of at 712. law. See personal proof light of case, in this defendants about the have reservations *3 to gain unrelat that held explicitly con- panel’s The this issue. treatment recipi (i.e., that the parties third ed duty under fiduciary the that clusion received) the brought jobs city ents than sources” from “other § can arise 1346 § 1346. See within conduct defendants’ cases in which on two law is based state examples The F.3d as a employed actually the defen Williams, about a decision panel by the v. cited States fiduciary. United or to (9th Cir.2006); charities to funneling benefits United dant 723-24 F.3d the ex n. 7 highlight brother” estranged George, “an v. States id. at arising See in those duty about. concerned The I am pansion allow the “other” will from sources opinion stem panel cases panel law, honest- suggested as prosecute to government than state federal re nature of a benefit invoking rather from by but opinion, cases services also panel unrelated, employment. unaware-of-the-fraud defendants’ ceived deciding, that actually or contracts without suggests, who received parties third rise to gives public that merely holding actions gain”—the “private as benefits an indi- finding that But making fiduciary federal duties. cautioned we § under to may Thompson seem vidual be in Bloom crimes stemming from breaching a the statute. come within now vastly his employment nature of sense, I believe In this prosecution finding that from different real very raised en banc for violat- can be maintained misuse-of-position-for- our about concerns en- decrees federal, consent ing civil-action And limitation on private-gain parties. unrelated tered increasingly im- grown has limitation refusal panel’s troubled I am also high profile given number portant adopt should whether we consider to face has faced will cases Although the limiting principle. state-law statute. involve honest-services that held have never that we correct banc review that duty I believe must stem fiduciary open conclusion question law, leave that appropriate we did law, Martin, that, of state in lieu v. States United duty Cir.1999), since resolved source and have decrees offi raised public Sorich definitively. prosecutions predicates Fifth honest Third and issue, alleged deprivation both discussed cials for “reex us supports and asked to positions, public. to the Circuits’ adoption de regarding that we have our by stating conclusion amine” position Given principle. limiting rise can give the state-law “other sources” termined that event, that, concerns federalism any obvious ato (i.e., implicates position lim “state-law sources” “other adopted never have we prosecutors Circuit, allowing (as federal Third potentially have iting principle” to re authorities of state the role usurp Murphy, 323 F.3d v. States United federal just because Circuit, state crimes (3d Cir.2003), Fifth dress 116-17 pru used), have been it would are mails Brumley, 116 States United invita appellants’ accept the us (5th Cir.1997)), dent hold 734-35 now, tion and revisit en banc whether we
should follow the Third and Fifth Circuits adopt the state-law limiting principle. sum, presented this case appropri- consider, vehicle court,
ate as an entire position
both regarding misuse-of-
position-for-private-gain limitation and the limiting principle. have sub-
stantial concern taking posi- about
tion—absent en per- banc review—that a
son 1346where
(1) neither the nor his co-schem- fraud, (2)
ers benefited from the
source of the is a federal
civil consent decree between two unrelated
parties, carry which does not the force of law. reasons,
For foregoing I respectfully
dissent the denial of
rehearing en banc.
Richard WALLACE Downstate
Transportation Services, Inc.,
Defendants-Appellants.
United States Court of Appeals,
Seventh Circuit.
Argued June 2008. July
Decided
Rehearing Denied