United States v. Sawyer

June 24, 1996 United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1689

UNITED STATES,

Appellee,

v.

F. WILLIAM SAWYER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Stahl, Circuit Judge.

ERRATA SHEET
ERRATA SHEET

The opinion of this Court issued on May 30, 1996, is amended
as follows:

Page 35, line 4 - change "is" to "in"

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1689

UNITED STATES,

Appellee,

v.

F. WILLIAM SAWYER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Stahl, Circuit Judge.

Thomas R. Kiley, with whom Carl Valvo, Steven H. Goldberg,

Matthew L. Schemmel, and Cosgrove, Eisenberg & Kiley, P.C., were on

brief for appellant.
Timothy W. Jenkins, Gary C. Adler, and O'Connor & Hannan, L.L.P.,

were on brief for State Government Affairs Council, amicus curiae.
Ralph D. Gants, Susan Murphy, and Palmer & Dodge, were on brief

for The Massachusetts Association of Professional Lobbyists, amicus
curiae.
Michael Kendall, Assistant United States Attorney, with whom

Jonathan Chiel, Acting United States Attorney, and Amy Lederer,

Assistant United States Attorney, were on brief for appellee.

May 30, 1996

STAHL, Circuit Judge. Appellant F. William Sawyer
STAHL, Circuit Judge.

appeals his convictions for mail and wire fraud, interstate

travel to commit bribery, and conspiracy to commit those

offenses. The district court imposed a $10,000 fine, and

sentenced him to imprisonment for twelve months and one day.

In this appeal, Sawyer claims that the district court erred

in its jury instructions and in evidentiary rulings, and that

the evidence was insufficient to establish his guilt beyond a

reasonable doubt. For the reasons that follow, we vacate the

convictions and remand for further proceedings.

I.
I.

Facts
Facts

Viewing the record in the light most favorable to

the verdict, United States v. Wihbey, 75 F.3d 761, 764 (1st

Cir. 1996), a rational jury could have found the following

facts from the trial evidence.

During the indictment period, 1986 to March 1993,

the John Hancock Mutual Life Insurance Company ("Hancock")

employed the defendant-appellant, F. William Sawyer, as a

senior lobbyist within its Government Relations Department.

As the largest life insurance company in Massachusetts,

Hancock had a continuing and abiding interest in the state's

insurance laws. Sawyer's job was to lobby the Massachusetts

Legislature on Hancock's behalf. In particular, his job

description required him to: research and develop Hancock's

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position on pertinent legislation; communicate relevant

information to representative government officials in order

to effect a favorable outcome and to protect the Company's

interests; and establish and maintain relationships with

legislators as well as with members of industry associations.

A principal focus of Sawyer's lobbying activities

was the Legislature's Joint Insurance Committee ("Insurance

Committee"), composed of state representatives and senators.

The Insurance Committee has the ability to impact life

insurance regulations more than any other legislative

committee. To this end, it reviews approximately 300 bills

per year, about fifty of which affect the life insurance

industry. During each year of the indictment period,

Massachusetts life insurance companies actively sought the

passage of about five bills, most of which made it

successfully through the Insurance Committee "in some form or

another." Robert J. Smith, a research analyst and director

for the Committee, testified that, during the indictment

period, Sawyer was one of three lobbyists who appeared most

often to lobby for bills sought by the life insurance

industry.

The Insurance Committee is co-chaired by a senate

and house member, each with equal control over the fate of

bills assigned to the Committee. The Chairs have the ability

to schedule hearings, assign bills to the hearing calendar

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and subsequent executive sessions, advocate bills at

executive sessions, and take other action to advance them

through the Committee. Each Chair could "carry" a bill,

i.e., actively guide it through the Legislature as a whole;

alternatively, a Chair could send it to the "Study Committee"

which usually shelved it.

During the indictment period, Sawyer focused his

lobbying activities on the house members of the Insurance

Committee, some of whom took action that directly or

indirectly affected Hancock's interests. Representative

Francis H. Woodward was the House Chair of the Insurance

Committee from 1986 to 1990. Research analyst Smith

identified Sawyer as the lobbyist he saw most often with

Representative Woodward during Woodward's tenure as the

Committee's House Chair. During this time, the Insurance

Committee never rejected Woodward's recommendations on bills

affecting the life insurance industry and Woodward "carried"

most of the bills sought by the industry. Representative

Frank Emilio, a member from 1986 to 1990, sponsored a

September 1990 bill on behalf of Hancock. Representative

John F. Cox sponsored bills that Hancock supported in

November 1990 and December 1991. In addition,

Representatives Walsh, Mara, and Driscoll sponsored

legislation sought by the life insurance industry.

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"Legislative Reports" issued by the Hancock

Government Relations Department to senior Hancock officers,

and signed by Sawyer, outlined specific lobbying efforts and

proceedings in the Massachusetts Legislature pertinent to

Hancock's interests. In July 1990, Sawyer wrote a memorandum

to Hancock's Management Committee summarizing the successful

efforts of Hancock lobbyists, including himself, in excluding

Hancock from a bill that would have subjected it to a $100-

million tax liability. In a September 1990 memorandum to the

Management Committee, Sawyer referred to a 1990 bill, filed

by Representative Emilio, that allowed Hancock to assess and

report its real estate advantageously. A November 1990

letter from Ralph F. Scott, Hancock's Assistant Legislative

Counsel, to Representative Cox indicated that Sawyer and

Scott planned to work with Cox in obtaining favorable action

on a specific bill that he had sponsored for Hancock.

During the indictment period, Sawyer paid for

numerous meals, rounds of golf, and other entertainment for

and with Massachusetts legislators, including many members of

the Insurance Committee. Although Sawyer initially paid for

most of these activities himself, they were treated as

business expenses and reimbursed by Hancock (hereinafter

"expenditures"). In accordance with Hancock's procedures,

Sawyer would complete monthly expense vouchers, attaching

receipts and a handwritten calendar that identified the

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recipients of the expenses. Sawyer's supervisor, Raeburn B.

Hathaway, the head of Hancock's Government Relations

Department, reviewed Sawyer's expense vouchers and approved

them for reimbursement. Hathaway's secretary would then

detach the detailed calendars from the vouchers, keeping the

calendars within the Government Relations Department, and

forward the voucher, alone, to the accounting department for

payment.

Analysis of Sawyer's expense vouchers and calendars

during the indictment period revealed that the top three

recipients of his expenditures were: Representative Woodward,

who received more than $8,000 worth of expenditures during

his tenure as Insurance Committee House Chair; Robert

Howarth, an Insurance Committee member from 1986 to 1992

(over $3,000); and Representative Emilio (over $2,500).

After these three legislators left office, Sawyer, on behalf

of Hancock, expended practically nothing on entertaining them

(Woodward, $0; Howarth, $8.33; and Emilio, $85.65).

Specifically, Sawyer's expenditures included

thousands of dollars for golf -- in and out of state -- with

various Massachusetts legislators including Representative

Francis Mara, Woodward's 1991 successor as Insurance

Committee House Chair. Sawyer also hosted dinners for

legislators and their families. In September 1992, Sawyer

provided Representative Mara and his wife tickets for a show

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in Hancock's private box at the Wang Center and ordered an

accompanying dinner.

The apparent catalyst for this prosecution was a

December 1992 trip to Puerto Rico where Sawyer, other

lobbyists, and a group of legislators, including

Representative Mara, travelled for a legislative conference.

The group did not stay at the conference site, but instead

went to a different resort where Sawyer paid for many of the

legislators' meals, transportation, and golf. Hancock

reimbursed Sawyer for some $4,000 of entertainment expenses

from the Puerto Rican trip.1

Both Sawyer and his supervisor, Hathaway, had

reason to believe that these expenditures could or did

violate certain state laws. In his office, Sawyer kept

internal Hancock memoranda, newspaper articles, and opinions

of the Massachusetts Ethics Commission, all explaining or

reporting on Massachusetts ethics-in-lobbying. While some of

the documents varied in their interpretations, they

1. In 1986, Sawyer and his wife travelled with
Representative Woodward and his wife to New Orleans for the
Super Bowl. Hancock provided the game tickets and reimbursed
Sawyer for the airfare. The district court instructed the
jury that, because this trip occurred before the mail fraud
statute proscribed honest services fraud, it could not
provide the sole basis for a mail fraud conviction. The
court added, however, that the jury could consider the trip
as evidence of Sawyer's state of mind with respect to the
alleged scheme to defraud.

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nonetheless advised on compliance with laws regarding

gratuities, gifts, and lobbying expenditures.

In April 1993, a reporter from the Boston Globe

newspaper queried Richard Bevilacqua, Hancock's Director of

Employee and Customer Communications, about Sawyer's

entertainment of legislators during the 1992 Puerto Rico trip

and about Hancock's legislative agenda during that period.

Bevilacqua, in turn, asked Sawyer about the trip, and Sawyer

opined, "it's difficult to take anyone out to lunch or dinner

these days without going over [the] amount [permitted by

law]." This set of events prompted Hancock to begin an

internal investigation into Sawyer's legislative

expenditures.2 Bruce A. Skrine, vice president, corporate

counsel and secretary for Hancock, asked Sawyer for his

expense records. Contemporaneous with Sawyer's production of

the records, Sawyer told Skrine that the expenses were

"consistent with the way . . . things were done on Beacon

Hill." Sawyer also told Skrine that his reason for making

the expenditures was "to get to know" the legislators and to

develop "a certain relationship so that you could turn to

2. In the Spring of 1993, the United States Attorney's
Office for the District of Massachusetts ("USAO") commenced
an investigation into Hancock's involvement in the allegedly
illegal expenditures on legislators. In March 1994, Hancock
entered into a civil settlement with the USAO whereby it paid
a fine of about $1,000,000 and promised to cooperate with the
USAO. In return, the USAO agreed not to prosecute Hancock
for any matter relating to the investigation.

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them"; he further indicated that he made these expenditures

to "build and maintain relationships," gain "access to

legislators," and get legislators to "return his calls as a

result of [the expenditures]."

Sawyer caused the mailing of items related to the

expenditures on legislators, including golf bills,

reimbursement requests, and credit card bills. Sawyer also

caused the making of interstate telephone calls to arrange

for some of the entertainment.

Following a nine-day trial, the jury convicted

Sawyer of fifteen counts of mail fraud, nine counts of wire

fraud, eight counts of interstate travel to commit bribery,

and one count of conspiracy. The jury acquitted Sawyer of

two additional mail fraud counts.

II.
II.

Mail and Wire Fraud Counts
Mail and Wire Fraud Counts

The government charged that Sawyer and his

unindicted co-conspirator -- his Hancock supervisor, Hathaway

-- engaged in a scheme to deprive the Commonwealth of

Massachusetts and its citizens of the right to the honest

services of their state legislators,3 and used the mails and

3. According to the indictment, the legislators' duty of
honest services included the obligation to perform their jobs
as Massachusetts lawmakers free from deceit, fraud,
dishonesty, favoritism and self-enrichment. By consent of
the parties, the district court struck the word "favoritism"
in this description. United States v. Sawyer, 878 F. Supp.

279, 294 (D. Mass. 1995). In addition to this general duty

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interstate telephone wires in furtherance of the scheme, in

violation of 18 U.S.C. 1341, and 1343.4

Sawyer contends that his convictions impermissibly

involve the federal government in setting standards of good

government for local and state officials. He argues that

this case is exemplary of the "dangers of standardless

federal criminal enforcement and unbridled prosecutorial

discretion long-recognized under the mail fraud statute." We

have already considered and rejected these arguments,

of honest services, the indictment stated that the
legislators had a specific duty to abide by the Massachusetts
laws set forth in the indictment. The indictment identified
both the Commonwealth of Massachusetts and its citizenry as
the fraud victims; for simplicity, we will refer only to the
public (or "citizenry") as the victim.
With regard to the scheme to defraud, the
indictment charged, inter alia, that Sawyer gave, and

legislators accepted, travel, lodging, golf, meals and other
entertainment in violation of Massachusetts law; that Sawyer
monitored the public coverage of the Massachusetts
Legislature so that he could ensure the nondisclosure of his
gratuities; that Sawyer was given greater access to the
Insurance Committee and its House Chair than was available
generally to the citizenry; that the House Chair of the
Insurance Committee repeatedly performed official acts
advocated by Sawyer on behalf of Hancock; and that Sawyer's
direct supervisor approved of, and authorized Hancock's
reimbursement of Sawyer for, his illegal gratuities.

4. In relevant part, 18 U.S.C. 1341 and 1343 provide:

Whoever, having devised or intending to
devise any scheme or artifice to defraud,
or for obtaining money or property by
means of false or fraudulent pretenses,
representations, or promises . . . [uses
the mails or wires, or causes their use]
for the purpose of executing such scheme
or artifice . . . [shall be punished].

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however. See United States v. Silvano, 812 F.2d 754, 758-59

(1st Cir. 1987). Congress may protect the integrity of the

interstate mails and wires by forbidding their use in

furtherance of schemes to defraud a state and its citizens,

whether or not it can forbid the scheme itself. See id. at

758 (citing Badders v. United States, 240 U.S. 391, 393

(1916)); United States v. Rendini, 738 F.2d 530, 533 (1st

Cir. 1984).5

Sawyer also contends that the government has failed

to establish that he committed "honest services" mail and

wire fraud ("honest services fraud") within the meaning of

the statutes. To explain our resolution of this issue, we

provide a brief overview of the law of honest services fraud.

The ultimate issue is whether or not the "scheme" presented

at trial actually targeted the Massachusetts' citizens' right

5. Some have observed that these statutes are increasingly
used effectively to convict and punish for the substantive
fraud, and that the use of the mails or wires is merely a
"jurisdictional hook" to bring the conduct within the
proscription of the mail and wire fraud statutes. See Peter

J. Henning, Maybe It Should Just Be Called Federal Fraud: The

Changing Nature of the Mail Fraud Statute, 36 B.C. L. Rev.

435 (1995); cf. Schmuck v. United States, 489 U.S. 705, 722-

23 (1989) (Scalia, J. dissenting) (disagreeing with
majority's conclusion that certain mailings were in
furtherance of the demonstrated scheme, and observing that
"[t]he law does not establish a general federal remedy
against fraudulent conduct, with the use of the mails as the
jurisdictional hook . . . . In other words, it is mail fraud,
not mail and fraud, that incurs liability." (internal
citations, quotations and alterations omitted)).

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to "honest services" within the meaning of the mail fraud

statute.

To prove mail and wire fraud, the government must

prove, beyond a reasonable doubt: (1) the defendant's knowing

and willing participation in a scheme or artifice to defraud

with the specific intent to defraud, and (2) the use of the

mails or interstate wire communications in furtherance of the

scheme.6 United States v. Montminy, 936 F.2d 626, 627 (1st

Cir. 1991) (listing mail fraud elements); United States v.

Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993) (listing wire

fraud elements). Because the relevant language in both the

mail and wire fraud statutes is the same, we analyze both

offenses together for the purposes of this case and, for

simplicity, we refer only to mail fraud. See United States

v. Boots, 80 F.3d 580, 586 n.11 (1st Cir. 1996).

Traditionally, the mail fraud statute reached

schemes that deprived the fraud victim of property or some

other item of economic value. See generally, United States

v. Grandmaison, 77 F.3d 555, 565-66 (1st Cir. 1996). Some

courts later expanded the scope of the statutes to encompass

schemes intended to defraud citizens of their intangible,

6. The use of the mails or wires to further the fraudulent
scheme need only be "incidental." United States v.

Grandmaison, 77 F.3d 555, 566 (1st Cir. 1996). Moreover, the

"[d]efendant[] need not personally use the [mails or] wires
as long as such use was a reasonably foreseeable part of the
scheme in which [he] participated." United States v. Boots,

80 F.3d 580, 585 n.8 (1st Cir. 1996).

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non-property right to the honest services of their public

officials. See generally, W. Robert Gray, Comment, The

Intangible-Rights Doctrine and Political-Corruption

Prosecutions Under the Federal Mail Fraud Statute, 47 U. Chi.

L. Rev. 562, 563 (1980) and cases cited therein. Those

courts rationalized that a public official "acts as `trustee

for the citizens and the State . . . and thus owes the normal

fiduciary duties of a trustee, e.g., honesty and loyalty' to

them." Silvano, 812 F.2d at 759 (quoting United States v.

Mandel, 591 F.2d 1347, 1363 (4th Cir.), aff'd in relevant

part en banc, 602 F.2d 653, 653 (4th Cir. 1979), cert.

denied, 445 U.S. 961 (1980)).

In 1987, the United States Supreme Court held,

contrary to every circuit court that had decided the issue,

that the mail fraud statute did not prohibit schemes to

defraud citizens of their intangible, non-property right to

honest and impartial government. McNally v. United States,

483 U.S. 350, 359 (1987); see United States v. Ochs, 842 F.2d

515, 521 (1st Cir. 1988) (noting Court's unexpected

decision), cert. denied, 498 U.S. 895 (1990). Congress

quickly reacted to the McNally decision by enacting 18 U.S.C.

1346, which provides that, for the purposes of, inter alia,

the mail and wire fraud statutes, "the term `scheme or

artifice to defraud' includes a scheme or artifice to deprive

another of the intangible right of honest services." We have

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recognized that 1346 was intended to overturn McNally and

reinstate the reasoning of pre-McNally case law holding that

the mail fraud statute reached schemes to defraud individuals

of the intangible right to honest services of government

officials. See Grandmaison, 77 F.3d at 565-66.7

The concept of governmental "honest services" in

this context eludes easy definition. As Judge Winter has

aptly noted:

One searches in vain for even the vaguest
contours of the legal obligations created
beyond the obligation to conduct
governmental affairs "honestly" or
"impartially," to ensure one's "honest
and faithful participation" in government
and to obey "accepted standards of moral
uprightness, fundamental honesty, fair
play and right dealing" . . . . (citation
omitted) [T]he quest for legal standards
is not furthered by reference to "the
right to good government" and the duty
"to act in a disinterested manner."

7. See also 134 Cong. Rec. H11108-01, 1988 WL 182261 (Oct.

21, 1988) (statement of Rep. Conyers) ("This amendment is
intended merely to overturn the McNally decision. No other

change in the law is intended."); 134 Cong. Rec. S17360-02,
1988 WL 182529 (Nov. 10, 1988), Section Analysis of Judiciary
Committee Issues in H.R. 5210, (Statement of Sen. Biden)
("[Section 1346] overturns the decision in McNally . . . .

The intent is to reinstate all of the pre-McNally case law

pertaining to the mail and wire fraud statutes without
change"). But see United States v. Brumley, 79 F.3d 1430,

1440 (5th Cir. 1996) (holding that 1346 does not clearly
reach schemes to defraud citizens of their right to
government officials' honest services).
Given the peculiar history and evolution of
honest-services mail fraud, we review case law from before
and after the McNally decision for guidance in discerning the

parameters of this federal crime.

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United States v. Margiotta, 688 F.2d 108, 142-143 (2d Cir.

1982) (Winter, J., concurring in part and dissenting in part)

(quoting Mandel, 591 F.2d at 1361), cert. denied, 461 U.S.

913 (1983).

The cases in which a deprivation of an official's

honest services is found typically involve either bribery of

the official or her failure to disclose a conflict of

interest, resulting in personal gain. In a leading case

involving the bribery of a state governor on legislative

matters, the Fourth Circuit explained how bribery of an

official can constitute honest services fraud:

[T]he fraud involved in the bribery of a
public official lies in the fact that the
public official is not exercising his
independent judgment in passing on
official matters. . . . When a public
official has been bribed, he breaches his
duty of honest, faithful and
disinterested service. . . . [T]he
official has been paid for his decisions,
perhaps without even considering the
merits of the matter. Thus, the public
is not receiving what it expects and is
entitled to, the public official's honest
and faithful service.

Mandel, 591 F.2d at 1362; see also, Boots, 80 F.3d at 592-94

(involving scheme to bribe Native-American police chief in

exercise of his border patrol duties); United States v.

Holzer, 816 F.2d 304, 308 (7th Cir.) (judge's systematic

receipt of bribes and "loans" to influence official actions),

vacated, 484 U.S. 807 (1987) (ordering reconsideration in

light of McNally); United States v. Isaacs, 493 F.2d 1124,

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1149-51 (7th Cir.) (public officials received bribes intended

to induce special favors and preferential treatment for

certain racing interests), cert. denied, 417 U.S. 976 (1974).

A public official has an affirmative duty to

disclose material information to the public employer. See

Silvano 812 F.2d at 759. When an official fails to disclose

a personal interest in a matter over which she has decision-

making power, the public is deprived of its right either to

disinterested decision making itself or, as the case may be,

to full disclosure as to the official's potential motivation

behind an official act. See id. (upholding conviction of

city fiduciary who failed to disclose material information

about unnecessary spending of city money for secret

enrichment of fiduciary's friend). Thus, undisclosed, biased

decision making for personal gain, whether or not tangible

loss to the public is shown, constitutes a deprivation of

honest services. See e.g., Grandmaison, 77 F.3d at 567 (city

board member took secret action to influence award of public

contract to official's private construction-business

interest); United States v. Waymer, 55 F.3d 564 (11th Cir.

1995) (board of education member received secret commissions

from companies contracting with school system), cert. denied,

No. 95-887, 64 U.S.L.W. 3653, 3656 (U.S. May 20, 1996).

The broad scope of the mail fraud statute, however,

does not encompass every instance of official misconduct that

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results in the official's personal gain. For example, in

United States v. McNeive, 536 F.2d 1245, 1246 (8th Cir.

1976), a city plumbing inspector repeatedly accepted

unsolicited gratuities in connection with his non-

discretionary, administrative duty to issue plumbing permits.

Although McNeive may have violated a city ordinance banning

the acceptance of gratuities by city officials, the court

found his conduct beyond the reach of the mail fraud statute

because there was no evidence that the gratuities

disadvantaged the city in any respect or that they deterred

McNeive from otherwise conscientiously performing his duties.

Id. at 1251. In short, the "scheme" was shown to neither

involve nor contemplate the deprivation of McNeive's honest

services to the city or public.

Likewise, in United States v. Rabbitt, 583 F.2d

1014, 1026 (8th Cir. 1978), cert. denied, 439 U.S. 1116

(1979), the Eighth Circuit reversed the mail fraud

convictions of Rabbitt, a state representative. Rabbitt had

offered to introduce a friend's architectural firm to certain

public officials responsible for awarding state architectural

contracts, in return for a ten percent commission on any work

awarded. Id. at 1020. The government charged that his

receipt of the resulting, undisclosed commissions defrauded

the citizens of Rabbitt's honest services. Id. at 1025. The

evidence showed, however, that the officials who awarded the

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architectural contracts did so on merit alone and Rabbitt

played no role in the selection of the firm. Id. at 1026.

Because Rabbitt did not control the awarding of the

contracts, or otherwise fail to fulfill his official duties,

his conduct did not deprive the citizens of his honest

services. Id. (noting case's resemblance to McNeive, 536

F.2d at 1251-52). The court also observed that the

government failed to cite any applicable standard requiring

Rabbit to disclose his interest in the contracts, and thus,

the citizens were not deprived of any right to such

disclosure. Id. at 1026.

The McNeive and Rabbitt cases illustrate that

although a public official might engage in reprehensible

misconduct related to an official position, the conviction of

that official for honest-services fraud cannot stand where

the conduct does not actually deprive the public of its right

to her honest services, and it is not shown to intend that

result. Similarly, if a non-public-official is prosecuted

for scheming to defraud the public of an official's honest

services, the government must prove that the target of the

scheme is the deprivation of the official's honest services.

If the "scheme" does not, as its necessary outcome, deprive

the public of honest services, then independent evidence of

the intent to deprive another of those services must be

presented. See United States v. D'Amato, 39 F.3d, 1249, 1257

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(2d Cir. 1994) ("Where the scheme does not cause injury to

the alleged victim as its necessary result, the government

must produce evidence independent of the alleged scheme to

show the defendant's fraudulent intent."); United States v.

Von Barta, 635 F.2d 999, 1005-1006 n.14 (2d Cir. 1980)

(noting that "the prosecution must prove that some actual

harm or injury was at least contemplated"), cert. denied, 450

U.S. 998 (1981). With this background, we consider the facts

of this case.

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A. Scheme to Defraud

Here, the government did not prosecute Sawyer on

the theory that he, as a lobbyist, directly owed a duty of

honest services to the Commonwealth or its citizens. Rather,

the government sought to prove that Sawyer engaged in conduct

intended to cause state legislators to violate their duty to

the public. The government sought to establish this scheme

by proving that Sawyer intentionally violated, or caused

members of the legislature to violate, two Massachusetts

statutes.

Briefly, these two Massachusetts statutes,

discussed more fully infra, are: (1) Mass. Gen. L. ch. 268B,

6 (the "gift" statute), which prohibits -- under threat of

civil penalties -- a "legislative agent" from offering or

giving to a public official (or an official's acceptance of)

"gifts" aggregating $100 or more per year; and (2) Mass. Gen.

L. ch. 268A, 3 (the "gratuity" statute), which prohibits --

under threat of civil and criminal penalties -- anyone from

giving to a legislator (or a legislator from soliciting or

accepting) anything of "substantial value . . . for or

because of any official act performed or to be performed" by

that person. Through the violation of these laws, the

government contended, Sawyer stole the honest services of the

legislators.

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In general, proof of a state law violation is not

required for conviction of honest services fraud. See

Silvano, 812 F.2d at 759. Indeed, the incorporation of a

state law violation in such a prosecution may cause

complications. See United States v. Washington, 688 F.2d

953, 958 (5th Cir. 1982) (reversing mail fraud conviction

where jury should have been instructed that the defendant

"should not be found guilty of the federal offense merely

because he violated state law"). Here, however, the parties

agree that the indictment, as structured, required it to

prove that Sawyer violated at least one state law. Thus, the

state laws in question had to be correctly charged as a

matter of state law, and the violation of at least one had to

be proven.

Sawyer appeals various aspects of the court's jury

instructions on the state statutes and their role in the

alleged scheme to defraud. To determine whether the court's

instructions adequately explained the law or whether they

"tended to confuse or mislead the jury," United States v.

Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995) (internal

quotations and citation omitted), cert. denied, 116 S. Ct.

909 (1996), we review the entire charge pertaining to the

role of the state statutes in this honest services fraud

prosecution:

In this case the government has charged
Mr. Sawyer with devising a scheme or

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artifice; that is, a plan, to deprive the
Commonwealth of Massachusetts and its
citizens of their right to the honest
services of members of the Massachusetts
Legislature by giving or offering to
those legislators gifts of free travel,
lodging, golf, meals, and other
entertainment. I instruct you that under
the mail and wire fraud statutes, a
scheme to defraud can be a plan to
deprive the public of its right to the
honest services of members of the
Massachusetts Legislature.
Elected public officials, such as
members of the Massachusetts Legislature,
owe certain duties to the Commonwealth of
Massachusetts and to its citizens. One
of those duties is the duty to act
honestly. The government charges that by

violating and causing legislators to

violate certain state statutes, Mr.

Sawyer deprived the public of its right

to the honest services of members of the

Massachusetts Legislature and, therefore

devised a scheme to defraud.

In other words, the government
alleges that the defendant violated

federal laws, mail fraud and wire fraud,

by intentionally violating or causing

Massachusetts legislators to violate

certain state laws. Accordingly, in

order to prove the first element of the
mail fraud and/or wire fraud, that the
defendant devised a scheme to defraud,
the government must prove beyond a
reasonable doubt that the defendant
intentionally violated or caused members
of the Massachusetts Legislature to
violate at least one of the following two
state laws . . . . (emphasis added).

After describing the two statutes, the court continued:

If you find beyond a reasonable doubt
that the defendant devised or created a
scheme to defraud in which he
intentionally violated or caused a
violation of at least one of the laws
that I have just described, then you may
find that the government has proved the

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22

first element of mail fraud and wire
fraud.

These instructions permitted the jury to find the

requisite scheme to defraud upon proof that Sawyer violated,

or caused legislators to violate, either one of the state

statutes. In other words, the jury was allowed to find that

a violation of either statute, without more, constituted the

deprivation of honest services.8 At oral argument before

this court, the government affirmed that it chose the state

law violations as "the sole vehicle to prove the scheme or

artifice to defraud" in order to "narrow the issues of intent

and good faith." Thus, we analyze both state statutes in

light of the law of honest services, set forth above, to

determine whether the court's instructions erroneously

permitted a conviction for conduct not within the reach of

the mail fraud statute.

1. The Gift Statute

8. After the court instructed the jury, Sawyer lodged the
following objection:

Your Honor, I believe that the Court's
instruction failed to properly instruct
the jury that, even if it finds that the
defendant violated one of the two state
statutes . . . the defendant would not be
guilty of any federal offense, mail fraud
and wire fraud offense, unless [the
violation] was part of a plan to defraud
the Commonwealth of Massachusetts or its
citizens of the duty of honest services.

The court declined any further charge.

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23

The first Massachusetts statute on which the

alleged scheme to defraud was based is ch. 268B, 6 (the

"gift statute"), which provides:

No legislative agent shall knowingly and
wilfully offer or give to a public
official or public employee or a member
of such person's immediate family, and no
public official or public employee or
member of such person's immediate family
shall knowingly and wilfully solicit or
accept from any legislative agent, gifts
with an aggregate value of one hundred
dollars or more in a calendar year.

Mass. Gen. L. ch. 268B, 6. We discuss Sawyer's challenges

to the court's instructions on the statutory definitions

before turning to the statute's relation to the scheme to

defraud.

a. "Legislative Agent"

The court instructed the jury that, under the

statute, a legislative agent cannot give or offer gifts

aggregating $100 or more to a legislator or member of the

legislator's family. It further instructed that a

"legislative agent" is "any person who, for compensation or

reward, does any act to promote, oppose or influence

legislation." See Mass. Gen. L. ch. 268B, 1(g).9 Sawyer

9. The entire definition of "legislative agent," for
purposes of the gift statute, is:

any person who for compensation or reward
does any act to promote, oppose or
influence legislation . . . . The term
shall include persons who, as any part of
their regular and usual employment and

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24

argues that this instruction failed to reflect his assertion

that a person is a "legislative agent" only when he is so

registered with the Secretary of State or he is actually

engaging in lobbying activity at the time he gave the alleged

gifts.

The court instructed that a legislative agent is

one who is paid to "promote, oppose or influence

legislation," i.e., to lobby, and that such agents are

forbidden to give or offer certain "gifts." The instruction,

as a whole, adequately conveyed the idea that such gifts are

forbidden only when given by those who, at the time of the

gifts, are paid to actually lobby. While there may be a

person with the job title "lobbyist" who does not actually

engage in lobbying, there was ample evidence here that Sawyer

lobbied at the time he gave the alleged "gifts." Moreover,

the fact that he had an obligation to register with the

Secretary of State, see Mass. Gen. L. ch. 3, 40, 41, does

not alter the definition. No further instruction was

required.

b. Shared Meals as "Gifts"

not simply incidental thereto, attempt to
promote, oppose or influence legislation
. . . whether or not any compensation in
addition to the salary for such
employment is received for such services.

Mass. Gen. L. ch. 268B, 1(g); see also 3 39 (identical

definition in statutory section on disclosure obligations).

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25

The court instructed the jury that "gifts," under

the relevant Massachusetts law, are "a payment,

entertainment, subscription, advance, services or anything of

value, unless consideration of equal or greater value is

received." See Mass. Gen. L. ch. 268B, 1(g). Much of the

evidence offered to prove Sawyer's violations of the gift

statute was his payment for shared meals and entertainment

with the legislators. Sawyer contends that his payment for

"shared hospitality" does not constitute a "gift" within the

meaning of the statute. The issue turns out to be

potentially complicated and involves somewhat convoluted

analysis of the statutory history of a comparable law set

forth at Mass. Gen. L. ch. 3, 43. We have carefully

reviewed the arguments on both sides, and for the reasons set

forth in the district court's ruling, see Sawyer, 878 F.

Supp. at 282-84, we conclude that Sawyer's shared meals

could, if the jury so found, fit within the gift definition's

term "entertainment" and/or the very broad phrase, "anything

of value."

c. Relation to Scheme to Defraud

As explained above, under the court's jury

instructions regarding the scheme to defraud, Sawyer's

intentional violations of the gift statute, by their very

occurrence (or ipso facto), must deprive the public of their

legislators' honest services. Sawyer challenges this legal

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26

premise, arguing that such violations do not necessarily

deprive the public of those services.10 For the reasons

that follow, we agree.

The gift statute, which forbids a legislative agent

from "knowingly and wilfully" giving a "public official . . .

gifts with an aggregated value of one hundred dollars or more

in a calendar year," Mass. Gen. L. ch. 268B, 6, simply

limits, by a dollar-amount, the gift-giving by lobbyists to

legislators. It is a prophylactic civil prohibition that

addresses appearances of -- but not actual -- corruption. A

violation of the Massachusetts gift statute does not

necessarily entail any improper motive to influence, or

otherwise affect, the official duties of the recipient. It

is possible for a lobbyist to give a legislator items falling

within the statute's definition of "gift," or for a

10. The government claims that Sawyer has only challenged
the evidentiary sufficiency of his fraudulent intent, and
thus has waived a jury instruction challenge on the issue.
We disagree. While Sawyer ultimately endeavors to persuade
us that the evidence was insufficient to support his
conviction, he squarely challenges the very legal theory upon
which he was convicted. He particularly challenges the
government's theory (as accepted by the district court) that,
as a matter of law, the scheme to defraud could be predicated
upon state law violations alone, without the intent to
deprive the public of honest services. Sawyer not only
lodged an adequate objection on this issue with the trial
court, see supra note 8, his brief to this court thoroughly

addresses the precise legal issues surrounding the interplay
between the mail statute, the state statutes, and the
requirement of fraudulent intent. The legal arguments are
sharply presented and the record is adequate for our review.
Thus, we conclude that the issue is properly before us.

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27

legislator to accept such gifts, without an accompanying

intent to cause the legislator to deviate from the honest

performance of official duties. While such gifts would

constitute a gift-statute violation, not every such

circumstance would necessarily amount to a deviation from the

official's performance of honest services to the public.11

Thus, unlike the honest services fraud cases, noted above, in

which an official was bribed or took official action based on

a secret conflict of interest, a gift statute violation, even

if intentional, does not in itself amount to honest services

fraud.

While the Massachusetts' citizenry expects their

legislators to comply with laws pertaining to their official

capacity, the presence of such illegal conduct, even though

it relates to public office, does not by itself (or, per se)

establish honest services fraud. Cf. See United States v.

Dowling, 739 F.2d 1445, 1449-50 (9th Cir. 1984) (rejecting

government's suggestion that "the presence of illegal conduct

alone may constitute the basis of the `fraud' element of a

mail fraud prosecution" and stating that "to hold otherwise .

. . would have the potential of bringing almost any illegal

act within the province of the mail fraud statute"), rev'd on

other grounds, 473 U.S. 207 (1985); United States v. Gallant,

11. We note that under Massachusetts law, violation of the
gift statute is punishable by no more than a $2000 civil

fine.

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28

570 F. Supp. 303, 309 and n.7 (S.D.N.Y. 1983) (noting that

Congress forbade the use of the mails in furtherance of "any

scheme or artifice to defraud" and not in furtherance of "any

crime"). To allow every transgression of state governmental

obligations to amount to mail fraud would effectively turn

every such violation into a federal felony; this cannot be

countenanced.

Because the court's instructions allowed the jury

to equate a gift statute violation with the deprivation of

honest services, it also permitted the jury to find an

"intent to defraud" from the intent to violate the statute,

without more. To establish the scheme to defraud through

these violations, however, it must also have been charged and

shown that the intent behind the violations was the

deprivation of honest services. See D'Amato, 39 F.3d at 1257

(explaining that where harm is not the necessary result of

the scheme, independent evidence of fraudulent intent is

required). Thus, this case required a separate instruction

that, to prove the intent to commit honest services fraud,

the jury had to find that Sawyer intended to influence or

otherwise improperly affect the official s performance of

duties, not merely that he intended to violate the state

statute.12 Allowing the jury to find that Sawyer intended

12. This intent is not equivalent to, or subsumed within,
the intent to deceive the public, discussed infra. In

addition to deceit (the gravamen of "fraud"), the government

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29

to defraud the public of its right to honest services based

on proof of gift statute violations alone constituted

reversible error. See United States v. Doherty, 867 F.2d 47,

57 (1st Cir.), cert. denied, 492 U.S. 918 (1989) (observing

that reversal of convictions is required if instructions

"could have led the jury to convict for conduct outside the

proscription of the mail fraud statute").

2. The Gratuity Statute

The second Massachusetts statute upon which the

convictions for honest-services mail fraud rely, is ch. 268A,

3 (the "gratuity statute"), which provides, in part:

(a) Whoever, otherwise than as provided
by law for the proper discharge of
official duty, directly or indirectly
gives, offers or promises anything of
substantial value to any present or
former state . . . employee . . . for or
because of any official act performed or
to be performed by such an employee
. . . .
(d) . . . shall be punished by a fine of
not more than three thousand dollars or
by imprisonment for not more than two
years, or both.

Mass. Gen. L. ch. 268A, 3.

must also show the intent to harm (in this case, to deprive

of honest services). See McEvoy Travel Bureau, Inc. v.

Heritage Travel, Inc., 904 F.2d 786, 791-92 (1st Cir.)

(explaining that mail fraud requires both deceit and
deprivation), cert. denied, 498 U.S. 992 (1990); D'Amato, 39

F.3d at 1257 (explaining that "the deceit must be coupled
with a contemplated harm to the victim") (quotation and
citation omitted).

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30

The centerpiece of the gratuity statute is the

giving of an item of "substantial value" (the "gratuity"), to

an official, "for or because of any official act performed or

to be performed" by the official. Because this language

entails some connection between the gift and the performance

of official duties, a gratuity statute violation -- unlike a

gift statute violation -- may itself be sufficient to

implicate the duty of honest services in a given case. As

with the gift statute, however, not every violation of the

gratuity statute automatically encompasses an intent to

induce the public official to alter or deviate from the

performance of honest and impartial services. We explain.

A Massachusetts gratuity offense does not require a

finding of corrupt intent, i.e., improper intent to influence

official decision making. See Commonwealth v. Dutney, 348

N.E.2d 812, 821 (Mass. Ct. App. 1976) (finding gratuity

offense to be a lesser included offense of Massachusetts

bribery statute, Mass. Gen. L. ch. 268A, 2, which adds the

element of "corrupt intent" i.e., intent to influence);13

13. The Massachusetts bribery statute, which did not form a
part of this case, provides, in part:

Whoever, directly or indirectly,
corruptly gives, offers or promises

anything of value to any state . . .
employee . . ., with intent . . . to

influence any official act or any act

within the official responsibility of
such employee [shall be punished].

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31

cf. United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir.

1993) (observing that gratuity offense, unlike bribery, does

not involve a "corrupt purpose"). Rather, only some lesser

intent need be shown. A jury might be charged to find a

bribery or gratuity offense in the alternative, thus allowing

it to convict for a gratuity offense if it is convinced that

the defendant gave something to a public official because of

an official act, but is not persuaded that the defendant had

a corrupt intent to influence that act. See, e.g., Dutney,

348 N.E.2d at 821.

As the word "gratuity" implies, the intent most

often associated with the offense is the intent to "reward"

an official for an act taken in the past or to be taken in

the future. See Mariano, 983 F.2d at 1159 (noting that,

unlike one who bribes, the gratuity offender "gives the gift

without attaching any strings, intending it instead as a

reward for actions the public official has already taken or

is already committed to take"). The official act might

otherwise be properly motivated; and the gratuity, though

unlawful, might not be intended to influence the official's

mindset with regard to that particular action. In some

cases, such as a reward for long-past official action, the

intent to influence could not possibly exist. A finding of

honest services fraud, however, requires, in connection with

Mass. Gen. L. ch. 268A, 2(a) (emphasis added).

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32

the gratuity, the intent to cause an official to deviate from

the honest performance of services.

Thus, as with the gift statute, proof of a

violation of the Massachusetts gratuity statute, without

more, does not establish an intent to commit honest services

fraud. The government must prove that the conduct was

accompanied by the requisite intent. This intent could be

shown in a number of ways. For example, a bribery-like,

corrupt intent to influence official action necessarily is an

intent to deprive the public of an official's honest

services. A person might not, however, give an unlawful

gratuity with the intent to effect a specific quid pro quo.

Rather, as the government contends here, a person with

continuing and long-term interests before an official might

engage in a pattern of repeated, intentional gratuity

offenses in order to coax ongoing favorable official action

in derogation of the public's right to impartial official

services. Such conduct would be akin to (although not a

classic case of) the conflict of interest cases noted above.

See, e.g., Grandmaison, 77 F.3d at 567; Silvano, 812 F.2d at

759. Here, for example, while Sawyer may not have provided

the legislators with direct kickbacks or commissions arising

out of the specific official action, he may have intended the

legislators generally to treat preferentially Hancock's

interests, knowing that the free meals, entertainment, and

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33

golf would continue so long as favorable official acts were,

at some point, taken.

In this case, the district court did not, in fact,

instruct the jury on a true "gratuity" offense. Instead, it

instructed the jury that, to establish a gratuity offense,

the government must prove that Sawyer "gave something of

substantial value to a legislator with the intent to

influence an official act of that legislator." While this

instruction erroneously added an intent-to-influence element

to the gratuity offense, it also had the effect of charging

the jury to find the requisite intent for honest services

fraud.14

3. Conclusion: Scheme to Deprive of Honest

Services

The jury was permitted to find the first element of

mail and wire fraud, the scheme to defraud, upon proof that

either the gift statute or the gratuity statute was violated.

The gift statute as charged, however, was a legally

insufficient basis upon which to find the scheme to defraud.

14. The court also instructed the jury that it is not a
defense to a gratuity charge that the official act would have
occurred even if the gratuity had not been given. See United

States v. Previte, 648 F.2d 73, 82 (1st Cir. 1981). Sawyer

assigns error to this instruction, contending that the fact
that the act would have occurred without the gratuity is
indicative of good faith. Sawyer fails to explain, however,
how the fact that an official act would have occurred anyway
could have affected his state of mind when giving the

gratuities. The court's instruction was a correct statement
of the law, relevant to this case, and it was not in error.

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34

Although the gratuity statute was properly instructed in

terms of honest services mail fraud, we cannot tell if the

convictions were based on that statute or the insufficiently

charged gift statute. When a jury has been presented with

several bases for conviction, one of which is legally

erroneous, and it is impossible to tell which ground the jury

convicted upon, the conviction cannot stand. United States

v. Nieves-Burgos, 62 F.3d 431, 435-36 (1st Cir. 1995).

The government contends that if we find error with

respect to the gift statute, we should affirm the convictions

because the jury found that Sawyer committed gratuity

offenses within the Travel Act convictions, discussed infra.

We cannot assume from the Travel Act convictions, however,

that the jury based its mail and wire fraud convictions on

the gratuity statute. The court charged the jury to consider

each offense as separate bases for the mail and wire fraud

charges. Accordingly, the possibility exists that, when

convicting on the mail and wire fraud charges, the jury

focused on violations of the gift statute, alone. See Boots,

80 F.3d at 589 (declining to affirm conviction where it was

possible that the jury focused its verdict on erroneous

basis). Thus, for the foregoing reasons, Sawyer's mail and

wire fraud convictions must be reversed.

Sawyer contends that the evidence was insufficient

to prove an intent to influence the legislators' official

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35

acts and that therefore his conviction should be reversed

without the possibility of retrial. We cannot agree. At

trial, there was evidence that Sawyer intentionally and

repeatedly provided legislators with valuable gifts of

entertainment for the purpose of obtaining "greater access"

to,15 and of developing a "certain relationship with,"

legislators. A jury could credit Sawyer's defense that he

thought his expenditures were lawful and that they were meant

only for goodwill entertaining. Taking the evidence in the

light most favorable to the prosecution, however, see United

States v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied,

116 S. Ct. 522 (1995), a jury could also rationally infer,

beyond a reasonable doubt that Sawyer intended that his

repeated gifts and gratuities would induce legislators to

perform official acts to benefit Hancock's interests

regardless of, or at the expense of, the public interest.

15. We do not think that the desire to gain access, by
itself, amounts to an intent to influence improperly the
legislators' exercise of official duties. The government
points to no legislative duty to provide equal access to all
members of the public; and, from a practical standpoint, we
doubt one exists. See Sawyer, 878 F. Supp. at 294 (striking

phrase "free from favoritism" from indictment's list of
legislators' duties). True, Sawyer's very job description
required him to develop contacts in the Legislature, and, as
with all lobbyists, his employment goal was to persuade and
influence legislators to benefit certain interests. Such
endeavors, however, are protected by the right "to petition
the Government for a redress of grievance" guaranteed by the
First Amendment of the United States Constitution, see United

States v. Harriss, 347 U.S. 612, 625 (1954); it would be

impermissible to rely upon the lobbying position simpliciter
to establish a corrupt intent to influence.

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36

Hence, retrial is not precluded. See Boots, 80 F.3d at 589-

90 (reversing because of legal error in instructions but

remanding for possible retrial because the evidence was

sufficient for proper conviction); United States v. Ochs, 842

F.2d 515, 529 (1st Cir. 1988) (same).

In view of the possibility that the government may

choose to retry this case, we think it is useful to add a

cautionary word concerning the relationship between state and

federal law in cases such as this one. Our comments are

addressed primarily to the mail fraud statute but apply in

some measure to the Travel Act charge, discussed infra, as

well. Two problems are of specific concern to us.

First, concerning the theft of honest services jury

instruction, an overemphasis on what state law forbids may

lead the jury to believe that state rather than federal law

defines the crime, or more specifically, that any violation

of a state law or regulation concerning lobbying or related

matters amounts to honest services fraud. Wire and mail

fraud are federal offenses; and while state violations may

play a role, the jury should not be allowed to slip into the

misunderstanding that any violation of proliferating state

laws and regulations controlling this area automatically

amounts to a federal crime.

In a similar vein, we think there exists a risk in

this case -- particularly in view of the prosecutor's closing

-37-
37

argument with its repeated emphasis on permissible dollar

limits in lobbying -- that the jury could wrongly believe

that any expenditure in excess of that allowed by state

statute or regulation by itself constitutes the federal

offense. The district court has ample authority under

Federal Rule of Evidence 403 to limit evidence concerning

state law requirements where that evidence is substantially

more prejudicial than probative. And, in all events, jury

instructions need to make clear that for the federal honest

services fraud to be proven, the defendant must have the

intent to affect a legislator's performance of an official

act and not merely to make payments in excess of some state

specified limitations.

B. Intent to Deceive

Whether or not a new trial on the mail and wire

fraud counts is allowable requires us to reach Sawyer's

additional contention that the evidence was insufficient to

establish his intent to deceive the public. To this end,

Sawyer contends that because the government did not establish

that he had a duty to disclose his illegal gifts and

gratuities to the public, his intent to deceive the public

had to be shown through affirmative acts of deception, which

he claims are absent here.

To establish mail fraud -- in cases involving

honest services fraud and otherwise -- the alleged scheme

-38-
38

must involve deception in the deprivation of money, property,

or the right to honest services. See McEvoy Travel Bureau,

Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir.)

("[N]ot every use of the mails or wires in furtherance of an

unlawful scheme to deprive another of property constitutes

mail or wire fraud. . . . Rather, the scheme must be intended

to deceive another, by means of false or fraudulent

pretenses, representations, promises or other deceptive

conduct.") (citations omitted), cert. denied, 498 U.S. 992

(1990); see also Grandmaison, 77 F.3d at 567 (finding that

public official's conduct of secretly delivering gratuities

to other officials for favorable action, "without disclosing

his actions to other [officials]," falls within purview of

honest services mail fraud) (citing McEvoy Travel, 904 F.2d

at 791); United States v. Bush, 522 F.2d 641, 648 (7th Cir.

1975), cert. denied, 424 U.S. 977 (1976).16 While a

16. Under 18 U.S.C. 1346, "the term 'scheme or artifice to
defraud' includes a scheme or artifice to deprive another of

the intangible right of honest services." (emphasis added).
We do not think the word "deprive" in this section eliminates
the requirement of deceit in an honest services fraud

prosecution. Nor do we find that a deprivation of "honest"
services, by definition, necessarily includes the deceit
factor sufficient for mail fraud. By enacting 1346,
Congress meant to overturn McNally, 483 U.S. 350 (1987),

which held that the scheme to defraud must be intended to
deprive another of money or property. Grandmaison, 77 F.3d

at 566. And prior to McNally, courts endorsing the honest-

services mail fraud theory invariably required some showing
of deceit which is inherent in the term "fraud." See

Silvano, 812 F.2d at 759-60; Mandel, 591 F.2d at 1361; United

States v. Barber, 668 F.2d 778, 784-85 (4th Cir.), cert.

denied, 459 U.S. 829 (1982). We find nothing that indicates

-39-
39

misrepresentation of fact is not required to establish mail

fraud, McEvoy Travel, 904 F.2d at 791, a demonstrated intent

to deceive is required.

When the conduct of a government official is

involved, "the affirmative duty to disclose material

information arises out of [the] official's fiduciary

relationship to [the public]." Silvano, 812 F.2d at 758; see

id. at 760 ("Although not all dishonest or disloyal conduct

by an employee violates the mail fraud statute, an employee's

breach of a fiduciary duty falls within the strictures of the

statute when it encompasses the breach of a duty to disclose

material information to the employer."). Thus, an official's

intentional violation of the duty to disclose provides the

requisite "deceit." See id. at 760 (noting that failure to

disclose "under circumstances where the non-disclosure could

or does result in harm to the employer is a violation of the

mail fraud statute") (citation and internal quotations

omitted).

Here, although the issue has not been clearly

presented by the parties, it appears that the requisite

intent to deceive could have been shown either through

Sawyer's own acts of deception toward the public with respect

a change in this requirement for establishing honest services
mail or wire fraud. Thus, while it may be difficult to
conceive of a scheme to deprive someone of the right to
honest services without intending to deceive that person, the
intent to deceive must nonetheless be established.

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40

to the gift/gratuity statute violations, or through his

efforts to ensure that the legislators deceived the public

with respect to the violations. The latter requires evidence

only that Sawyer intended to cause the legislators

intentionally to fail to disclose material information about

the violations,17 although evidence that he intended the

legislators to affirmatively misrepresent themselves in this

regard would also suffice. At bottom, the evidence must be

sufficient to establish Sawyer's intent that, in the end, the

publicbedeceivedwith respecttohisunlawfulgifts andgratuities.

Therefore, we must determine if the admissible

evidence, viewed in light most favorable to the jury's

verdict, is sufficient for a rational jury to find that

Sawyer intended that the public be deceived. See United

States v. Kaplan, 832 F.2d 676, 679 (1st Cir. 1987), cert.

denied, 485 U.S. 907 (1988). The evidence need not compel an

intent-to-deceive finding; rather, it is only required that a

reasonable jury could be persuaded, beyond a reasonable

doubt, that Sawyer had such intent. See United States v.

O'Brien, 14 F.3d 703, 706-707 (1st Cir. 1994). And we are

mindful that a jury may choose among the reasonable

alternatives posed by the evidence. United States v. Olbres,

17. Although allegations that Sawyer caused legislators to
violate their statutory disclosure obligations were withdrawn
by the government at trial, the obligation to disclose
material information inheres in the legislator's general
fiduciary duty to the public. Silvano, 812 F.2d at 758.

-41-
41

61 F.3d 967, 973 (1st Cir. 1995), cert. denied, 116 S. Ct.

522 (1995). Finally, the specific intent to deceive may be

proven (and usually is) by indirect and circumstantial

evidence. See O'Brien, 14 F.3d at 706 (observing that fraud

crimes "by their very nature, often yield little in the way

of direct proof"); Kaplan, 832 F.2d at 679; see also United

States v. Nivica, 887 F.2d 1110, 1113 (1st Cir. 1989)

(opining that "factual circumstances may signal fraudulent

intent in ways as diverse as the manifestations of fraud

itself"), cert. denied, 494 U.S. 1005 (1990).

At first blush, it may appear that bribery of a

public official necessarily incorporates a finding that the

offender intended to "trick" or "deceive" the public into

thinking that the official was acting independently when, in

fact, the official was actually motivated by the bribe.

While we have little doubt that bribes are usually given in

secrecy, see Holzer, 816 F.2d at 309 (observing that "no

public official in the United States takes bribes openly"),

bribery and gratuity statutes generally, as here, do not

require a separate element of deception. Ostensibly, a

person could offer an illegal bribe to a public official and

not be concerned with its secrecy. Thus, the evidence

presented must permit a finding that Sawyer not only gave the

unlawful gifts or gratuities with the intent to deprive the

public of honest services, but that he also intended to

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deceive the public about that conduct. See Bush, 522 F.2d at

648.

Here, the government presented evidence that Sawyer

gave the unlawful gifts and gratuities during the seven years

of the indictment period until the Boston Globe exposed the

practice in May 1993. Much of his entertainment of lobbyists

took place out-of-state -- usually at industry and

legislative conferences -- where members of the Massachusetts

citizenry generally would not observe the questionable

activities. Unlike his acts of "non-public" entertainment,

Sawyer ensured compliance with state ethical standards for a

1993 Boston Marathon brunch, potentially a high profile

event. In his office, Sawyer kept newspaper articles

reporting legislators' activities with lobbyists, and in

particular, the ethical ramifications of such relationships.

In one article, Representative Mara (a recipient of Sawyer's

unlawful gifts or gratuities) is quoted as saying, "Everyone

picks up their own tabs at [legislative] conferences. . . .

These conferences have become almost nonexistent." These

articles were kept in notebooks with other materials

regarding lobbying laws.

A jury rationally could infer that Sawyer was

cognizant of his ethical obligations in lobbying, knew of the

public awareness of lobbying activity, and repeatedly gave

hidden unlawful gifts and gratuities until he was publicly

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43

exposed. While not overwhelming, the combined evidence is

sufficient to permit a reasonable jury to find, beyond a

reasonable doubt, that Sawyer intended to deceive the public

about his unlawful expenditures on legislators. See United

States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)

(explaining that "juries are not required to examine the

evidence in isolation, for `individual pieces of evidence,

insufficient in themselves to prove a point, may in

cumulation prove it. The sum of an evidentiary presentation

may well be greater than its constituent parts.'" (quoting

Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)),

cert. denied, 506 U.S. 1063 (1993); United States v.

Montminy, 936 F.2d 626, 627-28 (1st Cir. 1991).18

18. The government also presented evidence that Sawyer
somehow concealed his expenditures on legislators from his
Hancock superiors other than Hathaway. The government does
not argue that this evidence can amount to the requisite
deceptive conduct, nor did it rely on it to prove the intent
to deceive. In any event, Sawyer's deceptive conduct toward
Hancock, alone, cannot form the basis of this honest services
fraud conviction. Rather, the alleged victims of the mail
fraud -- here, the state and the public -- must be the ones
deceived. Thus, in order for any deception of Hancock to
form a part of the scheme to deprive the Commonwealth and her
citizens of legislators' honest services, some showing that
such conduct was connected to the defrauding of alleged
victims is required. See McEvoy Travel, 904 F.2d at 794 &

n.13 (rejecting position that a scheme to defraud is
established if the deception of one party causes deprivation
to another); Lifschultz Fast Freight, Inc. v. Consolidated

Freightways Corp., 805 F. Supp. 1277 (D.S.C. 1992) (requiring

convergence of identity of injured and deceived), aff'd on

other grounds, 998 F.2d 1009 (4th Cir.) (Table), 1993 WL

241742, cert. denied, 114 S. Ct. 553 (1993).

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44

For the foregoing reasons, Sawyer's mail and wire

fraud convictions must be vacated and remanded for a possible

new trial.

III.
III.

Travel Act Counts
Travel Act Counts

The government charged Sawyer with knowingly and

wilfully travelling and causing others to travel in

interstate commerce with the intent to promote, carry on and

facilitate the promotion and carrying on of unlawful

activity, to wit, illegal gratuities in violation of Mass.

Gen. L. ch. 268A, 3, in violation of 18 U.S.C. 1952 (the

"Travel Act").19 The government asserted that Sawyer

violated the Massachusetts gratuity statute subsequent to

interstate travel to the following destinations: Tulsa,

Oklahoma; Orlando, Florida; Savannah, Georgia; Scottsdale,

Arizona; Key Largo, Florida; Charleston, South Carolina;

Amelia Island, Florida; and Puerto Rico.

19. The Travel Act proscribes travel in interstate commerce
"with intent to . . . promote, manage, establish, carry on,
or facilitate the promotion, management, establishment, or
carrying on, of any unlawful activity." 18 U.S.C. 1952(a).
"Unlawful activity" is defined as, inter alia, "bribery . . .

in violation of the laws of the State in which committed or
of the United States." 18 U.S.C. 1952(b); see United

States v. Arruda, 715 F.2d 671, 681 (1st Cir. 1983). The

district court instructed the jury that a violation of the
gratuity statute constituted "unlawful" activity within the
purview of the Travel Act, a view with which we agree to the
extent that the court instructed that something of value was
given in order to influence the performance of an official
act. Sawyer does not dispute that a gratuity violation of
this character is "bribery" for purposes of the Travel Act.

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Sawyer argues that his Travel Act convictions must

be reversed because: (1) the court erroneously instructed the

jury on the gratuity statute; (2) the evidence was

insufficient to establish the gratuity offenses; (3) the

court barred him from presenting evidence crucial to his

defense; and (4) the court improperly admitted summary

evidence introduced by the government. Although we discuss

and reject each of these arguments in turn, we nonetheless

reverse his conviction on these counts because the district

court's instructions on the meaning of "bribery," for the

purposes of the Travel Act, were fatally flawed.

A. Gratuity Statute Jury Instructions

Because the Travel Act convictions rely upon

violations of the Massachusetts gratuity statute, we now

address an additional state-law aspect of the gratuity

statute about which the parties disagree.

The gratuity statute requires that the item of

"substantial value" be given "for or because of any official

act performed or to be performed." Mass. Gen. L. ch. 268A,

3(a). An "official act" is defined as: "any decision or

action in a particular matter or in the enactment of

legislation." Mass. Gen. L. ch. 268A, 1(h).20 Here,

20. A "particular matter" is further defined as:

any judicial or other proceeding,
application, submission, request for a
ruling or other determination, contract,

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46

Sawyer allegedly bestowed gratuities upon legislators who

were members of the Insurance Committee. Thus, for purposes

of this discussion, we proceed on the theory that the

government had to prove that Sawyer gave the gratuities "for

or because of . . . any decision or action in the enactment

of legislation." See Mass. Gen. L. ch. 268A, 3(a), 1(h).

The parties' interpretations of the gratuity

statute differ with respect to the scope and character of the

connection required between the gratuity and the official

act. Sawyer contends that the gratuity must be linked to a

specific, identifiable official act. The government argues

that it is sufficient to prove that the gratuity would not

have been given but for the legislator's ability to take

official action favorable to Sawyer. In a pretrial ruling on

Sawyer's motions to dismiss, the district court agreed with

the government's interpretation, and instructed as such.21

claim, controversy, charge, accusation,
arrest, decision, determination, finding,
but excluding enactment of general
legislation . . .

Mass. Gen. L. ch. 268A, 1(k).

21. The court's jury instructions on this issue were as
follows:

I instruct you that the government has to
prove beyond a reasonable doubt that the
defendant intended to influence the
action of the legislator on any official
matter which was pending before the
legislator or which may, by law, have
been brought before the legislator at

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47

No Massachusetts court decision has yet interpreted

the operative "for or because of any official act" language

in ch. 268A, 3(a). To support their respective positions,

the parties present differing arguments regarding the

statutory language, legislative history, comparable statutes,

and State Ethics Commission rulings. We consider these

sources separately.

1. Statutory Language

The gratuity statute prohibits the giving of

gratuities "for or because of any official act performed or

to be performed." Mass. Gen. L. ch. 268A, 3. The statute

does not read "for or because of the official's position."

Rather, it forbids gratuities motivated by "any official act"

some later time.
. . . .
I further instruct you that the
government need not prove that the
alleged gratuity was linked to a specific
identifiable act. In other words, the
government need not prove that the
gratuity was given as a quid pro quo;
that is, in exchange for any one specific
act performed or to be performed by the
legislator. The government does not have
to show that there was an agreement
between the defendant and the legislator
requiring the legislator to perform
certain acts in exchange for the
gratuity.
The government must prove, however,
that the defendant gave the alleged
gratuity to a legislator with the
expectation that the legislator would use
his influence on official matters in ways
favorable to the defendant.

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48

and further defines, rather meticulously, "official act."

See Mass. Gen. L. ch. 268A, 1(h) & (k). Thus, on the face

of the statute, it does not appear that the unlawfulness of

the gratuity could be established by proof that it was

motivated solely by the official's position. In other words,

proof of the offense requires something more than a simple

showing that "but for" the official's authority, the gratuity

would not have been given.22

This observation, however, does not lead to the

conclusion that the gratuity must be shown to be motivated by

a specifically identified official act. As noted supra, a

gratuity offense is essentially a bribery offense without

proof of "corrupt intent." The concern behind the gratuity

statute, like the bribery statute, is the potential

undermining of official integrity. A gratuity does not

compromise this integrity because of its possible effect on

the official's "position"; rather, the danger is in its

ability to affect the official's performance of duties, i.e.,

"official acts." It is not surprising, then, that the

22. For example, if the parent of a student gives the school
principal a gift of substantial value at the student's
graduation, that alone would not constitute a gratuity
offense, even though the parent would not have given the gift
"but for" the principal's position. If, however, the gift
was given under circumstances in which the principal had the
discretion to decide whether or not the student would
graduate, a gratuity offense might be found.

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49

statute proscribes gratuities motivated by "official acts"

rather than "official position."

Thus, the use of the term "official act" appears to

ensure that the gratuity would be deemed unlawful only when

the giving of an item of "substantial value" is linked to the

official's performance of duties. The connection between the

gratuity and the performance of official duties, however,

does not necessarily require the identification of a specific

official act, and we find nothing in the statutory language

to require such a demonstration.

2. Legislative History

The gratuity statute was based, in part, upon a

bill drafted by a 1962 Massachusetts Special Commission on

Code of Ethics. See Report of the Special Commission on Code

of Ethics, 1962 House Doc. No. 3650, p.8. Nothing in the

Commission's Report, however, assists us in resolving the

instant question. It states only: "It should be noted that

to constitute a criminal act, the giving or receiving of the

item of such `substantial value' must be `for or because of'

an official act." Id. at 11; see Commonwealth v. Famigletti,

354 N.E.2d 890, 893 (Mass. Ct. App. 1976) (noting same

language in the report). The Report neither parses out what

these terms mean, nor gives examples of what was intended.

From this we discern only that the Commission was concerned

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50

that "innocent" gifts to officials would not fall within the

gratuity statute's purview.

The Commission's report does tell us that "[m]uch

of the language of the proposed legislation is taken and

adapted from [a proposed federal bribery/gratuity bill]."

Report of Special Commission, supra at 8; see Dutney, 348

N.E.2d at 822 n.16. As discussed below, however, the

comparable federal gratuity statute, 18 U.S.C. 201(c), is

also unhelpful in resolving the question before us.

3. Comparable Statutes

In support of its position, the government relies

on the Massachusetts Supreme Judicial Court's interpretation

of a different statute in Commonwealth v. Lapham, 156 Mass.

480, 31 N.E. 638 (Mass. 1892), and on federal cases

interpreting the federal gratuity statute, 18 U.S.C.

201(c).

Lapham involved a milk dealer who attempted to

bribe a city milk inspector and was convicted under a statute

punishing anyone who:

corruptly gives, offers or promises to
any executive, legislative . . . or
judicial officer . . .any gift or
gratuity whatever, with intent to
influence his act, vote, opinion,
decision, or judgment on any matter,
question, cause, or proceeding, which may
be then pending, or may by law come or be
brought before him in his official
capacity.

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51

Mass. Pub. St. ch. 205, 9 (Ch. 349 Revised May 21, 1891);

see Lapham, 31 N.E. at 638-39. The milk dealer argued that

the indictment was insufficient because it did not aver a

particular matter to be influenced. Id. The Supreme

Judicial Court disagreed, reasoning as follows:

Nor is it necessary in an indictment
under [ch. 205, 9] to aver that the
corrupt intention to influence the act,
opinion, decision or judgment of the
inspector was in relation to any specific
and particular matter then pending before
him, or which was then expected to come
before him. It is enough to aver a
corrupt intention so to influence him in
any matter which may then be pending, or
which may by law come or be brought
before him. If for example an executive,
legislative or judicial officer is bribed
corruptly to favor a particular person in
any and all matters affecting that person
which may come before such officer,
without specification or knowledge of the
particular matters likely to come up, the
statute is broad enough to include such a
case. A narrower construction of a
similar statute has been adopted in
Alabama, but we cannot follow it.
Barefield v. State, 14 Ala. 603 [1848].

Id. at 639.

The difficulty with the government's reliance on

Lapham is, of course, the fact that it involved a differently

worded statute. The Lapham statute proscribes a corrupt gift

to influence an official act "on any matter . . . which may

be then pending or may by law come or be brought before him

in his official capacity." Mass. Pub. St. ch. 205, 9 (Ch.

349 Revised May 21, 1891) (emphasis added). In holding that

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52

an averment of a specific matter was not necessary, the

Lapham court repeatedly used the word "may." See, e.g., id.

("It is enough to aver a corrupt intention so to influence

him in any matter which may then be pending, or which may by

law come or be brought before him.") (emphasis added).

The question is whether the absence of the word

"may" in the present gratuity statute, see Mass. Gen. L. ch.

268A, 3, 1(h) & (k), signifies, by negative implication,

the requirement of a specific official act. The reasoning in

Lapham does seem to indicate some relationship between the

word "may" and the absence of a specificity requirement. We

think, however, that it does not follow that the word "may"

is the only manner in which to indicate that particular

official acts need not be shown to establish a gratuity

offense.

The present statute proscribes a gift "for or

because of any official act performed or to be

performed,"23 and further defines "official act" as "any

23. The phrase "performed or to be performed" affords
temporal flexibility between the gratuity and any motivating
official act. Mass. Gen. L. ch 268A 3(a); Dutney, 348

N.E.2d at 821 n.14. This temporal flexibility is also
present in the Lapham statute ("may then be pending or which

may by law come or be brought before him"), ch. 205, 9
(1891), as well as the federal gratuity statute ("may at any
time be pending, or which may by law be brought before [an
official]") noted infra. 18 U.S.C. 201(a)(3). In our

view, and contrary to the district court, while the language
affording temporal flexibility is consistent with the absence
of an official-act specificity requirement, it does not
compel that result. See Sawyer, 878 F. Supp. at 287.

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53

decision or action in a particular matter or in the enactment

of legislation." Mass. Gen. L. ch. 268A, 3(a), 1(h)

(emphasis added). Use of the broad term "any" is consistent

with a legislative intent to proscribe gifts motivated by

unidentified official acts. Most importantly, given the

reasoning set forth in Lapham, we think that if the

Massachusetts Legislature had wanted to drastically narrow

the scope of the gratuity offense by requiring specifically

identified official acts, it would have spoken more clearly

than it has. In the end, the Lapham case supports the

conclusion that a gratuity offense may be established without

proof that a specific official act was the motivation for the

gratuity.

The government also relies on cases interpreting

the similarly worded federal gratuity statute, 18 U.S.C.

201(c),24 that indicate that a conviction under that

24. The federal gratuity statute, 18 U.S.C. 201(c),
provides, in pertinent part:

Whoever -- [] otherwise than as provided
by law for the proper discharge of
official duty -- [] directly or
indirectly gives, offers, or promises
anything of value to any public official
. . . for or because of any official act
performed or to be performed by such
public official . . . shall be
[punished].

The term "official act" is further defined in 18
U.S.C. 201 (a)(3) as:

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54

statute does not require a showing that the gratuity was

linked to a specific official act. See, e.g., United States

v. Bustamante, 45 F.3d 933, 940 (5th Cir.) ("it is sufficient

for the government to show that the defendant was given the

gratuity simply because he held public office"), cert.

denied, 116 S. Ct. 473 (1995); United States v. Niederberger,

580 F.2d 63, 68-69 (3d Cir.), cert. denied, 439 U.S. 980

(1978); United States v. Standefer, 610 F.2d 1076, 1080 (3d

Cir. 1979) (en banc), aff'd on other grounds, 447 U.S. 10

(1980). The government reasons that because much of the

Massachusetts gratuity statute's language was based upon the

federal statute, see Dutney, 348 N.E. 2d at 822 n.16, and

because some federal cases hold that specific acts need not

be shown, a similar interpretation of the state law should

obtain.

Reliance on those cases, however, is undermined

by the fact that the First Circuit has expressly reserved

ruling on the question of whether or not a gratuity

prosecution under the federal statute requires proof of a

"causal relation to any `specific, identifiable act.'"

any decision or action on any question,
matter, cause, suit, proceeding or
controversy, which may at any time be
pending, or which may by law be brought
before any public official, in such
official's official capacity, or in such
official's place of trust or profit.

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55

United States v. Previte, 648 F.2d 73, 82 n.8 (1st Cir. 1981)

(quoting Niederberger, 580 F.2d at 68-69). Sawyer, on the

other hand, cites no federal gratuity cases (or state

gratuity cases, for that matter) squarely holding that

specific acts must be shown; although, he does cite cases in

which specific official acts were shown, see e.g., United

States v. Biaggi, 853 F.2d 89, 99-100 (2d Cir. 1988), cert.

denied, 489 U.S. 1052 (1989); United States v. Brewster, 506

F.2d 62, 77-78 (D.C. Cir. 1974)). This is not the proper

case for us to decide the federal issue. Thus, we conclude

that it would be inappropriate to take any guidance here from

cases interpreting the federal gratuity statute.

4. State Ethics Commission Pronouncements

The Massachusetts State Ethics Commission is the

primary civil enforcement agency for violations of the

gratuity statute. Mass. Gen. L. ch. 268B, 3(i). The

Ethics Commission has the power and duty to investigate

alleged gratuity offenses, initiate appropriate adjudicatory

proceedings, and order civil penalties if it concludes that a

violation has occurred. Id. 4. Upon the petition of any

party, a final action of the Ethics Commission is subject to

review by the Massachusetts superior court, which may

enforce, modify or set aside the order. Id. 4(k).

The Ethics Commission has repeatedly interpreted

the gratuity statute as forbidding gifts motivated generally

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56

by the official's authority to act favorably for the donor.

See In Re Charles F. Flaherty, 1990 SEC 59 (Disposition

Agreement) ("`All that is required to bring [the gratuity

statute] into play is a nexus between the motivation for the

gift and the employee's public duties'" (quoting In Re George

A. Michael, 1981 SEC 59, 68)); SEC Commission Advisory No. 8

"Free Passes" (May 14, 1985) (noting that "even in the

absence of any specifically identifiable matter that was, is

or soon will be pending before the official, [the gratuity

statute] may apply" (citing United States v. Standefer, 452

F. Supp. 1178, 1183 (W.D. Pa. 1978)).

We give the Ethics Commission's interpretation some

deference. See Olszewski v. Berube, 3 Mass. L. Rptr. 297,

1995 WL 808889 (Mass. Super. No. 922666) (Jan. 27, 1995) at

*2 (stating that although the Ethics Commission's "decision

on matters within its competence is to be given great weight,

the courts are the final interpreter" (citing Finkelstein v.

Board of Reg. in Optometry, 349 N.E.2d 346, 348 (Mass.

1976)). That deference, however, is tempered not only by the

fact that no Massachusetts court has passed on the Ethics

Commission's interpretation, but also because this is a

criminal case and the Ethics Commission is charged only with

civil enforcement. The Commission may very well have valid

reasons for adopting a broad, prophylactic interpretation of

the statute in its civil dispositions of individual

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57

transgressions; its interpretation is easier to prove and the

offender is more likely to settle with the Commission if she

does not have to admit to more egregious wrongdoing.

Nonetheless, we note that the Ethics Commission's

interpretation of the gratuity statute has been left

undisturbed by the Massachusetts Legislature, and its

interpretation is not "arbitrary, unreasonable or

inconsistent" with the statute. Finkelstein, 349 N.E.2d at

348. Thus, the Ethics Commission's opinion on the matter

further supports the conclusion that a specific official act

need not be identified in a gratuity offense.

5. Conclusion: Jury Instructions

The absence of a Massachusetts court decision on

this issue is troubling. We have carefully considered,

however, all of the authority and arguments on Sawyer's

behalf, and none of them is availing. We also take note of

the fact that Sawyer does not cite a single gratuity case,

either federal or state (and we have found none), holding

that a specific official act must be linked to the unlawful

gratuity. Thus, we conclude that the Massachusetts gratuity

statute does not require proof that the offender gave the

item of "substantial value" because of a specifically

identified official act. Of course, the identification of

certain official acts in relation to the gratuity might make

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58

a gratuity offense easier to prove, and we suspect that most

cases will include such proof although it is unnecessary.

B. Sufficiency of the Evidence

In cases such as this one, it becomes clear why

particular official acts need not be shown. The evidence at

trial showed that Sawyer gave items (that could be found to

be of "substantial value") to Massachusetts legislators who

had the ability to take official action favorable to Hancock,

and that those gifts effectively ceased after the legislators

left office. While the government did not detail all of the

legislators' acts that were favorable to Hancock, the

government did show that Sawyer had a long-term, ongoing

interest in the official acts of the legislators, and that he

knew his gratuities were unlawful. From this evidence, the

jury could rationally infer that the gratuities were

motivated by the legislators' performance of official duties,

i.e., that they were given "for or because of any official

act," within the meaning of the Massachusetts gratuity

statute, Mass. Gen. L. ch. 268A, 3.

C. Evidentiary Issues

1. Exclusion of Skrine Memorandum

Sawyer contends that the court unduly restricted

the presentation of evidence that he entertained lawmakers

solely out of friendship and goodwill and he believed that

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59

this did not violate the gratuity statute.25 Specifically,

he appeals the court's exclusion of a document, written by

Bruce Skrine, memorializing Skrine's interview with Sawyer

after the Boston Globe's inquiry into the Puerto Rico trip.

That document reflects Sawyer's assertion that such

entertainment, while perhaps excessive in Puerto Rico, "was

commonly done and that, [the] legislators were all friends of

his and that they were not in anyway [sic] discussing

legislation or lobbying."

At trial, Sawyer did not attempt to offer this

document to prove his state of mind with respect to his

expenditures. In fact, he indicated to the court that its

admission was not necessary because he had already elicited

the desired testimony from Skrine. Later on, however,

pointing out that the document did not mention that he

entertained to "gain access" to legislators, Sawyer offered

it to impeach Skrine. The court did not permit its admission

on that basis, but it did allow Sawyer to cross-examine

Skrine on that very issue. Because Sawyer did not offer the

document for the purpose he now asserts on appeal, he has

25. Sawyer also raises arguments as to his good faith
conduct vis a vis the gift statute, which is not relevant to

the Travel Act counts. Such contentions would be relevant to
the mail and wire fraud counts, which we have reversed. We
leave the good faith issues surrounding the gift statute
(which are dependent on the evidence adduced at trial) for
the district court to resolve on remand, should the
government choose to retry those counts.

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60

forfeited this claim. See United States v. Whiting, 28 F.3d

1296, 1302 (1st Cir.) (explaining that evidence must have

been offered for the purpose asserted on appeal to preserve

issue) (citing Tate v. Robbins & Myers, Inc., 790 F.2d 10, 12

(1st Cir. 1986)), cert. denied, 115 S. Ct. 378, 498, 499, 532

(1994). But because the issue may again arise on remand, we

further hold that because Sawyer was able to obtain the

desired testimony on the issue he now asserts, we would find

no abuse of discretion in its exclusion. See United States

v. Newman, 49 F.3d 1, 5-6 (1st Cir. 1995) (reviewing court's

exclusion of evidence for abuse of discretion).26

2. Admission of Computer Summaries

Sawyer assigns reversible error to the district

court's admission of five charts, Exhibits 1, 1Q, 1R, 1S and

1T, proffered by the government. Exhibit 1 was a forty-nine

page computer printout summarizing 612 expenditures,

occurring between January 1, 1986 and March 31, 1993, that

were recorded in Sawyer's appointment calendars, expense

records and other admitted documents. Exhibits 1Q, 1R and 1S

26. Sawyer also argues that the court erroneously refused to
instruct the jury on his defense-theory that it was his
belief that if expenditures were permitted under the
lobbying-disclosure obligations set forth in Mass. Gen. L.
ch. 3, then those expenditures (although they had to be
disclosed) were also allowed under the gratuity statute.
Upon review of the record, we agree with the district court
that this instruction was unwarranted because Sawyer did not
present any evidence that, during the indictment period, he
actually believed that his expenditures were permitted by the
lobbying-disclosure laws.

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61

are extracts of Exhibit 1 that isolate the expenditures for

Representatives Woodward, Howarth and Emilio. Exhibit 1T

contrasts the amount spent on those three Representatives

while they were members of the Legislature with the amount

spent on them after they left that office. Sawyer contends

that these charts were admitted on an insufficient foundation

and that they were misleading, argumentative and prejudicial.

Federal Rule of Evidence 1006 provides, in

pertinent part:

The contents of voluminous writings . . .
which cannot conveniently be examined in
court may be presented in the form of a
chart, summary, or calculation. The
originals or duplicates shall be made
available for examination or copying, or
both, by [the other party].

Before admitting such evidentiary presentations, the court

must first ensure that each is grounded upon a "sufficient

factual basis," i.e., upon independently established evidence

in the record, and that "possible prejudice or confusion does

not outweigh their usefulness in clarifying the evidence."

United States v. Drougas, 748 F.2d 8, 25 (1st Cir. 1984)

(citing J. Weinstein & M. Berger, Weinstein's Evidence 1006

(1983)); see United States v. Nivica, 887 F.2d 1110, 1125

(1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990); United

States v. Sorrentino, 726 F.2d 876, 884 (1st Cir. 1984).

When a court admits such summaries,

[c]are must be taken to insure that
summaries accurately reflect the contents

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of the underlying documents and do not
function as pedagogical devices that
unfairly emphasize part of the
proponent's proof or create the
impression that disputed facts have been
conclusively established or that
inferences have been directly proved.

Drougas, 748 F.2d at 25 (citing Weinstein's Evidence, supra

1006). We review the admission of summaries for abuse of

discretion. Nivica, 887 F.2d at 1126.

Sawyer contends that the district court improperly

admitted the summaries because they did not include evidence

of his expenditures on legislators before and after the time

period covered in the summaries, or his expenditures of

personal funds. He argues that this was unduly misleading

because it created a "false impression" as to the date the

alleged conspiracy began, and falsely implied that the

expenditures ended after the three named representatives left

office. We disagree.

The summaries were based on evidence that was

already independently admitted and that was relevant to

Sawyer's questionable expenditures during the indictment

period. Sawyer had the opportunity, on cross-examination, to

place the summaries in context with his total financial

activity. See Nivica, 887 F.2d at 1125 (concluding that

argument that summaries failed to, inter alia, reflect "total

financial activity" "affect[s] weight rather than the

admissibility"). On the matters to which Sawyer assigns

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undue prejudice, he had ample opportunity to explore them on

cross-examination, which he did. He also could have offered

his own contrary evidence, including his own summary (which

he did not do). As we stated in Nivica, 887 F.2d at 1126:

So long as the government, exercising due
diligence, collects whatever records are
reasonably available and succeeds in
introducing them, it may be permitted
(subject, of course, to relevancy and
perscrutation under Fed. R. Evid. 403) to
summarize the data it has managed to
obtain. If defendants possessed
exculpatory records not in the
government's files, they could have
offered them at trial or prepared their
own summary. By the same token, if there
were gaps in the charts, the defense . .
. had every opportunity to exploit them.
In the last analysis, completeness of the
underlying records was for the jury.

We conclude that the summaries were based on a sufficient

foundation and that the court did not abuse its discretion in

admitting them.

D. Protective Instruction

Having rejected all of Sawyer's arguments, we think

there is one flaw in the proceedings that does have to be

addressed in the interests of justice and especially in light

of the possibility of future prosecutions of this kind. Our

concern arises from the close relationship between lobbying

activities that are lawful from the standpoint of federal

law, even if deplorable, and associated or slightly more

extreme versions of such conduct that can constitute federal

violations. The problem is, in some respects, novel; the

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reason for its novelty is that it appears that prosecutions

on facts like these have not generally been brought.

A review of pre-McNally theft of honest services

cases and of bribery and gratuity cases under the counterpart

federal statute, 18 U.S.C. 201, indicates, as we have

already noted, that most involved straightforward corruption

-- most often, quid pro quo bribery or blatant conflict of

interest. While the issue in those cases was typically

whether or not the conduct actually occurred, in most of them

the alleged conduct was blatantly illegal. This case is

distinct in that the conduct itself may not be very

different, except possibly in degree, from the kind of

routine cultivation of friendship in a lobbying context that,

while arguably very unattractive, is not "bribery" within the

meaning of the Travel Act.

The practice of using hospitality, including lavish

hospitality, to cultivate business or political relationships

is longstanding and pervasive. The government does not

argue, and we do not believe, that payments for

entertainment, lodging, golf, sports events, and the like

would constitute violations of the Travel Act (or the mail

and wire fraud statutes) if the aim of the lobbyist were

simply to cultivate a business or political "friendship" with

the legislator. It may well be that all such hospitality

should be flatly prohibited by law, but if Sawyer had this

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limited intent -- to cultivate friendship rather than to

influence an official act -- the federal statutes here

involved would not be violated.27

The charge to the jury in this case followed the

conventional formula for prosecutions involving political

corruption. But where the difference between lawful and

unlawful turns primarily on intent, and the lawful conduct is

itself most unattractive, we think the jury needs to be told

specifically that the defendant has not violated the bribery

component of the Travel Act (or committed honest services

fraud) if his intent was limited to the cultivation of

business or political friendship. Only if instead or in

addition, there is an intent to cause the recipient to alter

her official acts may the jury find a theft of honest

services or the bribery predicate of the Travel Act. Absent

some explicit explanation of this kind, the conventional

charge will be slanted in favor of conviction.28

27. See, e.g., United States v. Arthur, 544 F.2d 730 (4th

Cir. 1976); United States v. Brewster, 506 F.2d 62 (D.C. Cir.

1974); cf. Dukehart-Hughes Tractor & Equipment co. v. United

States, 341 F.2d 613 (Ct. Cl. 1965).

28. It is not clear whether the government would contend
that a gratuity violation involving only a reward for an
official act (even without any intent to influence any future
official act) could constitute "bribery" for purposes of the
Travel Act. We are extremely doubtful whether this would
constitute bribery for these purposes and do not read the
Second Circuit as ruling on this point in United States v.

Biaggi, 853 F.2d 89, 100-02 (2d Cir. 1988), cert. denied, 489

U.S. 1052 (1989). The fact that a gratuity violation
involving an intent to influence is essentially bribery, see

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In reaching this conclusion, we intend no criticism

of the able district judge who was coping with a somewhat

novel foray by the government. But where, as here, the line

between the merely unattractive and actually criminal conduct

is blurred, the court must take pains to explain the

difference to the jury. The Second Circuit took this same

view in a closely related context, saying: "When an elected

official who has received campaign contributions is charged

with extortion and with receiving bribes, the charge must

carefully focus the jury's attention on the difference

between lawful political contributions and unlawful

extortionate payments and bribes." United States v. Biaggi,

909 F.2d 662, 695-96 (2d Cir. 1990), cert. denied, 499 U.S.

904 (1991).

Having concluded that the jury charge was mistaken,

we must consider whether Sawyer should get the benefit of the

error. This is a close call. On the one hand, Sawyer did

not explicitly ask for the sort of language we think

appropriate. Ordinarily, the failure to make an explicit

objection requires the defendant to satisfy the plain error

test of United States v. Olano, 113 S. Ct. 1770, 1777 (1993).

On the other hand, a number of Sawyer's objections were

853 F.2d at 101, does not mean that every possible
application of a gratuity statute fits the rubric. In all
events, if the government intends to rely upon an intent to
influence theory, our protective instruction would be
required here.

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closely related in that they sought in several different ways

-- which we do not accept -- to protect one engaged in good

faith lobbying from prosecution.

On balance, we think that the Travel Act counts, as

well as the mail and wire fraud convictions, ought to be

reversed and retried under proper instructions. Although the

evidence here would be adequate to infer improper intent, the

issue is close and an explanatory instruction could well

affect the outcome. Also, the fact that the prosecution was

novel makes us look more tolerantly on Sawyer's failure to

articulate precisely the shape of the necessary protective

instruction.

Apart from the expense of retrial, the government

has very little to complain about in this result. We have

agreed that the Massachusetts gratuity statute does not

require the government to link the gratuity to a specific

official act. We have also found that the evidence here is

sufficient to convict (although we can imagine reasonable

people thinking otherwise). And while we are somewhat

concerned about the lack of fair warning of a prosecution

such as this one, we see no legal basis for precluding the

government from embarking on what is in practical terms an

expansive reading of the federal statutes. Against this

backdrop, we think it even more important that Sawyer get the

benefit of the few protections that remain.

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IV.
IV.

Conspiracy Count
Conspiracy Count

Sawyer was also convicted, under 18 U.S.C. 371,

of one count of conspiracy to commit mail and wire fraud, and

to violate the Travel Act. The court instructed the jury

that it could find Sawyer guilty of conspiracy if it found,

beyond a reasonable doubt, that he conspired with his

supervisor, Hathaway, to commit any one of the three objects,

i.e., the substantive offenses as charged. Because all of

the objects -- mail and wire fraud and the Travel Act

violations -- were erroneously charged and instructed, the

conspiracy convictions must be reversed as well.

Retrial is not precluded if the evidence is

sufficient to prove the existence of a conspiracy, Sawyer's

knowledge of and voluntary participation in it, and an overt

act in furtherance of it. See United States v. Yefsky, 994

F.2d 885, 890 (1st Cir. 1993); see generally, United States

v. Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996). The

agreement need not be explicit; a tacit agreement will

suffice. Direct Sales Co. v. United States, 319 U.S. 703,

712-13 (1943). To establish Sawyer's voluntary participation

in the conspiracy, the evidence must establish both his

intent to agree and his intent to effectuate the object of

the conspiracy. Yefsky, 994 F.2d at 890; see also United

States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994), cert.

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denied, 115 S. Ct. 1118 (1995). Neither the agreement nor

Sawyer's participation in it need be proven with direct

evidence. Glasser v. United States, 315 U.S. 60, 80 (1942);

see Frankhauser, 80 F.3d at 653.

Sawyer contends that the evidence was

insufficient to prove that: (1) he and Hathaway knowingly

agreed to commit the offenses; (2) he voluntarily

participated in such an agreement; and (3) either of them

performed any overt act in furtherance of the conspiracy. We

disagree. The government presented evidence that Hathaway

supervised Sawyer in his lobbying activities. From

Hathaway's receipt of many of the same legal memoranda and

Massachusetts Ethics Commission rulings that Sawyer received,

a jury could rationally infer that Hathaway (an attorney,

like Sawyer) knew and understood the ethical obligations in

lobbying. Some of these documents had both Sawyer's and

Hathaway's names on them; thus, a jury could find that

Hathaway and Sawyer knew of each other's knowledge of the

lobbying laws.29 Sawyer turned to Hathaway, his

29. For example, one trial exhibit was a memorandum from
Sawyer to Hathaway, enclosing a 1990 State Ethics Commission
Disposition Agreement with House Majority Leader Charles
Flaherty. That agreement concerned the giving of Celtics
basketball game tickets to Representative Flaherty by a
person with interests before him, and how that might violate
the Massachusetts gratuity statute, Mass. Gen. L. ch. 268A,
3. Sawyer and Hathaway discussed the Flaherty Disposition
during a meeting with Bruce Skrine (vice president, counsel
and secretary for Hancock) in which Sawyer and Hathaway
expressed concern about compliance with state ethics law in

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supervisor, for approval of his expense vouchers. Hathaway

performed this responsibility throughout the indictment

period, and in so doing was the only person (other than

Sawyer) to have detailed knowledge of the specific

legislators, often members of the Insurance Committee, who

received the gifts and gratuities.

Thus, the jury could reasonably infer that Hathaway

and Sawyer both knew that the expenditures were unlawful, and

from this, that the reason for the repeated illegal gifts and

gratuities to key legislators was to secretly influence

legislative action. Given the evidence of the repeated

submission and approval of the expense vouchers, a jury could

rationally find that Hathaway and Sawyer agreed, at least

tacitly, to the pattern of unlawful conduct. Finally, the

jury could also infer that Sawyer and Hathaway knew that the

mails and wires would be used to facilitate the entertainment

and/or reimbursement (e.g., the mailing of bills related to,

and the making of telephone calls to arrange, the

entertainment), and that interstate travel in connection with

the entertainment (e.g., reimbursement of out-of-state golf)

would or had to occur. The overt acts charged in the

indictment included Sawyer's giving of illegal gratuities and

Hathaway's approval and authorization of reimbursement, and

the evidence was sufficient to establish those acts.

planning for the 1993 Boston Marathon brunch.

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Thus, despite the underlying legal error, the

evidence was sufficient to establish the conspiracy offense

and a new trial on this count is allowable should the

government so choose.

V.
V.

Conclusion
Conclusion

Sawyer raises a number of other issues that we have

reviewed, find to be without merit, and that warrant no

further discussion.

For the foregoing reasons, we vacate the mail

fraud, wire fraud, Travel Act and conspiracy convictions, and

remand for proceedings consistent with this opinion.

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