dissenting.
When Judge Thompson charged the jury in November 1986, the law appeared settled that proof of a scheme to deprive an employer, private or public, of its right to the honest and faithful services of its employee constituted a crime under the mail fraud statute. Thus, in the celebrated case involving the governor of Maryland, the Court of Appeals for the Fourth Circuit noted:
At this late date, there can be no real contention that many schemes to defraud a state and its citizens of intangible rights, e.g., honest and faithful government, may not fall within the provision of the mail fraud statute.
United States v. Mandel, 591 F.2d 1347, 1362 (4th Cir.1979), aff'd in relevant part, 602 F.2d 653 (in banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980).
But seven months after Judge Thompson delivered her charge, the Supreme Court delivered a blockbusting opinion in McNally v. United States, — U.S. -,-, 107 S.Ct. 2875, 2878, 97 L.Ed.2d 292 (1987), flatly rejecting the notion that “the mail fraud statute proscribes schemes to defraud citizens of their intangible rights to honest and impartial government.” Instead, the Court decided that “[t]he mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government.” Id.
It is against the McNally teachings that we must weigh the jury instructions here. And unfortunately, we must require the trial judge to have been a soothsayer and, contrary to ruling case law of this court, to have predicted something, to use Learned Hand’s felicitous phrase, in the womb of time but whose date of birth was not imminent. The district judge charged the jury as follows:
One aspect of the mail fraud scheme charged in Counts 3 through 5 involves the defrauding of United Engineers of the honest and faithful services of its employee Timothy McCuen. The mail fraud statute prohibits any plan or course of action intended to deceive others and to deprive them of their right of the honest and faithful services of certain individuals who are obligated to provide such honest and faithful services.
App. at 606a.
Whatever had been the ruling case law at the time of trial, this definition of the crime of mail fraud is now clearly wrong, according to the gospel of McNally. The judge continued:
A scheme to deprive an employer of its right to the honest and faithful services of its employee can constitute a crime under the mail fraud statute.
Id. But “No, no,” said the Court in McNally. The judge then stated:
The right of any employer or other entity which engages a person to perform services to the faithful, honest and loyal, prudent services of that person is referred to as an intangible right. Unlike money or other items of property with physical characteristics, intangible rights cannot be touched, held, seen or otherwise seen by the senses. Hence, we refer to them as intangibles.
The fact they are intangibles, however, does not necessarily mean they are not valuable or they are not important. Un*522der such circumstances this right is said to incur on the part of an employee a fiduciary duty. The term fiduciary is derived from the Latin word meaning trust.
Id. But this is totally irrelevant to a prosecution under the mail fraud statute, said the Court in McNally. The instructions went further:
You are instructed that if you find beyond a reasonable doubt that Timothy McCuen was an employee of United Engineers, that by virtue of his employment relationship and under Pennsylvania law ... he was under a duty as an employee to render his honest and faithful services to United Engineers.
Id. at 606a-07a. “So what does this have to do with the mail fraud statute?” poses the Court in McNally.
The trial court then made a comment that the government contends vitiated the incorrectness of the misstatements:
Accordingly, you may find the existence of a scheme to defraud United Engineers of McCuen’s honest and faithful services if you determine McCuen failed to disclose material information to United Engineers and the nondisclosure was capable of causing or actually did cause business harm to United Engineers.
Id. at 607a-08a (emphasis added). The Court earlier had charged that the government must prove beyond a reasonable doubt
[t]hat the defendant devised a scheme or artifice to defraud United Engineers of its right to the honest[,] faithful and loyal services of its employee, Timothy McCuen; and further, to defraud both United Engineers and Delmarva Power and Light Company of money.
Id. at 605a (emphasis added).
I have purposely emphasized the word “and” in these two isolated segments because it is the presence of these two monosyllabic conjunctions in jury instructions that extended 53 pages that the government insists cured the recited defects that ran counter to McNally teachings. I do not agree that such an incantation has the power to resurrect the fatality. The incorrect definitions of the mail fraud crime form the blot of ink in a glass of milk. And the blot cannot be removed by chanting the word “and” twice in a 10,000-word jury instruction.
The appellant may be guilty of the crime of mail fraud. But that is not my task to decide. The executive branch of government has the duty to prosecute those who breach the rules of society. My job is to insure that society obeys its own rules in the prosecution process. It has not done so here.
Accordingly, I dissent and would reverse the mail fraud conviction and sentence, and remand for a new trial on the mail fraud counts only.