concurring:
Because of the inability or unwillingness of the United States Court of Appeals for the Fourth Circuit to reach a determination on the crucial issue of whether the jury had been properly instructed as to the mail fraud count,1 I am most concerned with being compelled to accept "as conclusive proof’ of guilt the verdict of a jury that "may easily have been misled”. United States v. Mandel, 591 F.2d 1347, 1365 (4th Cir. 1979) (Mandel I). By the trial court’s refusal to instruct the jury on Governor Mandel’s established theories of defense to which he was entitled as a matter of fundamental fairness and established law, due process may very well have been denied. United States v. Mandel, 602 F.2d 653 (4th Cir. 1979) (Mandel II) (Widener, J., dissenting).
Regardless of the degree of my reluctance and discontent, I am constrained to follow the mandate of Md. Rule BV10 e 1 which declares that:
[A] final judgment by a judicial tribunal in another proceeding convicting an attorney of a crime shall be conclusive proof of the guilt of the attorney of that crime.
In concurring with my brothers, however, I must relate *590the foundation of my concern that the present mandate of Md. Rule BV10 e 1, while intending to avoid the retrial of a criminal charge, may deny due process to a member of the Maryland Bar. Where the respondent contends that a substantial denial of due process has been visited upon him by a federal or sister state tribunal, wherein the reviewing court has been unable to reach a determination of an issue that would require reversal under Maryland’s higher standard of due process as guaranteed by the Maryland Declaration of Rights, we should be able to review the contention.2 Maryland’s present rules as to disbarment set an inflexible rein on this Court, precluding us from making an independent evaluation of the underlying circumstances of any judgment of conviction, even in an instance where a jury’s verdict is affirmed by virtue of a reviewing court’s inability to reach a determination as to whether or not the attorney was afforded a fair trial.
Although of no direct benefit to the respondent in this matter, a brief review of the mail fraud instruction issue shall serve to highlight the need for some degree of flexibility under Md. Rule BV10 e 1 regarding criminal convictions of a Maryland attorney by federal or sister state tribunals.
It is important to note that any scheme contrary to public policy that involves deception can be prosecuted under the mail fraud statute if the mails are used in the execution of the scheme. See, e.g., United States v. Edwards, 458 F.2d 875, 880 (5th Cir. 1972) cert. den. 409 U.S. 891, 93 S.Ct. 118, 34 L.Ed. 2d 148.
*591According to the majority in Mandel I,
Based upon the indictment and the record in this case, the Appellants could have been convicted of mail fraud only if one or more of the following schemes to defraud were proven: a scheme involving the bribery or attempted bribery of Governor Mandel; or, a scheme involving the fraudulent misrepresentation of facts to, or such concealment of true facts from, the Maryland General Assembly and the Maryland Racing Commission for the purpose of obtaining legislation, racing days, and other things financially beneficial to those interested in Marlboro and later Bowie. Mandel I, supra, at 1365.
Contrary to its argument on appeal that bribery was relevant to the mail fraud count, the government convinced the trial judge to refuse the defendants’ request to instruct the jury as to the crucial difference between a mere gift or good will expenditure and the receipt of a benefit or quid pro quo for some official act favorable to the donor. Mandel II, supra, at 655.
The majority in Mandel I concluded:
The failure by the district court to instruct the jury on the distinction between legally innocent benefits and bribes in the context of the mail fraud counts leads us to the conclusion that the jury may easily have been misled. ... Mandel I, supra, at 1365.
As to the element of misrepresentation or concealment of the names of the true owners of the Marlboro Race Track, Governor Mandel contended that the district court erred in refusing to instruct the jury as to the necessity of finding that he had knowledge that some or all of the other defendants were the true owners of Marlboro Race Track at the time the race track legislation was being considered by the *592Maryland General Assembly before the jury could find him guilty of mail fraud.
The majority in Mandel concluded:
We think it was necessary for the jury to be charged that Governor Mandel could not be convicted under § 1341 for engaging in a scheme to defraud that involved the fraudulent misrepresentation of facts to, or such concealment of material information from, the 1972 Maryland General Assembly, without first finding that he knew that some or all of the other Appellants were among the true owners of Marlboro Race Track during the 1972 session of the Maryland General Assembly.... If Governor Mandel did not know who any of the real owners of Marlboro were during the 1972 legislative session of the Maryland General Assembly, he could hardly have participated with specific intent, in the context of this case, in a scheme to defraud that involved the misrepresentation or concealment of the names of the true owners of Marlboro from the Maryland General Assembly.... Mandel I, supra, at 1365.
As Judge Widener further stated in his dissent in Mandel II:
This is an involved case. The prosecution rests on fragmented circumstances, many of the more essential ones being no more than mere rumor and legislative corridor gossip. In such a case, is not a defendant entitled to precise instructions? What was done here was, however, more likely to confuse and mislead than to provide clear guidance for the jury. And that should entitle the defendants to a new trial. The error is not insubstantial; it is fundamental. Mandel II, supra, at 655.
Under Maryland law, any person who has been accused of committing a criminal offense is entitled as a matter of constitutional right to have the jury instructed on every question or point of law essential to the crime charged which *593is supported by an evidentiary foundation when a request for such an instruction has been made. The refusal to so instruct, is reversible error. Hardison v. State, 226 Md. 53, 172 A.2d 407 (1961), (wherein this Court reversed judgments of conviction for grand larceny and breaking and entering upon the trial court’s refusal to instruct the jury with respect to the definition of an accomplice and the law regarding the necessary corroboration of an accomplice’s testimony); Pulley v. State, 38 Md. App. 682, 382 A.2d 621 (1978), (wherein the Court of Special Appeals reversed a judgment of conviction for first degree murder upon the trial court’s refusal to give an alibi instruction); and Mumford v. State, 19 Md. App. 640, 313 A.2d 563 (1974), (wherein the Court of Special Appeals reversed a judgment of conviction for felony-murder upon the trial court’s refusal to give an instruction that if the jurors found that a co-defendant could not have expected her companions to commit a rape which resulted in the victim’s death, she could not be found guilty.)
Indeed, Judge Widener in Mandel II, when expressing his thoughts regarding Governor Mandel’s right, as a universally recognized and accepted time honored principle, to have the jury instructed on his crucial theories of defense relating to the mail fraud elements of concealment or misrepresentation of facts and bribery, stated:
[E]very circuit, including this court, has embraced the principle that a criminal defendant is entitled to an instruction on any theory of defense for which there is a foundation in the evidence. See e.g., United States v. Swallow, 511 F.2d 415, 523 (10th Cir. 1975), cert. den., 423 U.S. 845, 96 S.Ct. 82, 46 L.Ed.2d 66; United States v. Mitchell, 495 F.2d 285, 287-88 (4th Cir. 1974); United States v. Noah, 475 F.2d 688, 697 (9th Cir. 1973), cert. den., 414 U.S. 1095, 94 S.Ct. 728, 38 L.Ed.2d 54; United States v. Dana, 457 F.2d 205, 208 (7th Cir. 1972); United States v. Blair, 456 F.2d 514, 520 (3rd Cir. 1972); United States v. Leach, 427 F.2d 1107, 1112 (1st Cir. 1970), cert. den., 400 U.S. 829, 91 S.Ct. 57, *59427 L.Ed.2d 59; United States v. Blane, 375 F.2d 249, 252 (6th Cir. 1967), cert. den., 389 U.S. 835, 88 S.Ct. 41, 19 L.Ed.2d 96; Perez v. United States, 297 F.2d 12, 15-16 (5th Cir. 1961); Apel v. United States, 247 F.2d 277, 282 (8th Cir. 1957); United States v. O’Connor, 237 F.2d 466, 474, n. 8 (2d Cir. 1956); Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612, 617 (1951). The district court’s refusal to give the substance of defendant’s requested instructions on bribery and knowledge in connection with the mail fraud counts of the indictment clearly violated this principle. Mandel II, supra at 656.
Although it is my firm belief, as it was Judge Widener’s and Judge Russell’s, who joined in the dissent, "that the jury was inadequately and prejudicially charged in this case”,3 by virtue of our "conclusive evidence of guilt” rule, the inflexible curtain has fallen, and the painful sanction of disbarment can neither be prevented nor completely remedied — not even by the passage of time.
. United States v. Mandel, 609 F.2d 1076 (4th Cir. 1979) (Mandel III) (statement by Murnaghan, J.).
. Judge Grady in his opinion stated:
While the Supreme Court of the United States and the lesser federal courts regard themselves as the repository of ultimate knowledge on what constitutes due process and frequently find fault with state courts in this regard, the dubious due process the Respondent received in the course of his appeal fails to measure up to that afforded any criminal defendant by the Maryland appellate courts. Scholarly analyses highly critical of the appellate courts in Respondent’s case have appeared in: Note, United States v. Mandel: The Mail Fraud and En Banc Procedural Issues, 40 Md. L. Rev. 550 (1981) and Note, United States v. Mandel: The Problem of Evenly Divided Votes in En Banc Hearings in the United States Court of Appeals, 66 Va. L. Rev. 919 (1980). (Emphasis added).
. Mandel II, supra, at 656.