United States Court of Appeals
For the First Circuit
No. 00-1105
No. 00-1330
UNITED STATES OF AMERICA,
Appellant,
v.
F. WILLIAM SAWYER,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Boudin, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ben T. Clements, Assistant United States Attorney, with whom
David S. Mackey, Acting United States Attorney, was on brief,
for appellant.
Thomas R. Kiley, with whom Gregory S. Gilman and Cosgrove,
Eisenberg & Kiley, P.C. were on brief, for appellee.
January 31, 2001
LIPEZ, Circuit Judge. The United States appeals from
a judgment of the district court granting F. William Sawyer a
writ of error coram nobis, vacating his guilty plea to a one-
count information charging him with honest services mail fraud
in violation of 18 U.S.C. §§ 1341 and 1346, and ordering that
his record be expunged. The district court based its decision
on a recent opinion of the Supreme Court, United States v. Sun-
Diamond Growers of California, 526 U.S. 398 (1999), construing
the federal gratuities law, 18 U.S.C. § 201, to require that the
prosecution prove a link between the act of a public official
and the gratuity received by the official for or because of that
act. Sawyer contended, and the district court agreed, that the
information to which he pled guilty required proof of a
violation of the similarly worded Massachusetts gratuity law,
chapter 268A, section three. Concluding that this state
gratuity law should be interpreted in light of Sun-Diamond, the
district court found that the government had to prove that
Sawyer gave gratuities to public officials for specific official
acts. Noting that the government had not even alleged a link
between the gratuities and identifiable, specific official acts,
the court ruled that Sawyer was prosecuted "for an act that the
law does not make criminal," and that his conviction "was a
-2-
legal error of fundamental proportion," to be redressed by the
issuance of a writ of coram nobis.
We conclude that the information to which Sawyer pled
guilty did not require proof that he violated the Massachusetts
gratuity statute. Moreover, there was sufficient evidence to
prove Sawyer's guilt of honest services mail fraud apart from
proof that he violated any state law. There was no fundamental
error in his plea of guilty. The writ should not have issued.
We reverse the judgment of the district court.
I.
This appeal comes to us following a long history. We
recount only those facts that are relevant to our analysis here,
and refer to our decisions in United States v. Sawyer, 85 F.3d
713, 720-22 (1st Cir. 1996), and United States v. Woodward, 149
F.3d 46, 51-54 (1st Cir. 1998), for a more detailed recitation
of the circumstances giving rise to Sawyer's prosecution.
Sawyer was employed by the John Hancock Mutual Life
Insurance Company ("Hancock") as a lobbyist in its Governmental
Relations Department. As part of his responsibilities, he
tracked the progress of pending legislation in the Massachusetts
legislature. He also lobbied legislators, particularly members
of the Legislature's Joint Insurance Committee, to adopt
positions favorable to Hancock's interests in the insurance
industry. In order to cultivate goodwill with these
-3-
individuals, Sawyer paid for numerous meals, rounds of golf, and
other entertainment on their behalf. Sawyer treated these
activities as business expenses and submitted monthly expense
vouchers to Hancock's accounting department for reimbursement.
Sawyer and a group of legislators travelled to Puerto
Rico in December 1992 for a legislative conference, and Hancock
reimbursed Sawyer approximately $4,000 for entertainment
expenses incurred during that trip. In April, 1993, the Boston
Globe began an investigation of Sawyer's expenditures in Puerto
Rico, and the Globe's inquiries to Hancock prompted the company
to conduct an internal review of Sawyer's legislative
expenditures. Shortly thereafter, the United States Attorney's
Office for the District of Massachusetts commenced its
investigation of Sawyer's allegedly illegal expenditures.1
A grand jury returned an indictment against Sawyer on
July 7, 1994, charging him with violations of federal gratuity
and bribery statutes, including 18 U.S.C. §§ 1341 and 1346, as
well as violations of the Travel Act.2 Following a jury trial
1 In March 1994, Hancock entered into a civil settlement
with the United States Attorney's Office, pursuant to which it
paid a fine of approximately $1,000,000 and agreed to cooperate
fully with the investigation.
2 The Travel Act proscribes travel in interstate commerce
"with intent to . . . promote, manage, establish, carry on, or
facilitate the promotion, management, establishment, or carrying
-4-
lasting nine days, the jury convicted him on 33 counts,3 and the
trial court sentenced him to one year and one day in prison.
Sawyer then appealed his convictions and sentence to this Court.
In an opinion issued on May 30, 1996, we vacated Sawyer's
convictions because we concluded that the jury instructions
might have allowed the jury to convict Sawyer on an improper
basis.
Following remand, the U.S. Attorney's Office decided
to prosecute Sawyer again. On November 27, 1996, pursuant to a
plea agreement, Sawyer pled guilty before Judge Harrington to a
one-count information charging him with honest services mail
fraud under 18 U.S.C. §§ 1341 and 1346. As part of the plea
agreement, the prosecution dismissed the original indictment of
July, 1994. The court was clearly troubled by the government's
prosecution of Sawyer's case at the time his plea was entered.
At the plea hearing, the court commented:
on, of any unlawful activity." 18 U.S.C. § 1952(a). The
statute defines "unlawful activity" 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). The government did
not renew its prosecution of Sawyer under the Travel Act after
we reversed his convictions following his first appeal to this
Court.
3 More specifically, the jury convicted Sawyer of 15 counts
of mail fraud, 9 counts of wire fraud, 8 counts of interstate
travel to commit bribery, and 1 count of conspiracy. The jury
acquitted him of two additional counts of mail fraud.
-5-
This case demonstrates the threat to
the liberty and reputation of individuals
when the state's gratuity and gift laws
administered by the Massachusetts State
Ethics Commission and typically enforced by
the imposition of civil penalties can be
selectively transformed into a serious
federal felony under the broad language and
elastic interpretation of the federal
criminal fraud statute.
This case illustrates an innovative
prosecutorial process called the
"federalization" of state laws. As the
Court of Appeals stated, "prosecutions on
facts like these have not generally been
brought." The threat is exacerbated here
because this "federalized" prosecution is
applied for the first and only time against
a state lobbyist who is not himself a public
official.
This case raises a grave concern in my
mind as to whether a constituent element of
due process, namely, adequate notice of the
offense for which one is charged, and
whether the fundamental principle of the
criminal law that criminal statutes must be
strictly, not expansively, construed have
been complied with. A defendant must be
plainly apprised in advance that his conduct
is criminal so that he can possess the
requisite "criminal intent" necessary to be
branded a felon.
I do not condone defendant's conduct,
but assert that it would have been more just
for any ethical irregularity on his part
specifically prescribed under state statutes
in the payment of golfing fees and dinner
expenses to have been pursued by the
Massachusetts State Ethics Commission or in
the Massachusetts courts and not be
selectively used as a basis for a federal
prosecution for the serious felony of
criminal fraud.
The fact that even the government
acknowledges that criminal fraud is not
intended here is established in my mind by
the fact that after this wrong and tortuous
-6-
ordeal they are able to enter into a plea
agreement where a man is allowed to plea[d]
to one count of a criminal information that
charges that he mailed one mailing in
furtherance of the fraud in the amount of
about a $183 [sic].
My question is, does this result
justify the long ordeal that this defendant
has undergone? I don't think so.
Despite this uneasiness with the government's decision to
prosecute Sawyer, Judge Harrington accepted his plea, sentenced
him to one year of probation, and ordered that he pay a fine and
a special assessment.
In July, 1999, nearly two years after Sawyer completed
his probation, and paid the monies assessed against him, he
petitioned the district court for a writ of error coram nobis on
the basis of the Supreme Court's Sun-Diamond decision. This
petition was brought before Judge Harrington. As noted, Judge
Harrington granted the writ, vacated his plea, and ordered the
expungement of his record, thereby prompting this appeal by the
government. We review de novo the court's legal conclusions in
granting the writ, see United States v. Camacho-Bordes, 94 F.3d
1168, 1173 (8th Cir. 1996); we review its findings of fact for
clear error, see United States v. Blanton, 94 F.3d 227, 230 (6th
Cir. 1996).
II.
-7-
In reaching our decision in this case, we do not have
to rule on the government's argument that coram nobis relief is
unavailable to correct fundamental errors of law. Nevertheless,
we provide some background on the writ to provide the context
for our fundamental error of law analysis.
Pursuant to the All Writs Act, federal courts have the
authority to grant writs that were traditionally available at
common law. See 28 U.S.C. § 1651. The writ of error coram
nobis4 originated in the sixteenth century as a means to allow
a trial court to correct its own mistakes of fact. See LaFave,
Israel & King, Criminal Procedure, § 28.1(c) (2d ed. 1991).
Before coram nobis emerged, trial courts did not have the
authority to correct their own errors, and appellate courts
could consider only alleged mistakes of law. See id.
Accordingly, coram nobis originally was developed to fill this
gap by correcting errors of fact that the trial court could not
have known but which, if known at the time of trial, would have
prevented entry of judgment. See id. In its more modern usage,
4 In Latin, "coram nobis" means "before us." Originally,
the petition was submitted in the court of the King's Bench, or
"before us" in the sense of being before the King. In contrast,
the writ of coram vobis, an analogous procedure, was brought
before judges of the court of Common Pleas, or "before you."
The distinction between these terms is "virtually meaningless in
the American context." M. Diane Duszak, Note, Post-McNally
Review of Invalid Convictions Through the Writ of Coram Nobis,
58 Fordham L. Rev. 979, 981 n.18 (1990).
-8-
the writ was available in criminal cases "whether the error was
in fact or law," but applied "only to that very small number of
legal questions which concerned the regularity of the proceeding
itself." United States v. Mayer, 235 U.S. 55, 68 (1914)
(quotations omitted).
For example, the writ was available where the defendant
was an escaped slave, had been insane at the time of trial, or
had entered a guilty plea out of fear of mob violence. See
LaFave, Israel & King, § 28.1(c). The Supreme Court's most
recent pronouncement on coram nobis noted that the writ was
traditionally available in situations "such as the defendant's
being under age or having died before the verdict." United
States v. Carlisle, 517 U.S. 416, 429 (1996). Because such
errors were considered errors of fact, and not errors of the
judges, reversing the judgment and expunging the conviction was
not considered to be a reversal of their own judgment. See
Mayer, 235 U.S. at 68. Unlike a writ of habeas corpus, a writ
of coram nobis is issued once the petitioner is no longer in
custody. Its legal effect is to vacate the underlying
conviction. As its Latin name suggests, a petition for a writ
of error coram nobis is brought to the court that convicted and
sentenced the defendant.
Although the Federal Rules of Civil Procedure expressly
abolished the use of coram nobis in civil cases in the United
-9-
States, see Fed. R. Crim. P. 60(b), the issue of the writ's
availability to correct fundamental errors in criminal cases
remained uncertain for many years. In United States v. Morgan,
the Supreme Court resolved this question, holding that coram
nobis was still available in federal court for criminal cases.
See 346 U.S. 502, 512 (1954). However, the Court noted that
coram nobis, while still available, is an "extraodinary remedy"
allowed "only under circumstances compelling such action to
achieve justice." Id. at 511.
More than forty years after Morgan, the Supreme Court
questioned the continuing vitality of coram nobis as a remedy
for fundamental legal error as well as errors of fact. See
Carlisle, 517 U.S. at 428-29. Although the question was not
squarely presented on appeal in Carlisle - because the trial
court had not been asked to issue the writ, and did not purport
to do so - the Court noted, "the writ would not have lain here,
since it was traditionally available only to bring before the
court factual errors 'material to the validity and regularity of
the legal proceeding itself,' such as the defendant's being
under age or having died before the verdict." Id. at 429
(emphasis added). The Court stated further: "it is difficult to
conceive of a situation in a federal criminal case today where
[a writ of coram nobis] would be necessary or appropriate." Id.
-10-
(quoting United States v. Smith, 331 U.S. 469, 475 n.4 (1947)).
Notwithstanding these comments in Carlisle, some
federal courts have continued to assume that writs of coram
nobis may correct errors of law as well as errors of fact. See,
e.g., United States v. Tucor Int'l, Inc., 189 F.3d 834, 836 n.1
(9th Cir. 1999); Martinez v. United States, 90 F. Supp. 2d 1072,
1075 (D. Haw. 2000) (stating that coram nobis allows a court to
vacate a judgment for "egregious legal errors") (quotation
omitted); United States v. Rankin, 1 F. Supp. 2d 445, 453 (E.D.
Pa. 1998) (noting that coram nobis has been used to correct
errors of law in criminal cases). But see Tavares v.
Massachusetts, 59 F. Supp. 2d 152, 154 (D. Mass. 1999) ("The
writ is not available in federal courts for errors of law").
Sawyer contends that the writ is proper to redress legal error,
while the government contends it may be granted to vacate a
conviction based on mistakes of fact only. The district court
agreed with Sawyer on this point, ruling that the writ is
available to correct legal error.
In deciding whether to grant the writ, courts have used
a three-part test: a petitioner must 1) explain her failure to
seek relief from judgment earlier, 2) demonstrate continuing
collateral consequences from the conviction, and 3) prove that
the error is fundamental to the validity of the judgment. See
-11-
United States v. Hager, 993 F.2d 4, 5 (1st Cir. 1993); see also
United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000);
United States v. Barrett, 178 F.3d 34, 56 n.20 (1st Cir. 1999).
We assume, without deciding, that a writ of coram nobis is
available to vacate a criminal conviction premised upon a
fundamental error of law. We also express no opinion on whether
Sawyer could meet the first and second prongs of the standard
for issuance. However, we conclude that Sawyer was not
entitled to the writ because there was no fundamental legal
error in his conviction.
III.
A. The Federal Gratuities and Honest Services Mail Fraud
Statutes
Sawyer contends that the Supreme Court's decision in
Sun-Diamond provides grounds for vacating his conviction. In
that opinion, the Court interpreted the federal gratuities
statute, 18 U.S.C. § 201,5 to mean that the prosecution must
prove a link between an object of value given to a public
official and a specific official act for or because of which it
was given. See Sun-Diamond, 526 U.S. at 406. Sawyer argued in
5
18 U.S.C. § 201(c) provides, in relevant part, that anyone
who "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 fined under this title or
imprisoned for not more than two years, or both."
-12-
his petition for coram nobis that the analogous gratuity statute
in Massachusetts, chapter 268A, section three ("section three"),
should be construed similarly to require proof of a specific
official act for which the gratuity was given. Indeed, since
Sawyer filed his petition - and since the district court decided
to grant the writ - the Supreme Judicial Court of Massachusetts
has ruled, relying partly on Sun-Diamond, that to establish a
violation of section three, "there must be proof of linkage to
a particular official act." Scaccia v. State Ethics Comm'n, 431
Mass. 351, 356 (2000). Sawyer claims that the information to
which he pled guilty was based on his violation of section
three, requiring the government to have demonstrated a link
between his allegedly illegal gratuities and specific,
identifiable official acts of Massachusetts legislators.
Because the prosecution did not attempt to offer such proof, he
believes that Sun-Diamond renders his conviction unjust. We
disagree.
Sawyer pled guilty to one count of honest services mail
fraud in violation of 18 U.S.C. §§ 1341 and 1346.6 We have
6 18 U.S.C. § 1341 provides, in relevant part: "Whoever,
having devised or intending to devise any scheme or artifice to
defraud . . . for the purpose of executing such scheme or
artifice or attempting to do so, places in any post office . .
. any matter or thing whatever to be sent or delivered by the
Postal Service . . . shall be fined under this title or
imprisoned not more than five years, or both." Section 1346
defines "scheme or artifice to defraud" as "a scheme or artifice
-13-
recognized previously that "Congress enacted this statute [§
1341] in 1872, as 'a general proscription against using the
mails to initiate correspondence in furtherance of any 'scheme
or artifice to defraud.''" United States v. Grandmaison, 77
F.3d 555, 565 (1st Cir. 1996) (quoting McNally v. United States,
483 U.S. 350, 356 (1987)). The legislative history of § 1341
suggests that Congress intended to shield people from "schemes
to deprive them of their money or property" in passing the
statute. McNally, 483 U.S. at 356. More recently, the Supreme
Court has interpreted the meaning of "fraud" in § 1341 to
"incorporate the well-settled meaning of the common-law" in the
absence of explicit evidence of Congressional intent to the
contrary. Neder v. United States, 527 U.S. 1, 23 (1999).
Before 1987, most courts interpreted § 1341 broadly to
reach schemes to defraud people of intangible property interests
- such as the honest services of their public officials - as
well as tangible property rights. See Grandmaison, 77 F.3d at
565. The Supreme Court held in McNally, however, that § 1341
did not reach schemes to defraud citizens of their intangible
right to the honest government services of their public
officers. See McNally, 483 U.S. at 355. Congress promptly
responded to this decision by enacting § 1346, which proscribes
to deprive another of the intangible right of honest services."
-14-
schemes "to deprive another of the intangible right of honest
services." 18 U.S.C. § 1346 (emphasis added). We have
recognized that § 1346 was intended to overrule McNally by
placing honest services mail fraud within the ambit of § 1341.
See, e.g., Sawyer, 85 F.3d at 723; Grandmaison, 77 F.3d at 565-
66.
Underlying the applicability of §§ 1341 and 1346 to
government officials is the notion 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." United States v. Silvano, 812 F.2d 754, 759
(1st Cir. 1987) (quoting United States v. Mandel, 591 F.2d 1347,
1363 (4th Cir. 1979)). Theft of honest services occurs when a
public official strays from this duty:
When a government officer decides how to
proceed in an official endeavor - as when a
legislator decides how to vote on an issue -
his constituents have a right to have their
best interests form the basis of that
decision. If the official instead secretly
makes his decision based on his own personal
interests - as when an official accepts a
bribe or personally benefits from an
undisclosed conflict of interest - the
official has defrauded the public of his
honest services.
United States v. Lopez-Lukis, 102 F.3d 1164, 1169 (11th Cir.
1997).
B. Elements of the Honest Services Mail Fraud Statutes
-15-
The government must prove two elements to establish a
violation of § 1341. The simpler of the two elements requires
the defendant to have used the mails in furtherance of the
scheme to defraud. See Woodward, 149 F.3d at 54; Sawyer, 85
F.3d at 723. The mailings themselves need not be essential to
the defendant's scheme; rather, the mailings must have been made
to execute the scheme. See United States v. Schmuck, 489 U.S.
705, 710-11 (1989); see also Silvano, 812 F.2d at 760 ("A
mailing need only be closely related to the scheme and
reasonably foreseeable as a result of the defendant's
actions."). There is no requirement that the defendant herself
was responsible for the mailing that establishes the
jurisdictional hook. See United States v. Morrow, 39 F.3d 1228,
1237 (1st Cir. 1994).
The second element of mail fraud requires the
prosecution to establish that the defendant participated in a
scheme or artifice to defraud with the specific intent7 to
defraud. See Woodward, 149 F.3d at 54; Sawyer, 85 F.3d at 723.
"Scheme or artifice to defraud" is defined by § 1346 as "a
scheme or artifice to deprive another of the intangible right of
7
We recognize that "specific intent" is a legal term of art
with a particularized meaning. In the context of § 1341, as we
discuss infra, this term simply means that a public official
must have acted with the intent to deprive the public of that
official's honest services. See Sawyer, 85 F.3d at 729; see
also Woodward, 149 F.3d at 55.
-16-
honest services." 18 U.S.C. § 1346. In Woodward, drawing upon
Sawyer, we articulated the following formulation of the elements
of § 1346: "In Sawyer, we noted two of the ways that a public
official can steal his honest services from his public employer:
(1) the official can be influenced or otherwise improperly
affected in the performance of his duties . . . ; or (2) the
official can fail to disclose a conflict of interest, resulting
in personal gain." Woodward, 149 F.3d at 57 (citations
omitted).8 See also Sawyer, 85 F.3d at 724 ("The cases in which
a deprivation of an official's honest services is found
typically involve either bribery of the official9 or her failure
8We distinguish between a gift given with the intent to
influence official action generally, required under § 1341, and
a gift given for or because of an official act that has been
performed or will be performed by a government officer, now
required under § 201. Indeed, Sawyer has not alleged that Sun-
Diamond, interpreting 18 U.S.C. § 201, should apply by analogy
to honest services mail fraud under § 1341 to require that the
government prove a link between the gratuity and an official act
for or because of which it was given. While Sun-Diamond does
not specifically mention § 1341, to read that opinion as
affecting the well-settled interpretation of § 1341 would be
inconsistent with its rationale. The Supreme Court partly based
its decision in Sun-Diamond on a desire to read § 201, the
gratuity statute, in a way that made sense given the "intricate
web of regulations, both administrative and criminal, governing
the acceptance of gifts" by public officials. Sun-Diamond, 526
U.S. at 409. The Court noted specifically, "we ought not expand
this one piece of the regulatory puzzle so dramatically as to
make many other pieces misfits." 526 U.S. at 412.
9
Although Sawyer initially describes this first element of
§ 1346 as involving proof of bribery, we recognized in Woodward
that "[t]he Sawyer case expanded category (1) from quid pro quo
bribery, to include a more generalized pattern of gratuities to
-17-
to disclose a conflict of interest, resulting in personal
gain."). We have recognized that this duty of disclosure arises
not exclusively by statute, but also from the general fiduciary
duty a public official owes to the public. In Woodward, we
noted, "separate and apart from the state statute, '[t]he
obligation to disclose material information inheres in the
legislator's general fiduciary duty to the public.'" 149 F.3d at
62 (quoting Sawyer, 85 F.3d at 733 n.17). See also Silvano, 812
F.2d at 759 (stating, "the affirmative duty to disclose material
information arises out of a government official's fiduciary
relationship to his or her employer").
Because the practice of using hospitality to cultivate
business relationships is "longstanding and pervasive," Sawyer,
85 F.3d at 741, it may become difficult to distinguish between
lawful entertaining and acts that violate the honest services
mail fraud statute. Intent is thus a crucial aspect of proof in
any such prosecution, and "[d]irect proof of fraudulent intent
is often difficult to find." United States v. Rosen, 130 F.3d
5, 9 (1st Cir. 1997). Having closely examined this issue of
intent in Sawyer, we said in that opinion that the government
must prove that the accused acted with two kinds of intent: that
she intended to deprive the public of her honest services, and
coax 'ongoing favorable official action.'" Woodward, 149 F.3d at
55 (quoting Sawyer, 85 F.3d at 730).
-18-
that she intended to deceive the public. See Sawyer, 85 F.3d at
729; see also Woodward, 149 F.3d at 55. While proof of the two
kinds of intent might seem similar, these inquiries are
distinct. See Sawyer, 85 F.3d at 729 n.12. "[W]hile 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."
Id. at 732 n.16.10
For the government to establish the requisite intent
to deprive the public of a legislator's honest services, the
first of the two intent requirements for honest services mail
fraud, the defendant must have intended to influence that
legislator in her official action. See Sawyer, 85 F.3d at 729.
The government may demonstrate this intent in many ways:
For example, a bribery-like, corrupt intent
to influence official action necessarily is
10 We acknowledge that there seems to be some redundancy in
the formulation of elements of honest services mail fraud. For
example, in proving that an official intended to deceive the
public, "[that] official's intentional violation of the duty to
disclose provides the requisite 'deceit.'" Sawyer, 85 F.3d at
732. Thus, when the government seeks to prove a defendant's
intent to deprive the public of an official's honest services by
showing that she failed to disclose a conflict of interest, the
evidence regarding that failure to disclose automatically
satisfies the "intent to deceive" prong of § 1341. We
recognized this point in Woodward. Having described the
evidence that Woodward failed to disclose gifts from lobbyists,
we then stated: "[t]his same evidence also supports the finding
that Woodward had the intent to deceive necessary for a mail and
wire fraud conviction." Woodward, 149 F.3d at 63.
-19-
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.
Id. at 730. We reversed Sawyer's convictions for mail and wire
fraud because we concluded that the jury instructions at his
trial permitted the jury to convict him without finding that he
intended to influence official action.11
11 More specifically, we concluded in Sawyer that the jury
instructions allowed the jury to find Sawyer guilty of honest
services mail fraud upon proof that he violated either the
Massachusetts gratuity statute, Mass. Gen. Laws ch. 268A, § 3,
or the Massachusetts gift statute, Mass. Gen. Laws ch. 268B, §
6. See Sawyer, 85 F.3d at 726. The gift statute, not at issue
here, prohibits lobbyists from giving public officials gifts
with an aggregate value of more than $100 in a calendar year.
See Mass. Gen. Laws ch. 268B, § 6. Significantly, § 6 does not
require the government to prove "any improper motive to
influence, or otherwise affect, the official duties of the
recipient." Sawyer, 85 F.3d 728. Thus, a violation of the gift
statute could not in itself constitute honest services mail
fraud because the required "intent to influence" prong of § 1341
cannot be established merely through proof of a violation of §
6. See id. While we concluded that the gratuity statute, § 3,
was properly charged as a predicate for honest services mail
fraud, it was impossible to determine which state law violation
the jury relied upon in convicting Sawyer under § 1341. See id.
at 730. Concluding that one of the potential bases for the
jury's verdict was thus "legally erroneous," we reversed his
convictions. See id. at 731.
-20-
Significantly, this framework for establishing honest
services mail fraud under § 1341 does not require proof of a
violation of any state law. Because the duty of honest services
owed by government officials derives from fiduciary duties at
common law as well as from statute, see Silvano, 812 F.2d at
759, there is no need to base a prosecution under § 1341 on
allegations that the defendant also violated state law. We
recognized this point when we reversed Sawyer's conviction on
direct appeal. See Sawyer, 85 F.3d at 726 ("proof of a state
law violation is not required for conviction of honest services
fraud"); see also United States v. DeSantis, 134 F.3d 760, 769
(6th Cir. 1998) (finding defendant prosecuted under § 1341 was
entitled to a jury instruction cautioning the jury that they
could not convict him merely because he knowingly violated a
state law); United States v. Brumley, 116 F.3d 728, 734 (5th
Cir. 1997) ("the mere violation of a [state] gratuity statute .
. . will not suffice") (en banc); United States v. Williams, 545
F.2d 47, 50 (8th Cir. 1976) (stating, "[a] conviction for mail
fraud does not depend upon a violation of state law"); United
States v. Bush, 522 F.2d 641, 646 n.6 (7th Cir. 1975) (finding
that a conviction for mail fraud is not dependent upon a
violation of state law.). Accordingly, the government was not
required to charge that Sawyer violated section three - or any
other state Massachusetts gratuity, gift, or bribery law - in
-21-
order to secure his conviction under § 1341. Sawyer concedes
this point in his brief by acknowledging our statement to that
effect in Sawyer.
Nonetheless, as Sawyer correctly states in his brief,
"[t]o say that proof of a state law violation 'is not required,'
however, is not the same as saying that it is not permitted."
(Emphasis added). Indeed, proving violations of state law is
one way a federal prosecutor might choose to structure a
prosecution for honest services mail fraud. In Sawyer’s case,
the government adopted this strategy in the original indictment.
See Sawyer, 85 F.3d at 726 (noting, "the parties agree that the
indictment, as structured, required [the prosecution] to prove
that Sawyer violated at least one state law."). Using the state
law violations as "the sole vehicle to prove the scheme or
artifice to defraud" allowed the government to "narrow the
issues of intent and good faith." Id. at 727. As explained in
his brief, the crux of Sawyer's argument for coram nobis is that
the prosecution continued to rely on violations of Massachusetts
law in the information:
Thus, on remand after this Court's decision
in Sawyer, the government had two basic
options for continuing to press its "honest
services" mail fraud claim against Sawyer
with regard to the gratuities that he
allegedly had made. First, it could
continue to assert what it had been
asserting all along: that Sawyer had engaged
in a "scheme or artifice to defraud" by
violating the state gratuity law with the
-22-
requisite, corrupt intent to deprive the
public of an official's honest services.
Alternatively, it could attempt to
demonstrate that Sawyer's actions were
intended to induce a breach of some non-
statutory source of state legislators'
common law fiduciary duty to the public,
without regard to the application of the
gratuity statute. . . . The government
opted for the former.
(Footnote omitted). If a prosecution for honest services mail
fraud is structured as the indictment was, using state law
violations as the "sole vehicle" to prove the scheme to defraud,
failing to prove that the defendant violated the state law
becomes fatal to the government's case. See Sawyer, 85 F.3d at
726.
C. Structure of the Information
The district court concluded that the information to
which Sawyer pled guilty was structured to require proof of a
state law violation. See Sawyer, 74 F. Supp. 2d at 98 ("the
government was required to prove that Sawyer violated at least
one state law."). We review this finding of fact for clear
error,12 see Blanton, 94 F.3d at 230, and conclude that it was
12
Sawyer states in his brief that this finding is reviewed
for clear error. The government contends that de novo review
applies because the court's determination is inconsistent with
our rulings of law in Sawyer. What the government means by
"inconsistent" is not clear. However, the government concedes
in a footnote that the standard of clear error applies "[t]o the
extent that the district court's determination that the
government was required to establish a violation of the state
gratuity statute could be viewed as having any factual
-23-
clearly erroneous because the information was not predicated
upon Sawyer's violation of section three of the Massachusetts
gratuity statute. The information itself does not refer to any
state law. Rather, it charges Sawyer with "knowingly and
willfully devis[ing] and execut[ing] a scheme and artifice to
defraud the Commonwealth of Massachusetts and its citizens of
their right to the honest services of members of the
Massachusetts Legislature for the purpose of promoting Hancock's
legislative interests." There is no language in the information
itself indicating that Massachusetts state law was a part of the
prosecution's case against Sawyer. Thus, there is no basis for
concluding that Sun-Diamond undermined the criminality of a
state law that was the basis for Sawyer’s guilty plea.
The government's decision to eschew reliance on
Massachusetts law in the information is hardly surprising. In
Sawyer, we noted that "the incorporation of a state law
violation in [a prosecution for mail fraud] may cause
complications." Sawyer, 85 F.3d at 726. We cautioned further:
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
component." Thus, the parties agree, and we conclude, that the
court's factual determinations regarding the basis for Sawyer's
plea are reviewed for clear error. See, e.g., United States v.
Blanton, 94 F.3d 227, 230 (6th Cir. 1996).
-24-
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.
Id. at 731.13 Obviously, the state violation must be correctly
charged and adequately proven, or the proof on the federal
charge fails as well. See id. at 725. Indeed, we reversed
Sawyer’s conviction on direct appeal because the jury
instructions permitted the jury to convict him based solely on
a violation of the Massachusetts gift statute, without a finding
that he possessed the necessary intent to influence a public
official. Thus, the government might well have concluded, in
deciding to retry Sawyer, that an information charging honest
13Noting the interplay between state and federal law in
this area, Sawyer criticizes "the government's extraordinary
attempt to 'federalize' a state ethics statute." To the extent
that Sawyer posits that the federalization of criminal law
renders his prosecution unjust, we simply note that the "Supreme
Court rejected this federalism argument long ago." Silvano, 812
F.2d at 758 ("Whatever the limits to its power, Congress may
forbid putting letters into the post office when such acts are
'done in furtherance of a scheme that it regards as contrary to
public policy, whether it can forbid the scheme or not.'")
(quoting Badders v. United States, 240 U.S. 391, 393 (1916)).
In a related but distinct argument, Sawyer also claims that his
prosecution offended due process by not giving him sufficient
notice of what conduct is proscribed under federal law. As we
have already noted, Congress enacted § 1346 in 1988 to prohibit
schemes to deprive the public of their public officials' honest
services. Accordingly, Sawyer had sufficient notice that his
conduct could be prosecuted as a federal crime.
-25-
services mail fraud without mentioning state law would avoid
some of the issues that Sawyer successfully appealed following
his conviction. In its brief here, the government acknowledges
our ruling in Sawyer, noting, "this Court went on to criticize
any attempt by the government to define honest services in terms
of state law requirements," and offering Sawyer as a
justification for its strategy in structuring the information.
Although we noted in Sawyer that "the parties agree
that the indictment, as structured, required it to prove that
Sawyer violated at least one state law," Sawyer, 85 F.3d at 726,
Sawyer's plea agreement provided that his guilty plea would
result in the dismissal of the indictment. Thus, when Sawyer
entered his plea of guilty, the information became the
controlling document for determining what the government sought
to prove.
D. "Illegal Gratuities"
Nonetheless, Sawyer makes several arguments in support
of his claim that the information required a violation of
section three. For example, he attaches significance to the
government's use of the phrase "illegal gratuities" at the plea
hearing and to the inclusion of this language in the Prepleading
Report ("PPR"), to which the government referred at that
-26-
hearing.14 In explaining to the court the factual basis for
Sawyer's guilty plea, the prosecution stated that it was relying
on "illegal gratuities" Sawyer gave to various Massachusetts
legislators. Sawyer contends that "illegal gratuities" can only
be interpreted to mean gifts or gratuities given in violation of
Massachusetts state law, a position accepted by the district
court. Accordingly, Sawyer concludes that the government
effectively incorporated violations of section three into the
proof required in the information.
We reject this argument for two reasons. The
government's reference to "illegal gratuities" does not
necessarily mean that such gratuities were illegal under § 1341
only because they were illegal under state law. We had already
made clear in Sawyer that proof of federal honest services fraud
does not require proof of a violation of state law. As the
government argues, the phrase "illegal gratuities" also
describes conduct that is "illegal" because, without reference
14Sawyer argues that the government has waived reliance on
the PPR because the government did not refer to that document by
name in its opposition to Sawyer's petition for coram nobis
before the district court. A review of those opposition papers
indicates that the government did not expressly identify its
reliance on the PPR. However, the government argued in the
district court that Sawyer's conviction was based on his corrupt
intent and his conduct, and not on any violation of state law.
Thus, because the government's references to the PPR on appeal
merely identify the underlying conduct it has relied on to
establish Sawyer's conviction throughout these proceedings, we
find that the prosecution has not waived this argument.
-27-
to state law, it constitutes the federal crime of honest
services mail fraud. Sawyer does not contend that the
government ever specifically referenced the Massachusetts
gratuity statute at the plea hearing. In the absence of
contextual evidence giving additional meaning to the words
"illegal gratuities," it was an error for the district court to
read the state law predicate into the phrase.
Sawyer posits further that we should interpret "illegal
gratuities" to mean "in violation of chapter 268A, section
three" because the government referred to the Prepleading Report
at the plea hearing. When the district court asked the
government to identify the factual basis for Sawyer's guilty
plea, the assistant United States attorney referenced paragraphs
10 through 30 of the "Presentence Report",15 indicating that the
conduct described therein constituted the basis for the plea.
Because the PPR referred to Sawyer's alleged violations of the
Massachusetts gift and gratuity statutes, Sawyer claims that
15
Although the government stated, at the plea hearing, that
it was relying on "the evidence as outlined in Paragraphs 10
through 30 of the Presentence Report," (emphasis added), we
assume, as the government points out in its brief, that the
prosecutor misspoke in referring to the "Presentence Report,"
("PSR") and, in fact, meant to refer to the Prepleading Report
("PPR") that had been prepared in advance of Sawyer's plea
hearing. The PSR, prepared for Sawyer's sentencing hearing
following his conviction in 1995, and the PPR, prepared in
anticipation of his guilty plea in 1996, are alike in all
significant respects, except that the PPR details the history of
Sawyer's first trial, conviction, and appeal to this Court.
-28-
such violations became a part of the proof necessary for the
government's prosecution of Sawyer under the information.
However, the PPR explicitly disavows any notion that violations
of the state laws were necessary to find Sawyer guilty under the
one count of mail fraud contained in the information. In
introducing the discussion of the Massachusetts gift and
gratuity statues, the PPR states, "[d]espite his detailed
knowledge of both laws, Sawyer repeatedly violated the laws
throughout the time period of the scheme and conspiracy, which
is evidence (although not exclusive evidence) of his intent to
violate the federal statutes." (Emphasis added). Therefore,
the PPR treats the alleged violations of state law not as
conclusive proof that Sawyer violated § 1341, but rather as part
of a body of evidence demonstrating his intent to deprive the
public of the honest services of certain Massachusetts
legislators. This characterization of the evidence is
consistent with the structure of the information and the
government's theory of its prosecution asserted both in the
district court and on appeal.
Sawyer also claims that the government was required to
prove his violation of the Massachusetts gratuity law because
Judge Harrington accepted his guilty plea on that theory of the
prosecution. Accordingly, Sawyer argues, Judge Harrington
properly granted the writ of coram nobis because he, as the
-29-
district court judge who took Sawyer's plea, understood that the
factual basis of that plea involved a theory of the prosecution
invalidated by Sun-Diamond. We reject this argument.
In the opinion granting Sawyer the writ of coram nobis,
Judge Harrington stated: "[t]hat the conviction would stand or
fall on the basis of proof of the state statute violation was a
fact understood by the parties, the original District Court
Judge [a reference to the judge who presided at Sawyer's trial],
the Circuit Court of Appeals, and this Court at the time of the
Plea Hearing." Sawyer, 74 F. Supp. 2d at 98 (emphasis added).
For reasons we have already explained, the understandings of the
original district court judge and this Court on Sawyer's first
appeal are irrelevant to the instant inquiry because the
charging document at that time was the indictment, not the
information. Because the indictment is so clearly premised on
a violation of state law and the information is not, the court's
reliance on interpretations of the indictment is misplaced.
We also find Judge Harrington's reliance on his own
understanding of the factual basis for the government's
prosecution of Sawyer to be similarly misplaced. We do not
question the reality of that understanding. However, to the
extent Judge Harrington concluded that the government could
prove its case against Sawyer only by proving a violation of
state law, his conclusion was incorrect legally and was at odds
-30-
with the unmistakable basis of the government's prosecution at
the time of the plea to the information. In short, even if
Judge Harrington relied on his understanding that the government
had undertaken to prove a violation of state law when he issued
the writ of coram nobis, that reliance could not change the
reality of the basis for the government's prosecution.
IV.
Because a writ of error coram nobis is an
"extraordinary remedy," appropriately issued "only under
circumstances compelling such action to achieve justice," see
Morgan, 34 U.S. at 511, we address again an issue addressed in
Sawyer - whether sufficient evidence existed to support Sawyer's
conviction for honest services mail fraud apart from a
conclusion that he violated the state gratuities law. If the
evidence would have been otherwise sufficient to convict him,
Sun-Diamond's effect on the interpretation of Massachusetts
state law does not render his conviction a miscarriage of
justice even if the government had assumed the burden of proving
a violation of state law. In issuing the writ, the district
court found that Sawyer's prosecution was "for an act that the
law does not make criminal" in light of Sun-Diamond. See
Sawyer, 74 F. Supp. 2d 88, 106 (D. Mass. 1999). Because we find
that sufficient evidence existed to convict Sawyer absent a
showing that he violated state law, this characterization by the
-31-
district court was in error. Accordingly, we again conclude
that his conviction was not based on a fundamental error of law.
A. Sawyer's Objections to the Prepleading Report
We must first address Sawyer's argument that his
objections to the PPR prior to the plea hearing prevented the
government from relying on that document to establish the
requisite factual basis for the plea. In the addendum to the
PPR, Sawyer stated the following objection:
Defendant contends that the one count
information, and any other conduct
specifically related to the underlying
offense, provides all of the necessary and
appropriate information for determining the
"relevant conduct" and requisite base
offense level under § 2F1.1. Specifically,
defendant contends that the only "relevant
conduct" for purposes of the Pre-sentence
Report and the court's sentencing is an
expenditure he made over the 1990, Fourth of
July weekend.
Sawyer cites Federal Rule of Criminal Procedure 32(c)(1), and
our decision in United States v. Van, 87 F.3d 1, 3 (1st Cir.
1996), for the proposition that the district court should have
ruled on his objection to the PPR as an outstanding or disputed
material fact prior to sentencing. Because the district court
made no such ruling to resolve his objection, he argues, the
conduct described in the PPR could not have been considered part
of the factual basis of his guilty plea. However, as the plain
meaning of his objection, quoted above, indicates, Sawyer was
-32-
merely objecting to the conduct to be considered by the court in
sentencing, and not to the conduct the court might consider in
finding a sufficient factual basis for Sawyer's guilty plea.
Significantly, Sawyer did not object to the government's
reliance on the conduct described in paragraphs ten through 30
of the PPR to establish the requisite factual predicate for his
plea.16
B. Sufficiency of the Evidence
Proof of honest services mail fraud requires that the
defendant participated in a scheme or artifice to defraud with
the specific intent to defraud.17 See Woodward, 149 F.3d at 54;
Sawyer, 85 F.3d at 723. In the prosecution of a non-public
16Even if Sawyer could persuade us that the sentencing
procedures established in Rule 32, and discussed in Van, applied
to finding a factual basis for a guilty plea, our holding in Van
does not necessarily entitle him to relief. While we ruled in
that opinion that a sentencing court "must resolve any
outstanding disputed facts or determine that they will not be
taken into account," we also stated that while "explicit
resolution of disputed material facts is preferable, we have
found that the court implicitly resolved the facts when the
court's statements and the sentence imposed showed that the
facts were decided in a particular way." Van, 87 F.3d at 3.
Thus, even if Van were applicable to the instant situation, the
district court was not required to rule explicitly on Sawyer's
objections to the PPR. Additionally, we could easily find, on
this record, that the district court implicitly resolved the
alleged dispute in Sawyer's objection by finding the requisite
factual basis for his plea.
17We do not discuss the second element of honest services
fraud, which requires that the accused have used the mails in
furtherance of the scheme or artifice to defraud, see Woodward,
149 F.3d at 54, because Sawyer did not appeal that issue.
-33-
official such as Sawyer, "the government must prove that the
target of the scheme is the deprivation of the official's honest
services." Sawyer, 85 F.3d at 725. The government may prove
this element by demonstrating either that Sawyer intended to
improperly influence a public official in her duties, or that he
intended for public officials to fail to disclose a conflict of
interest. See Woodward, 149 F.3d at 57; Sawyer, 85 F.3d at 724.
Additionally, Sawyer must have intended to deceive the public
about his expenditures on behalf of the Massachusetts
legislators. See Woodward, 149 F.3d at 55; Sawyer, 85 F.3d at
729. The prosecution may prove this requisite intent to defraud
through circumstantial evidence. See United States v. Ervasti,
201 F.3d 1029, 1037 (8th Cir. 2000). Evidence exists in this
record to support a finding that Sawyer acted with the requisite
fraudulent intent. Accordingly, his conduct supports his guilty
plea even absent a showing that he actually violated the
Massachusetts gratuity statute.
1. Intent to Influence Official Action
The conduct described in the PPR evinces Sawyer's
intent to enter a scheme to deprive the public of the honest
services of various Massachusetts legislators by influencing
those legislators in their official actions. Over the course of
more than nine years, Sawyer intentionally provided over 25
Massachusetts legislators with gifts totaling approximately
-34-
$35,000. According to the PPR, these gifts included "hotel
rooms, expensive dinners for legislators and their spouses,
rounds of golf at luxury resorts and at Sawyer's private country
club, and tickets to theater and sporting events." Almost one-
quarter of these expenditures, about $8,500, were used to
entertain Representative Francis Woodward during the five years
he served as House Chair for the Insurance Committee.
Woodward's position on that committee gave him the opportunity
to affect Hancock's interests in pending legislation. More
significantly, paragraph 25 of the PPR states, "[Woodward]
'carried' most of the legislation sought by Hancock and other
life insurance companies during his tenure as House Chair,
shepherding the bills through the Insurance Committee and the
full House of Representatives." The evidence further indicated
that Sawyer's gratuities to Woodward and other legislators
"virtually ceased" after those representatives left office.
Finally, Sawyer took credit, in memoranda he wrote to his
supervisors at Hancock, for the passage or defeat of legislation
affecting Hancock's interests in the insurance industry.
Therefore, Sawyer understood that his conduct affected, at least
in part, the actions taken by the legislators he entertained.
These facts point to a conclusion that Sawyer intended for the
legislators to be influenced by his expenditures.
-35-
As part of his defense at his trial, Sawyer contended
that he thought these expenditures were lawful and merely a part
of "goodwill entertaining." See Sawyer, 85 F.3d at 731.
However, evidence described in the PPR reveals his awareness of
the gift and gratuity laws and his understanding that he might
be violating those statutes. In his office, Sawyer kept binder
notebooks with information about the Massachusetts laws
proscribing gifts to public officials under certain
circumstances. While violations of those laws need not be
proven for there to be a sufficient factual basis for his guilty
plea, they provide evidence of his intent with respect to the
expenditures and cast doubt on his claim that he believed the
expenses were lawful.
Moreover, aside from any obligations Sawyer and
Massachusetts legislators may have had under state law, public
officials also have fiduciary duties under common law to ensure
that the public receives their honest service free of improper
influence of corruption. We have described § 1341 in this
manner, without reference to any ethical obligations arising
under state law, in other rulings. See, e.g., Woodward, 149
F.3d at 58 (noting that Woodward's acceptance of expenditures
from Sawyer "constituted theft of the honest services that
Woodward owed to his constituents"); Sawyer, 85 F.3d at 730
(stating that § 1341 requires, "in connection with the gratuity,
-36-
the intent to cause an official to deviate from the honest
performance of services.").
2. Intent to Deceive the Public
To establish an adequate factual basis for Sawyer's
plea of guilty, we must also find that he demonstrated an intent
to deceive the public with respect to his conduct. See Sawyer,
85 F.3d at 732; see also McEvoy Travel Bureau, Inc. v. Heritage
Travel, Inc., 904 F.2d 786, 791 (1st Cir. 1990). We carefully
analyzed this requirement in Sawyer:
[I]t appears that the requisite intent to
deceive could have been shown either through
Sawyer's own acts of deception toward the
public with respect 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, 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 public
be deceived with respect to his unlawful
gifts and gratuities.
Sawyer, 85 F.3d 732-33 (footnote omitted). Considering the
evidence against this standard, we find that facts described in
the PPR indicate that Sawyer acted to deceive the public, or to
induce legislators to deceive the public, with respect to his
expenditures on their entertainment. For example, when Sawyer
-37-
organized a high-profile event to celebrate the Boston Marathon,
he took steps to ensure that the spending would not exceed
limits proscribed by Massachusetts law. However, he made no
such efforts to comply with the law when entertainment
expenditures would not be so visible to the public, a fact which
is probative of his intent to deceive the citizens of
Massachusetts. Again, whether Sawyer actually violated state
laws in these instances is irrelevant to our inquiry because
honest services mail fraud does not depend on a violation of
state law. Indeed, the duty to disclose a conflict of interest,
the violation of which indicates an intent to deceive in these
circumstances, arises from common law as well as from
Massachusetts statute. "[S]eparate and apart from the state
statute, '[t]he obligation to disclose material information
inheres in the legislator's general fiduciary duty to the
public.'" Woodward, 149 F.3d at 62 (quoting Sawyer, 85 F.3d at
733 n.17). See also Silvano, 812 F.2d at 759 ("[T]he
affirmative duty to disclose material information arises out of
a government official's fiduciary relationship to his or her
employer."). Therefore, a jury would not have to find that
Sawyer violated the Massachusetts statute to convict him of the
crime to which he pled guilty; the jury would have to find only
that Sawyer intended for state officials to deceive the public
-38-
by breaching their common law duty to disclose a conflict of
interest.
Our conclusion that the evidence adequately supported
Sawyer's guilty plea is strengthened by our previous ruling in
Sawyer, where we rejected his challenge to the sufficiency of
the evidence both with respect to his intent to influence and
his intent to deceive. In addressing his challenge regarding
the intent to influence legislators' official acts, we stated:
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, 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 . . . 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.
Sawyer, 85 F.3d at 731 (footnote and citations omitted). See
also Woodward, 149 F.3d at 57 (noting, after summarizing the
discussion of Sawyer's intent in Sawyer, "The same inferences
regarding Woodward's intent can be drawn from the evidence here,
based upon the nature and sequences of events, certain explicit
statements, and the suggestions of a cover-up.").
-39-
Similarly, we concluded in Sawyer that the evidence was
sufficient for a rational jury to agree that Sawyer intended to
deceive citizens of Massachusetts. Having described Sawyer's
awareness of the Massachusetts lobbying laws, by pointing to
evidence of newspaper articles and binder notebooks he
maintained on such legal obligations, we held, "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 exposed." Sawyer, 85 F.3d at
733. Noting that this evidence is "not overwhelming," we
nonetheless concluded that "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." Id. at 734. See also Woodward,
149 F.3d at 57 (describing, on similar facts, "the suggestions
of a cover-up" regarding Sawyer's expenditures on Woodward and
other legislators).
V.
Because the information to which Sawyer pled guilty did
not require proof of a violation of the Massachusetts gratuity
statute, Sun-Diamond's interpretation of the analogous federal
gratuity statute did not undermine the legality of Sawyer's
conviction for honest services mail fraud. Moreover,
-40-
independently of proof of a violation of state law, there was
sufficient evidence to support Sawyer's conviction for honest
services mail fraud. However, in Sawyer, recognizing that
"prosecutions on facts like these have not generally been
brought," we expressed our concern about "the close relationship
between lobbying activities that are lawful" under federal law,
and "slightly more extreme versions of such conduct that can
constitute federal violations." Sawyer, 85 F.3d at 741. We
cautioned further that "every transgression of governmental
obligations" should not be turned into a federal felony. Id. at
728. Judge Harrington has spoken forcefully to this point.
Therefore, we wish to be clear in this case that we hold only,
for the purpose of determining whether there was a fundamental
legal error in his conviction, that there was an adequate
factual basis for Sawyer's plea. Accordingly, Sawyer was not
entitled to a writ of error coram nobis, assuming its
availability for relief from such errors.
Judgment vacated.
Concurring Opinion Follows
-41-
BOUDIN, Circuit Judge, concurring. At Sawyer’s
original trial, the government urged a view of honest services
mail fraud that allowed the jury to convict by finding a
violation of either the gift or the gratuity ban under
Massachusetts state law. We reversed his conviction on this
charge because the instructions allowed the jury to convict
without finding that Sawyer had the intent to affect any
official act of any legislator who received the benefits that
Sawyer was conferring. United States v. Sawyer, 85 F.3d 713,
729 (1st Cir. 1996). However, the decision also rejected
Sawyer’s claim to a directed acquittal; we found that the
evidence was sufficient to convict him under the mail fraud
statute. Id. at 731, 733-34.
On remand, Sawyer chose to plead to a single count of
mail fraud set forth in an information which did not refer to
state law, and he received a sentence that included no time in
jail. Thereafter, the Massachusetts Supreme Judicial Court--
following the Supreme Court's construction of the federal
gratuity state in United States v. Sun-Diamond Growers of
California, 526 U.S. 398 (1999)--construed the state gratuity
statute in a way that would have made it harder for the
government to prove that the benefits conferred by Sawyer
violated the state statute. Scaccia v. State Ethics Comm'n, 727
N.E.2d 824, 827-28 (Mass. 2000).
-42-
In the coram nobis proceeding below, the district court
ruled, and Sawyer now argues on appeal, that Sawyer's extant
conviction for mail fraud (based on his guilty plea) rests on a
legal error, namely, the premise that his favors to state
legislators violated the state gratuity statute as narrowed by
Sun-Diamond and Scaccia. But Sawyer's conviction does not rest
on this premise in any meaningful way. Sawyer was convicted on
his own plea of guilty to the federal mail fraud statute; there
was an adequate basis for the plea without regard to whether he
violated the state gratuity statute; and nothing in Sun-Diamond
has been shown to undermine a plea of guilty to a statute not
even addressed in Sun-Diamond.
To justify Sawyer's guilty plea, it was enough that the
government pointed to evidence, or proffered facts, that would
furnish a rational basis for the plea. Fed. R. Crim. P. 11;
United States v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir. 2000).
The government did so by pointing to the favors Sawyer conferred
on state legislators and to their context. This was the same
evidence that our earlier decision in Sawyer had already said
not only colorably might, but actually would, permit a jury to
convict Sawyer of mail fraud. It is hard to imagine a more
secure basis for accepting a plea.
The district court's coram nobis decision treats the
guilty plea as if it somehow rested on the same legal theory
-43-
that the government had pressed at the first trial, equating a
violation of the state statutes with a violation of the federal
mail fraud statute. United States v. Sawyer, 74 Supp. 2d 88,
98-99 (D. Mass. 1999). But that was the very theory that had
been rejected by this court before the plea. No one--district
court, government, or Sawyer--would have thought that this
equation could have been pressed at a second trial or comprised
the basis for the new plea. The constant element was not the
theory earlier advanced; it was the benefits Sawyer conferred.
It is possible, perhaps even likely, that the evidence
submitted at the first trial would not, under Sun-Diamond and
Scaccia, permit a federal or state jury to convict Sawyer of a
gratuity statute violation. On this assumption, Sawyer might
have argued in the coram nobis proceeding that the mail fraud
statute should not be read more broadly than the gratuity
statute and that, therefore, the same evidence could not justify
his conviction under the mail fraud statute. But, of course,
the mail fraud statute is quite differently worded, and Sawyer
has not made any such argument. In sum, the guilty plea does
not rest on a legal error.
Nothing in the panel opinion in the present case should
be taken as endorsing a broad construction of the mail fraud
statute as applied to lobbyists' favors. Our original Sawyer
decision reflects this court's abiding concern about a too
-44-
generous reading of the mail fraud statute as applied to
hitherto routine, if highly unattractive, lobbying activities.
Sun-Diamond, although it does not invalidate Sawyer’s conviction
under a different statute, suggests that the Supreme Court
shares some of the concerns that animated the original Sawyer
decision. See Sun-Diamond, 526 U.S. at 406-07.
As for the evidence against Sawyer, its strength should
not be overstated; the original Sawyer decision said only that
conviction of Sawyer under the mail fraud statute was not
impossible, 85 F.3d at 731, 733-34. Sawyer himself, not here as
a candidate for an award for civics, is entitled at least to
this acknowledgment: that no one knows just what a properly
instructed jury would have done if the government had chosen to
retry him for mail fraud after our earlier decision in Sawyer--
which is presumably why he and the government entered into the
one-count plea agreement that avoided jail for Sawyer.
-45-
Sawyer v. United States
Court: Court of Appeals for the First Circuit
Date filed: 2001-01-31
Citations: 239 F.3d 31
Copy Citations