United States v. DeFries, Clayton E.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 1997 Decided December 2, 1997

No. 96-3015

United States of America,

Appellee

v.

Clayton Eugene DeFries, a/k/a Gene,

Appellant

Consolidated with

No. 96-3016

Appeals from the United States District Court

for the District of Columbia

(No. 93cr00117-01)

(No. 93cr00117-02)

Stuart A. Levey, appointed by the court, and Lisa B.
Wright, Assistant Federal Public Defender, argued the cause

for appellants. With them on the briefs were A.J. Kramer,
Federal Public Defender, R. Stan Mortenson, Scott L. Nel-
son, Gerard F. Treanor, Jr., and Judith L. Wheat, appointed
by the court.

Frank J. Marine, Deputy Chief, U.S. Department of Jus-
tice, argued the cause for appellee. With him on the briefs
was Sotiris A. Planzos, Trial Attorney.

Before: Silberman, Rogers and Tatel, Circuit Judges.

Opinion for the court filed Per Curiam.

Per Curiam: Two former elected officials of a maritime
union challenge their convictions for Racketeer Influence and
Corrupt Organizations Act ("RICO") violations, RICO con-
spiracy, embezzlement, and mail fraud. We reverse their
convictions.

I. Background

District No. 1-Pacific Coast District, Marine Engineers'
Beneficial Association ("PCD/MEBA," or the "pre-merger
union") was a national union made up of mostly licensed
marine engineers who manned American merchant vessels.
Under the union's by-laws, an elected District Executive
Committee governed the union's operations. In 1984,
PCD/MEBA elected appellant Clayton Eugene DeFries pres-
ident and appellant Clyde E. Dodson executive vice president
and branch agent for the Port of San Francisco. The mem-
bership also elected twenty-one individuals as delegates to the
convention of the National MEBA, an umbrella organization
of various unions, which in 1986 elected DeFries National
MEBA President and Dodson National MEBA secretary-
treasurer. In the union's 1987 election, the membership
reelected DeFries and Dodson to their Committee positions.

Just prior to the 1987 election, DeFries negotiated, on
behalf of the Committee, an agreement to merge PCD/MEBA
with the National Maritime Union ("NMU"), a much larger,
predominantly blue-collar union made up of unlicensed sea-
men. In March 1988, PCD/MEBA approved the merger
agreement in a membership referendum, as did NMU. As
specified in the merger agreement, a six-person committee

consisting of three former NMU officials and three former
PCD/MEBA officers, including DeFries and Dodson, gov-
erned the new union, MEBA/NMU (the "post-merger union").

At the time the merger became effective, appellants and
other former officers of the pre-merger union received sever-
ance payments totaling almost $2 million, even though they
immediately assumed roughly equivalent positions in the new-
ly merged union's leadership. The pre-merger union's by-
laws authorized the Committee to establish compensation
levels for all union officers and employees, "unless otherwise
directed by a majority vote of the membership." Pursuant to
that authority, the Committee adopted a formal, written
severance plan, later amending it to make its triggering date
the merger of the two unions. With regard to both the
adoption and amendment of the severance plan, the Commit-
tee sought the advice of the firm's outside counsel, Angelo
Arcadipane, a member of the law firm of Dickstein, Shapiro &
Morin, who advised appellants that the severance plan was
legal and that the Committee had authority to adopt it.

At trial, government witnesses testified that between the
time of the severance plan's adoption in 1986 and the distribu-
tion of the payments in 1988, DeFries, Dodson, and other
Committee members took steps to conceal from the union
membership the adoption, terms, and triggering event of the
plan. These witnesses testified that Committee members
failed to mention the plan in the minutes of the meeting at
which they adopted it, directing the union's controller not to
reveal any details of the plan. According to these witnesses,
the Committee also failed to disclose the plan's existence to
the union's independent auditor until more than a year after
its adoption. When the union membership eventually learned
of the severance payments, a group filed suit to recover the
money.

As part of the merger, the post-merger union was divided
into two divisions--the Licensed Division, which consisted of
the former PCD/MEBA members, and the Unlicensed Divi-
sion, which was made up of former NMU members. The
Licensed Division held an election in 1989 to select its dele-

gates to the National MEBA Convention; those elected in-
cluded DeFries and Dodson. The Licensed Division held
another election in 1990, this time electing officers as well as
delegates to the National MEBA Convention. This was the
first time that appellants and their supporters faced substan-
tial opposition. In a hotly contested election, the challengers
defeated the incumbents, including Dodson (DeFries was not
up for reelection).

According to the evidence at trial, in the 1988, 1989, and
1990 elections appellants and other union leaders solicited and
collected unmarked and unsealed ballots, voting them in favor
of appellants' interests. The evidence also showed that some
tampering of collected ballots occurred, including opening
sealed ballots and replacing those ballots voted against appel-
lants' interests with new ballots voted in their favor.

A federal grand jury returned a ten-count indictment
against DeFries, Dodson, and fourteen other former union
officials. The indictment charged appellants with one count
of racketeering in violation of RICO, 18 U.S.C. s 1962(c)
(1994); one count of conspiracy to violate RICO, 18 U.S.C.
s 1962(d) (1994); one count of embezzlement with respect to
the severance payments, 29 U.S.C. s 501(c) (1994); and three
counts of mail fraud, 18 U.S.C. s 1341 (1994), with regard to
the 1988 merger referendum, the 1989 national delegate
election, and 1990 union officers' election. The RICO count
included two charges of mail fraud with regard to the 1984
and 1987 elections as two of the alleged racketeering acts; it
also incorporated the other mail fraud counts and the embez-
zlement count as racketeering acts. A seventh racketeering
act incorporated one count of extortion but did not apply to
appellants. The RICO conspiracy count incorporated all
seven racketeering acts of the RICO count.

The district court severed the case against appellants and
five others from that of the other nine defendants, and also
dismissed the 1988 merger referendum mail fraud count as
failing to allege a scheme to defraud "property" under
McNally v. United States, 483 U.S. 350 (1987). After the
government took an interlocutory appeal challenging the dis-

missal, this court reversed the district court and reinstated
the count, issuing our opinion on January 13, 1995, and
ultimately our mandate on March 1.

In the meantime, on February 1, the deputy clerk swore
the ninety-one individuals on the jury venire for this case,
who then completed an extensive juror questionnaire. Two
days later, just prior to the prospective jurors' return to the
courtroom for formal, in-person questioning by counsel, ap-
pellants moved to stay jury selection on the grounds that self-
selection tainted the jury panel summoned in this case in
violation of the Jury Selection and Service Act, 28 U.S.C.
s 1866(a) (1994), and that white jurors were systematically
underrepresented on the panel in violation of the Sixth
Amendment's fair-cross-section requirement, U.S. Const.
amend. VI. Refusing to stay jury selection, the district court
allowed discovery of the juror summonses and juror qualifica-
tion forms for all jurors summoned for service for the period
of February 1-15, including any requests for deferral. Rul-
ing that appellants failed to show that the Jury Office's
granting of hardship deferrals was either motivated by dis-
crimination or arbitrary and capricious, the district court
denied the jury selection motions.

At the end of the government's case-in-chief and again at
the close of all evidence, appellants moved for judgment of
acquittal on the embezzlement count, arguing that lack of
authorization is an essential element of 29 U.S.C. s 501(c) and
that the government failed to present any evidence showing
that the severance payments were unauthorized. Faced with
a circuit split over whether lack of authorization is an element
of a section 501(c) violation, the district court denied the
motion on both occasions, electing to treat authorization as
one factor for the jury to consider when evaluating whether
appellants had the requisite fraudulent intent to commit the
crime.

After the district court denied the motions for judgment of
acquittal, appellants requested an advice-of-counsel instruc-
tion on the embezzlement count. Specifically, they asked the
district court to instruct the jury that if it found that appel-

lants, in creating the severance plan and taking the severance
payments, had relied in good faith on the advice of the union's
outside counsel, then they must be acquitted under section
501(c) because they would not have had the requisite fraudu-
lent intent to embezzle the union's funds. Ruling that appel-
lants had not presented sufficient evidence that they had
relied on their attorney's advice, the district court refused to
give the requested instruction.

Appellants also objected to the district court's instructions
on the RICO and RICO conspiracy counts, as well as on the
mail fraud counts. Although appellants presented evidence
disputing whether a single enterprise of the pre-merger and
post-merger unions constituted a single RICO enterprise, as
the indictment alleged, the district court instructed the jury
to "regard the two unions as a single enterprise." In addi-
tion, the district court instructed the jury that it could convict
appellants of mail fraud based on their participation in a
scheme to defraud union members of their right to secret
ballots and fair elections, which appellants now contend is not
within the reach of the mail fraud statute.

The jury found appellants guilty on all counts. After
appellants waived their right to a trial by jury on RICO
forfeiture and following an evidentiary hearing, the court
ordered forfeiture of the severance payments and all salaries
earned by appellants from 1985 to 1990. The court sentenced
DeFries to concurrent terms of sixty-three months of impris-
onment on the RICO and RICO conspiracy counts and sixty
months of imprisonment on the embezzlement and mail fraud
counts, with three years of supervised release. Dodson re-
ceived concurrent terms of fifty-seven months of imprison-
ment on all six counts, with three years of supervised release.
The court ordered appellants to pay certain fines, restitution,
and costs of confinement. Appellants now appeal their con-
victions and the district court's forfeiture ruling. A third
appellant, Claude W. Daulley, passed away the day before we
heard oral argument. In response to the "suggestion of
death" filed by Daulley's counsel, we have dismissed Daulley's
appeal.

II. Jury Venire Issues

Appellants raise both a statutory and a constitutional chal-
lenge to the racial composition of their jury venire. They
maintain that white jurors were systematically underrepre-
sented in the juror pool they received. According to appel-
lants, white jurors constitute roughly a third of the population
in the District of Columbia eligible to serve on juries, yet
constituted only 23% of the jurors drawn for appellants'
venire. This disparity, appellants maintain, is due in part to
the fact that potential white jurors were more likely than
nonwhites to obtain hardship deferrals of their jury service--
at least half of the fifty-four deferrals in the jury pool used by
the district court for the venire in appellants' trial were white.
Appellants therefore contend that the low number of white
people in their venire violated both the Jury Selection and
Service Act ("Jury Selection Act"), which codifies the right to
a jury "selected at random from a fair cross section of the
community," 28 U.S.C. s 1861 (1994), and the Sixth Amend-
ment, which guarantees criminal defendants the right to trial
"by an impartial jury." We conclude that appellants have
failed to meet their evidentiary burden to show their rights
were violated.

Jury Selection and Service Act Claim

The government argues for the first time on appeal that
appellants' Jury Selection Act contention is untimely. Rely-
ing on cases stating that the timeliness requirement "is to be
strictly construed," United States v. Bearden, 659 F.2d 590,
595 (5th Cir. Unit B 1981); accord United States v. Contrer-
as, 108 F.3d 1255, 1266 (10th Cir. 1997); United States v.
Paradies, 98 F.3d 1266, 1277 (11th Cir. 1996); United States
v. Young, 822 F.2d 1234, 1239 (2d Cir. 1987), the government
notes that "voir dire" began on February 1, 1995, but appel-
lants did not file their motion objecting to the venire until
February 3, 1995.

The Jury Selection Act requires that any motion to dismiss
the indictment or stay the proceedings on the ground of a
substantial failure to comply with the statute must be filed no

later than "before the voir dire examination begins." 28
U.S.C. s 1867(a) (1994).1 Appellants filed their motion to
stay proceedings on Friday morning, February 3, 1995, and
promptly brought it to the attention of the district court.
This was two days after they had first seen the members of
the jury venire in person, on Wednesday, February 1, 1995,
and after the members of the jury venire had responded in
writing to a detailed written questionnaire. That question-
naire consisted of questions that the district court had ap-
proved after receiving suggested questions from appellants'
counsel and the prosecutor. Because the questionnaire, par-
ticularly in view of appellants' participation in determining its
content, could be viewed as the initial phase of voir dire
examination, see, e.g., United States v. George (In re Wash-
ington Post ), 20 Media L. Rep. (BNA) 1511, 1511 (D.D.C.
1992), appellants' motion would appear to be untimely.

The difficulty with this conclusion arises from the fact that
the Jury Selection Act and the jury selection procedures
utilized by the district court effectively foreclosed the filing of
appellants' motion at an earlier time. The Jury Selection Act
required appellants both to file their motion before the voir
dire examination began, and to support it with a sworn
statement of facts that, if true, would demonstrate a substan-
tial failure to comply with the statute.2 See 28 U.S.C.
s 1867(d); Bearden, 659 F.2d at 597; United States v. Ken-

__________
1 Section 1867(a) provides:

In criminal cases, before the voir dire examination begins, or
within seven days after the defendant discovered or could have
discovered, by the exercise of diligence, the grounds therefor,
whichever is earlier, the defendant may move to dismiss the
indictment or stay the proceedings against him on the ground
of substantial failure to comply with the provisions of this title
in selecting the grand or petit jury.

18 U.S.C. s 1867(a).

2 Congress intended that "[t]his threshold requirement to a
successful challenge will make it possible for the judge to review a
challenge motion and swiftly dispose of it if it fails, on its face, to
state a case for which a remedy could be granted." H.R. Rep. No.
90-1076 (1968), reprinted in 1968 U.S.C.C.A.N. 1792, 1806.

nedy, 548 F.2d 608, 613 (5th Cir. 1977). Yet, appellants did
not see a list of the jurors who would be in their venire until
the members of the jury venire were brought into the court-
room on Wednesday, February 1, 1995. Even if they could
have seen the list of venire jurors in the jury office, see 28
U.S.C. s 1867(f), prior to that date, the list would not have
included information on the ethnicity or gender of the jurors.
Nor is it clear on this record that appellants could have
obtained the information from another source prior to trial.
The absence of such information precluded appellants from
providing a detailed and supported motion outlining their jury
concerns at the moment they first learned, at least by eye-
sight, of the ethnic and gender composition of the jury on
February 1, 1995.

The Fifth Circuit has indicated that it might waive a
procedural requirement of the Jury Selection Act if circum-
stances indicated that "counsel could not reasonably have
been expected to comply with the procedural prerequisites to
a statutory challenge to the jury." Kennedy, 548 F.2d at 613.
Assuming that the government has not waived its timeliness
objection, we need not decide whether appellants would be
entitled to such an exception, because appellants' Jury Selec-
tion Act claim is unsupported by the evidence necessary for
the court to conclude that there has been a "substantial"
violation of the Jury Selection Act.3 28 U.S.C. s 1867(a);
United States v. Spriggs, 102 F.3d 1245, 1251 (D.C. Cir. 1996);
United States v. Barnette, 800 F.2d 1558, 1567 (11th Cir.
1986).

To succeed on their Jury Selection Act contention, appel-
lants must demonstrate a substantial violation of the two
related goals of the statute: random selection and objective
disqualifications. See 28 U.S.C. ss 1861, 1866(c); Spriggs,
102 F.2d at 1251; United States v. North, 910 F.2d 843, 909

__________
3 In light of our disposition, we need not address the govern-
ment's contention, also raised for the first time on appeal, that the
sworn statement accompanying appellants' motion was deficient.
See 28 U.S.C. s 1867(d).

(D.C. Cir. 1990). Appellants maintain that the jury office in
this district grants hardship deferments more liberally than
the Jury Selection Act permits, see 28 U.S.C. s 1866(c)(1),
and then recalls deferred jurors en masse, rather than dis-
tributing them evenly among the venires. As a result of the
combination of these two practices, appellants contend, some
venires are disproportionately white because they are com-
posed in part of disproportionately white deferred jurors.

Although such a practice would be cause for concern, see 28
U.S.C. s 1866(c), appellants have produced almost no evi-
dence of its existence, let alone evidence that it was a regular
occurrence that produced a substantial violation of the Jury
Selection Act. They rely solely on counsel's declaration that
"[o]n February 13, 1995, I learned that no previously deferred
jurors have been added to any jury group in this Court since
approximately October, 1994." Such hearsay information
does not demonstrate that the jury office deferral practices in
this district substantially violate the statute. See, e.g., United
States v. Layton, 519 F. Supp. 946, 955 (N.D. Cal. 1981).

Sixth Amendment Claim

Appellants' Sixth Amendment contention fares no better.
The Sixth Amendment guarantees a criminal defendant the
right to a trial "by an impartial jury." The Supreme Court
has held that an "impartial jury" is one drawn from a
"representative cross-section of the community." Taylor v.
Louisiana, 419 U.S. 522, 528 (1975).

In order to establish a prima facie violation of the fair-
cross-section requirement, the defendant must show (1)
that the group alleged to be excluded is a "distinctive"
group in the community; (2) that the representation of
this group in venires for which juries are selected is not
fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepre-
sentation is due to systematic exclusion of the group in
the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).4 Appellants
contend that the disparity between the percentage of whites
in their venire and the percentage of eligible white jurors in
the District of Columbia suggests that whites are systemat-
ically excluded from juries in the district court. They point
to the evidence that although whites comprise approximately
one-third of the eligible jurors in the district, they comprised
only 23% of the venire in their case. Yet appellants cannot
show on the basis of this single instance of disparity that
there has been a systematic exclusion of whites from the jury.
Cf., e.g. Duren, 439 U.S. at 366 (reversing conviction on the
basis of jury selection practices over a year); Castaneda v.
Partida, 430 U.S. 482, 496 n.17 (1977) (same, over a decade).
Underrepresentation of a cognizable group in a single venire,
without evidence of a greater pattern, is insufficient to estab-
lish the "systematic exclusion of the group" required by
Duren, 439 U.S. at 364. See, e.g., United States v. Ruiz-
Castro, 92 F.3d 1519, 1527 (10th Cir. 1996); United States v.
Hardwell, 80 F.3d 1471, 1486 (10th Cir. 1996); Ford v.
Seabold, 841 F.2d 677, 685 (6th Cir. 1988); Timmel v. Phil-
lips, 799 F.2d 1083, 1086-87 (5th Cir. 1986); United States v.
Jones, 687 F.2d 1265, 1269-70 (8th Cir. 1982). From a small
sample size based on one venire it is difficult to determine
whether the disparity is random or systemic.

Accordingly, because appellants have not produced evi-
dence that would demonstrate either a substantial violation of
the Jury Selection Act or a substantial underrepresentation
as would violate their Sixth Amendment right, their jury
venire contentions fail.5

__________
4 Appellants were not required, however, to show a purposeful
exclusion of whites from the jury to succeed on their Sixth Amend-
ment claim. Spriggs, 102 F.3d at 1254. To the extent that the
district court suggested otherwise when it concluded that the jury
office made "no deliberate policy choice" to exclude whites because
they were white, it erred.

5 The import of appellants' evidence is troubling, however, in
view of the random selection requirement of the Jury Selection Act,
28 U.S.C. s 1861, and the fact that the statistical disparities, if
supported by a larger sample and stronger evidence of the non-

III. Mail Fraud Issues

Jurisdiction over the 1988 Merger Referendum Mail Fraud
Count

The federal mail fraud statute makes it unlawful to use the
U.S. mails in furtherance of "any scheme or artifice to
defraud, or for obtaining money or property by means of false
or fraudulent pretenses, representations, or promises." 18
U.S.C. s 1341. One count of the indictment charged appel-
lants under section 1341 for using the mails to advance a
scheme (1) to defraud the union of its property--that is, the
ballots for the 1988 merger referendum--and (2) to defraud
union members of their right to secret ballots and to partici-
pate in a fair and honest election regarding the merger
referendum. Ruling that this count failed to allege a fraudu-
lent scheme to obtain "property," the district court dismissed
it, relying on McNally v. United States, which overturned a
mail fraud conviction that rested on the theory that the
defendants deprived a state's citizens and government of the
right to have the state's affairs conducted honestly. 483 U.S.
at 361. In McNally, the Court held that when enacting the
mail fraud statute, Congress intended to prevent the use of
the mails in furtherance of schemes to defraud others of
money or "property" as traditionally defined, not of the
"intangible" right to an honest and impartial government.
483 U.S. at 356-59.

The government filed an interlocutory appeal, challenging
the district court's dismissal of the mail fraud count. On
January 13, 1995, we reversed the district court and reinstat-
ed the count, ruling that the referendum ballots and the
information they contained did in fact constitute "property"
protected under section 1341. United States v. DeFries, 43
F.3d 707, 711 (D.C. Cir. 1995). Pursuant to D.C. Circuit Rule
41, we withheld issuance of our mandate until seven days

__________
random recall of deferred jurors, could support an inference that a
jury venire was not composed of a fair cross-section of the commu-
nity. See Taylor, 419 U.S. at 528.

after disposition of any timely petition for rehearing. D.C.
Cir. R. 41.

Three weeks later, on February 7, the government moved
for expedited issuance of our mandate, pointing out that the
district court was almost ready to swear a jury. The next
day, appellants filed an opposition to the government's motion
to expedite as well as a petition for rehearing and a sugges-
tion for rehearing en banc. Rather than issuing our mandate
on February 10, we ordered the government to respond to
appellants' pending rehearing petitions. On February 10, the
government filed its reply to appellants' opposition to expedit-
ed issuance of the mandate, and on February 14, asked the
district court to consider delaying empaneling the jury until
this court issued its mandate. The district judge and counsel
for the government discussed the implications of the fact that
this court had not issued its mandate, expressing uncertainty
as to the district court's ability to proceed to trial on that
count prior to the mandate's issuance. When asked by the
court, counsel for appellants said he thought the district court
lacked jurisdiction absent the mandate, explaining that "the
mandate is key here. And ... the court of appeals under-
stands that." Appellants' counsel also explained why he
thought this court delayed issuing the mandate: "[W]hat the
court of appeals, I think, is looking at is the prospect that if it
sends the mandate back and the case goes forward and then
you're in the midst of trial and they have to recall the
mandate, then you have got real problems." The district
court took no action on the government's request, but on
February 21, once jury selection was completed, the district
court again raised the question of our mandate. After con-
firming that the mandate had not issued, counsel for the
government, citing United States v. Salerno, 868 F.2d 524 (2d
Cir. 1989), argued that the court could proceed. The next
day, the district court empaneled and swore the jury. On
February 24, the government filed its reply to appellants'
rehearing petition. On March 1, after the trial had been
underway for a week, we issued our mandate. Over a month
later, on April 7, we denied appellants' petition for rehearing.
Appellants now argue that because we had not issued our

mandate until after trial began, the district court lacked
jurisdiction to proceed on the mail fraud count. Reviewing
this jurisdictional claim de novo, see Board of Trustees v.
Madison Hotel, Inc., 97 F.3d 1479, 1483 (D.C. Cir. 1996), we
agree.

The relationship between district court jurisdiction and the
issuance of the appeals court mandate is clear and well-
known: The filing of a notice of appeal, including an interloc-
utory appeal, "confers jurisdiction on the court of appeals and
divests the district court of control over those aspects of the
case involved in the appeal." Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982) (per curiam). The
district court does not regain jurisdiction over those issues
until the court of appeals issues its mandate. Johnson v.
Bechtel Assocs. Prof'l Corp., 801 F.2d 412, 415 (D.C. Cir.
1986) (per curiam). Courts have carved out a few narrow
exceptions to this rule, such as where the defendant frivolous-
ly appeals, see United States v. LaMere, 951 F.2d 1106, 1109
(9th Cir. 1991) (per curiam), or takes an interlocutory appeal
from a non-appealable order, see United States v. Green, 882
F.2d 999, 1001 (5th Cir. 1989).

Asking us to create an additional exception, the govern-
ment argues that because we had issued our opinion by the
time trial began, proceeding to trial prior to the issuance of
the mandate neither caused confusion nor wasted judicial
resources and thus did not contravene the purposes of the
general rule on jurisdiction. As it did in the district court,
the government relies primarily on Salerno, where the Sec-
ond Circuit issued an order rejecting the defendants' interloc-
utory double jeopardy appeal, stating that a formal opinion
would follow but also acknowledging that the trial was to
begin that very same day. When defendants later challenged
the district court's jurisdiction to try the case prior to the
mandate's issuance, the Second Circuit held that the district
court did indeed have jurisdiction when the case went to trial
because the likelihood that the district court's ruling on
double jeopardy would be affirmed "hardened into a certitude
when [the appeals] court issued its order." Salerno, 868 F.2d
at 540.

Involving "admittedly unusual" facts, id., Salerno has no
applicability to the case before us today. By clearly acknowl-
edging the trial was to start on the very same day that it
issued its order, the Second Circuit led the district court into
believing it had jurisdiction to proceed with the trial. We
gave no such message to the district court. To the contrary,
when the government moved for expedited issuance of the
mandate so that the district court could proceed to trial as
scheduled, instead of immediately responding, we directed the
government to reply to appellants' pending rehearing mo-
tions. The fact that one judge voted to rehear the case in
banc demonstrates that this court was seriously considering
the rehearing motions. Moreover, it is clear from the Febru-
ary 14 colloquy that both the government and the district
judge clearly understood that this court had not completed its
consideration of the issues raised in the interlocutory appeal,
and that there was at least a serious question about the
district court's jurisdiction. Unlike in Salerno, nothing had
"hardened into a certitude" at the time the district court,
choosing to disregard the fact that our mandate had not
issued, proceeded to swear the jury and begin the trial. The
district court thus lacked jurisdiction over the merger refer-
endum mail fraud count when it proceeded to trial on Febru-
ary 22. We therefore reverse appellants' section 1341 convic-
tions involving the 1988 merger referendum.

In reaching this conclusion, we fully understand that appel-
lants' trial took several months, consuming thousands of
hours of court and lawyer time. The mandate rule, however,
is clear, well-established, and grounded in solid considerations
of efficient judicial administration. Because "jurisdiction is
the power to act," it is essential that well-defined, predictable
rules identify which court has that power at any given time.
Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995). The
mandate rule prevents the waste of judicial resources that
might result if a district court, prior to the issuance of the
appeals court's mandate, proceeds with a case, ruling on
motions and hearing evidence, after which the appeals court
reverses its original decision on rehearing. That we ultimate-
ly sustained the district court's jurisdiction in this case is of

no moment; district court jurisdiction cannot turn on retro-
spective examination of appeals court action. Where, as here,
our mandate had not issued, the district court lacked jurisdic-
tion to proceed with trial whether we later sustained its
jurisdiction or not. Fully aware that our mandate had not
issued, the district court chose to proceed with trial. If the
government wishes, the district court must now rehear the
case.

Jury Instructions Regarding the 1989 and 1990 Election
Mail Fraud Counts

Appellants challenge their other two mail fraud convic-
tions--stemming from the 1989 national delegate election and
the 1990 union officers' election--arguing that the district
court's instructions enabled the jury to convict on the basis of
activity not criminalized by the statute. Whether the district
court properly instructed the jury on the standard for con-
victing appellants of mail fraud presents a question of law
that we review de novo. See United States v. White, 116 F.3d
903, 924 (D.C. Cir. 1997) (per curiam). We "must determine
whether, taken as a whole, [the instructions] accurately state
the governing law and provide the jury with sufficient under-
standing of the issues and applicable standards." United
States v. Washington, 106 F.3d 983, 1002 (D.C. Cir.) (per
curiam), cert. denied, No. 97-5423 (November 17, 1997).

Like the 1988 merger referendum mail fraud count, the
1989 and 1990 mail fraud counts alleged a scheme to defraud
the union of its ballots and to defraud union members of their
right to secret ballots and fair elections. These counts also
alleged that DeFries and Dodson schemed to defraud union
members of their right to honest services of their union
officers, agents, and representatives. This third theory was
available for the 1989 and 1990 mail fraud counts, but not the
1988 merger referendum count, because in 1988 Congress
responded to the McNally decision by amending the mail
fraud statute to protect against schemes to deprive individu-
als of the intangible right of honest services as well as of
money and property. 18 U.S.C. s 1346 (1994). Over appel-

lants' objection that in our earlier DeFries opinion we had
declined to hold that section 1341 protected the right to fair
elections, see 43 F.3d at 709, 711, the district court instructed
the jury on all three theories.

Appellants' challenge raises important questions about the
mail fraud statute's reach. They argue that because the
district court failed to instruct the jury that it had to find that
the union's ballots were stolen or tampered with or that the
union officers provided dishonest services, the jury could have
convicted them solely because they engaged in proxy-voting,
which they claim does not violate the statute. In considering
this argument, we must first decide whether the mail fraud
statute protects against schemes to defraud individuals of
their right to secret ballots and fair elections. If we answer
that question in the negative, then we must also decide
whether proxy-voting constitutes a deprivation of union offi-
cials' "honest services."

As to the first question, the Supreme Court held in McNal-
ly that section 1341 does not protect the intangible right of
the citizenry to good government, clearly stating that the
statute protects individuals against schemes to deprive them
of their money or property only. McNally, 483 U.S. at 356.
Elaborating on this holding five months later, the Court
explained that the right to honest governmental services is
"an interest too ethereal in itself" to merit the statute's
protection. Carpenter v. United States, 484 U.S. 19, 25 (1987)
(extending McNally to the wire fraud statute, 18 U.S.C.
s 1343). Prior to the honest services amendment to the mail
fraud statute, three of our sister circuits held that under
McNally, union members' right to fair elections is a similarly
"ethereal" interest that does not constitute "property" under
section 1341. See United States v. Townsley, 843 F.2d 1070,
1080 (8th Cir.), aff'd in part and vacated in part en banc on
other grounds, 856 F.2d 1189 (8th Cir. 1988); Ingber v.
Enzor, 841 F.2d 450, 451 (2d Cir. 1988); United States v.
Gordon, 836 F.2d 1312, 1314 (11th Cir. 1988) (per curiam).
We agree. We think it particularly instructive that, in ex-
plaining the types of schemes that could not properly support
a conviction under section 1341, the McNally Court referred

to two election fraud cases as examples. 483 U.S. at 358
(citing United States v. Clapps, 732 F.2d 1148, 1152 (3d Cir.
1984), and United States v. States, 488 F.2d 761, 764 (8th Cir.
1973)).

The honest services amendment does not extend to all
election practices that might be thought unfair. The jury
could legitimately have convicted DeFries and Dodson of mail
fraud only by finding that they participated in a scheme to
defraud the union of its ballots or the union members of their
right to appellants' honest services as union officers. The
record contains adequate evidence to support such a convic-
tion. The government presented credible though contested
evidence that DeFries and Dodson participated in a scheme
to tamper with election ballots in which union officials opened
sealed ballots to see if they had been voted in favor of
appellants' interests, discarding and replacing those ballots
that had not. The government also presented evidence that
union officials coercively collected ballots from union mem-
bers. If accepted by the jury, such activity would constitute
a deprivation of both the ballots as well as appellants' honest
services. Cf. United States v. Jain, 93 F.3d 436, 441 (8th Cir.
1996) (holding that section 1346 extends to private sector
schemes), cert. denied, 117 S. Ct. 2452 (1997).

The mail fraud instructions, however, failed to require the
jury to find that union officials either defrauded the union of
its ballots or provided services that were somehow dishonest.
The district court instructed the jury that to convict, it had to
find beyond a reasonable doubt that appellants "knowingly
devised or knowingly participated in a scheme or artifice to
defraud as detailed in [the mail fraud counts] of the indict-
ment." The court described the "general nature" of the
alleged scheme to defraud:

[Appellants] did engage in a variety of conduct in viola-
tion of the MBA constitution, by-laws and election proce-
dures, and in violation of [29 U.S.C. ss 411, 481], includ-
ing:

-- Soliciting and collecting unsealed ballots and vot-
ing them in favor of the defendants' interests;

-- Soliciting and collecting sealed ballots and unseal-
ing them to determine how a union member had voted;

-- Discarding those ballots voted against the defen-
dants' interests and replacing them with duplicates;

-- Using U.S. mails to request duplicate ballots in
violation of union by-laws and election procedures;

-- Using the improperly obtained ballots to replace
discarded ballots;

-- Using the U.S. mails to send and receive duplicate
and original ballots, requests for duplicates, and complet-
ed duplicate ballots;

-- Causing original and duplicate ballots to be mailed
so as to appear that union members had mailed the
ballots themselves.

The last six activities involve either some form of tampering
with the ballots or a dishonest service, each of which could
support a conviction: The second, third, and fifth involve
tampering with voted ballots; the fourth and sixth involve
obtaining and sending duplicate ballots used to replace dis-
carded ballots without voter authority; and the seventh in-
volves giving the fraudulent appearance that union members
had voted and mailed the ballots themselves. In contrast, the
first activity--"[s]oliciting and collecting unsealed ballots and
voting them in favor of the defendants' interest"--does not
necessarily do so. As appellants argue, although the solicita-
tion, collection, and marking of ballots in favor of appellants'
interests may violate the union's constitution, by-laws, and
election procedures, as well as the civil provisions of the
Labor-Management Reporting and Disclosure Act, which
prohibit the use of proxy-voting in union elections, those
activities do not deprive the union of its property interest in
the ballots or amount to a dishonest service. As the Supreme
Court put it in McNally, to "defraud" commonly means to
" 'wrong[ ] one in his property rights by dishonest methods or
schemes' " and typically involves " 'the deprivation of some-
thing of value by trick, deceit, chicane or overreaching.' " 483
U.S. at 358 (quoting Hammerschmidt v. United States, 265
U.S. 182, 188 (1924)). There is nothing inherently dishonest

or deceitful about soliciting, collecting, and marking unsealed
ballots in favor of appellants' interests. The first activity
listed in the jury instruction does not require that the ballots
were voted in accordance with the voters' wishes, but neither
does it require that the union officials voted them against or
without regard to those wishes. Such activity would be
dishonest or deceitful only if union officials failed to vote the
collected ballots according to the voters' wishes or if they
obtained the ballots coercively.

The government argues that soliciting, collecting, and vot-
ing unmarked ballots, even if in accordance with members'
wishes, violate the mail fraud statute because such conduct
breaches appellants' fiduciary duties to the union and its
membership to protect their rights to secret ballots and fair
elections. We have held, however, that violation of a fiducia-
ry duty cannot, in and of itself, constitute a violation of the
mail fraud statute, even if the other elements of a mail fraud
conviction exist. United States v. Lemire, 720 F.2d 1327,
1335 (D.C. Cir. 1983) (" '[N]ot every breach of a fiduciary
duty works a criminal fraud.' ") (quoting United States v.
George, 477 F.2d 508, 508 (7th Cir. 1973)); see also United
States v. Cochran, 109 F.3d 660, 667 (10th Cir. 1997) ("[I]t
would give us great pause if a right to honest services is
violated by every breach of contract or every misstatement
made in the course of dealing."). To constitute a deprivation
of "honest services," the breach of fiduciary duty must have
some element of dishonesty. See 18 U.S.C. s 1346. Our
analysis in Lemire, a pre-McNally decision upholding wire
fraud convictions, is particularly instructive. Involving an
employee whose participation in an outside joint venture
created a conflict of interest in violation of his employer's
policy, Lemire held that breaches of fiduciary duty are crimi-
nally fraudulent only when "accompanied by a misrepresenta-
tion or non-disclosure that is intended or is contemplated to
deprive the person to whom the duty is owed of some legally
significant benefit." Lemire, 720 F.2d at 1335. The misrep-
resentation or intentional non-disclosure--two inherently dis-
honest acts--converted the employee's breach of duty into a
deprivation of his honest services as an employee. Id.; see

also United States v. Frost, 125 F.3d 346, 368 (6th Cir. 1997)
(involving mail fraud convictions based on scheme to deprive
a university of defendants' honest services as its employees
because they failed to disclose an alleged conflict of interest).
Even if it violates appellants' fiduciary obligations under
federal law and union rules, proxy-voting, so long as it is not
done coercively or against the voters' wishes, is not necessari-
ly "dishonest."

In sum, the district court's inclusion of the phrase "[s]olicit-
ing and collecting unsealed ballots and voting them in favor of
the defendants' interests" as the first of seven activities
describing the alleged scheme to defraud inaccurately stated
the law. Since the district court failed to instruct the jury
that it had to find that appellants engaged in all seven of the
alleged activities, the jury could have convicted appellants
solely on the basis of the first. Because the government's
case emphasized that appellants were guilty of mail fraud by
depriving union members of a fair election, and because
appellants never disputed that they had engaged in proxy-
voting but instead vigorously contested the evidence of tam-
pering and coercion, we cannot conclude with certainty that
"the jury charge, read as a whole, ... reveals that the jury
could not have found the defendants guilty on an intangible
rights theory," United States v. Perholtz, 836 F.2d 554, 559
(D.C. Cir. 1988), or that "the guilty verdict actually rendered
in this trial was surely unattributable to the error," Sullivan
v. Louisiana, 508 U.S. 275, 279 (1993). Since the district
court's erroneous instruction was not harmless beyond a
reasonable doubt, see id., we reverse appellants' mail fraud
convictions regarding the 1989 and 1990 elections.

IV. Embezzlement Issues

Appellants assert they were entitled to a judgment of
acquittal on the embezzlement count because the government
failed to prove the severance payments triggered by the
merger of the two unions were unauthorized. Under 29
U.S.C. s 501(c) (1994), a union official "who embezzles, steals,
or unlawfully and willfully abstracts or converts to his own

use or the use of another" union funds is subject to criminal
liability. Appellants argue that lack of authorization is an
essential element of a s 501(c) violation.

Although we have not squarely confronted this issue, see
United States v. Lawton, 995 F.2d 290, 294 n.4 (D.C. Cir.
1993), we agree that a s 501(c) violation requires the unau-
thorized appropriation of union property. See United States
v. Stockton, 788 F.2d 210, 217 (4th Cir. 1986). While some of
our sister circuits weigh lack of authorization as only one of
many factors in determining whether a defendant possessed
"fraudulent intent" under s 501(c), see, e.g., United States v.
Welch, 728 F.2d 1113, 1118 (8th Cir. 1984), the language of
the statute dictates that it should be considered a distinct
element of the offense. Applying the traditional meaning of
legal terms, it does not make any sense to say that a union
officer can embezzle, steal, or convert property he is autho-
rized to take.

In this case, appellants argue that no rational jury could
have found that the severance payments were unauthorized.
They point to evidence establishing: (1) the union's bylaws
empowered the District Executive Committee to set compen-
sation for all union officers and employees; and (2) the
severance payments were made pursuant to a formal, written
severance plan, duly adopted (and subsequently amended) by
the Committee in accordance with that authority. But that
evidence is not determinative on the matter. At the time the
officers' severance fund was created, the Committee set aside
an astounding 44% of the union's liquid assets for this pur-
pose. Furthermore, the severance plan was later amended to
make the merger of PCD/MEBA and NMU a "triggering
event" for payment. Therefore, when the two unions
merged, DeFries, Dodson, Daulley, and two others received
almost $2 million in "severance" pay even though each imme-
diately assumed a similar job in the merged union. Presum-
ably fearing the membership's reaction to their scheme, ap-
pellants employed a strategy of concealment. They did not
disclose the severance plan's existence to the union's indepen-
dent auditor until over one year after its adoption. More
important, the membership was kept completely in the dark
as to any of its details until after the unions were merged and

the payments were made. At the time of the merger referen-
dum, members had no idea that their yes votes would trans-
fer a sizable portion of the union's treasury to appellants'
personal pockets. By concealing the severance plan and its
terms, appellants prevented the union membership from exer-
cising its authority to terminate or modify the severance
payments pursuant to Article 7, Section 3 of the union's
bylaws, which authorized the Committee to establish officers'
compensation "unless otherwise directed by a majority vote of
the membership." As appellants do not dispute that the
union's bylaws allowed the union membership to cancel or
alter the severance plan, and members, indeed, initiated a
civil lawsuit to recover the payments once they were discover-
ed, it is not reasonable to say that the severance payments
were "authorized" even accepting appellants' construction of
the term. To be sure, under the union's bylaws, the members
gave their implicit assent to the Committee's determinations
regarding officers' compensation by not reversing their deci-
sions. But, the membership was prevented through appel-
lants' subterfuge from exercising its ultimate authority to
prevent this looting of the union treasury, and authorization
secured "without disclosure of ... material information" is a
nullity. See United States v. Butler, 954 F.2d 114, 119 (2d
Cir. 1992).

The government further argues that even if appellants had
secured authorization for the severance payments in a man-
ner consistent with the union's bylaws, appellants could not
have been authorized as a matter of law to breach their
fiduciary duty to "hold [union] money and property solely for
the benefit of the organization and [the union's] mem-
bers...." 29 U.S.C. s 501(a) (1994). To be sure, in United
States v. Boyle, 482 F.2d 755 (D.C. Cir. 1973), we held that a
union officer could not use authorization as a defense when he
converted union funds for a plainly illegal campaign contribu-
tion, but the case only stands for the basic proposition that a
union officer cannot be "authorized" as a matter of law to
engage in specifically proscribed criminal acts. It would
extend Boyle considerably to hold that an action that would
otherwise constitute a breach of fiduciary duty under s 501(a)

may not be authorized as a matter of law. On the other
hand, a very general delegation in the union's bylaws may not
be thought adequate to authorize a manifestly unreasonable
specific act. Since we hold that appellants were not autho-
rized, we need not decide this issue.

Without even considering the troubling evidence that appel-
lants secured the triggering mechanism for their severance
payments through election fraud, there is more than enough
evidence in the record to withstand appellants' request for a
judgment of acquittal on the embezzlement count. As a
fallback position, appellants, however, also assert that a new
trial on this count is required because of the district court's
failure to properly instruct the jury regarding the separate
authorization element of the offense. At a minimum, they
argue the jury should have been instructed that the govern-
ment was obligated to prove either the lack of authorization
or the lack of good faith belief that the payments would
benefit the union. While it is true that the jury charge was
perhaps imprecise because at one point it subsumed the
authorization question into the fraudulent intent inquiry, we
are satisfied that the instructions nonetheless adequately
described the elements of the embezzlement offense. See
Stockton, 788 F.2d at 217-18.6 We detect no reversible error
in this aspect of the district court's charge.

Shifting from the authorization element of a s 501(c) viola-
tion to the question of intent, appellants argue that the
district court's failure to give appellants' requested advice-of-
counsel jury instruction constitutes reversible error. Appel-
lants' defense to the embezzlement count was largely based
on their reliance on the advice of their outside counsel,
Angelo Arcadipane, a partner at Dickstein, Shapiro & Morin.
According to testimony presented at trial, Arcadipane advised
appellants that the severance payments were completely le-
gal. Because "[g]ood faith reliance upon advice of counsel
... establish[es] a defense" to specific intent crimes, United

__________
6 As in Stockton, the definitions of "embezzle" and "converts"
given in the jury instructions sufficiently incorporated the offense's
lack of authorization element.

States v. Hansen, 772 F.2d 940, 947 (D.C. Cir. 1985), such as
s 501(c), appellants assert that the jury should have been
given an instruction that good-faith reliance on advice of
counsel was a defense to embezzlement.

A defendant is entitled to an advice-of-counsel instruction if
he introduces evidence showing: (1) he made full disclosure of
all material facts to his attorney before receiving the advice at
issue; and (2) he relied in good faith on the counsel's advice
that his course of conduct was legal. United States v. Lindo,
18 F.3d 353, 356 (6th Cir. 1994).7 The district court is
required to give this instruction "if there is 'any foundation in
the evidence' sufficient to bring the issue into the case, even if
that evidence is 'weak, insufficient, inconsistent, or of doubtful
credibility.' " United States v. Duncan, 850 F.2d 1104, 1117
(6th Cir. 1988) (quoting United States v. Phillips, 217 F.2d
435, 443 (7th Cir. 1954)). It seems clear to us that the district
court abused its discretion by refusing appellants' request for
an advice-of-counsel instruction. Misstating the law, the dis-
trict court observed, "my problem is that the evidence as it
stands right now is equally consistent with an inference to
the effect that the advice of counsel was used as subterfuge
as it was that the defendants genuinely and in good faith
relied upon it." The district court obviously believed that
there was at least the requisite "foundation" for appellants'
advice-of-counsel defense but was under the incorrect under-
standing that appellants instead were obliged to satisfy a
preponderance of the evidence standard in order to be enti-
tled to the instruction.

On appeal, the government defends the district court's
ruling by claiming that appellants failed to disclose several
material facts to Arcadipane and did not rely on his advice in
good faith. However, our review of the record indicates that
appellants set forth more than sufficient evidence to earn an

__________
7 The government argues that we should apply a three-part
test. Consistent with Lindo, however, we have not applied the
government's second prong. So long as the defendant relies on his
counsel's advice in good faith, it is irrelevant whether or not he
initially sought the advice in good faith.

advice-of-counsel instruction. The government produces a
laundry list of supposedly material facts appellants allegedly
did not disclose to Arcadipane, focusing on the argument that
Arcadipane was unaware of appellants' attempts to conceal
the severance plan's existence. The evidence clearly indi-
cates, however, that Arcadipane was generally aware of how
the union operated and the degree to which the severance
plans had been disclosed to the membership and auditors at
the time he issued his final opinion that the payment of the
severance benefits was legal. No client ever tells his or her
lawyer every single fact that a good lawyer probes before
giving advice. Indeed, clients do not typically even know
which facts a lawyer might think relevant. (That is, in part,
why they consult lawyers.) So long as the primary facts
which a lawyer would think pertinent are disclosed, or the
client knows the lawyer is aware of them, the predicate for an
advice-of-counsel defense is laid. Even if we were to regard
Arcadipane's advice as questionable, he was adequately in-
formed about the details of appellants' conduct.

The government also argues that appellants did not rely on
Arcadipane's advice in good faith because (1) DeFries dictat-
ed to Arcadipane the formula and terms of the severance
plan; and (2) appellants did not adhere to Arcadipane's advice
to limit severance payments to one month's salary per year of
service. According to the government, the evidence estab-
lishes that DeFries manifested his intent to implement the
severance plan before receiving Arcadipane's legal opinion.
The government unfairly ascribes nefarious motives to com-
mon attorney-client interaction. A client often comes to his
lawyer with a plan and asks him to find a way to implement it
in a legal manner. Fitting a client's objective into a legally
acceptable formula is a large part of lawyering. Similarly,
attorneys often advise their clients to act more cautiously
than the law requires. It is an important part of a lawyer's
job to warn his clients about behavior that, while not illegal,
nonetheless has the potential to embroil a client in controver-
sy. Although in this case Arcadipane did suggest appellants
reduce the amount of the severance payments in order to
minimize the prospect of legal challenge, he ultimately ad-

vised that the final version of the plan was legal. If we were
to conclude that a client did not "rely" on his attorney's
advice in good faith anytime he disregarded one of his
attorney's suggestions, the scope of the advice-of-counsel
defense would be very narrow indeed.

We turn to the question of whether the district court's
error is reversible. A refusal to give a jury instruction is
reversible error only if the requested instruction "(1) is
substantively correct; (2) was not substantially covered in the
charge actually delivered to the jury; and (3) concerns an
important point in the trial so that the failure to give it
seriously impaired the defendant's ability to effectively pres-
ent a given defense." United States v. Taylor, 997 F.2d 1551,
1558 (D.C. Cir. 1993).

The government does not dispute that the requested
advice-of-counsel instruction was substantively correct but
maintains that the jury was adequately instructed with re-
gard to appellants' defense. The government points out the
jury was informed that the government was obligated to
prove that the defendants had acted "with the knowledge that
[they] violated the law" and the jury was further told that
"the defendants maintain that receipt of the severance pay-
ments was done in full compliance ... with the advice of
counsel." Although the charge allowed the defense to argue
in summation that appellants had believed the payments were
legal because they had been so advised by Arcadipane, the
jury was not exposed to one critical piece of the puzzle: good-
faith reliance on advice of counsel was a valid defense that, if
proved, required acquittal.

The government's position fails to give due consideration to
the prosecutor's conduct in closing argument to the jury.
After successfully preventing the defense from obtaining the
advice-of-counsel instruction, the prosecutor explicitly told the
jury that reliance on Arcadipane's advice "is not a defense"
and he informed members of the jury that "[the court] will
not read any instruction regarding reliance on Angelo Arcadi-
pane's advice." Reading the jury instructions in their entire-
ty and viewing them in light of the prosecutor's comments,

members of the jury were left with the incorrect impression
that reliance on advice of counsel was merely an excuse
offered by appellants and not a legitimate defense. Appel-
lants were entitled to an instruction explaining the legal
significance of their defense and not just a statement sum-
marizing the "defense theory." See United States v. New-
comb, 6 F.3d 1129, 1132, 1139 (6th Cir. 1993).

Once it is accepted that the advice-of-counsel instruction
was not substantially covered by other aspects of the charge,
it seems obvious that this omission seriously impaired appel-
lants' ability to present their chosen defense. Beginning with
the opening statement, appellants' main defense to the em-
bezzlement count was that they did not act with fraudulent
intent because of their good faith reliance on Arcadipane's
advice. But when the district court listed a number of factors
for the jury to consider in assessing appellants' intent, it did
not even mention the advice of counsel. Not only did this
suggest to the jury that appellants' central defense was
irrelevant to the question of intent, but when the intent
instructions did not mention the specific defense, the jury
may have been led to believe that appellants' main defense
was actually inconsistent with the law. See Duncan, 850 F.2d
at 1118. The district court's error seriously prejudiced appel-
lants' ability to receive a fair trial on the embezzlement count.

We, therefore, reverse appellants' s 501(c) convictions.

V. RICO Jury Instruction

Appellants contend that the district court's RICO instruc-
tion took away the enterprise element of that offense from
the jury, and consequently their RICO and RICO conspiracy
convictions must be reversed. We agree.

The district court instructed the jury on the RICO counts,
over appellants' objection, that:

To establish the charged substantive RICO offense with
respect to any particular defendant, the Government
must prove each of the following five elements, each
beyond a reasonable doubt:

ONE: An "Enterprise" as described in the indictment,
existed on or about the time alleged in the indict-
ment....

Regarding the first element, the government must
prove beyond a reasonable doubt the existence of an
"enterprise." As used in these instructions, the term
"enterprise" includes any individual, partnership, corpo-
ration, association, or other legal entity, including a labor
union. It applies even to a group of individuals associat-
ed in fact although not generally thought of as a legal
entity.

The indictment here charges that the enterprise was a
union, that is District No. 1-Pacific District Maritime
Engineers' Beneficial Association, which has been re-
ferred to as District No. 1-PCD/MEBA, its committees,
and its successor union, the District No. 1-Marine Engi-
neers' Beneficial Association/National Maritime Union,
which has also been referred to as "District No.
1-MEBA/NMU."

You are instructed that, for purposes of this element of
counts one and two, you should regard the two unions as
a single enterprise.

(Emphasis added).

Under RICO s 1962(c),8 "the existence of an enterprise is
an essential element of a RICO claim." Montesano v. Sea-
first Commercial Corp., 818 F.2d 423, 426 (5th Cir. 1987); see
also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985);
Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 650 (7th
Cir. 1995); United States v. Console, 13 F.3d 641, 653 (3d Cir.
1993). Indeed, "[t]he central role of the concept of enterprise

__________
8 Section 1962(c) provides that:

It shall be unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, di-
rectly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of
unlawful debt.

18 U.S.C. s 1962(c).

under RICO cannot be overstated." United States v. Neapol-
itan, 791 F.2d 489, 500 (7th Cir. 1986). The existence of an
enterprise "at all times remains a separate element which
must be proved by the Government." 9 United States v.
Turkette, 452 U.S. 576, 583 (1981).

Because "criminal convictions [must] rest upon a jury de-
termination that the defendant is guilty of every element of
the crime with which he is charged, beyond a reasonable
doubt," 10 if jury instructions remove an element of a crime
from the jury's consideration, then those instructions are
flawed as a matter of law. United States v. Gaudin, 515 U.S.
506, 510, 522-23 (1995); see also Sullivan v. Louisiana, 508
U.S. 275, 277-78 (1993); United States v. Fennell, 53 F.3d
1296, 1301 (D.C. Cir. 1995).

The district court's RICO instruction did not obligate the
government to prove the existence of an enterprise. Instead
the instructions on the enterprise element concluded with the
admonition that the jury "should regard the two unions as a
single enterprise."

The government maintains, nevertheless, that there was no
error in the instructions because the district court twice
instructed the jury that in order to convict it had to find all
elements of a RICO offense beyond a reasonable doubt, and
that the government was required to prove the existence of
an enterprise as described in the indictment that existed on
or about the time alleged in the indictment. The indictment
alleged that the enterprise consisted of "District No.
1-PCD/MEBA, its committees and its successor union Dis-
trict No. 1-MEBA/NMU, its divisions, committees and con-

__________
9 To the extent that the government argues that whether the
two unions constituted a single enterprise is a matter of law, it is
mistaken. "The existence vel non of a RICO enterprise is a
question of fact for the jury." Console, 13 F.3d at 650.

10 This proposition is rooted in both the Fifth Amendment
guarantee that no one will be deprived of liberty without "due
process of law," and the Sixth Amendment right to a jury trial "[i]n
all criminal prosecutions." See U.S. Const. amends. V, VI; United
States v. Gaudin, 515 U.S. 506, 509-10 (1995).

ventions." The court's subsequent remarks about the "enter-
prise element," the government contends, must be viewed in
conjunction with these general admonitions. But this argu-
ment misses the point. The government's attempts to con-
strue the district court's final instruction as a conditional
statement are contradicted by the explicit language used by
the court--it "instructed" the jury that it "should" regard the
enterprise as the one alleged in the indictment. This errone-
ous command marked the district court's final words on the
enterprise element, irreparably infecting the instruction.11

Rather than permitting the jury to determine whether an
enterprise existed, and, if it did, which unions it included, the
instruction removed those questions from the jury's consider-
ation.12 The district court did not instruct the jury that if it

__________
11 The government's other efforts to rehabilitate the instruction
rely on outdated or inapposite cases. United States v. Barton, 647
F.2d 224, 231 n.7 (2d Cir. 1981), concluded that a mixed question of
fact and law (concerning the interstate commerce element of a
RICO charge) could be decided by a court. But following Gaudin,
"mixed questions of law and fact" must be left for the jury.
Gaudin, 515 U.S. at 512-15; accord United States v. Parker, 73
F.3d 48, 51 (5th Cir. 1996) (holding interstate commerce element of
RICO is a jury question); United States v. Aramony, 88 F.3d 1369,
1386-88 (4th Cir. 1996) (same). The government's other cases
concern district court refusals to give requested multiple conspiracy
instructions. Although in some conspiracy cases a district court
may decline to give an instruction containing a defense theory of
multiple conspiracies where the defendant has not shown that he is
entitled to one, see, e.g., United States v. Graham, 83 F.3d 1466,
1472 (D.C. Cir. 1996); United States v. Briscoe, 896 F.2d 1476, 1514
(7th Cir. 1990); United States v. Orr, 825 F.2d 1537, 1542-43 (11th
Cir. 1987); United States v. Towers, 775 F.2d 184, 189-90 (7th Cir.
1985); United States v. McLernon, 746 F.2d 1098, 1107-08 (6th Cir.
1984), it may not direct the jury to find that a particular RICO
enterprise existed, as occurred in the instant case.

12 Contrary to the government's contention, this was a contest-
ed issue. Although the government maintains that appellants fail to
point to any disputed specific facts that the jury was required to
resolve in order to determine whether the government had proved

found the two unions had an ongoing organization and func-
tioned as a continuing unit, then they constituted a single
enterprise as charged in the indictment. Cf. United States v.
Roth, 860 F.2d 1382, 1390 (7th Cir. 1988); United States v.
Serino, 835 F.2d 924, 930-31 (1st Cir. 1987). As Gaudin
makes clear, a court must give the jury the opportunity to
evaluate whether the government has proven its case beyond
a reasonable doubt for every element of the crime charged.
See Gaudin, 515 U.S. at 510. The court may never direct a
verdict for the government on an element of a criminal
offense, "no matter how overwhelming the evidence." Sulli-
van, 508 U.S. at 277; see also Gaudin at 510-11. Yet that
was the effect of the district court's instruction in the instant
case.

Accordingly, we hold that appellants were denied their
right to have the jury determine whether the government had
proved beyond a reasonable doubt that the two unions consti-
tuted a single enterprise and their RICO and RICO conspira-
cy convictions must be reversed.13 See Gaudin, 515 U.S. at
510-11.

__________
the charged enterprise, appellants presented evidence that
MEBA/NMU was a fundamentally different union from PCD/
MEBA in purpose, structure, and personnel, thereby giving rise to
a classic jury question. Cf. United States v. Perholtz, 842 F.2d 343,
354 (D.C. Cir. 1988).

13 The district court's failure to allow the jury to decide the
enterprise element was, per se, a reversible error. See Gaudin, 515
U.S. at 510-11; Sullivan 508 U.S. at 280-83. The government's
reliance on Johnson v. United States, 117 S. Ct. 1544, 1549-50
(1997), as somehow undermining the application of Sullivan's per se
prejudicial error rule to a Gaudin error is misplaced. The Court in
Johnson engaged in a plain error analysis because the appellant
had failed to make an objection to the instruction at trial. It did
not decide whether Gaudin errors were per se prejudicial errors
that affected a defendant's substantial rights, or rather were sub-
ject to a harmless error analysis. See Johnson, 117 S. Ct at 1550.
Although, as appellants note, the Court has granted certiorari to
decide whether failing to instruct the jury on an element can be
found harmless where the defendant admitted that element at trial,

VI. RICO Forfeitures

Following the return of the guilty verdicts by the jury, the
district court ordered appellants to forfeit the salaries that
they earned between 1985 and 1990 from both the union and
the umbrella organization of which it was a member, the
National MEBA (the "national"). Appellants served as offi-
cers of the national as well as the union. The court also
ordered appellants to forfeit the severance pay that they
earned after the merger. Because we reverse appellants'
RICO convictions, the accompanying forfeitures must also be
reversed. See United States v. Chavez, 845 F.3d 219, 222 (9th
Cir. 1988). To facilitate disposition of the cases on remand,
we address several forfeiture issues raised by appellants that
present questions of first impression in this circuit. Cf., e.g.,
United States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989).

Causal Relationship Between Appellants' Salaries and RICO
Violation

The criminal forfeiture provision of RICO provides:

Whoever violates any provision of section 1962 ... shall
forfeit to the United States, ...

(1) any interest the person has acquired or maintained
in violation of section 1962;

(2) any--

(A) interest in;

__________

see Rogers v. United States, 117 S. Ct. 1841 (1997), the resolution of
that issue has no bearing on the instant case. In Rogers, the
Eleventh Circuit distinguished the effect of the district court's
failure to instruct the jury on an element from a case such as this,
where the court directed a verdict on an element. See United
States v. Rogers, 94 F.3d 1519, 1526 n.13 (11th Cir. 1996). More-
over, appellants make a facially persuasive argument that the error
here was not harmless. Because the government chose to allege in
the indictment that the two unions constituted a single enterprise
that evidenced the pattern of racketeering, the enterprise element
is inextricably intertwined with the jury's finding of a pattern of
racketeering activity.

(B) security of;

(C) claim against; or

(D) property or contractual right of any kind afford-
ing a source of influence over;

any enterprise which the person has ... participated in
the conduct of, in violation of section 1962; and

(3) any property constituting, or derived from, any
proceeds which the person obtained, directly or indirect-
ly, from racketeering activity or unlawful debt collection
in violation of section 1962.

18 U.S.C. s 1963(a) (1988). The government must prove its
forfeiture allegations by a preponderance of the evidence.14
Cf. Libretti v. United States, 116 S. Ct. 356, 362-63 (1995)
(holding that criminal forfeiture is an aspect of sentencing).

The forfeiture provision requires that there be a causal link
between the property forfeited and the RICO violation.
Thus, only property "acquired or maintained" through racke-
teering activity or "derived from[ ] any proceeds ... ob-
tained, directly or indirectly from racketeering activity" is
subject to forfeiture. 18 U.S.C. s 1963(a)(1), (3). This court
has yet to articulate a test for determining whether the
government has established an appropriate casual relation-
ship between the property to be forfeited and the statutory
violation. Other circuits have assessed the nexus between
property and racketeering by applying a "but-for" test first
articulated in United States v. Horak, 833 F.2d 1235, 1242-43
(7th Cir. 1987). The Seventh Circuit explained that "in order
to win a forfeiture order, the government must show ... that
[the defendant's] racketeering activities were a cause in fact
of the acquisition or maintenance of" the property sought.
Id. at 1243. The but-for test has been adopted by the First,
Second, and Third Circuits. See United States v. Angiulo,
897 F.2d 1169, 1213 (1st Cir. 1990); United States v. Ofchin-
ick, 883 F.2d 1172, 1183 (3d Cir. 1989); United States v.

__________
14 We note that at the request of the government, the district
court applied the reasonable doubt standard to the forfeiture allega-
tions. United States v. DeFries, 909 F. Supp. 13, 16 n.3 (D.D.C.
1995).

Porcelli, 865 F.2d 1352, 1365 (2d Cir. 1989). Because the but-
for test usefully articulates the requirement of a nexus be-
tween the targeted property and the racketeering activity, we
adopt it.

Appellants contend that the government failed to establish
an adequate causal link between their ballot tampering and
the electoral triumphs that afforded them the salaries they
forfeited. In their view, the government's causal burden
obligated it to establish that their allegedly illegal ballot
tampering changed the outcome of the elections they won.
Appellants misapprehend what the but-for test requires, at
least in this case. The government need not show the
election results would have been different absent the alleged
racketeering activities. As the district court noted,

[i]n any election, public or private, involving more than a
minimal number of voters or ballots, a rule requiring the
government to prove that an alternative outcome would
have ensued had the election been untainted would ren-
der the victors' offices and emoluments virtually invul-
nerable to forfeiture.

United States v. DeFries, 909 F. Supp. 13, 17 (D.D.C. 1995).
The district court concluded that appellants' racketeering
activity infected the entire election, given that

[c]ynicism prevailed among the rank-and-file Union mem-
bers as to the integrity of its electoral processes, making
it likely that potential opponents declined to run for
office; that an indeterminate number of Union members
refused to vote at all; and that others voted for defen-
dants only for self-preservation in the sure knowledge
that the secrecy of their ballots would be compromised.

Id. These findings, made upon consideration of all the evi-
dence presented at trial and at sentencing, could sustain the
necessary causal inference. Appellants cannot contest that
but for the elections, which the district court found to be
tainted by appellants' racketeering activity, they would not

have received their salaries. Their challenge to the district
court's application of the but-for test therefore must fail.

Forfeiture of Pre-Tax Income

Appellants also contend that the district court erred in
forfeiting taxes that they had already paid on their salaries
and severance payments.15 We disagree.

The courts that have directly addressed the tax deduction
question have rejected appellants' position. See United
States v. Lizza Indus., Inc., 775 F.2d 492, 498 (2d Cir. 1985);
United States v. Milicia, 769 F. Supp. 877, 889-90 (E.D. Pa.
1991), appeal dismissed, 961 F.2d 1569 (3d Cir. 1992); United
States v. Elliott, 727 F. Supp. 1126, 1129 (N.D. Ill. 1989).
Essentially, they reason from Supreme Court decisions and
the legislative history of the RICO statute that Congress
intended, in allowing forfeiture in a criminal prosecution, to
provide an extreme remedy for an extreme situation in which
organized crime was corrupting otherwise lawful enterprises
and activities with money from illegal drug distribution and
other racketeering activities. E.g., Lizza, 775 F.2d at 498;
see also Russello v. United States, 464 U.S. 16, 27-28 (1983);
United States v. Turkette, 452 U.S. 576, 591 (1981). Although
the Seventh Circuit in dicta has interpreted the Supreme
Court to have "intimate[d]" in Russello, 464 U.S. at 22, that
the RICO Act contemplates forfeiture of "net, not gross,
revenues--profits, not sales, for only the former are gains,"
United States v. Masters, 924 F.2d 1362, 1369-70 (7th Cir.
1991), two other circuits have disagreed. See United States v.
McHan, 101 F.3d 1027, 1042 (4th Cir. 1996) (noting, in part,
that "[t]he proper measure of criminal responsibility general-
ly is the harm that the defendant caused, not the net gain

__________
15 Appellants further contend that a reversal of the forfeitures
should not empower the district court to revisit its finding at the
time of sentencing that appellants had no ability to pay any fine or
restitution. The district court imposed fines and restitution contin-
gent upon reversal of the forfeiture orders. The government notes,
and appellants do not dispute, that the presentence report found
that each appellant had the financial ability to pay the fines and
restitution if the forfeitures were vacated. However, because we
reverse all of appellants' convictions, the district court would have
no basis for imposing fines or restitution in the instant case.

that he realized from his condition"); United States v. Hur-
ley, 63 F.3d 1, 21 (1st Cir. 1995); United States v. Saccoccia,
58 F.3d 754, 785 (1st Cir. 1995). Furthermore, even were we
persuaded by the view of the Seventh Circuit, in Masters the
court was concerned with costs and profits, and not with the
question whether taxes paid are properly deducted from the
forfeiture amount. See Masters 924 F.2d at 1369-70. These
are different questions, to be treated separately. See Lizza,
775 F.2d at 498; Elliot, 727 F. Supp. at 1129. As the district
court noted in Elliot, taxes are more like overhead, which the
legislative history of RICO indicates should not be deducted.
Elliot, 727 F. Supp. at 1129; see also S. Rep. No. 98-225, at
199 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3382 (stating
that "[i]t should not be necessary for the prosecutor to prove
what the defendant's overhead expenses were").

The dissenting judge in Lizza suggested, appellants note,
that "we lose sight of RICO's basic purpose when we require
a RICO defendant to forfeit to the Government that portion
of the defendant's unlawfully acquired profits which the Gov-
ernment already has taken by taxing the defendant's income."
Lizza, 775 F.2d at 499 (Van Graafeiland, J., concurring in part
and dissenting in part). However, neither the language of
the RICO forfeiture provision nor its legislative history pro-
vide support for a deduction of taxes paid from a forfeited
salary. RICO's criminal forfeiture provision calls for the
forfeiture of "any interest ... acquired ... in violation of
section 1962." Congress explicitly directed the courts to
interpret the RICO Act liberally to "effectuate its remedial
purposes." See Organized Crime Control Act of 1970, Pub.
L. 91-452, s 904(a), 84 Stat. 947 (1970), quoted in Russello,
464 U.S. at 27. The Supreme Court has concluded from the
legislative history that the "statute was intended to provide
new weapons of unprecedented scope for an assault upon
organized crime and its economic roots." Russello, 464 U.S.
at 26. Indeed, the Court concluded in Russello that Congress
"undoubtedly" chose the word "interest" because it "did not
wish the forfeiture provision of s 1963(a) to be limited by
rigid and technical definitions drawn from other areas of the
law...." Id. at 21, 25. Moreover, the legislative history of

the 1984 amendments to the RICO forfeiture provision indi-
cate that the government need not prove net profits when it
seeks to forfeit the property of an enterprise. See S. Rep.
No. 98-225, at 199 ("[T]he term 'proceeds' has been used in
lieu of the term 'profits' in order to alleviate the unreasonable
burden on the government of proving net profits."). In any
event, appellants' construction of "interest" would lead to the
anomalous result that taxes could be deducted in those cases
where defendants directly deposited their money in a bank
account but not in cases where they used their "proceeds" to
buy real property.

In addition, a deduction for taxes could create unwarranted
complexities in the administration of the statute. The
amount of taxes that a person pays depends upon his or her
other income as well as on the nature of deductions taken by
the taxpayer. See Elliot, 727 F. Supp. at 1129. Recognizing
this difficulty, the majority in Lizza concluded that "RICO
does not require the prosecution to prove or the trial court to
resolve complex computations, so as to ensure that a convict-
ed racketeer is not deprived of a single farthing more than his
criminal acts produced." Lizza, 775 F.2d at 498.

Finally, RICO criminal forfeiture differs from other types
of forfeiture because it is targeted at the individual wrong-
doer, rather than the property sought to be forfeited. See
United States v. $814,254.76 in U.S. Currency, 51 F.3d 207,
210-11 (9th Cir. 1995). The forfeiture is not intended to
rectify the unjust enrichment of the individual, but to punish
the defendant "upon conviction of violation of any provision of
the section ... by forfeiture of all interest in the enterprise."
S. Rep. No. 91-617, at 80 (1969). (quoting Department of
Justice commentary). RICO forfeitures mark the "revival of
the concept of forfeiture as a criminal penalty." Id. As the
majority in Lizza explained, "[f]orfeiture under RICO is a
punitive, not a restitutive, measure." 16 Lizza, 775 F.2d at

__________
16 Thus, to the extent that appellants contend that they "forfeit-
ed" a portion of their salaries to the United States when they paid
their taxes, their contention is without merit. The payment of taxes

498. It follows that the punitive purpose of the forfeiture
provision should not be subverted by a rule that could ob-
scure that purpose with technical tax calculations. Indeed,
construing the statute more narrowly could hinder the actual-
ization of this punitive intent.17

VII. Conclusion

For the foregoing reasons, the convictions are reversed.

So ordered.

__________
is not an in personam criminal penalty. A RICO forfeiture is such
a penalty.

17 Appellants' final forfeiture contention, that because the gov-
ernment did not indicate that it would seek forfeiture of the salaries
they earned as members of the national in the indictment or in the
response to a bill of particulars, it should have been precluded from
doing so at the forfeiture hearing pursuant to Rule 7(c)(2), is
meritless. The government is not required to list all forfeitable
interests in the indictment, provided the indictment notifies defen-
dants that the government will seek to forfeit all property acquired
in violation of RICO. See, e.g. United States v. Sarbello, 985 F.2d
716, 721 (3d Cir. 1993); United States v. Strissel, 920 F.3d 1162,
1166 (4th Cir. 1990); United States v. Grammatikos, 633 F.2d 1013,
1024-25 (2d Cir. 1980). De facto notice, moreover, which appellants
had here, can cure defects in a forfeiture pleading. Sarbello, 985
F.2d at 721.