United States Court of Appeals,
Eleventh Circuit.
No. 95-3130.
UNITED STATES of America, Plaintiff-Appellant,
v.
Vicki LOPEZ-LUKIS a.k.a. Vicki Lopez-Wolfe and Sylvester Lukis,
Defendants-Appellees.
Jan. 6, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 95-4-CR-FTM-21), Ralph W. Nimmons, Jr.,
Judge.
Before TJOFLAT, Circuit Judge, and RONEY and CAMPBELL*, Senior
Circuit Judges.
TJOFLAT, Circuit Judge:
Sections 1341 and 1346 of Title 18 of the United States Code,
the federal mail fraud statutes, make it unlawful to deprive the
electorate of a governmental office holder's "honest services."1
This interlocutory appeal presents the question of whether these
statutes make criminal a scheme in which a county commissioner, in
addition to selling her own votes to a lobbyist, takes steps to
ensure that a majority of commissioners vote for projects favored
by the lobbyist. In this mail fraud prosecution, the district
*
Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
1
Section 1341 proscribes use of the mails as part of a
"scheme or artifice to defraud." 18 U.S.C. § 1341 (1994).
Section 1346 defines "scheme or artifice to defraud" to include
"a scheme or artifice to deprive another of the intangible right
of honest services." 18 U.S.C. § 1346 (1994). While these
statutes are clearly not limited to schemes involving
governmental officials, they frequently are used to combat
governmental corruption. See, e.g., United States v. Waymer, 55
F.3d 564 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.
1350, 134 L.Ed.2d 519 (1996).
court, ruling on a defense motion in limine, answered this question
in the negative and struck the portion of the indictment alleging
that the defendants' scheme to defraud included an attempt to
control the composition of the commission. The court's order also
precluded the Government from introducing evidence that would
establish this objective. The Government appealed; we now
reverse.
I.
Defendant Vicki Lopez-Lukis is a former member of the
five-person Board of County Commissioners for Lee County, Florida
("the Board"). She served on the Board from her election to office
in November 1990 until her resignation in January 1993. Defendant
Sylvester Lukis is a lobbyist who represents clients before the
Board. The defendants engaged in a romantic relationship during
Lopez-Lukis' term in office and were married subsequent to the
events giving rise to this case.2
A.
Lopez-Lukis and Lukis were indicted by a federal grand jury on
March 10, 1995. Count one of the indictment, which is supplemented
by a bill of particulars, charges both defendants with violating
3
the federal mail fraud statutes, 18 U.S.C. §§ 1341, 1346. The
2
Presumably due to name changes related to different
marriages, Lopez-Lukis is also referred to in the record as Ms.
Lopez-Wolfe, Ms. Lopez-Wolfe-Lukis, and Ms. Lukis. For the sake
of clarity, we refer to her simply as "Lopez-Lukis."
3
Of the remaining ten counts, the defendants were indicted
together in eight counts of using a facility in interstate
commerce to commit bribery in violation of 18 U.S.C. § 1952
(1994), and each defendant was indicted separately for bribery in
violation of 18 U.S.C. § 666 (1994). Only the mail fraud count
is before us in this appeal.
indictment alleges that during Lopez-Lukis' term on the Board, the
defendants devised a scheme "to deprive the citizens of Lee County
and the State of Florida of their intangible right to [Lopez-
Lukis'] honest services ... in her official capacity as Lee County
Commissioner." Specifically, the defendants are charged with using
Lopez-Lukis' position for the benefit of Lukis' clients, two of
whom—Ogden Projects, Inc., and Goldman-Sachs and Company—are
identified by name in the indictment.4
The indictment alleges that Lukis paid Lopez-Lukis in order to
influence her actions as a county commissioner and that, to
facilitate their scheme, the defendants concealed their "monetary
and intimate relationship" from the public. More important for
this appeal, however, paragraph fourteen of the mail fraud count
alleges that the defendants tried to prevent Susan Anthony, a
candidate for the Board who opposed the interests of Lukis'
clients, from unseating Lopez-Lukis' fellow Board member John
Manning in the 1992 primary election.5 The alleged purpose of this
4
In its bill of particulars ordered by the district court,
the Government contends that the defendants helped Ogden
Projects, a contractor, retain its contract to construct a
multimillion-dollar waste-to-energy incinerator in Lee County and
ensure that the Board would allow the project to move forward.
Lukis and Lopez-Lukis were apparently successful in their efforts
on behalf of Ogden Projects: a final notice to proceed with
construction of the project was issued by the Board on October
21, 1992.
The defendants also enjoyed apparent success in
promoting the interests of Goldman-Sachs, a brokerage house.
The Board voted to select Goldman-Sachs to perform
underwriting work for public projects in Lee County,
including an airport.
5
The indictment alleges that Anthony ran as "an
anti-incinerator candidate"; in other words, she opposed the
incinerator project being undertaken by Lukis' client, Ogden
endeavor was to control the composition of the Board to ensure that
it would continue to vote in favor of the interests of Lukis'
clients.6
To secure Manning's victory, the defendants allegedly
threatened that, unless she withdrew from the race, they would
disseminate to several media organizations a videotape that
depicted Anthony, who was campaigning as a family-values candidate,
engaging in an extramarital affair. The Government's proffer to
the district court alleges that both defendants told Manning that
they were preparing videotapes that would "derail" Anthony's
campaign. When Anthony did not withdraw from the race, the
defendants distributed the videotape to the media. Manning
subsequently defeated Anthony in the primary's run-off election. 7
We refer to this series of events collectively as the "videotape
incident."8
Projects. According to the proffer made by the Government at the
hearing on the defendants' motion in limine, Lukis and his
clients supported Manning in the election.
6
Paragraph 14 states that the defendants attempted to keep
Anthony off the Board to "corruptly affect the composition and
work of the Board of Lee County Commissioners ... to promote,
foster, further, facilitate and enlarge the scheme." Although
the indictment is inartfully drawn and the Government has had
considerable difficulty articulating the nature of this
allegation, we read ¶ 14 as charging that the defendants
attempted to manipulate the composition of the Board in order to
control a majority of votes.
7
In the primary's main election on September 1, 1992,
Anthony received the most votes, but because of a third
candidate, she did not command a majority. The next day the
local newspaper ran a story about the videotape. Manning soundly
defeated Anthony in the run-off on October 1, 1992.
8
The parties have offered different explanations of the
events surrounding the videotape incident, including how and why
the videotape was made and what motivated Lopez-Lukis to issue
B.
Early in the case, the defendants moved to strike paragraph
fourteen from the indictment. As grounds for their motion, the
defendants argued that the allegations of paragraph fourteen were
irrelevant to the crime charged (i.e., mail fraud under sections
1341 and 1346), that their conduct described in that paragraph was
protected by the First Amendment, and that litigation of its
allegations would "needlessly complicate and lengthen the process
of trying this case." The district court summarily denied their
motion on June 20, 1995.
The defendants later moved in limine to exclude "any and all
evidence relating to any surveillance videotape of Susan Anthony"
on the same grounds as they presented in support of their earlier
motion to strike. The district court heard this motion on
September 1, 1995. Ruling from the bench on September 5, the day
before the trial was to commence, the court concluded that because
the videotape incident did not involve Lopez-Lukis' official duties
as county commissioner, it was not the sort of conduct proscribed
by sections 1341 and 1346.9 In granting the defendants' motion to
the threat. While these explanations may or may not be probative
at trial, depending on how the facts are developed, they are
irrelevant for purposes of this appeal. All that is important
for present purposes is that Lopez-Lukis threatened to
disseminate the tapes if Anthony did not abandon her candidacy,
that the defendants informed Manning of her threat, and that they
released the tapes after she refused to drop out of the race.
9
As the court stated:
Unlike other elements of the scheme or artifice
which clearly allege methods and means by which
services in her official capacity were affected or
sought to be affected, such as the payment of money to
influence her in her acts or decisions in her official
suppress all evidence related to the videotape incident, the court
vacated its earlier order denying the motion to strike and granted
that motion as well, striking paragraph fourteen from the
indictment. The Government immediately announced that it would
10
appeal the court's ruling; it took this interlocutory appeal the
capacity, her participation or complicity in either
secretly or openly attempting to persuade a candidate
for a seat on the County Commission to withdraw by
threatening to expose such person to disgrace cannot,
by any reasonable construction of the subject mail
fraud statute, be regarded as actions or conduct in her
official capacity as a County Commissioner. Her duties
and responsibilities as a County Commissioner simply do
not include the determination as to who is elected to
serve on the County Commission.
10
Interlocutory district court orders, such as the one
involved in this case, ordinarily are not reviewable until the
court has entered final judgment. See 28 U.S.C. § 1291 (1994).
We have jurisdiction over this interlocutory appeal, however,
under 18 U.S.C. § 3731, which provides that "[a]n appeal by the
United States shall lie to a court of appeals from a decision or
order of a district court suppressing or excluding evidence ...
in a criminal proceeding." 18 U.S.C. § 3731 (1994). While the
part of the district court's order striking ¶ 14 from the
indictment does not fall within this statutory exception,
"pendent jurisdiction and the doctrine of judicial economy permit
us to exercise jurisdiction over related claims when other claims
are properly reviewable." Hill v. Dekalb Reg'l Youth Detention
Ctr., 40 F.3d 1176, 1183 (11th Cir.1994).
Although the Supreme Court rejected our use of pendent
party appellate jurisdiction in Swint v. Chambers County
Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60
(1995), Swint does not bar jurisdiction in this case. That
case dealt only with the use of pendent jurisdiction over a
nonappealable issue involving parties different from those
involved in the appealable issue. Swint was a civil rights
case based on alleged misconduct by local police. The
defendants in that case included three individual police
officers and the local county commission. The district
court had denied summary judgment motions by all defendants,
and all defendants sought interlocutory appellate review.
The individual officers' motions for summary judgment were
based on qualified immunity; thus, we had immediate
appellate jurisdiction over the denial of these motions
under the narrow exception to the final judgment rule laid
out in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86
next day, the day the trial was to begin. The district court
stayed further proceedings in the case pending the outcome of this
appeal.
We hold that the district court misconstrued section 1346 and
improperly narrowed the scope of the scheme alleged by the
Government. We therefore reverse its order striking paragraph
fourteen from the indictment and excluding all evidence relating to
the videotape incident.
L.Ed.2d 411 (1985). Swint v. City of Wadley, 5 F.3d 1435,
1448-49 (11th Cir.1993), modified, 11 F.3d 1030 (11th
Cir.1994), vacated in part sub nom. Swint v. Chambers
County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60
(1995). We invoked pendent jurisdiction to review the order
denying the county commission's summary judgment motion,
even though it was an interlocutory order over which we
would normally not have immediate appellate jurisdiction
because it did not raise the defense of qualified immunity.
Swint, 5 F.3d at 1449-50. It was this use of pendent
jurisdiction that the Supreme Court rejected. Swint, ---
U.S. at ---- - ----, 115 S.Ct. at 1208-12.
The Court explicitly refrained, however, from
"definitively or preemptively" rejecting the use of pendent
appellate jurisdiction over related claims. It suggested
that pendent appellate jurisdiction may be appropriate when
a nonappealable decision is "inextricably intertwined" with
an appealable decision or when "review of the former
decision [is] necessary to ensure meaningful review of the
latter." Id. at ----, 115 S.Ct. at 1212; see also Johnson
v. Clifton, 74 F.3d 1087, 1091 (11th Cir.1996), petition for
cert. filed, --- U.S. ----, 117 S.Ct. 51, 136 L.Ed.2d 15
(1996) (No. 95-1743).
Because the district court's order striking the
indictment is so closely related to its exclusion of the
Government's evidence, we are confident that our application
of pendent jurisdiction is proper in this case. Review of
the order striking ¶ 14 from the indictment satisfies both
the "inextricably intertwined" and "necessary to ensure
meaningful review" tests. Both orders resulted from the
same determination—i.e., that the videotape incident cannot
be used to support a charge of mail fraud under §§ 1341 and
1346. Furthermore, review of the evidentiary ruling
necessarily implicates review of the order striking ¶ 14
from the indictment.
II.
The district court apparently based its decision that the
videotape incident could not be used to prove mail fraud not on the
question of factual relevance, but on the question of whether this
11
conduct "fit" within the parameters of section 1346. We review
this question of statutory interpretation de novo. See National
Coal Ass'n v. Chater, 81 F.3d 1077, 1081 (11th Cir.1996).
A proper understanding of the scheme alleged is essential to
the resolution of this appeal. The heart of count one is an
allegation of a broad bribery scheme: Lukis paid Lopez-Lukis for
political favors. The present controversy centers on exactly what
Lukis' money bought. The indictment alleges that Lukis bribed
Lopez-Lukis because he thought that she would give him two things:
11
The district judge stated:
While [the videotape incident] is, indeed,
reprehensible and illegal, it is simply outside the
framework of the subject mail fraud charge under
Section 1346.
The Court has simply not been able to fit this
transaction into the mail fraud scheme which is the
subject of Count 1. It stands out as a peculiarly
inappropriate part of this mail fraud count.
The district court also noted that the mailing upon
which the mail fraud charge is based was sent almost a year
before the videotape incident and shared "no connection"
with the videotape incident. The degree to which the
district court considered this to be determinative is
unclear, but to the extent that it relied on this
observation as grounds for excluding the evidence, it was in
error. There is no requirement that every piece of evidence
of the scheme to defraud somehow relate to the mailing. The
only requirement is that the mailing be related to some
"step in the plot." United States v. Waymer, 55 F.3d 564,
569 (11th Cir.1995) (quoting Schmuck v. United States, 489
U.S. 705, 711, 109 S.Ct. 1443, 1448, 103 L.Ed.2d 734
(1989)), cert. denied, --- U.S. ----, 116 S.Ct. 1350, 134
L.Ed.2d 519 (1996).
(1) her vote on key matters and (2) control of the Board—that is,
her influence to deliver a majority of the Board's votes on those
matters. The central question in this appeal is whether sections
1341 and 1346 reach such a bribery scheme.
We believe the answer to this question should be self-evident:
if it is illegal for a public official to sell her own vote, it
also must be illegal for her to sell her vote and her influence
over other's votes as well. After all, because the Board consists
of five members and presumably acts by majority vote, it would do
Lukis little good if all that his money purchased was Lopez-Lukis'
single vote.
In this section, we first explain why a scheme by a legislator
to deliver control of a majority of legislative votes for a price
constitutes a scheme to defraud, as defined by sections 1341 and
1346. We then address the district court's reasoning and
demonstrate why it is erroneous. Finally, we examine the
allegations against the defendants and show why they manifest an
attempt to deliver control of the Board.
A.
A brief review of the mail fraud statutes and their
interpretation by the courts is helpful to understanding why they
proscribe a scheme for a legislator to sell control of a
legislative body when that scheme includes use of the mails. To
establish a violation of sections 1341 and 1346, the Government
must prove that the defendants "(1) intentionally participated in
a scheme or artifice to defraud and (2) used the United States
mails to carry out that scheme or artifice." Waymer, 55 F.3d at
568 (citing United States v. Hooshmand, 931 F.2d 725, 731 (11th
Cir.1991)).
At common law, the prohibition of fraud generally was regarded
as protecting property rights only. See McNally v. United States,
483 U.S. 350, 358 n. 8, 107 S.Ct. 2875, 2881 n. 8, 97 L.Ed.2d 292
(1987). As early as the 1940s, however, federal prosecutors
seeking to combat government corruption began using section 1341 to
prosecute schemes to defraud the public of the honest and faithful
services of government officials. See, e.g., Shushan v. United
States, 117 F.2d 110 (5th Cir.), cert. denied, 313 U.S. 574, 61
S.Ct. 1085, 85 L.Ed. 1531 (1941). In the 1987 McNally case, the
Supreme Court rejected this practice by holding that section 1341
was "limited in scope to the protection of property rights" and
therefore did not prohibit schemes to defraud the citizens of their
intangible right to honest and impartial government. McNally, 483
U.S. at 360, 107 S.Ct. at 2882.
Section 1346 was enacted in 1988 to revive the
"honest-services" theory of mail fraud. We have recognized that
Congress passed this provision to overrule McNally and reinstate
prior law. See Waymer, 55 F.3d at 568 n. 3. Consequently, we
consider pre-McNally cases as persuasive authority in evaluating
12
the scope of honest-services fraud. Both the former Fifth Circuit
before McNally and this circuit after McNally consistently have
held that schemes by government officials to deprive the public of
12
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
its right to their honest services, when a mailing is involved,
constitute mail fraud. See, e.g., United States v. Castro, 89 F.3d
1443 (11th Cir.1996); Waymer, 55 F.3d 564; Steiner v. United
States, 134 F.2d 931 (5th Cir.), cert. denied, 319 U.S. 774, 63
S.Ct. 1439, 87 L.Ed. 1721 (1943); Shushan, 117 F.2d 110.
The crux of this theory is that when a political official
uses his office for personal gain, he deprives his constituents of
their right to have him perform his official duties in their best
interest. Elected officials generally owe a fiduciary duty to the
electorate. See Shushan, 117 F.2d at 115 (noting that "[n]o
trustee has more sacred duties than a public official"). 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. See United States v. Sawyer, 85 F.3d 713, 724 (1st
Cir.1996) ("The cases in which a deprivation of an official's
honest services is found typically involve either bribery of the
official or her failure to disclose a conflict of interest,
resulting in personal gain.").
The appellees concede that a county commissioner commits
honest-services fraud when she sells her vote. It is no less a
violation of sections 1341 and 1346, however, for that
commissioner, in addition to selling her vote, to take steps to
ensure that a majority of commissioners vote with her. See
generally Shushan, 117 F.2d 110 (affirming mail fraud convictions
for broad scheme involving bribery of two members of board of
commissioners who attempted to influence actions of entire board).
In both scenarios, the commissioner deprives her constituents of
their right to her honest services by deciding how to vote based on
her own interests. The second scenario simply makes this
deprivation more concrete. In addition to depriving her
constituents of their right to her honest services, she seeks to
ensure that the actions the Board takes are in her own best
interests instead of the best interests of the public.13
One commissioner's vote, without more, does not guarantee that
a particular legislative proposal favored by the briber will
succeed. Any such measure generally requires a majority vote from
the commission. While we do not mean to suggest that the bribery
of a single official for a vote cannot sustain a conviction for
mail fraud,14 that an official took steps to ensure that her
13
This analysis does not suggest that, under such a
scenario, the other commissioners are necessarily depriving their
constituents of the right to honest services. It is entirely
possible that they will decide that proposals that she supports
are in fact in the best interest of the electorate and vote
accordingly. In this case, only the bribed commissioner would be
depriving her constituents of their right to honest services.
That the result of the bribed commissioner's vote
actually benefits the electorate would not change the
fraudulent nature of her conduct. Sections 1341 and 1346 do
not address the wisdom or results of a legislative decision;
rather they concern the manner in which officials make their
decisions.
14
To the contrary, as we stated long ago, "[t]he fact that
the official who is bribed is only one of several and could not
award the contract by himself does not change the character of
the [fraudulent] scheme." Shushan, 117 F.2d at 115.
fraudulent scheme would yield results makes the case against her
more compelling. Such actions increase the likelihood that the
scheme to defraud the electorate of their right to the
commissioner's honest services will bear fruit. Surely section
1346 was intended to prohibit just this sort of conduct, and today
we hold that it does.
B.
The district court construed section 1346 to proscribe conduct
aimed at obtaining an individual legislator's vote, but no more.
By excluding evidence necessary to prove the existence of a larger
scheme, it narrowed the scheme's scope from an attempt to obtain
control of the Board to an attempt to procure a single vote. This
narrow interpretation of the mail fraud statutes was erroneous.
The court ruled that the videotape incident was outside the
scope of section 1346 because it did not involve Lopez-Lukis'
official duties. As the court noted, "[Lopez-Lukis'] duties and
responsibilities as a County Commissioner simply [did] not include
the determination as to who is elected to serve on the County
Commission." Even if we assume that honest-services fraud
involving a public official can be predicated only on the
Several scenarios may be imagined in which a potential
briber might only need a single vote. For example, the
bribed official might chair a committee and have power to
decide which issues come before the body for a vote and the
manner in which they are addressed. Similarly, if passage
of particular legislation only required a single additional
vote—that is, a number of officials already supported the
legislation for their own reasons—buying that extra vote
alone would be desirable.
performance of services in an official capacity,15 the court's
ruling misconceives the nature of the scheme alleged in the
indictment.
The object of the alleged scheme was not to keep Anthony off
the Board or otherwise determine who would serve on the Board.
Rather, the goal was for Lopez-Lukis to receive personal benefits
in exchange for her efforts to secure Board action that favored the
interests of Lukis' clients. The videotape incident is relevant
for at least two reasons. First, because the incident was
allegedly designed to keep Manning, who would likely vote for
projects favored by Lukis' clients, on the Board, it tends to show
that Lopez-Lukis had an agenda to serve the interests of Lukis'
clients instead of the interests of her constituents.
Second, the videotape incident also demonstrates that the
scheme embraced more than just the compromising of one vote on the
Board. The scheme involved efforts to influence decisions of the
entire Board. Lopez-Lukis' single vote, without more, could not
carry out the objectives of the defendants' scheme to procure Board
action favorable to Lukis' clients. To pass, any measure favorable
to Lukis' clients required a majority of the Board's votes—that is,
the votes of Lopez-Lukis and at least two others. To the extent
she exercised influence over the composition and voting of the
Board, Lopez-Lukis made the deprivation of her constituents' right
to her honest services more complete and profitable. In this
regard, the videotape incident may be viewed merely as a means to
15
Because it is not dispositive in this case, we decline to
rule on this issue.
an end. Thus, the Government does not seek to predicate mail fraud
liability on the videotape incident itself; it is merely
attempting to use the incident as circumstantial proof of a broad
scheme to defraud.
While we need not and do not decide the issue, it may be true
that the videotape incident, standing alone, could not support
criminal liability under section 1346 because it did not directly
involve conduct in Lopez-Lukis' official capacity. If true, this
proposition would not mean, however, that the Government cannot
introduce such evidence to demonstrate a broad scheme to control
and obtain favorable votes from the Board. Because the videotape
incident tends to show both that Lopez-Lukis intended to benefit
Lukis' clients instead of the public and that the scheme was more
likely to succeed, it is clearly relevant to the charge of
honest-services fraud and properly was charged in the indictment as
part of her overall scheme.16
16
For this reason, two other arguments that the appellees
stress in their brief are misguided. In addition to agreeing
with the district court's official-duty analysis, the appellees
offer two other, alternative arguments that would justify
affirming its order even though the district court did not
address them. They first point to the line of cases beginning
with Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 71
L.Ed. 443 (1926), which hold that extortion cannot be the basis
for a mail fraud conviction. The appellees argue that the
videotape incident, as alleged, constitutes extortion and thus is
not covered by § 1346. Second, they argue that their actions
constitute political speech and thus deserve protection under the
First Amendment.
Again, we need not decide whether the videotape
incident alone can support a mail fraud conviction. The
government is seeking to punish the defendants not because
they tried to keep a candidate from being elected to the
Board, but because they used Lopez-Lukis' office for
personal benefit. Evidence of the videotape incident tends
to show both that Lopez-Lukis intended to ensure that the
Any hard and fast rule that the government cannot use a public
official's conduct that is not in an official capacity as evidence
of a scheme to defraud the public of an official's honest services
would impermissibly narrow the scope of section 1346 and "would
belie a clear congressional intent to construe the mail fraud
statute broadly," Castro, 89 F.3d at 1456. Therefore, we decline
to read such a rule into the statute.
C.
The appellees argue in their brief that regardless of whether
the district court erred in its interpretation of section 1346, we
should affirm its ruling because the Government failed to proffer
any evidence that keeping Anthony off the Board would further the
interests of Lukis' clients. While any implication that the
videotape incident was part of a scheme to control the Board might
Board would vote for the interests of Lukis' clients and
that their scheme was likely to succeed.
Even if the videotape incident could not serve as a
proper independent basis for imposing criminal
liability—either because of the rule set down in Fasulo or
because of First Amendment concerns—the Government may use
it as evidence that the defendants engaged in a broad scheme
to defraud the public. Cf. Huff v. United States, 301 F.2d
760, 765 (5th Cir.) ("[F]raud and extortion are not mutually
exclusive. The mere fact that extortion may constitute one
aspect of the transaction does not insulate the fraudulent
... plan from prosecution as a scheme to defraud.")
(interpreting wire fraud statute, 18 U.S.C. § 1343), cert.
denied, 371 U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230 (1962);
Waymer, 55 F.3d at 569 ("Assuming arguendo that certain
marginal applications of section 1346 would impermissibly
intrude on First Amendment rights, we hold that such
potential problems with section 1346 are insubstantial when
judged in relation to the statute's plainly legitimate
sweep.").
hinge to some degree on such evidence,17 the appellees
characterization of the Government's evidence is not supported by
the record. The Government has offered to prove several facts that
could persuade a rational factfinder that Lopez-Lukis could control
a majority of Board votes more easily with Manning, instead of
Anthony, on the Board.
For example, the Government has proffered that Lopez-Lukis
told Manning that she was going to "derail" Anthony's campaign
against him. This allegation, if proven, would support an
inference that Manning owed a political debt to Lopez-Lukis and
likely would vote with her on key issues. Thus, Lopez-Lukis could
better obtain votes favorable to Lukis' present or future clients
with Manning on the Board.
Moreover, the record is replete with evidence that, without
Anthony, the Board would be more likely to vote in favor of the
interests of at least two of Lukis' current clients—Ogden Projects
and Goldman-Sachs. First, the indictment specifically alleges that
Anthony opposed Ogden Projects' incinerator project. Had she been
18
elected, she posed a serious threat to the project. Second, in
17
Of course, even without this kind of evidence a factfinder
might infer that the defendants were trying to gain control of
the Board to benefit Lukis' future clients. As a lobbyist, Lukis
could certainly use control of the Board as a valuable asset in
soliciting additional clients.
18
See supra note 4 (describing this project in greater
detail). The appellees contend that because the final notice to
proceed on the project had been issued before Anthony could have
taken office, Anthony could have no impact on the project. This
contention is flawed. Had she been elected, she could have voted
to terminate the project or cause problems throughout
construction. The fact that she was running on an
"anti-incinerator" platform certainly suggests she would have
done everything in her power to halt or delay the project.
its proffer the Government offered to prove that Lukis helped raise
funds for Manning's campaign and that officials from Goldman-Sachs
and Ogden Projects contributed to Manning's campaign fund. This
evidence suggests that Manning would further the interests of
Lukis' clients if re-elected, or at least that Lukis' clients
assumed he would. In short, keeping Anthony off the Board formed
an important step in effectuating the defendants' alleged scheme to
sell control of the Board.19
III.
For the foregoing reasons, we REVERSE the district court's
grant of the defendants' in limine motion seeking the exclusion of
the evidence relating to the videotape incident and its order
striking paragraph fourteen from the indictment. We REMAND this
case to the district court for further proceedings consistent with
this opinion.
SO ORDERED.
19
The appellees argue in their brief that the risk of
prejudice and undue delay substantially outweighs any relevance
the videotape incident has to the mail fraud charge. Thus, they
contend that any evidence concerning the videotape incident
should be excluded under Federal Rule of Evidence 403. Because
the trial court's ruling appears to be based on its
interpretation of § 1346 and not on considerations of relevance
and prejudice, we refrain from ruling on this issue. However, as
our analysis of the videotape incident suggests, the value of
this evidence may be sufficiently probative to render exclusion
under Rule 403 an abuse of discretion.