USCA1 Opinion

June 24, 1996

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1689

UNITED STATES,

Appellee,

v.

F. WILLIAM SAWYER,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________
Aldrich, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

ERRATA SHEET
ERRATA SHEET

The opinion of this Court issued on May 30, 1996, is amended

as follows:

Page 35, line 4 - change "is" to "in"

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1689

UNITED STATES,

Appellee,

v.

F. WILLIAM SAWYER,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________
Aldrich, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Thomas R. Kiley,
_________________

with

whom

Carl Valvo,
___________

Steven H. Goldbe
_________________

Matthew L. Schemmel, and Cosgrove, Eisenberg & Kiley, P.C., were

____________________
___________________________________
brief for appellant.
Timothy W. Jenkins, Gary C. Adler,
__________________ _____________

and O'Connor & Hannan, L.L.

_______________________

were on brief for State Government Affairs Council, amicus curiae.

Ralph D. Gants,
______________
for The

Susan Murphy, and Palmer & Dodge, were on

____________
_______________

Massachusetts Association

of Professional

br

Lobbyists, ami

curiae.
Michael Kendall,
________________
Jonathan Chiel,
_______________

Assistant United

Acting

United

States

Attorney,

States Attorney,

and

with

Amy Leder
__________

Assistant United States Attorney, were on brief for appellee.

_____________________
May 30, 1996
_____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

appeals his

travel

convictions for mail and

to commit

offenses.

Appellant F. William

The

bribery,

wire fraud, interstate

and conspiracy

district court imposed

sentenced him to imprisonment for

Sawyer

to commit

a $10,000

those

fine, and

twelve months and one day.

In

this appeal, Sawyer claims that

the district court erred

in its jury instructions and in evidentiary rulings, and that

the evidence was insufficient to establish his guilt beyond a

reasonable doubt.

For the reasons that follow, we vacate the

convictions and remand for further proceedings.

I.
I.
__

Facts
Facts
_____

Viewing the

record in the light

the verdict, United States

_____________

Cir. 1996),

most favorable to

v. Wihbey, 75 F.3d 761,

______

a rational jury

could have found

764 (1st

the following

facts from the trial evidence.

During the

indictment period, 1986

to March 1993,

the

John Hancock

employed

senior

As

the

Mutual Life Insurance

the defendant-appellant,

lobbyist within its

largest

Company ("Hancock")

F. William

Sawyer,

Government Relations Department.

life insurance

company

in

Massachusetts,

Hancock had a continuing and abiding interest in the

insurance laws.

Legislature

Sawyer's job

on Hancock's

description required him

as a

state's

was to lobby the Massachusetts

behalf.

In

particular, his

to: research and

-22

job

develop Hancock's

position

on

information

to effect

interests;

pertinent

legislation;

communicate

to representative government

a favorable outcome

and establish

and

officials in order

and to protect

maintain

relevant

the Company's

relationships

with

legislators as well as with members of industry associations.

A principal

was the Legislature's

focus of Sawyer's

lobbying activities

Joint Insurance Committee

Committee"), composed of state representatives

The

Insurance

insurance

Committee

regulations

has

more

the ability

than

any

to

other

("Insurance

and senators.

impact

life

legislative

committee.

per

To

this end, it reviews approximately

year, about

industry.

During

Massachusetts

passage

fifty of

of

each

which affect

year

life insurance

about

five

of

the

300 bills

the life

insurance

indictment

companies actively

bills,

most

of

period,

sought the

which

made

it

successfully through the Insurance Committee "in some form or

another."

for

the

Robert J. Smith,

Committee, testified

period, Sawyer was one

often to

a research analyst and

lobby

for

that,

during the

of three lobbyists who

bills

sought

by

the

director

indictment

appeared most

life

insurance

industry.

The Insurance Committee

and

house member, each with

is co-chaired by a

equal control over

bills assigned to the Committee.

senate

the fate of

The Chairs have the ability

to schedule

hearings, assign

bills to the

hearing calendar

-33

and

subsequent

executive

through

executive

sessions, and

the Committee.

sessions,

take other

Each

advocate

action to

Chair could

bills

at

advance them

"carry" a

bill,

i.e., actively
____

guide it through the Legislature

as a whole;

alternatively, a Chair could send it to the "Study Committee"

which usually shelved it.

During

lobbying

the indictment

activities on

Committee,

some

indirectly

affected

Francis

of

H. Woodward

Committee

from

1986

identified Sawyer

Representative

Committee's

Committee

period, Sawyer

the house

whom

took

Hancock's

was the

to

as the

Woodward

House Chair.

members of

action

House

1990.

during

During

Chair of

he saw

directly

or

Representative

Research

lobbyist

the Insurance

that

interests.

focused his

the Insurance

analyst

Smith

most often

with

Woodward's

this time,

tenure

as

the

the Insurance

never rejected Woodward's recommendations on bills

affecting the life insurance industry and Woodward

"carried"

most

Frank

of the

Emilio,

September

John

bills sought

F.

November

member

1990 bill

Cox

1990

Representatives

by the industry.

from

on behalf

sponsored

bills

and

December

Walsh,

Mara,

1986 to

1990,

of Hancock.

that

Hancock

1991.

and

Representative

sponsored

Representative

supported

in

In

addition,

Driscoll

sponsored

legislation sought by the life insurance industry.

-44

"Legislative

Government

Reports"

Relations Department to

and signed by Sawyer,

proceedings

in

by

the

Hancock

senior Hancock officers,

outlined specific lobbying efforts and

the Massachusetts

Hancock's interests.

issued

Legislature

pertinent to

In July 1990, Sawyer wrote a memorandum

to Hancock's Management

Committee summarizing the successful

efforts of Hancock lobbyists, including himself, in excluding

Hancock

from a bill that would have

million tax liability.

Management Committee,

subjected it to a $100-

In a September 1990 memorandum to the

Sawyer referred to a

1990 bill, filed

by Representative Emilio, that

report

its

letter from

Counsel,

real estate

allowed Hancock to assess and

advantageously.

Ralph F. Scott, Hancock's

to Representative

Cox

A November

1990

Assistant Legislative

indicated

Scott planned to work with Cox in obtaining

that Sawyer

and

favorable action

on a specific bill that he had sponsored for Hancock.

During

numerous meals,

the

indictment

period,

rounds of golf, and

Sawyer

paid

for

other entertainment for

and with Massachusetts legislators, including many members of

the Insurance Committee.

most

of

business

these

activities

expenses and

"expenditures").

Although Sawyer initially paid for

In

himself, they

reimbursed

by

accordance with

were

Hancock

treated

as

(hereinafter

Hancock's procedures,

Sawyer

would complete

receipts and

monthly

handwritten

expense vouchers,

calendar

that

attaching

identified

the

-55

recipients of the expenses.

Hathaway,

the

head

Department, reviewed

of

Sawyer's supervisor, Raeburn B.

Hancock's

Government

Sawyer's expense vouchers

Relations

and approved

them

for

reimbursement.

Hathaway's

detach the detailed calendars

calendars

within the

then

from the vouchers, keeping the

Government

forward the voucher, alone,

secretary would

Relations Department,

and

to the accounting department for

payment.

Analysis of Sawyer's expense vouchers and calendars

during

the indictment

period

revealed that

the top

three

recipients of his expenditures were: Representative Woodward,

who received

his

tenure

Howarth,

(over

more than

as

Insurance

an Insurance

$3,000);

$8,000 worth of

and

Committee

Committee

House

member from

Representative

After these three legislators

expenditures during

Emilio

Chair;

Robert

1986 to

(over

1992

$2,500).

left office, Sawyer, on behalf

of Hancock, expended practically nothing on entertaining them

(Woodward, $0; Howarth, $8.33; and Emilio, $85.65).

Specifically,

thousands of

various

Francis

Committee

Sawyer's

expenditures

included

dollars for golf -- in and out of state -- with

Massachusetts

Mara,

House

legislators and

legislators including

Woodward's

Chair.

1991

Sawyer also

their families.

provided Representative Mara

successor

hosted

In September

Representative

as

Insurance

dinners

for

1992, Sawyer

and his wife tickets for a show

-66

in

Hancock's private box at

the Wang Center

and ordered an

accompanying dinner.

The apparent

December

1992

lobbyists,

trip

and

catalyst for this

to

Puerto

group

Representative Mara, travelled

The

group did not stay

went to a different

legislators'

of

where

Sawyer,

legislators,

other

including

for a legislative conference.

at the conference

site, but instead

resort where Sawyer paid for many of the

meals,

reimbursed Sawyer

Rico

prosecution was

transportation,

for some $4,000

and

golf.

Hancock

of entertainment expenses

from the Puerto Rican trip.1

Both

reason

to

violate

Sawyer

believe

and

that

certain state

his

these expenditures

laws.

internal Hancock memoranda,

of the

Massachusetts

supervisor,

In

his

documents

could

did

or

kept

newspaper articles, and opinions

Ethics Commission,

varied

had

office, Sawyer

all explaining

reporting on Massachusetts ethics-in-lobbying.

the

Hathaway,

in

their

and

his

or

While some of

interpretations,

they

wife

with

____________________

1.

In

1986,

Sawyer

Representative Woodward and

Super Bowl.

his wife to New

travelled

Orleans for the

Hancock provided the game tickets and reimbursed

Sawyer for the

airfare.

jury that, because this

The

district court instructed

trip occurred before the mail

the
fraud

statute

proscribed

provide

the sole

court

honest

services

basis for

a mail

added, however, that the jury

as evidence of

Sawyer's state

fraud,

it

could

fraud conviction.

not
The

could consider the trip

of mind with

respect to

the

alleged scheme to defraud.

-77

nonetheless

advised

on

compliance

with

laws

regarding

gratuities, gifts, and lobbying expenditures.

In

April 1993,

a reporter

from the

Boston Globe

newspaper queried Richard

Employee

and

Customer

Bevilacqua, Hancock's Director

Communications,

about

of

Sawyer's

entertainment of legislators during the 1992 Puerto Rico trip

and about

Hancock's legislative

agenda during

Bevilacqua, in turn, asked Sawyer about the

that period.

trip, and Sawyer

opined, "it's difficult to take anyone out to lunch or dinner

these

days without

law]."

This set

internal

and

records,

amount [permitted

prompted

into

Hancock to

Sawyer's

Bruce A.

Skrine, vice

secretary for

Hancock,

expense records.

the

over [the]

of events

investigation

expenditures.2

counsel

going

by

begin an

legislative

president, corporate

asked

Sawyer for

his

Contemporaneous with Sawyer's production of

Sawyer

told

Skrine that

the

expenses

were

"consistent with the

Hill."

the

way . .

Sawyer also told

. things

were done on

Skrine that his

Beacon

reason for making

expenditures was "to get to know" the legislators and to

develop "a

certain relationship

so that you

could turn

to

____________________

2.

In

the

Spring of

Office for the

1993,

the

United States

District of Massachusetts

("USAO") commenced

an investigation into Hancock's involvement

illegal expenditures on legislators.

Attorney's

in the allegedly

In March 1994, Hancock

entered into a civil settlement with the USAO whereby it paid

a fine of about $1,000,000 and promised to cooperate with the
USAO.

In return, the

USAO agreed not

to prosecute Hancock

for any matter relating to the investigation.

-88

them"; he

to

further indicated that he

"build

and

maintain

legislators," and get

made these expenditures

relationships,"

gain

"access

legislators to "return his

to

calls as a

result of [the expenditures]."

Sawyer caused

expenditures

on

legislators,

reimbursement requests,

caused the

the mailing of items

making of

including

related to the

golf

bills,

and credit card bills.

Sawyer also

interstate telephone calls

to arrange

for some of the entertainment.

Following

a nine-day

Sawyer of fifteen counts

fraud, eight

and

trial,

the

jury

convicted

of mail fraud, nine counts

counts of interstate travel

one count of conspiracy.

The jury

of wire

to commit bribery,

acquitted Sawyer of

two additional mail fraud counts.

II.
II.
___

Mail and Wire Fraud Counts

Mail and Wire Fraud Counts
__________________________

The

government

charged

that

Sawyer

and

his

unindicted co-conspirator -- his Hancock supervisor, Hathaway

--

engaged

in

Massachusetts and

scheme

to deprive

its citizens

of the right

services of their state legislators,3

____________________

the

Commonwealth

to the

of

honest

and used the mails and

3.

According to

the indictment,

the

legislators' duty

of

honest services included the obligation to perform their jobs

as

Massachusetts

dishonesty,

lawmakers

free

from

favoritism and self-enrichment.

the parties, the district

in this description.

deceit,
By

consent of

court struck the word "favoritism"

United States v. Sawyer, 878

_____________
______

279, 294 (D. Mass. 1995).

fraud,

F. Supp.

In addition to this general

duty

-99

interstate telephone

wires in furtherance of

the scheme, in

violation of 18 U.S.C.

1341, and 1343.4

Sawyer contends that his

involve the

convictions impermissibly

federal government in setting

government for

local and

state officials.

this

exemplary

of the

case

federal

is

criminal

enforcement

standards of good

He

"dangers

and

argues that

of

unbridled

standardless

prosecutorial

discretion long-recognized under the mail fraud statute."

have

already

considered

and

rejected

these

indictment

stated

We

arguments,

____________________

of

honest

services,

the

that

the

legislators had a specific duty to abide by the Massachusetts

laws set forth
both the
the

in the indictment.

The indictment identified

Commonwealth of Massachusetts and

its citizenry as

fraud victims; for simplicity, we will refer only to the

public (or "citizenry") as the victim.

With

regard

to

the

scheme

to

defraud,

the

indictment

charged,

inter
_____

alia,
____

that

legislators accepted, travel, lodging,

entertainment
monitored

public

Legislature so that

and

golf, meals and other

that

coverage

Sawyer was

generally

to

Insurance

Committee

and its

given

the

Massachusetts

that

repeatedly

advocated by Sawyer

greater

access to

House Chair than

the citizenry;

supervisor

of

he could ensure the nondisclosure of his

Insurance Committee

direct

gave,

in violation of Massachusetts law; that Sawyer

the

gratuities;

Sawyer

on behalf of Hancock;
approved

of,

was available

the House
performed

and

Chair

of the

official

In relevant part, 18 U.S.C.

authorized

Hancock's

1341 and 1343 provide:

Whoever, having devised

or intending

to

devise any scheme or artifice to defraud,

or

for obtaining

means of false
representations,

money

or property

or fraudulent

pretenses,

or causes their use]

for the purpose of executing

or artifice

by

or promises . . . [uses

the mails or wires,

such scheme

. . . [shall be punished].

-1010

acts

and that Sawyer's

reimbursement of Sawyer for, his illegal gratuities.

4.

the

however.

See United States v. Silvano, 812 F.2d 754, 758-59

___ _____________
_______

(1st Cir. 1987).

Congress may protect the integrity

interstate

and

mails

furtherance of

(citing Badders
_______

(1916)); United

by

forbidding

schemes to defraud a state

whether or not it can

758

wires

their

States v.

United States,
_____________

Rendini, 738

use

in

and its citizens,

forbid the scheme itself.

v.

of the

240

See
___

id. at
___

U.S. 391,

F.2d 530, 533

393

(1st

______________

_______

Cir. 1984).5

Sawyer also contends that the government has failed

to

establish that

wire fraud

the

he committed

("honest services

statutes.

To explain

"honest services"

fraud") within the

our resolution of

mail and

meaning of

this issue, we

provide a brief overview of the law of honest services fraud.

The ultimate issue

is whether or not

the "scheme" presented

at trial actually targeted the Massachusetts' citizens' right

____________________

5.

Some have

observed that these

used effectively
fraud,

to convict

and that the

"jurisdictional

hook"

and punish for

use of the
to

statutes are increasingly

bring

the substantive

mails or wires
the

conduct

is merely a
within

the

proscription

of the mail and wire fraud statutes.

See Peter
___

J. Henning, Maybe It Should Just Be Called Federal Fraud: The

_________________________________________________
Changing Nature of the Mail Fraud Statute, 36
___________________________________________
435
23

B.C. L. Rev.

(1995); cf. Schmuck v. United States, 489 U.S. 705, 722___ _______
_____________
(1989)

majority's

(Scalia,
conclusion

furtherance of the
"[t]he

law

against

does

J.

dissenting)
that

certain

demonstrated scheme,
not

establish a

(disagreeing
mailings

were

and observing

general

with

federal

in
that

remedy

fraudulent conduct, with the use of the mails as the

jurisdictional hook . . . . In other words, it is mail fraud,

not

mail

and

fraud,

that

incurs

liability."

citations, quotations and alterations omitted)).

-1111

(internal

to "honest services"

within the

meaning of

the mail

fraud

statute.

To prove

mail and wire fraud,

the government must

prove, beyond a reasonable doubt: (1) the defendant's knowing

and willing participation in a

with the specific intent

scheme or artifice to defraud

to defraud, and (2) the use

of the

mails or interstate wire communications in furtherance of the

scheme.6

Cir. 1991)

United States
_____________

(listing mail

Cassiere, 4 F.3d
________

fraud elements).

v. Montminy, 936 F.2d 626,

________

627 (1st

fraud elements); United States v.

______________

1006, 1011

(1st Cir.

1993) (listing

Because the relevant language in

wire

both the

mail and wire

fraud statutes

offenses together

for the

simplicity, we refer only

is the same,

purposes

we analyze

of this

to mail fraud.

case and,

See
___

both

for

United States
_____________

v. Boots, 80 F.3d 580, 586 n.11 (1st Cir. 1996).

_____

Traditionally,

schemes

that deprived the

other item of economic

v.

the

schemes

fraud

statute

fraud victim of

value.

Grandmaison, 77 F.3d 555,

___________

courts

mail

reached

property or some

See generally, United States

___ _________ ______________

565-66 (1st Cir.

1996).

Some

later expanded the scope of the statutes to encompass

intended to

defraud citizens

of their

intangible,

____________________

6.

The use of the

scheme

need

only

mails or wires to further

be

"incidental."

the fraudulent

United States
______________

v.

Grandmaison, 77 F.3d 555, 566 (1st Cir. 1996).

___________
"[d]efendant[] need

not personally use the

Moreover, the

[mails or] wires

as long as such use was a reasonably foreseeable part

scheme

in which [he] participated."

of the

United States v. Boots,

_____________
_____

80 F.3d 580, 585 n.8 (1st Cir. 1996).

-1212

non-property

right to

the honest

officials.

See generally,
___ _________

W.

services of

Robert

their public

Gray, Comment,

The
___

Intangible-Rights
Doctrine
and
Political-Corruption
_____________________________________________________________

Prosecutions Under the Federal Mail Fraud Statute, 47 U. Chi.

__________________________________________________

L.

Rev.

562, 563

(1980) and

courts rationalized that a

cases

cited therein.

Those

public official "acts as `trustee

for the citizens and the State . . . and thus owes the normal

fiduciary duties of a trustee, e.g., honesty

____

them."

Silvano, 812 F.2d

_______

Mandel,
______

591 F.2d

part en banc,
_____________

602

1347,

at 759 (quoting

1363 (4th Cir.),

F.2d 653,

653

and loyalty' to

United States v.
_____________

aff'd in relevant
_________________

(4th Cir.

1979),

cert.
_____

Supreme Court

held,

denied, 445 U.S. 961 (1980)).

______

In

1987, the

contrary to every

United

States

circuit court that had

decided the issue,

that

the mail

defraud

fraud

statute did

citizens of their

honest and

not

prohibit schemes

to

intangible, non-property right to

impartial government.

McNally
_______

v. United States,
_____________

483 U.S. 350, 359 (1987); see United States v. Ochs, 842 F.2d
___ _____________
____

515,

521

decision),

(1st

Cir.

cert.
_____

1988)

denied, 498
______

(noting

U.S.

Court's

895

unexpected

(1990).

Congress

quickly reacted to the McNally decision by enacting 18 U.S.C.

_______

1346, which provides that, for the purposes of, inter alia,
_____ ____

the

mail

and wire

fraud

statutes,

"the term

`scheme

or

artifice to defraud' includes a scheme or artifice to deprive

another of the intangible right of honest services."

We have

-1313

recognized that

1346 was intended to

reinstate the reasoning of

overturn McNally and

_______

pre-McNally case law holding that

_______

the mail fraud statute reached schemes to defraud individuals

of

the intangible

officials.

right

to honest

services of

See Grandmaison, 77 F.3d at 565-66.7

___ ___________

government

The

this context

concept of

governmental "honest

eludes easy

definition.

services" in

As Judge Winter

has

aptly noted:

One searches in vain for even the vaguest

contours of the legal obligations created
beyond

the

obligation

governmental

affairs

"impartially,"

to

to

conduct

"honestly"

ensure one's

or

"honest

and faithful participation" in government

and to obey

"accepted standards of moral

uprightness,

fundamental

honesty,

fair

play and right dealing" . . . . (citation

omitted) [T]he quest for
is not
right

furthered
to good

legal standards

by reference

government" and

to

"the

the duty

"to act in a disinterested manner."

____________________

7.
21,

See also 134 Cong. Rec.

___ ____
1988) (statement

H11108-01, 1988 WL 182261

of Rep.

Conyers) ("This

(Oct.

amendment is

intended merely to overturn

change in the

the McNally decision.

_______

law is intended."); 134

No

other

Cong. Rec. S17360-02,

1988 WL 182529 (Nov. 10, 1988), Section Analysis of Judiciary

Committee
("[Section
The

Issues in

H.R.

5210, (Statement

1346] overturns the decision

intent is to reinstate

all of the
and wire

fraud

change").

But see United States v. Brumley,

___ ___ ______________
_______
1996) (holding that

schemes

to

defraud

citizens

Biden)
. . .

pre-McNally case law

_______

to

reach

mail

in McNally .
_______

pertaining

1440 (5th Cir.

the

of Sen.

statutes

79 F.3d 1430,

1346 does not

of

without

their

clearly
right

to

evolution

of

government officials' honest services).

Given

the

honest-services mail

peculiar
fraud, we

history

and

review case law

from before

and after the McNally decision for guidance in discerning the

_______
parameters of this federal crime.

-1414

United States v.
_____________

Margiotta, 688 F.2d

_________

108, 142-143 (2d

Cir.

1982) (Winter, J., concurring in part and dissenting in part)

(quoting Mandel,
______

591 F.2d at

1361), cert. denied,

_____ ______

461 U.S.

913 (1983).

The cases

in which a deprivation

honest services is found

the

official

or her

interest, resulting

involving

matters,

the bribery

the

typically involve either bribery of

failure

in

of an official's

to

disclose

personal gain.

of

a state

Fourth Circuit

In

conflict

a leading

governor on

explained

how

of

case

legislative

bribery of

an

official can constitute honest services fraud:

[T]he fraud

involved in the bribery of a

public official lies in the fact that the

public

official

independent
official

is

not exercising

judgment

matters. .

in
. .

his

passing
When a

on

public

official has been bribed, he breaches his

duty

of

honest,

disinterested

service.

faithful
.

and

[T]he

official has been paid for his decisions,

perhaps

without

merits of
is not

even

the matter.

considering

the

Thus, the public

receiving what it expects

and is

entitled to, the public official's honest

and faithful service.

Mandel, 591 F.2d at 1362; see

______
___

(involving scheme

exercise

Holzer,
______

of

to bribe Native-American

his border

816 F.2d

also, Boots, 80 F.3d at 592-94

____ _____

304,

patrol

308 (7th

duties);

police chief

in

United States
_____________

v.

Cir.) (judge's

systematic

receipt of bribes and "loans" to influence official actions),

vacated,
_______

484 U.S.

807 (1987)

(ordering reconsideration

light of

McNally); United States

_______
_____________

v. Isaacs, 493
______

in

F.2d 1124,

-1515

1149-51 (7th Cir.) (public officials received bribes intended

to

induce

special

favors

and

preferential treatment

for

certain racing interests), cert. denied, 417 U.S. 976 (1974).

_____ ______

public

disclose material

official

information to

Silvano 812 F.2d at 759.

_______

has

When

an

affirmative

duty

the public employer.

to

See
___

an official fails to disclose

personal interest in a matter over which she has decision-

making power, the public

is deprived of its right

either to

disinterested decision

making itself or, as the case may be,

to full disclosure as

to the official's potential motivation

behind an

official act.

city fiduciary

about

who failed

unnecessary

See id.
___ ___

(upholding conviction

to disclose material

spending

of

enrichment of fiduciary's friend).

city

money

of

information

for

secret

Thus, undisclosed, biased

decision making

loss to

for personal

the public

honest services.

board member

contract

interest);

gain, whether or

is shown,

not tangible

constitutes a deprivation

of

See e.g., Grandmaison, 77 F.3d at 567 (city

___ ____ ___________

took secret action to influence award of public

to

official's

private

United States v.
_____________

1995) (board of education

construction-business

Waymer, 55 F.3d
______

564 (11th Cir.

member received secret commissions

from companies contracting with school system), cert. denied,

_____ ______

No. 95-887, 64 U.S.L.W. 3653, 3656 (U.S. May 20, 1996).

The broad scope of the mail fraud statute, however,

does not encompass every instance of official misconduct that

-1616

results in the

United States
_____________

1976),

unsolicited

official's personal

v.

city

McNeive, 536
_______

plumbing

gratuities

in

gain.

F.2d

For example,

1245, 1246

inspector

repeatedly

connection

with

(8th

in

Cir.

accepted

his

non-

discretionary, administrative duty to issue plumbing permits.

Although McNeive

may have violated a

city ordinance banning

the

acceptance of

found

because

gratuities by

city officials,

the court

his conduct beyond the reach of the mail fraud statute

there

was

no

disadvantaged the city in

evidence

that

the

any respect or that

gratuities

they deterred

McNeive from otherwise conscientiously performing his duties.

Id. at
___

1251.

involve nor

In

short, the "scheme"

was shown

contemplate the deprivation of

to neither

McNeive's honest

services to the city or public.

Likewise,

1014,

(1979),

1026

the

in

United States
_____________

v. Rabbitt,
_______

(8th Cir.

1978),

cert. denied,
_____ ______

Eighth

Circuit

reversed

convictions of Rabbitt, a

439

the

state representative.

583 F.2d

U.S. 1116

mail

fraud

Rabbitt had

offered to introduce a friend's architectural firm to certain

public officials responsible for awarding state architectural

contracts, in return for a ten percent commission on any work

awarded.

receipt

Id. at
___

1020.

of the resulting,

The

government charged

that his

undisclosed commissions defrauded

the citizens of Rabbitt's honest services.

evidence showed, however, that

Id. at 1025.
___

The

the officials who awarded the

-1717

architectural

played no

Because

contracts did

so on

role in the selection

Rabbitt

did

not

conduct

services.

F.2d

at

did not

Id.
___

(noting case's

The

government failed to

citizens

disclosure.

were

Id. at 1026.
___

awarding

the

citizens of

of

resemblance to

court

also

his

honest

observed

that

Id. at 1026.
___

deprived

of

any

right

the

requiring

interest in the contracts, and

not

the

McNeive, 536
_______

cite any applicable standard

Rabbit to disclose his

the

the

and Rabbitt

to fulfill his official duties,

deprive

1251-52).

of the firm.

control

contracts, or otherwise fail

his

merit alone

to

thus,

such

The

although

McNeive
_______

a public

and

Rabbitt
_______

official

might

cases

illustrate

engage in

that

reprehensible

misconduct related to an official position, the conviction of

that official for

honest-services fraud

cannot stand

where

the conduct does not actually deprive the public of its right

to her honest

result.

services, and it is

Similarly,

for scheming to

services,

if a non-public-official

defraud the public

the government must

scheme is the deprivation

If the

the

deprive

honest

target of the

of the official's honest services.

necessary outcome, deprive

of honest services, then

intent to

that

is prosecuted

of an official's

prove that the

"scheme" does not, as its

the public

not shown to intend

another of

independent evidence of

those

services must

be

presented.

See United States v. D'Amato, 39 F.3d, 1249, 1257

___ _____________
_______

-1818

(2d

Cir. 1994) ("Where the

the alleged

must produce

victim as

scheme does not

its necessary result,

evidence independent

show the defendant's

cause injury to

the government

of the alleged

scheme to

fraudulent intent."); United States v.

______________

Von Barta,
__________

(noting

635 F.2d

that "the

999,

1005-1006

prosecution must

n.14 (2d

prove that

Cir.

1980)

some actual

harm or injury was at least contemplated"), cert. denied, 450

_____ ______

U.S. 998 (1981).

of this case.

With this background, we consider the facts

-1919

A. Scheme to Defraud
_____________________

Here,

the theory

the government did

that he, as a

not prosecute

Sawyer on

lobbyist, directly owed a

duty of

honest services to the Commonwealth or its citizens.

Rather,

the government sought to prove that Sawyer engaged in conduct

intended to cause state legislators to violate their

the

by

public.

proving

members of

statutes.

The government

that Sawyer

the

duty to

sought to establish this scheme

intentionally

legislature to

violate,

violated,

two

or caused

Massachusetts

Briefly,

discussed

these

two

Massachusetts

statutes,

more fully infra, are: (1) Mass. Gen. L. ch. 268B,

_____

6 (the "gift" statute), which prohibits -- under threat

civil

penalties --

a "legislative

agent" from

giving to a public official (or an official's

of

offering or

acceptance of)

"gifts" aggregating $100 or more per year; and (2) Mass. Gen.

L. ch. 268A,

3 (the "gratuity" statute), which prohibits --

under threat of civil

giving to a

accepting)

because

that

and criminal penalties -- anyone

legislator (or a

anything

legislator from soliciting

of "substantial

value

. for

from

or

or

of any official act performed or to be performed" by

person.

Through

the

violation

of these

laws,

the

government contended, Sawyer stole the honest services of the

legislators.

-2020

In general, proof of

required

for

conviction

of

a state law violation

honest services

fraud.

is not

See
___

Silvano, 812 F.2d

_______

state

law

violation

complications.

953,

958 (5th

where

"should

See
___

Indeed, the

in

such

incorporation of

prosecution

v. Washington,
__________

(reversing mail

have been

not be found

guilty of

indictment,

the federal

laws

in question

688 F.2d

offense merely

Here, however, the parties

as structured,

had to

cause

the defendant

required it

prove that Sawyer violated at least one state law.

state

may

fraud conviction

instructed that

violated state law").

that the

United States
_____________

Cir. 1982)

jury should

because he

agree

at 759.

be

to

Thus, the

correctly charged

as a

matter of state law, and the violation of at least one had to

be proven.

Sawyer appeals various aspects of

the court's jury

instructions

on the

state statutes

alleged scheme to defraud.

instructions adequately

To determine

explained the

"tended to confuse

or mislead

Alzanki,
_______

994,

54

F.3d

quotations and

909

role

(1996), we

of the

and their

(1st

law

Cir.

or whether

they

United States
_____________

1995)

v.

(internal

citation omitted),

cert. denied, 116

_____ ______

S. Ct.

review the entire

charge pertaining

to the

state statutes

in this

honest services

prosecution:

In this case
Mr.

in the

whether the court's

the jury,"

1001

role

Sawyer

the government has

with

devising a

-2121

charged

scheme

or

fraud

artifice; that is, a plan, to deprive the

Commonwealth

of

Massachusetts

citizens of

their

right to

services of members of
Legislature

by

giving

golf,

its

honest

the Massachusetts

those legislators gifts

lodging,

the

and

or

offering

of free

meals,

to

travel,

and

other

entertainment.

I instruct you that under

the

wire

mail

scheme

and

to

deprive the
honest

defraud

fraud
can

public of

services

of

be

statutes,
a

its right
members

plan

a
to

to the
of

the

Massachusetts Legislature.
Elected

public

officials, such

as

members of the Massachusetts Legislature,

owe certain duties to the Commonwealth of

Massachusetts and

to its citizens.

One

of

is

act

those

honestly.

duties

the

duty

to

The government charges that by

______________________________

violating and
causing legislators to
_________________________________________
violate
certain state
statutes, Mr.
_________________________________________
Sawyer deprived the public of its right
_________________________________________
to the honest services of members of the
_________________________________________
Massachusetts Legislature and, therefore
_________________________________________
devised a scheme to defraud.
___________________________
In
alleges

other
that

words,
the

the

government

defendant violated
___________________

federal laws, mail fraud and wire fraud,

_________________________________________
by intentionally violating or causing
_________________________________________
Massachusetts
legislators to
violate
_________________________________________
certain state laws.
____________________
order to
mail

the

prove the first element

fraud and/or

defendant

devised

government

reasonable

Accordingly,

wire fraud,
a scheme

must

doubt

that

prove
the

in

of the
that the

to defraud,
beyond

defendant

intentionally violated
of

the

or caused members

Massachusetts

Legislature

to

violate at least one of the following two

state laws . . . . (emphasis added).

After describing the two statutes, the court continued:

If

you find

that

beyond

the defendant devised

scheme

to

defraud

intentionally
violation
that

a reasonable

of at

or created a

in

violated

doubt

which
or

least one

caused
of the

he
a
laws

I have just described, then you may

find that

the government has

-2222

proved the

first

element of

mail

fraud

and

wire

fraud.

These instructions

requisite scheme to defraud

or

caused legislators

statutes.

permitted the jury to

upon proof that Sawyer violated,

to violate,

In other words, the

a violation of either

find the

either one of
______

the state

jury was allowed to find that

statute, without more, constituted the

deprivation

of honest

At oral

argument before

this court,

the government affirmed that it

chose the state

law

services.8

violations as "the sole

vehicle to prove

the scheme or

artifice to defraud" in order to "narrow the issues of intent

and good faith."

Thus,

we analyze both

state statutes

in

light

of the

determine

law of

whether

honest services,

the

court's

permitted a conviction

set forth

instructions

for conduct not

above, to

erroneously

within the reach

of

the mail fraud statute.

1. The Gift Statute

____________________

____________________

8.

After the

court instructed

the jury, Sawyer

following objection:

Your

Honor, I

instruction

believe that

failed to

the jury that, even

defendant violated

the Court's

properly instruct

if it finds that the

one of the

two state

statutes . . . the defendant would not be

guilty of any federal offense, mail fraud
and

wire

fraud

violation] was

offense,

unless

[the

part of a plan to defraud

the Commonwealth of Massachusetts

or its

lodged the

citizens of the duty of honest services.

The court declined any further charge.

-2323

The

first

alleged scheme to

Massachusetts

defraud was

statute

based is ch.

on

268B,

"gift statute"), which provides:

No legislative agent shall

knowingly and

wilfully

to

offer

or

give

public

which

the

(the

official

or public employee

or a member

of such person's immediate family, and no

public

official

or

public employee

member of such person's

shall knowingly and

immediate family

wilfully solicit

accept from any legislative

with

an aggregate

or

value of

or

agent, gifts
one hundred

dollars or more in a calendar year.

Mass.

to

Gen. L. ch. 268B,

the court's

before turning

6.

We discuss Sawyer's challenges

instructions

to the

on

the statutory

statute's relation

definitions

to the scheme

to

defraud.

a. "Legislative Agent"
_______________________

The court

statute,

legislative agent

aggregating $100 or

legislator's

instructed

more to

family.

It

the

cannot

jury

that,

give

a legislator or

further

under

or offer

the

gifts

member of

instructed

that

the

"legislative agent"

reward,

does

legislation."

any

is "any person who,

act

See Mass.
___

to

promote,

for compensation or

oppose

Gen. L. ch. 268B,

or

1(g).9

influence

Sawyer

____________________

9.

The

entire

definition

of

"legislative

agent,"

purposes of the gift statute, is:

any person who for compensation or reward

does

any

act

to

promote,

influence legislation

. . . .

oppose

or

The term

shall include persons who, as any part of

their

regular

and usual

-2424

employment and

for

argues that this instruction

that

a person

registered

failed to reflect his assertion

is a "legislative

with the

agent" only when

Secretary of

State or

he is

he is so

actually

engaging in lobbying activity at the time he gave the alleged

gifts.

The court

one

who

is

paid

legislation,"

i.e.,
____

instructed that

to

to

"promote,

lobby,

a legislative

oppose

and that

forbidden to give or offer certain "gifts."

as

or

such

agent is

influence

agents

are

The instruction,

a whole, adequately conveyed the idea that such gifts are

forbidden only

gifts, are

when given by those

paid to actually

person with the

who, at the time

lobby.

While there

job title "lobbyist"

who does not

of the

may be

actually

engage in lobbying, there was ample evidence here that Sawyer

lobbied at the time

the

fact

that he

he gave the alleged "gifts."

had an

obligation

Secretary of State, see Mass. Gen. L.

___

not

alter

the

definition.

No

Moreover,

to register

ch. 3,

further

40, 41, does

instruction

required.

b. Shared Meals as "Gifts"

___________________________

____________________

not simply incidental thereto, attempt to

promote, oppose

with the

or influence legislation

was

. . . whether
addition

to

or not any compensation in

the

salary

for

such

employment is received for such services.

Mass.

Gen. L. ch. 268B,

1(g); see also

___ ____

39 (identical

definition in statutory section on disclosure obligations).

-2525

The court instructed

the

relevant

Massachusetts

the jury that "gifts,"

law,

are

"a

under

payment,

entertainment, subscription, advance, services or anything of

value,

unless consideration

received."

evidence

of

equal or

See Mass. Gen. L. ch. 268B,

___

offered to

statute was

prove Sawyer's

his payment

with the legislators.

greater value

1(g).

Sawyer

Much of the

violations of

for shared meals

is

the gift

and entertainment

contends that his payment

for

"shared hospitality" does not

constitute a "gift" within the

meaning

The

of

the

statute.

potentially

complicated

analysis of

the statutory

forth at

Mass. Gen.

L.

and

issue

involves

history of

ch. 3,

43.

turns

somewhat

out

have

be

convoluted

a comparable

We

to

law set

carefully

reviewed the arguments on both sides, and for the reasons set

forth

in the

district

court's ruling,

see Sawyer,
___ ______

878 F.

Supp.

at

282-84, we

conclude

that

Sawyer's shared

meals

could, if the jury so found, fit within the gift definition's

term

"entertainment" and/or the very broad phrase, "anything

of value."

c. Relation to Scheme to Defraud

_________________________________

As

explained

above,

instructions

regarding

the

intentional

violations of

under

scheme

the gift

to

the

court's

defraud,

statute, by

occurrence (or ipso facto), must deprive the public

____ _____

legislators' honest services.

Sawyer challenges

-2626

jury

Sawyer's

their very

of their

this legal

premise,

arguing

deprive

the public

that such

of those

violations

do

services.10

not necessarily

For

the reasons

that follow, we agree.

The gift statute, which forbids a legislative agent

from "knowingly and wilfully" giving a "public official . . .

gifts with an aggregated value of one hundred dollars or more

in

a calendar

limits, by

year," Mass.

Gen. L.

ch. 268B,

a dollar-amount, the gift-giving

6, simply

by lobbyists to

legislators.

It

is a

prophylactic civil

prohibition that

addresses

appearances of -- but not actual -- corruption.

violation

of

necessarily

the

Massachusetts

entail any

otherwise affect,

gift

improper

statute

motive

does

not

to

influence,

or

the official duties of the

______

recipient.

It

is possible for a lobbyist to give a legislator items falling

within

the

statute's

definition

of

"gift,"

or

for

____________________

10.

The

government claims that

the

evidentiary sufficiency

thus has waived

Sawyer has

of his

a jury instruction

fraudulent intent,
challenge on the

We disagree.

While Sawyer ultimately

us

evidence

that

the

was

only challenged
and

issue.

endeavors to persuade

insufficient

to

support

his

conviction, he squarely challenges the very legal theory upon

which

he

was convicted.

He

particularly challenges

the

government's theory (as accepted by the district court) that,

as a matter of law, the scheme to defraud could be predicated

upon

state

deprive the
lodged

law

violations

public

of honest

an adequate

between

the

requirement of
sharply

the

intent

services.

Sawyer

not

objection on this

court, see supra note

___ _____
addresses the

alone, without

issue with

8, his brief to this

to
only

the trial

court thoroughly

precise legal issues surrounding the interplay

mail

statute,

the

fraudulent intent.

state

statutes,

The legal

and

the

arguments are

presented and the record is adequate for our review.

Thus, we conclude that the issue is properly before us.

-2727

legislator

to

intent to

accept such

cause the

gifts,

without

legislator to deviate

performance

of

official duties.

constitute

gift-statute

While

violation,

an accompanying

from the

honest

such gifts

would

not

every

such

circumstance would necessarily amount to a deviation from the

official's performance

of honest

services to

the public.11

Thus, unlike the honest services fraud cases, noted above, in

which an official was bribed or took official action based on

a secret conflict of interest, a gift statute violation, even

if intentional, does not in itself

amount to honest services

fraud.

While

the

Massachusetts' citizenry

legislators to comply with

capacity, the

expects their

laws pertaining to their official

presence of such illegal

conduct, even though

it relates to public office, does not by itself (or,

establish honest services

Dowling, 739
_______

F.2d 1445,

fraud.

Cf.
___

per se)
___ __

See United States

___ _____________

1449-50 (9th Cir.

v.

1984) (rejecting

government's suggestion that "the presence of illegal conduct

alone

may constitute the basis

of the `fraud'

element of a

mail fraud prosecution" and stating that "to hold otherwise .

. . would have

the potential of bringing almost

any illegal

act within the province of the mail fraud statute"), rev'd on

________

other grounds, 473 U.S. 207 (1985); United States v. Gallant,

_____________
_____________
_______

____________________

11.
gift
fine.

We note

that under Massachusetts law,

statute is

punishable by

no more

violation of the

than a

$2000 civil
_____

-2828

570

F. Supp. 303, 309

Congress

and n.7 (S.D.N.Y.

1983) (noting that

forbade the use of the mails in furtherance of "any

scheme or artifice to defraud" and not in furtherance of "any

crime").

To allow

obligations to

every transgression of state governmental

amount to

mail fraud would

effectively turn

every such

violation into a

federal felony; this

cannot be

countenanced.

Because

to equate

honest

the court's instructions

a gift statute

services,

"intent to defraud"

without more.

To

it

allowed the jury

violation with the

also permitted

the

deprivation of

jury

from the intent to violate

establish the

scheme to

to find

an

the statute,

defraud through

these violations, however, it must also have been charged and

shown

that

the

intent
______

behind

deprivation of honest services.

(explaining that where

the

scheme, independent

required).

the

violations

was

the

See D'Amato, 39 F.3d at 1257

___ _______

harm is not

evidence

the necessary result

of fraudulent

Thus, this case required

intent

of

is

a separate instruction

that, to prove

the jury had

the intent to

to find

commit honest services

fraud,

that Sawyer intended to influence or

__________________________

otherwise improperly affect the official s performance of

_____________________________________________________________

duties, not
______

merely that

he

intended to

statute.12

Allowing the jury

violate the

to find that

state

Sawyer intended

____________________

12.

This intent

the

intent

is not

to deceive
_______

addition to deceit (the

______

equivalent to, or
the

public,

subsumed within,

discussed

infra.
_____

In

gravamen of "fraud"), the government

-2929

to defraud the public

on

proof

of

gift

reversible error.

57 (1st

that

of its right to honest

statute

violations

of

"could have led the

alone

constituted

See United States v. Doherty, 867 F.2d 47,

___ _____________
_______

Cir.), cert. denied, 492 U.S.

_____ ______

reversal

services based

convictions is

918 (1989) (observing

required

if instructions

jury to convict for conduct

outside the

proscription of the mail fraud statute").

2. The Gratuity Statute

________________________

The

second Massachusetts

statute

upon which

the

convictions for honest-services mail fraud rely, is ch. 268A,

3 (the "gratuity statute"), which provides, in part:

(a)
by

Whoever,
law

for

official
gives,

otherwise than as provided

the

duty,
offers

substantial
former

proper
directly

or

value

discharge
or

of

indirectly

promises anything

of

to

or

any

present

state . . . employee . . . for or

because of any

official act performed or

to be performed by such an employee

. . . .
(d)

. . . shall be punished by a fine of

not

more than three

by

imprisonment

thousand dollars or

for not

more

than two

years, or both.

Mass. Gen. L. ch. 268A,

3.

____________________

must also show

the intent to harm (in

____

this case, to deprive

of

honest

services).

See
___

Heritage Travel, Inc.,

_______________________
(explaining

that

mail

McEvoy Travel Bureau, Inc. v.

____________________________

904

F.2d 786,

fraud

791-92

(1st

both

deceit

requires

deprivation), cert. denied, 498

_____ ______
1257 (explaining that

"the deceit

with

contemplated harm

the

to

and

U.S. 992 (1990); D'Amato, 39

_______

F.3d at
a

Cir.)

must be

coupled

victim") (quotation

and

citation omitted).

-3030

The

centerpiece

of the

gratuity

statute

is the

giving of an item of "substantial value" (the "gratuity"), to

an official, "for or because of any official act performed or

to be

performed" by

the

official.

entails some connection between

Because this

language

the gift and the performance

of official duties, a gratuity statute violation --

gift

statute

violation

implicate the duty of

--

may

itself

be

honest services in a

unlike a

sufficient

given case.

with the

gift statute, however,

not every violation

gratuity

statute

encompasses

induce the

public

automatically

official to

alter

an

or deviate

performance of honest and impartial services.

to

As

of the

intent

to

from

the

We explain.

A Massachusetts gratuity offense does not require a

finding of corrupt intent, i.e., improper intent to influence

____

official decision

making.

See Commonwealth v.

Dutney, 348

___ ____________

N.E.2d

812,

821 (Mass.

Ct.

App.

lesser included

______

1976) (finding

offense

to be

offense of

bribery

statute, Mass. Gen. L. ch. 268A,

element

of "corrupt

intent" i.e.,
____

gratuity

Massachusetts

2, which adds the

intent

to influence);13

____________________

13.

The Massachusetts bribery statute,

which did not form a

part of this case, provides, in part:

Whoever,

directly

corruptly
_________

gives,

anything

of value

employee

. .

or
offers
to

the

or

promises

any state

., with intent .
____________

influence any official act

____________________________
within

indirectly,

official

or

. .

.
to
__

any act

responsibility

such employee [shall be punished].

-31-

. .

of

31

cf. United States v.

___ _____________

Mariano, 983 F.2d 1150, 1159

_______

1993) (observing that gratuity offense, unlike

not involve a

intent

need be

"corrupt purpose").

shown.

Rather,

jury might

(1st Cir.

bribery, does

only some lesser

be charged

to find a

bribery or gratuity offense in the alternative, thus allowing

it to convict for a gratuity offense

if it is convinced that

the defendant gave

an

something to a public official because of

official act, but is not persuaded that the defendant had

a corrupt intent to

influence that act.

See,
___

e.g., Dutney,
____ ______

348 N.E.2d at 821.

As the

word "gratuity"

often associated with

an official for an

the

future.

implies,

the offense is the

983 F.2d

or to be taken

at 1159

attaching any

strings,

reward for actions the public

is

already committed

otherwise

be properly

to

intending it

the gift

instead as

official has already taken

take").

The

motivated; and

official act

the

in

(noting that,

unlike one who bribes, the gratuity offender "gives

without

most

intent to "reward"

act taken in the past

See Mariano,
___ _______

the intent

or

might

gratuity, though

unlawful, might

mindset

not be intended to

with regard

cases, such as

to

that particular

a reward for

intent to influence could

influence the official's

action.

In

long-past official action,

not possibly exist.

Mass. Gen. L. ch. 268A,

2(a) (emphasis added).

-3232

the

finding of

honest services fraud, however, requires, in connection

____________________

some

with

the gratuity, the intent to cause an official to deviate from

the honest performance of services.

Thus,

violation

as

of the

with

the

Massachusetts

more, does not establish an

fraud.

The

government

accompanied by the

shown

in a

gift

gratuity

proof

statute,

of

without

intent to commit honest services

must

prove that

requisite intent.

number of

statute,

ways.

the

conduct

This intent could

For example,

was

be

a bribery-like,

corrupt intent to influence official action necessarily is an

intent

to

services.

deprive

the

public

person might

gratuity with the intent

not,

of

an

official's

however, give

honest

an unlawful

to effect a specific quid

____

pro quo.
___ ___

Rather,

as

the

continuing and

engage

in

offenses in

in

government

long-term interests before an

pattern

of

repeated,

order to coax ongoing

derogation of

services.

contends here,

Such

person

with

official might

intentional

gratuity

favorable official action

the public's

right to

conduct would

be akin

classic case of) the conflict of

impartial official

to (although

not a

interest cases noted above.

See,
___

e.g., Grandmaison, 77 F.3d at 567; Silvano, 812 F.2d at

____ ___________
_______

759.

Here, for

example, while Sawyer may not

the legislators with direct kickbacks

have provided

or commissions arising

out of the specific official action, he may have intended the

legislators

generally

interests,

knowing that

to

treat

preferentially

the free meals,

Hancock's

entertainment, and

-3333

golf would continue so long as

favorable official acts were,

at some point, taken.

In this case, the district

instruct

court did not, in fact,

the jury on a true "gratuity" offense.

instructed the

jury that,

to establish a

Instead, it

gratuity offense,

the

government must

substantial

value

prove

to

influence an official act

__________________________

that Sawyer

legislator

the jury

to find

of

with the intent to

_____________________

of that legislator."

instruction erroneously added an

to the gratuity offense,

"gave something

While this

intent-to-influence element

it also had the effect

the requisite intent

of charging

for honest

services

fraud.14

3.
Conclusion: Scheme
to Deprive of Honest
___________________________________________________

Services
________

The jury was permitted to find the first element of

mail and wire fraud,

the scheme to defraud, upon

proof that

either the gift statute or the gratuity statute was violated.

The

gift
____

statute

as

charged,

however,

insufficient basis upon which to find

was

legally

the scheme to defraud.

____________________

14.

The

court also

instructed the

jury that

it is

not a

defense to a gratuity charge that the official act would have

occurred even if the gratuity had not been given.
States v. Previte,
______
_______
assigns error
that the

648 F.2d 73, 82 (1st

have occurred

indicative of good faith.

how
could

Cir. 1981).

to this instruction, contending

act would

See United
___ ______

without

Sawyer

that the fact

the gratuity

is

Sawyer fails to explain, however,

the fact that an official act would have occurred anyway

have

gratuities.

affected

his
___

The court's

state

of

mind

when giving

the

instruction was a correct statement

of the law, relevant to this case, and it was not in error.

-3434

Although

terms

the

gratuity statute
________

of honest services mail

convictions were based on

charged

gift statute.

several

bases

for

was

properly

fraud, we cannot

instructed in

tell if the

that statute or the insufficiently

When

a jury has

conviction,

one

been presented with

of

which

is

legally

erroneous, and it is impossible to tell which ground the jury

convicted upon,

the conviction cannot stand.

United States
_____________

v. Nieves-Burgos, 62 F.3d 431, 435-36 (1st Cir. 1995).

_____________

The government contends that

if we find error with

respect to the gift statute, we should affirm the convictions

because

the

offenses within

We cannot

that

jury

found

assume from

the Travel Act

the jury based its

convicting

committed

gratuity

fraud convictions on

The court charged the jury to consider

Accordingly,

on the

convictions, however,

mail and wire

offense as separate bases

charges.

Sawyer

the Travel Act convictions, discussed infra.

_____

the gratuity statute.

each

that

mail

the

for the mail

and wire fraud

possibility exists

and wire

fraud

that,

when

charges, the

jury

focused on violations of the gift statute, alone.

See Boots,
___ _____

80 F.3d at 589

(declining to affirm conviction where

possible

that

the jury

basis).

Thus, for the foregoing reasons,

focused

its

verdict on

it was

erroneous

Sawyer's mail and

wire fraud convictions must be reversed.

Sawyer contends that

to

prove an

intent to

the evidence was insufficient

influence the

legislators' official

-3535

acts

and that

therefore his

conviction should

be reversed

without the possibility

trial,

there

repeatedly

was

of retrial.

evidence

provided

that

legislators

We cannot

Sawyer

with

agree.

intentionally and

valuable

entertainment for the purpose

of obtaining "greater

to,15

"certain

and

of

legislators.

developing

jury could credit

At

gifts

relationship

of

access"

with,"

Sawyer's defense that

he

thought his expenditures were lawful and that they were meant

only for goodwill entertaining.

light most favorable to

States
______

116

repeated

the

the prosecution, however, see United

___ ______

v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied,

______
_____ ______

S. Ct. 522 (1995),

beyond

Taking the evidence in

a jury could

reasonable doubt

gifts and

that

also rationally infer,

Sawyer

gratuities would

intended that

induce legislators

his

to

perform

official

regardless of,

acts

or at

to

benefit

the expense

Hancock's

interests

of, the public

interest.

____________________

15.

We

itself,

do

amounts to

legislators'
points

not think
an

intent to

exercise of

desire

to gain

access, by

influence improperly

official duties.

The

the

government

to no legislative duty to provide equal access to all

members of the public;

doubt one exists.
phrase

that the

"free

and, from a practical

See Sawyer, 878 F. Supp. at 294 (striking

___ ______

from

legislators' duties).

favoritism"
True,

with all lobbyists, his employment

influence legislators

from

indictment's list

Sawyer's very

required him to develop contacts

endeavors, however,

standpoint, we

to benefit

job description

in the Legislature, and, as

goal was to persuade
certain

are protected by the

the Government for a redress

of

interests.

and
Such

right "to petition

of grievance" guaranteed by the

First Amendment of the United States Constitution, see United

___ ______
States
______

v. Harriss,
_______

347 U.S.

612, 625

(1954); it

impermissible to rely upon the lobbying position

to establish a corrupt intent to influence.

-3636

would be

simpliciter

Hence, retrial is not precluded.

90

(reversing because

remanding

for

possible

of

See Boots, 80
___ _____

legal error

retrial

F.3d at 589-

in instructions

because

the

but

evidence was

sufficient for proper conviction); United States v. Ochs, 842

_____________
____

F.2d 515, 529 (1st Cir. 1988) (same).

In view of the

possibility that the government may

choose to retry

this case, we

think it is

useful to add

cautionary word concerning the relationship between state and

federal

law in cases

addressed primarily to

some

well.

measure to the

such as

this one.

the mail fraud

Our

comments are

statute but apply

Travel Act charge,

in

discussed infra, as
_____

Two problems are of specific concern to us.

First, concerning the theft of honest services jury

instruction, an

lead the jury to

defines the

what state law

forbids may

believe that state rather than

federal law

crime, or more specifically,

of a state law or

matters amounts

fraud are

overemphasis on

that any violation

regulation concerning lobbying or

to honest

federal offenses;
_______

services fraud.

and while state

related

Wire and

mail

violations may

play a

role, the jury should not be allowed to slip into the

misunderstanding

laws

that any

and regulations

violation of

controlling

this

proliferating state

area

automatically

amounts to a federal crime.

In

a similar vein, we think there exists a risk in

this case -- particularly in view of the prosecutor's closing

-3737

argument

with

limits in

that

its repeated

lobbying --

any expenditure

regulation

offense.

The

Federal

state law

more

Rule of

that the jury

in

statute or

by

district

excess of

itself

court has

Evidence 403

intent to

could wrongly

that

fraud

to be

ample

affect a

state

federal

authority

under

evidence concerning

And, in

is substantially

all events, jury

defendant must

legislator's performance of

and not merely to make

the

clear that for the federal

proven, the

believe

allowed by

constitutes

to limit

prejudicial than probative.

services

permissible dollar

requirements where that evidence

instructions need to make

act

emphasis on

honest

have the

an official

payments in excess of some state

specified limitations.

B. Intent to Deceive
_____________________

Whether or not

fraud

counts

a new

is allowable

additional contention

establish his intent

trial on the

requires

us

that the evidence

to deceive

mail and

to reach

wire

Sawyer's

was insufficient to

the public.

To this

end,

Sawyer contends that because the government did not establish

that

he had

gratuities to

duty

to

disclose

the public, his

his

illegal

intent to deceive

gifts

and

the public

had to be shown through affirmative acts of deception,

which

he claims are absent here.

To

honest

establish

services fraud

mail

fraud

and otherwise

--

in

-- the

cases involving

alleged scheme

-3838

must involve deception in the deprivation of money, property,

or the right to

honest services.

See McEvoy Travel Bureau,

___ ______________________

Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791

____
______________________

(1st Cir.)

("[N]ot every use of the mails or wires in furtherance

unlawful scheme

to deprive

another of property

of an

constitutes

mail or wire fraud. . . . Rather, the scheme must be intended

to

deceive
_______

another,

by

means

of

pretenses,

representations,

conduct.")

(citations omitted), cert.

_____

(1990); see also

___ ____

public

to other

or

or

fraudulent

other

deceptive

denied, 498
______

U.S. 992

at 567 (finding

that

secretly delivering gratuities

officials for favorable action, "without disclosing

to other

honest services

1975),

Grandmaison, 77 F.3d
___________

official's conduct of

his actions

at 791);

promises

false

[officials]," falls within

mail fraud) (citing McEvoy Travel, 904 F.2d

______________

United States v. Bush, 522

_____________
____

cert.
_____

purview of

denied,
______

____________________

424

U.S.

977

F.2d 641, 648 (7th Cir.

(1976).16

While

16.

Under 18 U.S.C.

1346, "the term 'scheme or artifice to

defraud' includes a scheme or artifice to deprive another

_______
the intangible right of

honest services."

of

(emphasis added).

We do not think the word "deprive" in this section eliminates

the

requirement

prosecution.
services,
factor

of

Nor do

by

meant to

in

an

honest

for

necessarily

mail

fraud.

overturn

McNally, 483
_______

U.S. 350

(1987),

of money or property.

of

deceit

to defraud must

be intended

the honest-

invariably required some

is inherent

in

the

to

Grandmaison, 77 F.3d
___________

prior to McNally, courts endorsing

_______

which

the deceit
1346,

deprive another

services mail fraud theory

of "honest"

enacting

the scheme

And

includes

fraud

By

which held that

at 566.

services

we find that a deprivation

definition,

sufficient

Congress

deceit
______

term

showing

"fraud."

See
___

Silvano, 812 F.2d at 759-60; Mandel, 591 F.2d at 1361; United

_______
______
______
States
______
denied,
______

v. Barber,
______

668 F.2d

459 U.S. 829 (1982).

778,

784-85 (4th

Cir.), cert.
_____

We find nothing that indicates

-3939

misrepresentation of

fraud,

fact is not required

to establish mail

McEvoy Travel, 904 F.2d at 791, a demonstrated intent

_____________

to deceive is required.

When

involved,

information

the

"the

conduct

of

affirmative

arises

out

of

relationship to [the public]."

duty

[the]

government

to

official

disclose

official's

is

material

fiduciary

Silvano, 812 F.2d at 758; see

_______
___

id. at 760 ("Although not

___

all dishonest or disloyal

conduct

by an employee violates the mail fraud statute, an employee's

breach of a fiduciary duty falls within the strictures of the

statute

when it encompasses the breach of a duty to disclose

material information to the employer.").

intentional violation

requisite "deceit."

of the

See
___

Thus, an official's

duty to disclose

id. at 760 (noting that

___

disclose "under circumstances

fraud

statute")

failure to

where the non-disclosure could

or does result in harm to the employer is a

mail

provides the

(citation

and

violation of the

internal

quotations

omitted).

Here,

presented

by

although the

the parties,

issue

it

has

appears

not

been

that the

clearly

requisite

intent

to

deceive

could

have been

shown

either

through

Sawyer's own acts of deception toward the public with respect

____________________

a change in this requirement for establishing honest services

mail or

wire

fraud.

Thus, while

it may

conceive

of

a scheme

to deprive

someone

be difficult
of the

to

right to

honest services without intending to deceive that person, the

intent to deceive must nonetheless be established.

-4040

to

the

gift/gratuity

efforts to

statute

ensure that

that

Sawyer

intentionally to

the

intended

his

the public

The latter requires evidence

to

cause

the

legislators

fail to disclose material information about

violations,17 although

legislators

through

the legislators deceived

with respect to the violations.

only

violations, or

evidence

that

he intended

the

to affirmatively misrepresent themselves in this

regard would also suffice.

At bottom, the evidence

must be

sufficient to establish Sawyer's intent that, in the end, the

publicbedeceivedwith respecttohisunlawfulgifts andgratuities.

Therefore,

evidence,

verdict,

viewed

is

in

we

must

light

sufficient for

determine

if

most favorable

rational jury

the admissible

to

the

to

jury's

find that

Sawyer

intended that

the public

States
______

v. Kaplan, 832 F.2d

______

denied, 485 U.S. 907 (1988).

______

be deceived.

676, 679 (1st

See
___

United
______

Cir. 1987), cert.

_____

The evidence need not compel an

intent-to-deceive finding; rather, it is only required that a

reasonable jury

could

doubt, that Sawyer

O'Brien,
_______

mindful

had such

14 F.3d 703,

that

be

jury

persuaded,

intent.

beyond

See
___

reasonable

United States
_____________

706-707 (1st Cir. 1994).

may

choose

alternatives posed by the evidence.

among

v.

And we are

the

reasonable

United States v. Olbres,

_____________
______

____________________

17.

Although

allegations that Sawyer

caused legislators to

violate their statutory disclosure obligations were withdrawn

by

the

government

at

trial, the

obligation

to

disclose

material

information

inheres

fiduciary duty to the public.

in

the

legislator's general

Silvano, 812 F.2d at 758.

_______

-4141

61 F.3d

967, 973 (1st

522 (1995).

proven

(and

evidence.

Finally,

usually

Cir. 1995), cert. denied,

_____ ______

116 S. Ct.

the specific intent to deceive

is)

by

indirect

and

may be

circumstantial

See O'Brien, 14 F.3d at 706 (observing that fraud

___ _______

crimes "by their very

nature, often yield little in

of direct proof"); Kaplan,

______

States
______

v.

(opining

intent in

Nivica, 887
______

F.2d

that "factual

ways as

832 F.2d at 679; see

___

1110,

1113

circumstances may

diverse as

the

(1st

the way

also United
____ ______

Cir.

1989)

signal fraudulent

manifestations of

fraud

itself"), cert. denied, 494 U.S. 1005 (1990).

_____ ______

At first

blush, it

may appear that

public official necessarily incorporates

offender

intended to

"trick" or

thinking that the official

fact,

the

official was

While we have little

secrecy, see

Holzer,

bribery of

a finding that

"deceive" the

the

public into

was acting independently when, in

actually

motivated

by the

doubt that bribes are usually

816 F.2d

at 309

bribe.

given in

(observing that

"no

___

______

public official

in the United States

bribery

and gratuity

require
_______

person

not

statutes

separate element

of

takes bribes openly"),

generally, as

here, do

deception.

Ostensibly,

not

could offer an illegal bribe to a public official and

be concerned

with

its

secrecy.

Thus,

the

evidence

presented must permit a finding that Sawyer not only gave the

unlawful

public

gifts or gratuities with the

of

honest services,

but

-4242

intent to deprive the

that he

also

intended to

deceive the public about that conduct.

See Bush, 522 F.2d at

___ ____

648.

Here, the government presented evidence that Sawyer

gave the unlawful gifts and gratuities during the seven years

of the indictment

period until the Boston

practice in May 1993.

took

place

Globe exposed the

Much of his entertainment of lobbyists

out-of-state

--

usually

at

industry

and

legislative conferences -- where members of the Massachusetts

citizenry

generally

would

not

observe

the

questionable

activities.

Unlike his acts

of "non-public" entertainment,

Sawyer ensured compliance with

state ethical standards for a

1993

potentially

Boston Marathon

event.

In

reporting

his

brunch,

office,

legislators'

Sawyer

activities

particular, the ethical

kept

high

profile

newspaper

with

articles

lobbyists,

and in

ramifications of such relationships.

In one article, Representative

Mara (a recipient of Sawyer's

unlawful gifts or gratuities)

is quoted as saying, "Everyone

picks up their own

These

tabs at [legislative] conferences. .

conferences have

articles

were

kept

become almost

in

notebooks

nonexistent."

with

other

. .

These

materials

regarding lobbying laws.

jury

rationally

could

infer that

Sawyer

was

cognizant of his ethical obligations in lobbying, knew of the

public awareness

hidden unlawful

of lobbying activity,

gifts and

and repeatedly

gratuities until he

gave

was publicly

-4343

exposed.

sufficient

While not

to permit

overwhelming, the combined

a reasonable

jury

evidence is

to find,

beyond a

reasonable doubt, that Sawyer

about his

States
______

unlawful expenditures on legislators.

v.

Ortiz,
_____

966

F.2d

(explaining

that "juries

evidence in

isolation, for

insufficient

in

cumulation prove

may well

Bourjaily
_________

cert.
_____

intended to deceive the public

are

be greater

506

(1st

not required

to

prove

Cir.

1992)

to examine

the

of evidence,

point,

may

in

The sum of an evidentiary presentation

than its constituent

v. United States, 483

______________

denied,
______

711

`individual pieces

themselves

it.

707,

See United
___ ______

U.S.

1063

parts.'" (quoting

U.S. 171,

(1993);

179-80 (1987)),

United States
______________

Montminy, 936 F.2d 626, 627-28 (1st Cir. 1991).18

________

v.

____________________

18.

The

government

also

somehow concealed his

Hancock superiors
not

argue that

evidence

expenditures on

this evidence

that

Sawyer

legislators from

other than Hathaway.

deceptive conduct, nor did

to deceive.

presented

his

The government does

can amount

to the

requisite

it rely on it to prove the intent

In any event, Sawyer's deceptive conduct

toward

Hancock, alone, cannot form the basis of this honest services

fraud conviction.
fraud

Rather, the

alleged victims of

-- here, the state and the

deceived.

Thus,

in order

the mail

public -- must be the ones

for any deception

of Hancock

to

form a part of the scheme to deprive the Commonwealth and her

citizens of
such

legislators' honest services, some

conduct

was connected

victims is required.
n.13

(rejecting

to

defrauding of

See McEvoy Travel,

___ _____________

position

that

established if the deception

to another);

the

showing that
alleged

904 F.2d at 794

scheme

to

defraud

&
is

of one party causes deprivation

Lifschultz Fast Freight, Inc. v.

______________________________

Consolidated
____________

Freightways Corp., 805 F. Supp. 1277 (D.S.C. 1992) (requiring

_________________
convergence of

identity of

other grounds, 998

______________

injured and deceived),

F.2d 1009

(4th

Cir.) (Table),

241742, cert. denied, 114 S. Ct. 553 (1993).

_____ ______

aff'd on
________
1993 WL

-4444

For the foregoing

reasons, Sawyer's mail and

wire

fraud convictions must be vacated and remanded for a possible

new trial.

III.
III.
____

Travel Act Counts

Travel Act Counts
_________________

The

wilfully

government charged

travelling

and

Sawyer with

causing

others

knowingly and

to

travel

in

interstate commerce with the intent to promote,

carry on and

facilitate

of

unlawful

gratuities in violation

of Mass.

the

activity, to

promotion

wit, illegal

Gen. L. ch. 268A,

"Travel

3, in

Act").19

violated

the

The

and

carrying

violation of 18 U.S.C.

government

Massachusetts gratuity

interstate

travel

Oklahoma;

Orlando,

Arizona;

Key Largo,

to

the

asserted

statute

following

Florida; Savannah,

Florida;

1952 (the

that

Sawyer

subsequent to

destinations:

Tulsa,

Georgia; Scottsdale,

Charleston,

Amelia Island, Florida; and Puerto Rico.

____________________

on

South

Carolina;

19.

The Travel Act proscribes

"with intent to .
or

travel in interstate commerce

. . promote, manage, establish,

facilitate the

promotion, management,

carrying on, of any unlawful activity."

carry on,

establishment, or

18 U.S.C.

1952(a).

"Unlawful activity" is defined as, inter alia, "bribery . . .

_____ ____
in violation of the
of

the United

States
______

laws of the State in which

States."

v. Arruda, 715
______

18

F.2d 671, 681

district court instructed

gratuity statute
purview of

U.S.C.

act.

1952(b); see
___

United
______

(1st Cir. 1983).

the jury that

a violation of

constituted "unlawful" activity

The
the

within the

the Travel Act, a view with which we agree to the

extent that the court instructed that

given in

committed or

order to influence

Sawyer does not

something of value was

the performance of

dispute that a

an official

gratuity violation of

this character is "bribery" for purposes of the Travel Act.

-4545

Sawyer argues that his Travel

Act convictions must

be reversed because: (1) the court erroneously instructed the

jury

on

the

insufficient

court

gratuity

to

establish the

barred him

defense;

and

statute;

(4)

from

the

(2)

the

gratuity

evidence

was

offenses; (3)

the

presenting evidence

court

improperly

crucial to

admitted

his

summary

evidence introduced

by the government.

Although we discuss

and

these arguments in

turn, we nonetheless

conviction on these counts

because the district

reject each of

reverse his

court's

instructions on

the meaning

of "bribery,"

purposes of the Travel Act, were fatally flawed.

for the

A. Gratuity Statute Jury Instructions

______________________________________

Because

violations

address

the

of the

an

Travel

Act

Massachusetts

additional

convictions

gratuity

state-law

aspect

rely

upon

statute, we

of

the

now

gratuity

statute about which the parties disagree.

The

gratuity statute

"substantial value"

act

requires

action

An "official act"

in

legislation."

of

particular

Mass. Gen.

Mass. Gen. L. ch. 268A,

is defined as:

matter

L.

or

in

ch. 268A,

"any decision or

the

enactment

1(h).20

____________________

20.

item

be given "for or because of any official

performed or to be performed."

3(a).

that the

A "particular matter" is further defined as:

of

Here,

any

judicial

application,
ruling or

or

other

submission,

proceeding,
request for

other determination, contract,

-4646

Sawyer

were

of

allegedly

bestowed gratuities

upon

members of the Insurance Committee.

this

discussion,

we

proceed on

the

legislators who

Thus, for purposes

theory

that

government had to prove that Sawyer gave the gratuities

the

"for

or because of . .

of legislation."

The

. any decision or action in

the enactment

See Mass. Gen. L. ch. 268A,

___

parties'

interpretations

of

3(a), 1(h).

the

gratuity

statute differ with respect to the scope and character of the

connection required

act.

Sawyer contends

between

the gratuity

that the gratuity must be

specific, identifiable official

that

it is sufficient to

have been

given but

for

act.

The

prove that the

the legislator's

official action favorable to Sawyer.

Sawyer's motions

and the

official

linked to a

government argues

gratuity would not

ability to

take

In a pretrial ruling on

to dismiss, the district

court agreed with

the government's interpretation, and instructed as such.21

____________________

claim,

controversy, charge,

accusation,

arrest, decision, determination, finding,

but

excluding

enactment

of

general

legislation . . .

Mass. Gen. L. ch. 268A,

21.

The

court's jury

1(k).

instructions

on this

issue were

follows:

I instruct you that the government has to

prove beyond a
defendant

reasonable doubt that the

intended

to

influence

the

action

of the legislator on any official

matter

which

was

pending

legislator or

which

been

before

brought

may, by

-4747

before

the

law,

have

the legislator

at

as

No Massachusetts court decision has yet interpreted

the operative "for

in ch. 268A,

the

or because of any official

3(a).

parties

present

act" language

To support their respective positions,

differing

arguments

regarding

the

statutory language, legislative history, comparable statutes,

and

State

Ethics Commission

rulings.

We consider

these

sources separately.

1. Statutory Language
______________________

The

gratuity

statute

gratuities "for or because

prohibits

the

of any official act

giving

of

performed or

to be

performed."

does not
___

Mass. Gen. L. ch. 268A,

read "for or

because of the

3.

The statute

official's position."

Rather, it forbids gratuities motivated by "any official act"

____________________

some later time.

. . . .
I

further

government

instruct

need

not

you

prove

that
that

the
the

alleged gratuity was linked to a specific

identifiable
government
gratuity

act.
need

In other
not

was given

prove
as a

words, the
that

the

quid pro

quo;

that is, in exchange for any one specific

act performed or
legislator.
to

show

to be performed by

The government does not have

that

there

was

between the defendant and

requiring
certain
gratuity.

the

the
acts

an

the legislator

legislator
in

agreement

exchange

to

perform
for

the

The government
that

the

gratuity

must prove, however,

defendant
to

gave

the

legislator

alleged
with

the

expectation that the legislator would use

his influence on official matters in ways
favorable to the defendant.

-4848

and

further

defines, rather

See Mass. Gen. L. ch. 268A,

___

meticulously,

1(h) & (k).

"official act."

Thus, on the face

of the statute, it

the

gratuity could

does not appear that the

be

established

by

proof that

motivated solely by the official's position.

proof of

the offense requires

unlawfulness of

it

was

In other words,

something more than

a simple

showing that "but for" the official's authority, the gratuity

would not have been given.22

This observation,

however,

does not

lead to

the

conclusion that the gratuity must be shown to be motivated by

specifically identified official

gratuity

offense is

proof of

"corrupt intent."

statute,

like

undermining

of

the

essentially a

bribery

act.

bribery

The concern

noted supra, a
_____

offense without

behind the gratuity

statute,

official integrity.

As

is

the

potential

gratuity does

not

compromise this

integrity because of its

possible effect on

the

"position"; rather,

danger

official's

the

is in

its

ability to affect the official's performance of duties, i.e.,

____

"official

acts."

It is

not

surprising,

then, that

the

____________________

22.

For example, if the parent of a student gives the school

principal

gift

graduation,

that

of
alone

substantial value
would

not

at

the

constitute

student's
a

gratuity

offense, even though the parent would not have given the gift
"but for" the

principal's position.

If, however, the

was given under circumstances in which the principal

discretion

to

decide

whether

or

not

the

graduate, a gratuity offense might be found.

-4949

student

gift

had the
would

statute

proscribes gratuities

motivated by

"official acts"

rather than "official position."

Thus, the use of the term "official act" appears to

ensure that

the gratuity would be deemed

unlawful only when

the giving of an item of "substantial value" is linked to the

official's performance of duties.

The connection between the

gratuity

official duties,

and the

performance of

however,

does not necessarily require the identification of a specific

official act, and we

find nothing in the statutory

language

to require such a demonstration.

2. Legislative History
_______________________

The

bill drafted

gratuity statute

by a

was based,

in part,

1962 Massachusetts Special

upon a

Commission on

Code of Ethics.

See Report of the Special Commission on Code

___

of Ethics, 1962

House Doc. No.

Commission's Report,

instant question.

to

item

assists us

Nothing in

the

in resolving

the

states only: "It should be

noted that

constitute a criminal act, the giving or receiving of the

of such `substantial value' must be `for or because of'

an official act."

354

It

however,

3650, p.8.

N.E.2d

Id. at 11; see Commonwealth v. Famigletti,

___
___ ____________
__________

890, 893

(Mass.

Ct.

App. 1976)

(noting

same

language

in the report).

these terms

From

The Report neither parses out what

mean, nor gives

examples of what

this we discern only that

was intended.

the Commission was concerned

-5050

that "innocent" gifts to officials would

not fall within the

gratuity statute's purview.

The Commission's

of the

language of

adapted from

Report of

N.E.2d

at

[a

the

report does tell

proposed legislation

proposed federal

As

comparable federal gratuity

is taken

bribery/gratuity

Special Commission, supra

_____

822 n.16.

us that "[m]uch

discussed

at 8;

bill]."

see Dutney,
___ ______

below,

statute, 18 U.S.C.

and

however,

201(c),

348

the

is

also unhelpful in resolving the question before us.

3. Comparable Statutes
_______________________

In support of

on the Massachusetts

of a

its position, the

government relies

Supreme Judicial Court's interpretation

different statute in Commonwealth v.

____________

Lapham, 156 Mass.

______

480,

31

N.E.

interpreting

638

the

(Mass.

1892),

federal

and

gratuity

on

federal

statute,

18

cases

U.S.C.

201(c).

Lapham
______

involved a

milk

dealer who

attempted

to

bribe a city milk inspector and was convicted under a statute

punishing anyone who:

corruptly
any

gives,

executive,

judicial
gratuity
influence
decision,

offers or
legislative

officer

whatever,
his
or

promises to

.any

with

act,

on

or

gift

or

intent

vote,

judgment

any

to

opinion,
matter,

question, cause, or proceeding, which may

be then pending, or may by law come or be
brought

before

him

capacity.

-51-

in

his

official

51

Mass.

Pub. St. ch. 205,

see Lapham, 31 N.E. at

___ ______

the indictment

particular

(Ch. 349 Revised May 21, 1891);

638-39.

was insufficient

matter

to

be

The milk dealer

because it

influenced.

argued that

did not

Id.
___

The Supreme

Judicial Court disagreed, reasoning as follows:

Nor

is

it

necessary in

an

aver a

indictment

under

[ch. 205,

9]

corrupt intention to
opinion,

decision

to aver

that the

influence the

act,

judgment

the

or

of

inspector was in relation to any specific

and particular matter then pending before
him,

or which was

before

him.

corrupt

then expected to come

It

is

enough

to aver

intention so to influence him in

any matter which may

which may

by

before him.

law

then be pending, or
come

or

be

brought

If for example an executive,

legislative or judicial officer is bribed

corruptly to favor a particular person in
any and all matters affecting that person
which

may

come

before

such

officer,

without specification or knowledge of the

particular matters likely to come up, the
statute is broad enough to include such a
case.

narrower

similar

statute

Alabama,

but

has
we

construction
been
cannot

of

adopted

in

follow

it.

Barefield v. State, 14 Ala. 603 [1848].

_________
_____

Id. at 639.
___

The

difficulty with

the government's

reliance on

Lapham is, of course, the fact that it involved a differently

______

worded statute.

to

The Lapham statute proscribes a corrupt gift

______

influence an official act "on any

be then pending or may

___

in his

349

matter . . . which may

___

by law come or be brought

official capacity."

before him

Mass. Pub. St. ch. 205,

Revised May 21, 1891) (emphasis added).

-5252

9 (Ch.

In holding that

an

averment

Lapham
______

("It

of a

specific

not

necessary, the

court repeatedly used the word "may."

See, e.g., id.

___ ____ ___

is enough to aver

matter was

a corrupt intention

so to influence

him in any matter which may then be pending, or

___

which may by
___

law come or be brought before him.") (emphasis added).

The

"may"

268A,

question is

whether the

absence of

the word

in the present gratuity statute, see Mass. Gen. L. ch.

___

3,

1(h) & (k), signifies,

by negative implication,

the requirement of a specific official act.

Lapham does
______

seem to

The reasoning in

indicate some relationship

between the

word

"may" and the absence of a specificity requirement.

think, however, that it

is

the

official

does not follow that the

only manner

in

which to

indicate

acts need

not

be shown

to

We

word "may"

that particular

establish a

gratuity

offense.

because

The

present

of

any
___

performed,"23

statute

official

and

proscribes

act

performed

further defines

"official

gift "for

or

to

act" as

or

be

"any
___

____________________

23.

The

phrase

"performed

temporal flexibility
official

act.

N.E.2d at

821

present
may by

to

be

performed"

affords

between the gratuity and any motivating

Mass. Gen.
n.14.

or

This

L. ch

268A

temporal

3(a);

Dutney, 348
______

flexibility

is

also

in the Lapham statute ("may then be pending or which

______
law come

or be brought

before him"),

ch. 205,

(1891),

as well as the federal gratuity statute ("may at any

time be pending, or
official]")

which may by law

noted infra.
_____

18

U.S.C.

view, and contrary to the district

be brought before
201(a)(3).

In

[an
our

court, while the language

affording temporal flexibility is consistent with the absence

of

an

official-act

compel that result.

specificity

requirement,

it

does not

See Sawyer, 878 F. Supp. at 287.

___ ______

-5353

decision or action in a particular matter or in the enactment

of legislation."

Mass. Gen.

L.

ch. 268A,

3(a),

1(h)

(emphasis

with

added).

a legislative

unidentified

reasoning

set

Massachusetts

the scope

intent to

official

forth

acts.

in

proscribe gifts

Most

Lapham,
______

Legislature had

it has.

we

think

end,

that

given the

if

the

drastically narrow

by requiring specifically

acts, it would have

In the

motivated by

importantly,

wanted to

of the gratuity offense

identified official

than

Use of the broad term "any" is consistent

the Lapham
______

spoken more clearly

case

supports the

conclusion that a gratuity offense may be established without

proof that a specific official act was the motivation for the

gratuity.

The

the

similarly

government also

relies on

worded federal

gratuity

cases interpreting

statute,

18 U.S.C.

201(c),24

that

indicate

that

conviction

under

that

____________________

24.

The

federal

gratuity

statute,

18

U.S.C.

201(c),

provides, in pertinent part:

Whoever

-- [] otherwise than as provided

by

for

law

official

the

duty

indirectly

proper
--

gives,

anything of value

[]
offers,

public

or to
official

of

directly

or

or

promises

to any public official

. . . for or because of
performed

discharge

be

any official act

performed
.

by
shall

such
be

[punished].

The term
U.S.C.

"official act"

201 (a)(3) as:

-5454

is further defined

in 18

statute

linked

does

not require

a showing

to a specific official act.

that the

gratuity was

See, e.g., United States

___ ____ _____________

v. Bustamante, 45 F.3d 933, 940 (5th Cir.) ("it is sufficient

__________

for the government to

gratuity

simply

show that the defendant was

because

he

held

public

given the

office"),

cert.
_____

denied, 116 S. Ct. 473 (1995); United States v. Niederberger,

______
_____________
____________

580

F.2d 63,

68-69 (3d

Cir.), cert.

denied, 439

U.S. 980

_____

(1978); United States v. Standefer,

_____________
_________

Cir. 1979) (en

(1980).

be shown,

reasons that

447 U.S.

because much

(3d

10

of the

gratuity statute's language was based upon the

federal statute, see

___

because some

610 F.2d 1076, 1080

banc), aff'd on other grounds,

_______________________

The government

Massachusetts

______

Dutney, 348
______

N.E. 2d at

822 n.16,

federal cases hold that specific

a similar interpretation

and

acts need not

of the state

law should

obtain.

Reliance

by

the fact that

ruling

on

prosecution

the

on those cases, however, is undermined

the First

question

under the

Circuit has

of

whether

federal statute

expressly reserved

or

not

gratuity

requires proof

of a

"causal

relation

to

any

`specific,

identifiable

____________________

any

decision or action

matter,

cause,

controversy,

suit,

which may

pending, or which may

before

any

public

on any question,
proceeding
at

any time

by law be
official,

official's official capacity, or

be

brought
in

such

in such

official's place of trust or profit.

-5555

or

act.'"

United States v. Previte, 648 F.2d 73, 82 n.8 (1st Cir. 1981)
_____________
_______

(quoting

other

Niederberger, 580 F.2d

____________

hand,

cites

federal

that

gratuity

cases

acts must be shown; although, he does cite cases in

____

States v. Biaggi, 853

______
______

62, 77-78 (D.C.

case for us to

that

shown, see
___

e.g., United
____ ______

F.2d 89, 99-100 (2d Cir.

1988), cert.
_____

denied, 489 U.S. 1052 (1989); United States

______
_____________

F.2d

holding

state

specific

acts were
____

squarely

(or

cases,

specific official

matter)

Sawyer, on the

gratuity

which

for

no

at 68-69).

Cir. 1974)).

v. Brewster, 506
________

This is

decide the federal issue.

not the proper

Thus, we conclude

that it would be inappropriate to take any guidance here from

cases interpreting the federal gratuity statute.

4. State Ethics Commission Pronouncements

__________________________________________

The

primary

civil

gratuity

Ethics

Massachusetts State

enforcement

statute.

Commission

Ethics Commission

agency

for

violations

Mass.

Gen. L.

ch.

268B,

has the

power

alleged gratuity offenses, initiate

and

is the

of

3(i).

duty to

the

The

investigate

appropriate adjudicatory

proceedings, and order civil penalties if it concludes that a

violation has occurred.

Id.
___

4.

Upon the petition of

any

party,

a final action of the Ethics Commission is subject to

review

by

the

Massachusetts

superior

enforce, modify or set aside the order.

court,

Id.
___

which

4(k).

may

The

the

Ethics

Commission has

repeatedly interpreted

gratuity statute as forbidding gifts motivated generally

-5656

by the official's authority

to act favorably for

See In Re Charles F. Flaherty,

___ ____________________________

Agreement)

("`All that

1990 SEC

is required

59

to bring

the donor.

(Disposition

[the gratuity

statute]

into play is a nexus between the motivation for the

gift and the employee's public duties'" (quoting In Re George

____________

A. Michael, 1981 SEC 59, 68)); SEC Commission Advisory No. 8

___________

"Free Passes"

(May

14,

1985) (noting

absence of any specifically

or soon

will be pending

statute] may

that

"even

in

the

identifiable matter that was, is

before the official,

apply" (citing United States

_____________

[the gratuity

v. Standefer, 452
_________

F. Supp. 1178, 1183 (W.D. Pa. 1978)).

We give the Ethics Commission's interpretation some

deference.

See Olszewski v.
___ _________

1995 WL 808889 (Mass.

*2 (stating that

Berube, 3 Mass.
______

L. Rptr. 297,

Super. No. 922666) (Jan. 27,

although the Ethics Commission's

1995) at

"decision

on matters within its competence is to be given great weight,

the courts are the

final interpreter" (citing Finkelstein v.

___________

Board of Reg. in Optometry,

_____________________________

1976)).

fact that

349

N.E.2d

346,

348 (Mass.

That deference, however, is tempered not only by the

no Massachusetts

Commission's

court has passed

interpretation,

but

on the

also because

this

Ethics

is

criminal case and the Ethics Commission is charged only

civil enforcement.

The Commission may very

statute

in

its

civil

dispositions

-5757

with

well have valid

reasons for adopting a broad, prophylactic interpretation

the

of

of

individual

transgressions; its interpretation is easier to prove and the

offender

is more likely to settle with the Commission if she

does not have to admit to more egregious wrongdoing.

Nonetheless, we note

interpretation

undisturbed

of

by

interpretation

the

the

is

inconsistent" with

that the Ethics

gratuity

statute

Massachusetts

not

has

been

Legislature,

"arbitrary,

the statute.

Commission's

and

unreasonable

Finkelstein,
___________

left

its

or

349 N.E.2d at

348.

Thus,

the Ethics

Commission's opinion on

further supports the conclusion

the matter

that a specific official act

need not be identified in a gratuity offense.

5. Conclusion: Jury Instructions

_________________________________

The absence

this

issue

however,

the

of the

We

authority

have carefully

and

and none of them is availing.

fact that Sawyer does

either

Massachusetts court

is troubling.

all

behalf,

of a

federal or

state (and

that a specific official

gratuity.

Thus, we

statute does

not cite a

decision on

considered,

arguments on

Sawyer's

We also take note of

single gratuity case,

we have found

act must be linked to

none), holding

the unlawful

conclude that the Massachusetts gratuity

not require

proof that

the offender

gave the

item

of

"substantial

identified official

value"

act.

because

Of course, the

of

specifically

identification of

certain official acts in relation to the gratuity

might make

-5858

gratuity offense easier to prove, and we suspect that most

cases will include such proof although it is unnecessary.

B. Sufficiency of the Evidence

_______________________________

In

particular

cases such

it becomes

official acts need not be shown.

trial showed that Sawyer

be of

as this one,

clear why

The evidence at

gave items (that could be

"substantial value") to Massachusetts

found to

legislators who

had the ability to take official action favorable to Hancock,

and that those gifts effectively ceased after the legislators

left

office.

legislators'

government

While the government did not detail all of the

acts

did show

that

that

were

favorable

Sawyer had

to

Hancock,

a long-term,

the

ongoing

interest in the official acts of the legislators, and that he

knew his gratuities

were unlawful.

From

this evidence, the

jury

could

rationally

infer

that

the

gratuities

were

motivated by the legislators' performance of official duties,

i.e.,
____

that they were given

"for or because

act,"

within

of

the

meaning

the

statute, Mass. Gen. L. ch. 268A,

of any official

Massachusetts

gratuity

3.

C. Evidentiary Issues
______________________

1. Exclusion of Skrine Memorandum

__________________________________

Sawyer

the

contends that

presentation of evidence

solely out

of friendship and

the court

that he

unduly restricted

entertained lawmakers

goodwill and he

-5959

believed that

this did

he

appeals the court's

Bruce

statute.25

exclusion of a

Skrine, memorializing

after the

That

not violate the gratuity

document, written by

Skrine's interview

Boston Globe's inquiry into the

document

reflects

entertainment, while

Specifically,

Sawyer's

with Sawyer

Puerto Rico trip.

assertion

perhaps excessive in Puerto

that

such

Rico, "was

commonly done and that, [the] legislators were all friends of

his

and

that

they

were

not

in anyway

[sic]

discussing

legislation or lobbying."

document

At

trial, Sawyer

to

prove his

expenditures.

the

desired

pointing out

entertained

mind

testimony

from

that

document

the

to "gain access"

that basis,

but

Skrine on that very

document for the

Skrine.

to offer

with respect

indicated to the

not necessary because he

it to impeach Skrine.

on

not attempt

state of

In fact, he

admission was

did

this

to his

court that its

had already elicited

Later

did not

on,

mention

however,

that

he

to legislators, Sawyer offered

The court did not permit its admission

it did

issue.

purpose he

allow

Sawyer to

cross-examine

Because Sawyer did not offer the

now asserts on

appeal, he

has

____________________

25.

Sawyer

also

conduct vis
___

raises

the mail and

the

his

good

faith

Such contentions would be relevant to

wire fraud counts, which we have

the good

(which are

as to

a vis the gift statute, which is not relevant to

_ ___

the Travel Act counts.

leave

arguments

faith

issues surrounding

dependent on the

district

court

to

reversed.

the gift

evidence adduced at

resolve

on

government choose to retry those counts.

-6060

remand,

We

statute

trial) for
should

the

forfeited

1296,

this claim.

1302 (1st

been offered for

See United States v. Whiting, 28 F.3d

___ _____________
_______

Cir.) (explaining

that evidence

the purpose asserted on

must have

appeal to preserve

issue) (citing Tate v. Robbins & Myers, Inc., 790 F.2d 10, 12
____
_____________________

(1st Cir. 1986)), cert. denied, 115 S. Ct. 378, 498, 499, 532
_____ ______

(1994).

But because the issue may

further

hold

desired

testimony on the issue he now asserts, we would find

that because

no abuse of discretion

v.

Sawyer

again arise on remand, we

was able

in its exclusion.

See
___

to

obtain the

United States
_____________

Newman, 49 F.3d 1, 5-6 (1st Cir. 1995) (reviewing court's

______

exclusion of evidence for abuse of discretion).26

2.

Admission of Computer Summaries

___________________________________

Sawyer

court's

1T,

assigns

reversible error

computer

occurring

were

the district

admission of five charts, Exhibits 1, 1Q, 1R, 1S and

proffered by the government.

page

to

printout

summarizing

between January 1,

recorded

in

Exhibit 1 was a forty-nine

612

expenditures,

1986 and March

31, 1993, that

Sawyer's appointment

records and other admitted documents.

calendars,

expense

Exhibits 1Q, 1R and 1S

____________________

26.

Sawyer also argues that the court erroneously refused to

instruct
belief

the
that

jury on
if

his

defense-theory that

expenditures

were

lobbying-disclosure obligations
ch.

3,

then those

disclosed)

were

Upon review of the

(although they

under

the

was his

under

in Mass.
had

the

Gen. L.
to be

gratuity statute.

record, we agree with the

that this instruction was

present any

set forth

expenditures

also allowed

permitted

it

district court

unwarranted because Sawyer did not

evidence that, during the

indictment period, he

actually believed that his expenditures were permitted by the

lobbying-disclosure laws.

-6161

are extracts of Exhibit

1 that isolate the

Representatives Woodward,

contrasts

the amount

while they were

Howarth

spent

and Emilio.

on those

members of the

expenditures for

Exhibit

1T

three Representatives

Legislature with the

amount

spent on them after

they left that office.

Sawyer contends

that these charts were admitted on an insufficient foundation

and that they were misleading, argumentative and prejudicial.

Federal

Rule

of

Evidence

1006

provides,

in

pertinent part:

The contents of voluminous writings . . .

which cannot conveniently be
court may
chart,

be presented in the

summary,

originals

or

or

examined in
form of a

calculation.

duplicates

shall be

available for examination or

The
made

copying, or

both, by [the other party].

Before

admitting such

must first

evidentiary presentations,

ensure that each

is grounded upon

the court

a "sufficient

factual basis," i.e., upon independently established evidence

____

in the record, and that "possible prejudice or confusion does

not

outweigh their

usefulness in clarifying

the evidence."

United States v.
______________

Drougas, 748
_______

F.2d 8,

25 (1st

Cir. 1984)

(citing J. Weinstein & M. Berger, Weinstein's Evidence

____________________

(1983)); see
___

(1st Cir.

States
______

United States
_____________

v. Nivica,
______

887 F.2d

1989), cert. denied, 494 U.S.

_____ ______

v. Sorrentino,
__________

726 F.2d

876, 884

must

be

taken

to

(1st Cir.

insure

that

summaries accurately reflect the contents

-6262

1110, 1125

1005 (1990); United

______

When a court admits such summaries,

[c]are

1006

1984).

of

the underlying

function

as

unfairly

documents and

pedagogical
emphasize

proponent's

proof

devices

part
or

established

that

of

the

create

impression that disputed facts

conclusively

do not

the

have been
or

that

inferences have been directly proved.

Drougas, 748
_______

1006).

F.2d at 25 (citing

We review

discretion.

Weinstein's Evidence, supra

____________________ _____

the admission of summaries

for abuse of

Nivica, 887 F.2d at 1126.

______

Sawyer contends that the district

admitted the summaries because

court improperly

they did not include evidence

of his expenditures on legislators before

period

covered

personal funds.

in the

summaries,

He argues

because

it created a "false

alleged

conspiracy

began,

or

and after the time

his expenditures

that this was

unduly misleading

impression" as to

and

falsely

of

the date the

implied

that

the

expenditures ended after the three named representatives left

office.

We disagree.

The

summaries

already independently

Sawyer's

period.

place

were

based

on

and

that

admitted

questionable

expenditures

evidence

during

was

that was

relevant

the

to

indictment

Sawyer had the opportunity, on cross-examination, to

the

activity.

summaries in

See Nivica,
___ ______

context

887

with

F.2d at

his total

financial

1125 (concluding

that

argument that summaries failed to, inter alia, reflect "total

_____ ____

financial

activity"

admissibility").

"affect[s]

On

the

weight

matters to

rather

which Sawyer

than

the

assigns

-6363

undue prejudice, he had ample opportunity

cross-examination,

which he did.

to explore them on

He also could have offered

his own

contrary evidence, including his

he did not do).

own summary (which

As we stated in Nivica, 887 F.2d at 1126:

______

So long as the government, exercising due

diligence, collects
reasonably

available

introducing
(subject,

whatever records are

them,
of

and

it

succeeds

may be

course,

in

permitted

to relevancy

and

perscrutation under Fed. R. Evid. 403) to

summarize

the

obtain.

data
If

has

managed to

defendants

possessed

exculpatory

records

government's

files,

offered them at
own summary.

not
they

in

the

could

have

trial or prepared

their

By the same token, if there

were gaps in the

.

it

charts, the defense . .

had every opportunity to exploit them.

In the last analysis, completeness of the

underlying records was for the jury.

We

conclude that

the summaries

were based on

a sufficient

foundation and that the court did not abuse its discretion in

admitting them.

D. Protective Instruction
__________________________

Having rejected all of Sawyer's arguments, we think

there

is one

flaw in the

proceedings that does

have to be

addressed in the interests of justice and especially in light

of

the possibility of future prosecutions of this kind.

concern arises from

activities

law,

that are

even if

the close relationship

lawful from

deplorable,

extreme versions of such

violations.

The problem

between lobbying

the standpoint

and associated

Our

of federal

or slightly

more

conduct that can constitute federal

is, in

-6464

some respects,

novel; the

reason for its novelty

is that it appears

that prosecutions

on facts like these have not generally been brought.

A review

of pre-McNally theft
_______

of honest

services

cases and of bribery and gratuity cases under the counterpart

federal

statute,

already noted, that

--

18 U.S.C.

While

indicates,

as we

have

most involved straightforward corruption

most often, quid pro

____ ___

interest.

201,

quo bribery or
___

the issue

in

blatant conflict of

those cases

was

typically

whether or not the conduct actually occurred, in most of them

the

alleged

distinct

conduct was

in

different,

that

except

the

blatantly illegal.

conduct

possibly

in

itself

This

case is

may

not

be

degree, from

the

kind

very

of

routine cultivation of friendship in a lobbying context that,

while arguably very unattractive, is not "bribery" within the

meaning of the Travel Act.

The practice of using hospitality, including lavish

hospitality, to cultivate business or political relationships

is

longstanding

argue,

and

and pervasive.

we

entertainment,

would constitute

do

not

lodging, golf,

The

believe,

government does

not

that

payments

for

and the

like

sports events,

violations of the

Travel Act (or

the mail

and

wire fraud

statutes) if

the aim

of the

lobbyist were

simply to cultivate a business or political "friendship" with

the legislator.

should

It may

well be that

be flatly prohibited by

all such

law, but if

hospitality

Sawyer had this

-6565

limited

intent --

to

cultivate friendship

rather than

to

influence an

official

act

--

the federal

statutes

here

involved would not be violated.27

The charge to

conventional

formula

corruption.

But

the jury in

for

where

this case followed

prosecutions involving

the difference

the

political

between lawful

and

unlawful turns primarily on intent, and the lawful conduct is

itself

most unattractive, we think the jury needs to be told

specifically that the defendant

component

fraud)

if

business

addition,

her

of the

Travel Act

his intent

or political

was

has not violated the bribery

(or committed

limited

friendship.

to

honest services

the cultivation

Only if

instead or

of

in

there is an intent to cause the recipient to alter

official

acts

may the

jury

find

theft of

honest

services

or the bribery predicate of the Travel Act.

some explicit

explanation

of this

kind,

the

Absent

conventional

charge will be slanted in favor of conviction.28

____________________

27.

See, e.g.,
___ ____

United States v.
_____________

Arthur, 544 F.2d

______

730 (4th

Cir. 1976); United States v. Brewster, 506 F.2d 62 (D.C. Cir.

_____________
________
1974); cf. Dukehart-Hughes Tractor & Equipment co. v. United
___ ________________________________________
______
States, 341 F.2d 613 (Ct. Cl. 1965).
______

28.

It

that

is not

clear whether

a gratuity

the government

violation involving

only a

would contend
reward for

an

official act (even without any intent to influence any future

official act) could constitute
Travel

Act.

We are

constitute bribery
Second

"bribery" for purposes of the

extremely doubtful whether

for these

Circuit as ruling on

purposes and
this point in

do not

this would
read the

United States v.
_____________

Biaggi, 853 F.2d 89, 100-02 (2d Cir. 1988), cert. denied, 489
______
_____ ______
U.S. 1052

(1989).

involving an intent to

The

fact

that

gratuity

violation

influence is essentially bribery, see

___

-6666

In reaching this conclusion, we intend no criticism

of the able

district judge

who was coping

novel foray by the government.

with a

somewhat

But where, as here, the line

between the merely unattractive and actually criminal conduct

is

blurred,

difference

the

court

to the jury.

must

take

pains

The Second Circuit

to

explain

the

took this same

view

in a closely related

official who has

with

received campaign contributions is

extortion and

carefully

between

context, saying: "When an elected

focus

with receiving

the

lawful

jury's

political

attention

on

contributions

extortionate payments and bribes."

909 F.2d 662, 695-96

bribes, the

charged

charge must

the

difference

and

unlawful

United States v. Biaggi,

_____________
______

(2d Cir. 1990), cert. denied,

_____ ______

499 U.S.

904 (1991).

Having concluded that the jury charge was mistaken,

we must consider whether Sawyer should get the benefit of the

error.

not

This is a

explicitly

appropriate.

ask

close call.

for

Ordinarily,

the

On the

sort

of

the failure

one hand, Sawyer did

language

to make

we

think

an explicit

objection requires

the defendant to satisfy

the plain error

test of United States v. Olano, 113 S. Ct. 1770, 1777 (1993).

_____________
_____

On

the

other hand,

number of

Sawyer's

objections were

____________________

853

F.2d

application

at

101,

does

mean

of a gratuity statute

events, if the government

influence

not

theory,

our

that

every

fits the rubric.

intends to rely upon an

protective

required here.

-6767

instruction

possible
In all
intent to
would

be

closely related in that they sought in several different ways

-- which we do not

accept -- to protect one engaged

in good

faith lobbying from prosecution.

On balance, we think that the Travel Act counts, as

well

as the

mail and

wire fraud

convictions, ought

reversed and retried under proper instructions.

to be

Although the

evidence here would be adequate to infer improper intent, the

issue

affect

is close

and

the outcome.

novel makes us

articulate

an explanatory

instruction could

well

Also, the fact that the prosecution was

look more tolerantly

precisely the

on Sawyer's failure

shape of the

to

necessary protective

instruction.

Apart from

has very

agreed

the expense of retrial,

little to complain about

that

require the

the

Massachusetts

government to

We

sufficient to

convict (although

people

thinking

concerned about

such

We have

gratuity statute

does

gratuity to a

otherwise).

the lack

the

can imagine

And while

of fair warning

see no legal

government from embarking

reading of

we

on what is

we

of a

not

specific

have also found that the evidence

as this one, we

expansive

in this result.

link the

official act.

the government

here is

reasonable

are

somewhat

prosecution

basis for precluding the

in practical terms

federal statutes.

Against

an

this

backdrop, we think it even more important that Sawyer get the

benefit of the few protections that remain.

-6868

IV.
IV.
___

Conspiracy Count
Conspiracy Count
________________

Sawyer was

also convicted, under

18 U.S.C.

371,

of one count of conspiracy to commit mail and wire fraud, and

to violate the

Travel Act.

that it could find

beyond

The court

instructed the

Sawyer guilty of conspiracy if

reasonable

doubt,

that

he

conspired

jury

it found,

with

his

supervisor, Hathaway, to commit any one of the three objects,

i.e., the
____

the

substantive offenses as

objects

violations

--

mail and

-- were

wire

charged.

fraud

and

erroneously charged and

Because

all of

the Travel

Act

instructed, the

conspiracy convictions must be reversed as well.

Retrial

sufficient to

is

not

precluded

prove the existence of

if

the

evidence

a conspiracy, Sawyer's

knowledge of and voluntary participation in it, and

act in furtherance of it.

F.2d 885, 890 (1st Cir.

is

an overt

See United States v. Yefsky,

___ _____________
______

1993); see generally, United

994

States

___ _________

v.

Frankhauser, 80
___________

F.3d 641,

agreement

need

suffice.

Direct Sales Co.

________________

712-13 (1943).

in

the

intent

not

(1st

explicit; a

Cir. 1996).

The

agreement

will

tacit

v. United States,
_____________

319 U.S. 703,

To establish Sawyer's voluntary participation

conspiracy, the

to agree and his

the conspiracy.

States
______

be

653

______________

v. Piper,
_____

evidence

establish both

intent to effectuate

Yefsky, 994
______

35 F.3d

must

F.2d at 890;

611, 615

-6969

the object of

see also
___ ____

(1st Cir.

his

United
______

1994), cert.
_____

denied,
______

115 S. Ct. 1118

Sawyer's

participation

evidence.

(1995).

in it

Neither

need

be

the agreement nor

proven with

direct

Glasser v. United States, 315 U.S. 60, 80 (1942);

_______
_____________

see Frankhauser, 80 F.3d at 653.

___ ___________

Sawyer

insufficient

agreed

to

participated

contends

to prove

commit

that

that: (1)

the

in such an

the

he and

offenses;

agreement; and

evidence

was

Hathaway knowingly

(2)

he

voluntarily

(3) either

of them

performed any overt act in furtherance of the conspiracy.

disagree.

The government presented

supervised

Sawyer

in

Hathaway's receipt

his

evidence that

lobbying

of many of

Hathaway

activities.

the same legal

We

From

memoranda and

Massachusetts Ethics Commission rulings that Sawyer received,

jury could

like Sawyer)

rationally infer

that Hathaway

knew and understood the

lobbying.

Some

Hathaway's

names

of these

on

ethical obligations in

documents had

them;

Hathaway

and Sawyer

knew of

lobbying

laws.29

Sawyer

thus, a

(an attorney,

both

jury

Sawyer's and

could

find that

each other's knowledge

turned

to

Hathaway,

of the

his

____________________

29.

For

example, one

trial exhibit

Sawyer to Hathaway, enclosing

was a

memorandum from

a 1990 State Ethics Commission

Disposition
Flaherty.

Agreement
That

tickets

Sawyer and

during a
and

to

Leader

the giving

Representative

Charles

of Celtics

Flaherty

by

interests before him, and how that might violate

the Massachusetts
3.

House Majority

agreement concerned

basketball game
person with

with

gratuity statute, Mass. Gen.

Hathaway discussed the Flaherty Disposition

meeting with Bruce Skrine

secretary

L. ch. 268A,

for Hancock)

expressed concern

in

(vice president, counsel

which

Sawyer and

about compliance with state

Hathaway

ethics law in

-7070

supervisor, for

approval of his expense

vouchers.

Hathaway

performed

this

responsibility

period,

and

in so

Sawyer)

to

have

legislators, often

throughout

doing was

detailed

the

indictment

only person

knowledge

members of

the

of

(other than

the

specific

the Insurance Committee,

who

received the gifts and gratuities.

Thus, the jury could reasonably infer that Hathaway

and Sawyer both knew that the expenditures were unlawful, and

from this, that the reason for the repeated illegal gifts and

gratuities

legislative

to

key

action.

legislators

Given

was

the

to

evidence

secretly influence

of the

repeated

submission and approval of the expense vouchers, a jury could

rationally

tacitly, to

find that

Hathaway and

the pattern of

Sawyer agreed,

unlawful conduct.

at least

Finally, the

jury

could also infer that Sawyer and Hathaway knew that the

mails and wires would be used to facilitate the entertainment

and/or reimbursement (e.g., the

____

and

the

making

of

telephone

mailing of bills related to,

calls

to

arrange,

the

entertainment), and that interstate travel in connection with

the entertainment (e.g., reimbursement of

____

would or

had

to

occur.

The

out-of-state golf)

overt acts

charged

in

the

indictment included Sawyer's giving of illegal gratuities and

Hathaway's

approval and authorization

of reimbursement, and

the evidence was sufficient to establish those acts.

____________________

planning for the 1993 Boston Marathon brunch.

-7171

Thus,

evidence

and

despite

the

was sufficient to

new

trial on

this

underlying

legal

error,

the

establish the conspiracy offense

count

government so choose.

V.
V.
__

Conclusion
Conclusion
__________

is

allowable should

the

Sawyer raises a number of other issues that we have

reviewed, find

to

be without

merit,

foregoing

reasons,

and that

warrant

no

further discussion.

For

the

we

vacate
______

the mail

fraud, wire fraud, Travel Act and conspiracy convictions, and

remand for proceedings consistent with this opinion.

______

-7272