The battle over battleground states

Make sure you keep an eye on the Rezko story. Obama is probably going to be prosecuted under 18 USC 1346.

Evelyn Pringle has just completed her series on Obama at opednews.com. You should review the articles, and then review the discussion of 18 USC 1346 provided, in order to see for what activities Obama will probably be indicted.

Cheers,
John Ryskamp

Final Chapter - Curtain Time for Barack Obama Evelyn Pringle 05/22/2008 2
Curtain Time for Barack Obama - Part V Evelyn Pringle 05/18/2008 9
Curtain Time for Barack Obama - Part IV Evelyn Pringle 05/16/2008 22
Curtain Time for Barack Obama - Part III Evelyn Pringle 05/15/2008 11
Curtain Time for Barack Obama - Part II Evelyn Pringle 05/13/2008 15
Curtain Time For Barack Obama - Part I Evelyn Pringle 05/12/2008 33
Discussion of 18 USC 1346 from:

http://www.groom.com/_library/downloads/NAPPAArticle-Feb2006.pdf.


This article provides brief guidance as to the manner in which courts have interpreted 18 U.S.C. § 1346, which generally provides that for purposes of federal mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343, respectively), a "scheme or artifice to defraud" includes a "scheme or artifice to deprive another of the intangible right to honest services." Specifically, this article examines the manner in which courts have interpreted the broad language of § 1346 in circumstances that do not involve the explicit bribery of public officials.
I.
Background
18 U.S.C. § 1346 was enacted in 1988, for purposes of reversing the Supreme Court's decision in McNally v. U.S.,483 U.S. 350 (1987). In McNally, the Supreme Court overruled a long line of lower court decisions by holding that the federal mail and wire fraud statutes did not encompass schemes to defraud citizens of an intangible right to honest government service from pubic officers. Id. at 355. By enacting 18 U.S.C. § 1346, Congress restored "honest services" within the ambit of the federal mail and wire fraud statutes, meaning that a scheme to deprive the public of "honest services" by a public official could be punished as mail or wire fraud (assuming, of course, that such an instrumentality was used as part of the scheme or artifice).
II.
Judicial Interpretations of the "Honest Services" Fraud
A.
General Parameters of the Statute
Not surprisingly, the majority of cases that have analyzed the "honest services" fraud set forth in 18 U.S.C. § 1346 have involved the bribery of public officials, where the charge under § 1346 is in addition to other charges. However, there have been numerous prosecutions under § 1346 against public officials (and those who have corrupted public officials) for transactions that do not involve outright bribery, but which nonetheless involve the provision of cash or gifts to a public official in exchange for the public official's exercise of power on behalf of the individual or entity providing the gratuity.
Courts have recognized that the term "honest services," as used in § 1346, is incredibly broad, but the statute has survived repeated challenges asserting that it is unconstitutionally vague, with courts resorting to a "common sense" usage of the phrase "honest services." In rejecting a constitutional void-for-vagueness challenge to the statute's wording, one court opined that "[c]oncrete parameters outlining the duty of honest services should not be necessary. . . . The concept of the duty of honest services sufficiently conveys warning of the proscribed conduct when measured in terms of common understanding and practice." U.S. v. ReBrook, 837 F. Supp. 162, 171 (S.D. W. Va. 1993), aff'd. 58 F.3d 961 (4 th Cir. 1995). Another court demonstrated little patience for the defendant's void-for-vagueness challenge in the context of a kickback scheme, holding that "[i]t should be plain to ordinary people that offering and accepting large sums of money in exchange for a city councilman's vote is a type of conduct proscribed by the language of § 1346." U.S. v. Paradies, 98 F.3d 1266, 1283 (11 th Cir. 1996). Nonetheless, courts have refused to allow § 1346 to be used as a "catch-all" that subjects every unethical or illegal act to federal mail and wire fraud prosecution. See, e.g., U.S. v. Bloom, 149 F.3d 649, 654-56 (7 th
Cir. 1998) (noting, inter alia, that "not every breach of fiduciary duty works a criminal fraud"); U.S. v. Welch, 327 F.3d 1081, 1107 (10 th Cir. 2003) ("the right to honest services is not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing"). Recognizing the difficulty of interpreting the undefined phrase "honest services," courts have attempted to establish general criteria that must be satisfied to successfully assert an "honest services" fraud claim. One of the leading circuits interpreting the scope of the honest services fraud is the First Circuit Court of Appeals, which held that: First, . . . honest services convictions of public officials typically involve serious corruption, such as embezzlement of public funds, bribery of public officials, or the failure of public decision-makers to disclose conflicts of interest. Second, . . . the broad scope of the mail fraud statute . . . does not encompass every instance of official misconduct that results in the official's personal gain. Third, and most importantly, . . . the government must not merely indicate wrongdoing by a public official, but must also demonstrate that the wrongdoing at issue is intended to prevent or call into question the proper or impartial performance of the public servant's official duties. U.S. v. Czubinski, 106 F.3d 1069, 1076 (1 st Cir. 1997) (emphasis added) (internal citations and quotations omitted), (discussing the First Circuit's prior decision in U.S. v. Sawyer, 85 F.3d 713, 724 (1996). The Seventh Circuit has held that "[m]isuse of office (more broadly, misuse of position) for private gain is the line that separates run of the mill violations of state law fiduciary duty . . . from federal crime." U.S. v. Bloom, 149 F.3d 649, 655 (7 th Cir. 1998). The court went on to note that "in almost all of the intangible rights cases decided . . . (before McNally or since § 1346), the defendant used his office for private gain, as by accepting a bribe in exchange for official action[,]" but also noted that "[s]ecret conversion of information received in a fiduciary capacity is a form of fraud against the owner of that information." Id. Accordingly, the Seventh Circuit summarized its test for an honest services fraud as follows: "[a]n employee deprives his employer of his honest services only if he misuses his position (or the information he obtained in it) for personal gain" (emphasis added). Id. at 656-57.
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The Tenth Circuit has likewise held that cases involving § 1346 "must be read against the backdrop of the mail and wire fraud statutes, thereby requiring fraudulent intent and a showing of materiality." U.S. v. Welch, 327 F.3d 1081, 1107 (10 th Cir. 2003). However, the Tenth Circuit unequivocally rejected the Seventh Circuit's position that a public official must seek "personal gain" to violate § 1346, stating that while it was unwilling to "define the exact contours of honest services fraud or the proof necessary to sustain it . . . to require an allegation of intent to personally gain would suggest that [a defendant is] justified in using whatever means necessary to achieve [his or her] goals . . . ," which the Court was unwilling to do. B. What Constitutes an Honest Services Fraud? As noted above, the language of § 1346 is not helpful in categorizing what specific conduct by a public official is prohibited, and courts have been unwilling to set forth a litany of proscribed acts, instead setting forth general parameters that must be satisfied to successfully assert an honest services fraud. It should be noted, however, that Justice Stevens, in his dissent in McNally (vindicated by Congress' reversal of McNally), stated the following: In the public sector, judges, State Governors, chairmen of political parties, state cabinet officers, city alderman, Congressmen, and many other state and federal officials have been convicted of defrauding citizens of their right to honest services of their governmental officials. In most of these cases, the officials have secretly made governmental decisions with the objective of benefiting themselves or promoting their own interests, instead of fulfilling their legal commitment to provide the citizens of the State or local government with their loyal service and honest government. McNally, 483 U.S. at 362-63 (emphasis added). The basic concept on an honest services fraud "is that the public is not getting what it expects and deserves: honest, faithful, disinterested service from a public official. This concept
--------------------------------------------------------------------------------
applies whether the official is bribed or fails to disclose a conflict of interest." U.S. v. Mangiardi, 962 F. Supp. 49, 51 (M.D. Penn. 1997). Addressing what constitutes an honest services fraud in the context of a union officer's duty toward his union, a court held that "'honest services' contemplates that in rendering some particular service . . ., the defendant was conscious of the fact that his actions were something less than in the best interests of the employer—or that he consciously contemplated or intended such actions. For example, something close to bribery." U.S. v. Boyd, 309 F. Supp.2d 908, 913 (S.D. Tex. 2004). Underlying § 1346 is the notion that "a public official acts as 'trustee for the citizens and the State . . . and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty to them. Theft of honest services occurs when a public official strays from this duty.’" U.S. v. Sawyer, 239 F.3d 31, 39 (1 st Cir. 2001).
When a government officer decides how to proceed in an official endeavor—as when a legislator decides how to vote on an issue—his constituents have a right to have their best interests form the basis of that decision. If the official instead secretly makes his decision based on his own personal interests—as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest—the official has defrauded the public of his honest services. U.S. v. Lopez-Lukis, 102 F.3d 1164, 1169 (11 th Cir. 1999). According to the First Circuit, a public official can steal honest services from his public employer in two ways: (1) the official can be influenced or otherwise improperly affected in the performance of his duties, or (2) the official can fail to disclose a conflict of interest, resulting in a personal gain. U.S. v. Woodward, 149 F.3d 46, 57 (1 st Cir. 1998) (relying upon the court's earlier decision in U.S. v. Sawyer, 85 F.3d 713, 724 (1 st Cir. 1996).
In contrast, an employee's failure to perform his job adequately, or his failure to adhere to the government's code of conduct concerning permissible work-related activities, is not sufficient to Specific Instances Where Honest Services Fraud Has Been Found Most of the honest services fraud cases brought pursuant to § 1346 have involved, not surprisingly, clear-cut cases of bribery or the payment of "kickbacks" to public officials who exercised their influence on behalf of the person or entity paying such gratuity. Considering that bribery cases tend to be "clear cut," in that there is, at a minimum, an exchange of something of value in return for an official action, the matters below involve less certain areas, where honest services fraud has been found (or alleged) notwithstanding the lack of a clear cut exchange of valuable consideration.
Recent—and Well-Publicized—Cases Involving Claims of Honest Services Fraud
(a)
U.S. v. Abramoff
A recent case asserting honest services fraud involves disgraced Washington lobbyist Jack Abramoff. On January 3, 2006, Abramoff pleaded guilty to a three-count information charging him with conspiracy, honest services mail fraud, and tax evasion. The honest services fraud charges to which Abramoff pleaded guilty are extensive—but essentially boil down to his failure to honestly serve his clients, his employer, and his attempts to corrupt public officials. Abramoff's plea agreement, entered in the U.S. District Court for the District of Columbia, is available at http: //news.findlaw. com/usatoday/docs/abramoff/usabrmff10306plea.pdf (last visited January 16, 2006).
With respect to the honest services fraud against his clients, Abramoff admitted that he used his influence with Native American tribes that he represented on gaming matters to cause them to hire (at above-market prices) "grass roots" and "public relations" firms in which Abramoff had an undisclosed ownership interest, and from which he was being paid 50 percent of net profits, in addition to his lobbying fee from the tribes. Moreover, Abramoff admitted that he provided lobbying services to a Native American tribe in Texas that was seeking to reopen its gaming operations, without revealing that he had been paid millions of dollars by a Louisiana tribe to oppose all gaming legislation under consideration by the Texas legislature. Abramoff avoided disclosing the clear conflict of interest to his law firm by telling the Texas tribe that he was providing his lobbying services free of charge, while he simultaneously engineered the tribe's retention of a "grass roots" firm in which Abramoff had an undisclosed financial interest, and which paid Abramoff $1.8 million in fees as a result of the Texas tribe's retention.
ii.
Honest Services Fraud With Respect to Abramoff's Employer
During the time that Abramoff was employed by a law firm, Abramoff agreed to represent a wireless company in securing a license to install wireless telephone infrastructure in the House of Representatives. Rather than entering into a retainer relationship with Abramoff's law firm, Ambramoff instructed the wireless company to pay his fee to a non-profit entity that Abramoff founded, and that he used as a vehicle to fund trips and gifts for the politically influential. Abramoff did not disclose this arrangement to his employer, thus depriving his employer of fees to which it was entitled, which Abramoff admitted was an honest services fraud against his employer.
iii.
Honest Services Fraud—Corruption of Public Officials
The lengthiest portion of Abramoff's plea agreement concerns the allegations that Abramoff engaged in a conspiracy to commit honest services fraud by corrupting public officials by providing "a stream of things of value . . . in exchange for a series of official acts and influence and agreements to provide official actions and influence." (Abramoff Plea Agreement, ¶ 32). The things of value to which Abramoff pled guilty to providing included "foreign and domestic travel, golf fees, frequent meals, entertainment, election support for candidates for government office, employment for relatives of officials, and campaign contributions." (Id.). Specifically, Abramoff pled guilty to providing "Representative #1" (since identified as Representative Bob Ney (R-OH)) and "Staffer #1" with such lavish items as all-expenses-paid trips to the Northern Marianas Islands, Scotland, and to Tampa, Florida (for the Super Bowl). Other things of value provided by Abramoff to Representative #1 and Staffer #1, however, were not so lavish—such as "comped" meals at Abramoff's Washington, DC restaurant—and included items that some may consider "normal" business expenses when it comes to politics, such as contributions to Representative #1's campaign committee and contributions to the Republican National Party. Abramoff's plea agreement states that he provided such things of value in exchange for public officials': agreements to support and pass legislation, agreements to place statements in the Congressional Record, agreements to contact personnel in the United States Executive Branch agencies and offices to influence decisions of those agencies and offices, meetings with Abramoff's . . . clients, and awarding contracts for services with . . . Abramoff's law firms. Id. at ¶ 33.
(b)
San Diego Pension Fund
Another very recent case involving allegations of honest services fraud in the context of public officials concerns the indictment of the former top executive of the San Diego City Employees Retirement System, the Retirement System's lawyer, and three former trustees of the Retirement System. The indictment, announced on January 6, 2006, alleges that the Retirement System's executive, its lawyer, and its former trustees committed honest services fraud by conspiring to approve enhanced retirement benefits for City of San Diego workers—including themselves—in exchange for allowing the City to underfund the Retirement System. According to the indictment, by early 2002, the Retirement System's funding status was approaching only 82.3 percent, and, at such level, a "funding trigger" would have been tripped, requiring the City of San Diego to make a massive cash infusion to the Retirement System. As the funding trigger was about to tripped, the City negotiated a labor agreement that enhanced
pension benefits for members of the municipal labor unions (including the indicted Retirement System employees), and the City advised the Board of the Retirement System that the increased pension benefits were "contingent upon" obtaining relief from the funding trigger that was about to be tripped. The indictment alleges that the indicted officials agreed to reduce the City's funding obligations with respect to the Retirement System, and that the vote to approve such relief was linked to the enhanced pension benefits that the officials would receive. According to the indictment, such conduct constitutes a conspiracy to deprive citizens of San Diego with their intangible right to honest services from public officials.
2.
"Pay-to-Play" Schemes Involving Campaign Contributions 3 The indictment is available at: http://www.signonsandiego.com/news/metro/pension/images/060106fedpensionindictment.pdf
In U.S. v. Troutman, 814 F.2d 1428 (10 th Cir. 1987), the Tenth Circuit addressed a "pay- to-play" scheme involving the payment of campaign contributions by a bank for consideration for state business, which the court held to be violative of the Hobbes Act, 18 U.S.C. § 1951 (extortion). (It should be noted that the defendant was not charged with committing an honest services fraud, even though such a claim was viable at the time of the defendant's arrest and trial). At issue in Troutman was the Investment Officer of New Mexico, who advised a bank bidding for state business that it had to contribute to a fundraiser for the Governor of New Mexico. The United States successfully prosecuted the Investment Officer for extortion, and, on appeal, the Tenth Circuit affirmed the conviction, noting that "[a]n extortion effort made under the color of official right is described as a public official's attempt to obtain money not due him or his office." Id. at 1456. The court went on to cite several cases from various circuits, holding, inter alia, that "[t]he coercive solicitation of political contributions is within the realm of actions that are illegal under the Hobbes act." Id. (quoting U.S. v. Cerilli, 603 F.2d 415, 421 (3d Cir. 1979), and citing U.S. v. Dozier, 672 F.2d 531, 540 (5 th Cir. 1982), and U.S. v. Williams, 621 F.2d 123, 124 (5 th Cir. 1980)). In U.S. v. Kemp, 379 F. Supp. 2d 690, 697 (E.D. Penn. 2005), the court upheld the conviction of the City Treasurer of Philadelphia, who was convicted of extortion and honest services fraud based upon his acceptance of bribes from people doing business with the City. In upholding Kemp's conviction for honest services fraud, the court noted that "there were specific intercepted communications where [a co-conspirator] and Kemp made agreements that because
certain individuals did—or in some cases did not—make the requested contributions to either political activities or charitable events, they were, or were not, going to receive City business." Id. Another case asserted an honest services fraud claim in the context of a "pay-to-play" scheme, although the scheme was not characterized as such. In Castro v. U.S., 248 F. Supp. 2d 1170 (S.D. Fla. 2003), the court addressed a "pay-to-play" kickback scheme in which judges serving on the Dade County (Florida) Circuit Court assigned criminal cases to selected defense attorneys who agreed to pay the assigning judges a percentage of the fees earned from each assigned case. The U.S. prosecuted the attorneys who participated in the scheme, alleging that the attorneys attempted to defraud the State of Florida of the judges' honest services. The court held that the defendants had committed an honest services fraud, noting that public officials have inherent fiduciary duties to the public, and that violations of such inherent fiduciary duty are proper predicates to convictions under § 1346, even if an underlying state law or regulation was not violated. …

"Obama, on the other hand, says he can expand the electoral map for Democrats to recently Republican states such as Virginia. "

And polls suggest this is quite true. On top of this, it's while the Democratic party is split - badly. Once Obama is the official nominee, the party will solidify against the aged, backwards McCain, and Obama will sweep into office in a landslide. On top of that, his organization in all 50 states will help Democrats win many downticket races in red states (both Senate and House seats).

Go Obama!

1) Polls at this stage of the game are irrelevant. At this time in 1992, Ross Perot was the leading candidate. He got 0 electoral votes in the general election.

2) Obama will likely lose Florida in the general, and it won't matter one bit. If he carries Pennsylvania, Iowa, and New Mexico, he doesn't even need Ohio. Depending on his running mate, he's got a very good shot at Missouri and/or Virginia as well.

Frankly, given the outcome of the previous two elections, the candidate that loses Florida and Ohio is probably the one I want as my president.

Make sure you keep an eye on the Rezko story. Obama is probably going to be prosecuted under 18 USC 1346.

Evelyn Pringle has just completed her series on Obama at opednews.com. You should review the articles, and then review the discussion of 18 USC 1346 provided, in order to see for what activities Obama will probably be indicted.


Final Chapter - Curtain Time for Barack Obama Evelyn Pringle 05/22/2008 2
Curtain Time for Barack Obama - Part V Evelyn Pringle 05/18/2008 9
Curtain Time for Barack Obama - Part IV Evelyn Pringle 05/16/2008 22
Curtain Time for Barack Obama - Part III Evelyn Pringle 05/15/2008 11
Curtain Time for Barack Obama - Part II Evelyn Pringle 05/13/2008 15
Curtain Time For Barack Obama - Part I Evelyn Pringle 05/12/2008 33
Discussion of 18 USC 1346 from:

http://www.groom.com/_library/downloads/NAPPAArticle-Feb2006.pdf.


This article provides brief guidance as to the manner in which courts have interpreted 18 U.S.C. § 1346, which generally provides that for purposes of federal mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343, respectively), a "scheme or artifice to defraud" includes a "scheme or artifice to deprive another of the intangible right to honest services." Specifically, this article examines the manner in which courts have interpreted the broad language of § 1346 in circumstances that do not involve the explicit bribery of public officials.
I.
Background
18 U.S.C. § 1346 was enacted in 1988, for purposes of reversing the Supreme Court's decision in McNally v. U.S.,483 U.S. 350 (1987). In McNally, the Supreme Court overruled a long line of lower court decisions by holding that the federal mail and wire fraud statutes did not encompass schemes to defraud citizens of an intangible right to honest government service from pubic officers. Id. at 355. By enacting 18 U.S.C. § 1346, Congress restored "honest services" within the ambit of the federal mail and wire fraud statutes, meaning that a scheme to deprive the public of "honest services" by a public official could be punished as mail or wire fraud (assuming, of course, that such an instrumentality was used as part of the scheme or artifice).
II.
Judicial Interpretations of the "Honest Services" Fraud
A.
General Parameters of the Statute
Not surprisingly, the majority of cases that have analyzed the "honest services" fraud set forth in 18 U.S.C. § 1346 have involved the bribery of public officials, where the charge under § 1346 is in addition to other charges. However, there have been numerous prosecutions under § 1346 against public officials (and those who have corrupted public officials) for transactions that do not involve outright bribery, but which nonetheless involve the provision of cash or gifts to a public official in exchange for the public official's exercise of power on behalf of the individual or entity providing the gratuity.
Courts have recognized that the term "honest services," as used in § 1346, is incredibly broad, but the statute has survived repeated challenges asserting that it is unconstitutionally vague, with courts resorting to a "common sense" usage of the phrase "honest services." In rejecting a constitutional void-for-vagueness challenge to the statute's wording, one court opined that "[c]oncrete parameters outlining the duty of honest services should not be necessary. . . . The concept of the duty of honest services sufficiently conveys warning of the proscribed conduct when measured in terms of common understanding and practice." U.S. v. ReBrook, 837 F. Supp. 162, 171 (S.D. W. Va. 1993), aff'd. 58 F.3d 961 (4 th Cir. 1995). Another court demonstrated little patience for the defendant's void-for-vagueness challenge in the context of a kickback scheme, holding that "[i]t should be plain to ordinary people that offering and accepting large sums of money in exchange for a city councilman's vote is a type of conduct proscribed by the language of § 1346." U.S. v. Paradies, 98 F.3d 1266, 1283 (11 th Cir. 1996). Nonetheless, courts have refused to allow § 1346 to be used as a "catch-all" that subjects every unethical or illegal act to federal mail and wire fraud prosecution. See, e.g., U.S. v. Bloom, 149 F.3d 649, 654-56 (7 th
Cir. 1998) (noting, inter alia, that "not every breach of fiduciary duty works a criminal fraud"); U.S. v. Welch, 327 F.3d 1081, 1107 (10 th Cir. 2003) ("the right to honest services is not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing"). Recognizing the difficulty of interpreting the undefined phrase "honest services," courts have attempted to establish general criteria that must be satisfied to successfully assert an "honest services" fraud claim. One of the leading circuits interpreting the scope of the honest services fraud is the First Circuit Court of Appeals, which held that: First, . . . honest services convictions of public officials typically involve serious corruption, such as embezzlement of public funds, bribery of public officials, or the failure of public decision-makers to disclose conflicts of interest. Second, . . . the broad scope of the mail fraud statute . . . does not encompass every instance of official misconduct that results in the official's personal gain. Third, and most importantly, . . . the government must not merely indicate wrongdoing by a public official, but must also demonstrate that the wrongdoing at issue is intended to prevent or call into question the proper or impartial performance of the public servant's official duties. U.S. v. Czubinski, 106 F.3d 1069, 1076 (1 st Cir. 1997) (emphasis added) (internal citations and quotations omitted), (discussing the First Circuit's prior decision in U.S. v. Sawyer, 85 F.3d 713, 724 (1996). The Seventh Circuit has held that "[m]isuse of office (more broadly, misuse of position) for private gain is the line that separates run of the mill violations of state law fiduciary duty . . . from federal crime." U.S. v. Bloom, 149 F.3d 649, 655 (7 th Cir. 1998). The court went on to note that "in almost all of the intangible rights cases decided . . . (before McNally or since § 1346), the defendant used his office for private gain, as by accepting a bribe in exchange for official action[,]" but also noted that "[s]ecret conversion of information received in a fiduciary capacity is a form of fraud against the owner of that information." Id. Accordingly, the Seventh Circuit summarized its test for an honest services fraud as follows: "[a]n employee deprives his employer of his honest services only if he misuses his position (or the information he obtained in it) for personal gain" (emphasis added). Id. at 656-57.
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The Tenth Circuit has likewise held that cases involving § 1346 "must be read against the backdrop of the mail and wire fraud statutes, thereby requiring fraudulent intent and a showing of materiality." U.S. v. Welch, 327 F.3d 1081, 1107 (10 th Cir. 2003). However, the Tenth Circuit unequivocally rejected the Seventh Circuit's position that a public official must seek "personal gain" to violate § 1346, stating that while it was unwilling to "define the exact contours of honest services fraud or the proof necessary to sustain it . . . to require an allegation of intent to personally gain would suggest that [a defendant is] justified in using whatever means necessary to achieve [his or her] goals . . . ," which the Court was unwilling to do. B. What Constitutes an Honest Services Fraud? As noted above, the language of § 1346 is not helpful in categorizing what specific conduct by a public official is prohibited, and courts have been unwilling to set forth a litany of proscribed acts, instead setting forth general parameters that must be satisfied to successfully assert an honest services fraud. It should be noted, however, that Justice Stevens, in his dissent in McNally (vindicated by Congress' reversal of McNally), stated the following: In the public sector, judges, State Governors, chairmen of political parties, state cabinet officers, city alderman, Congressmen, and many other state and federal officials have been convicted of defrauding citizens of their right to honest services of their governmental officials. In most of these cases, the officials have secretly made governmental decisions with the objective of benefiting themselves or promoting their own interests, instead of fulfilling their legal commitment to provide the citizens of the State or local government with their loyal service and honest government. McNally, 483 U.S. at 362-63 (emphasis added). The basic concept on an honest services fraud "is that the public is not getting what it expects and deserves: honest, faithful, disinterested service from a public official. This concept
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applies whether the official is bribed or fails to disclose a conflict of interest." U.S. v. Mangiardi, 962 F. Supp. 49, 51 (M.D. Penn. 1997). Addressing what constitutes an honest services fraud in the context of a union officer's duty toward his union, a court held that "'honest services' contemplates that in rendering some particular service . . ., the defendant was conscious of the fact that his actions were something less than in the best interests of the employer—or that he consciously contemplated or intended such actions. For example, something close to bribery." U.S. v. Boyd, 309 F. Supp.2d 908, 913 (S.D. Tex. 2004). Underlying § 1346 is the notion that "a public official acts as 'trustee for the citizens and the State . . . and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty to them. Theft of honest services occurs when a public official strays from this duty.’" U.S. v. Sawyer, 239 F.3d 31, 39 (1 st Cir. 2001).
When a government officer decides how to proceed in an official endeavor—as when a legislator decides how to vote on an issue—his constituents have a right to have their best interests form the basis of that decision. If the official instead secretly makes his decision based on his own personal interests—as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest—the official has defrauded the public of his honest services. U.S. v. Lopez-Lukis, 102 F.3d 1164, 1169 (11 th Cir. 1999). According to the First Circuit, a public official can steal honest services from his public employer in two ways: (1) the official can be influenced or otherwise improperly affected in the performance of his duties, or (2) the official can fail to disclose a conflict of interest, resulting in a personal gain. U.S. v. Woodward, 149 F.3d 46, 57 (1 st Cir. 1998) (relying upon the court's earlier decision in U.S. v. Sawyer, 85 F.3d 713, 724 (1 st Cir. 1996).
In contrast, an employee's failure to perform his job adequately, or his failure to adhere to the government's code of conduct concerning permissible work-related activities, is not sufficient to Specific Instances Where Honest Services Fraud Has Been Found Most of the honest services fraud cases brought pursuant to § 1346 have involved, not surprisingly, clear-cut cases of bribery or the payment of "kickbacks" to public officials who exercised their influence on behalf of the person or entity paying such gratuity. Considering that bribery cases tend to be "clear cut," in that there is, at a minimum, an exchange of something of value in return for an official action, the matters below involve less certain areas, where honest services fraud has been found (or alleged) notwithstanding the lack of a clear cut exchange of valuable consideration.
Recent—and Well-Publicized—Cases Involving Claims of Honest Services Fraud
(a)
U.S. v. Abramoff
A recent case asserting honest services fraud involves disgraced Washington lobbyist Jack Abramoff. On January 3, 2006, Abramoff pleaded guilty to a three-count information charging him with conspiracy, honest services mail fraud, and tax evasion. The honest services fraud charges to which Abramoff pleaded guilty are extensive—but essentially boil down to his failure to honestly serve his clients, his employer, and his attempts to corrupt public officials. Abramoff's plea agreement, entered in the U.S. District Court for the District of Columbia, is available at http: //news.findlaw. com/usatoday/docs/abramoff/usabrmff10306plea.pdf (last visited January 16, 2006).
With respect to the honest services fraud against his clients, Abramoff admitted that he used his influence with Native American tribes that he represented on gaming matters to cause them to hire (at above-market prices) "grass roots" and "public relations" firms in which Abramoff had an undisclosed ownership interest, and from which he was being paid 50 percent of net profits, in addition to his lobbying fee from the tribes. Moreover, Abramoff admitted that he provided lobbying services to a Native American tribe in Texas that was seeking to reopen its gaming operations, without revealing that he had been paid millions of dollars by a Louisiana tribe to oppose all gaming legislation under consideration by the Texas legislature. Abramoff avoided disclosing the clear conflict of interest to his law firm by telling the Texas tribe that he was providing his lobbying services free of charge, while he simultaneously engineered the tribe's retention of a "grass roots" firm in which Abramoff had an undisclosed financial interest, and which paid Abramoff $1.8 million in fees as a result of the Texas tribe's retention.
ii.
Honest Services Fraud With Respect to Abramoff's Employer
During the time that Abramoff was employed by a law firm, Abramoff agreed to represent a wireless company in securing a license to install wireless telephone infrastructure in the House of Representatives. Rather than entering into a retainer relationship with Abramoff's law firm, Ambramoff instructed the wireless company to pay his fee to a non-profit entity that Abramoff founded, and that he used as a vehicle to fund trips and gifts for the politically influential. Abramoff did not disclose this arrangement to his employer, thus depriving his employer of fees to which it was entitled, which Abramoff admitted was an honest services fraud against his employer.
iii.
Honest Services Fraud—Corruption of Public Officials
The lengthiest portion of Abramoff's plea agreement concerns the allegations that Abramoff engaged in a conspiracy to commit honest services fraud by corrupting public officials by providing "a stream of things of value . . . in exchange for a series of official acts and influence and agreements to provide official actions and influence." (Abramoff Plea Agreement, ¶ 32). The things of value to which Abramoff pled guilty to providing included "foreign and domestic travel, golf fees, frequent meals, entertainment, election support for candidates for government office, employment for relatives of officials, and campaign contributions." (Id.). Specifically, Abramoff pled guilty to providing "Representative #1" (since identified as Representative Bob Ney (R-OH)) and "Staffer #1" with such lavish items as all-expenses-paid trips to the Northern Marianas Islands, Scotland, and to Tampa, Florida (for the Super Bowl). Other things of value provided by Abramoff to Representative #1 and Staffer #1, however, were not so lavish—such as "comped" meals at Abramoff's Washington, DC restaurant—and included items that some may consider "normal" business expenses when it comes to politics, such as contributions to Representative #1's campaign committee and contributions to the Republican National Party. Abramoff's plea agreement states that he provided such things of value in exchange for public officials': agreements to support and pass legislation, agreements to place statements in the Congressional Record, agreements to contact personnel in the United States Executive Branch agencies and offices to influence decisions of those agencies and offices, meetings with Abramoff's . . . clients, and awarding contracts for services with . . . Abramoff's law firms. Id. at ¶ 33.
(b)
San Diego Pension Fund
Another very recent case involving allegations of honest services fraud in the context of public officials concerns the indictment of the former top executive of the San Diego City Employees Retirement System, the Retirement System's lawyer, and three former trustees of the Retirement System. The indictment, announced on January 6, 2006, alleges that the Retirement System's executive, its lawyer, and its former trustees committed honest services fraud by conspiring to approve enhanced retirement benefits for City of San Diego workers—including themselves—in exchange for allowing the City to underfund the Retirement System. According to the indictment, by early 2002, the Retirement System's funding status was approaching only 82.3 percent, and, at such level, a "funding trigger" would have been tripped, requiring the City of San Diego to make a massive cash infusion to the Retirement System. As the funding trigger was about to tripped, the City negotiated a labor agreement that enhanced
pension benefits for members of the municipal labor unions (including the indicted Retirement System employees), and the City advised the Board of the Retirement System that the increased pension benefits were "contingent upon" obtaining relief from the funding trigger that was about to be tripped. The indictment alleges that the indicted officials agreed to reduce the City's funding obligations with respect to the Retirement System, and that the vote to approve such relief was linked to the enhanced pension benefits that the officials would receive. According to the indictment, such conduct constitutes a conspiracy to deprive citizens of San Diego with their intangible right to honest services from public officials.
2.
"Pay-to-Play" Schemes Involving Campaign Contributions 3 The indictment is available at: http://www.signonsandiego.com/news/metro/pension/images/060106fedpensionindictment.pdf
In U.S. v. Troutman, 814 F.2d 1428 (10 th Cir. 1987), the Tenth Circuit addressed a "pay- to-play" scheme involving the payment of campaign contributions by a bank for consideration for state business, which the court held to be violative of the Hobbes Act, 18 U.S.C. § 1951 (extortion). (It should be noted that the defendant was not charged with committing an honest services fraud, even though such a claim was viable at the time of the defendant's arrest and trial). At issue in Troutman was the Investment Officer of New Mexico, who advised a bank bidding for state business that it had to contribute to a fundraiser for the Governor of New Mexico. The United States successfully prosecuted the Investment Officer for extortion, and, on appeal, the Tenth Circuit affirmed the conviction, noting that "[a]n extortion effort made under the color of official right is described as a public official's attempt to obtain money not due him or his office." Id. at 1456. The court went on to cite several cases from various circuits, holding, inter alia, that "[t]he coercive solicitation of political contributions is within the realm of actions that are illegal under the Hobbes act." Id. (quoting U.S. v. Cerilli, 603 F.2d 415, 421 (3d Cir. 1979), and citing U.S. v. Dozier, 672 F.2d 531, 540 (5 th Cir. 1982), and U.S. v. Williams, 621 F.2d 123, 124 (5 th Cir. 1980)). In U.S. v. Kemp, 379 F. Supp. 2d 690, 697 (E.D. Penn. 2005), the court upheld the conviction of the City Treasurer of Philadelphia, who was convicted of extortion and honest services fraud based upon his acceptance of bribes from people doing business with the City. In upholding Kemp's conviction for honest services fraud, the court noted that "there were specific intercepted communications where [a co-conspirator] and Kemp made agreements that because
certain individuals did—or in some cases did not—make the requested contributions to either political activities or charitable events, they were, or were not, going to receive City business." Id. Another case asserted an honest services fraud claim in the context of a "pay-to-play" scheme, although the scheme was not characterized as such. In Castro v. U.S., 248 F. Supp. 2d 1170 (S.D. Fla. 2003), the court addressed a "pay-to-play" kickback scheme in which judges serving on the Dade County (Florida) Circuit Court assigned criminal cases to selected defense attorneys who agreed to pay the assigning judges a percentage of the fees earned from each assigned case. The U.S. prosecuted the attorneys who participated in the scheme, alleging that the attorneys attempted to defraud the State of Florida of the judges' honest services. The court held that the defendants had committed an honest services fraud, noting that public officials have inherent fiduciary duties to the public, and that violations of such inherent fiduciary duty are proper predicates to convictions under § 1346, even if an underlying state law or regulation was not violated. …

I think that Obama will change the face of the electoral map and that he will beat McCain in the fall very easily.

HILLARY IS WINNING IN THE SWING STATES- EVERYONE KNOWS YOU NEED THOSE STATES TO WIN- IF YOU WANT TO VOTE FOR A WINNER VOTE HILLARY OTHERWISE LET'S JUST CROSS OUR FINGERS -
THAT MIGHT WORK-DAH!

I'm sure that Hillary's conscious motivation at this point is her genuine belief that she is the better candidate, but behind that lies her (unjustified) sense of entitlement. Behind that unfortunately lies her outrage that an "uppity nigger" could topple a dynasty. Let us wash our hands of the politics of the past and move forward to genuine change with brother Barack and, as he has said, "Let's go save the world."

Any of these mathematician pundits want to talk about the Electoral College and how exactly Obama wins in Nov? We're about to nominate a sure loser. This is a business decision - do we want to win or lose? Do we want McCain or a Dem in the White House? Let's not get too wrapped up in purism to be pragmatic and wise enough to do what we need to do to win. It's like Ralph Nader costing Dems the election in 2000. It's foolish. The objective here is a Dem. Obama can be VP and then move up when Hill's old and senile. They party should get control of this and put up a winner, Hillary. The race is a tie to be decided by superdels. I now regret voting for Obama. He can't win Ohio, PA, FL!!!!!! Red alert!!!!! That's 70 electorals, folks. Add in MI and NJ and that's 30+ more. Obama's made his case to these voters repeatedly and with 3, 4 and even 8 times the media Hillary had. They know what he's selling and they didn't buy it. And, his "swing states of IA, WI and CO total about 27 electorals!!!! Not enough!!!!! And VA?? No, sorry not counting on that one. That's one of the most reliably Republican States. The only reason Webb won is because Allen shot himself in the foot every time he opened his mouth!!!!!

And, no polls are not irrelevant if you know the rural hillbilly demographics we're dealing with that we don't have in NEW ENGLAND! Swing states of OH and PA are becoming redder, shedding union workers from the Cities and requiring Dems to court rural voters there. Obama might have a better argument that polls don't matter if he had not spent SOOOOO much money getting his message out only to be rejected. They've made their voices heard and we need to respect that or have John McCain. Both Hillary and Barack are great candidates - people need to move past bias and let's win this.

"Frankly, given the outcome of the previous two elections, the candidate that loses Florida and Ohio is probably the one I want as my president."

Posted by SJB May 23, 08 12:40 PM

WOW, good call SJB. Never really thought of it that way, but man, that's so true.

Whoever said polls are irrelevant at this point-- you're right. It's all just fodder in May. Once there's an official nominiee, they hold some more weight, but still to be taken with a grain of salt.

Obama is right-- there are a lot more states in play as 'swing' this election. Anything and everything can, and will, happen. besides, just wait until john mccain and obama debate... things will become clearer.

on the war:
mccain-- continue as long as necessary
obama-- pull out as soon as possible

healthcare:
mccain-- 'fix' the current system
obama-- universal system available to all

economy:
toss up. neither of them have been governers, the only candidates that can truly say they know how to manage fiscal policies. but, this is where having bush in his corner will kill mccain... pretty tough to explain that.

Other than the fact that you're wrong, Brian, I also didn't say polls were irrelevant. I said they were irrelevant at this stage of the game. Much will change between now and November.

It's silly to think that this election will be decided strictly by Ohio and Pennsylvania. This is a very different election than 2000 or 2004. Different states are in play, and Obama has an excellent chance at not only winning, but winning big.

brian, are you smoking crack? Obama will will NJ, i promise. -- and latest polls have obama up in ohio and pennsylvania. stop being an idiot. Once he's got the nomination, he will certainly get a bounce. go to college or something, retard.

Conservative Republicans for fifty years had tended to denigrate the importance of personal diplomacy," said Richard Norton Smith, the former director of the Ronald Reagan Presidential Library, in a PBS film on the '85 summit. "It's the legacy of the Yalta Conference and they thought Franklin Roosevelt had sold us out and then we sold out China. We were all selling out someone. The sale was usually by a president who thought if only he could get in a room with his Soviet counterpart his charm and his arguments would prevail. That was the conservative position and yet Reagan clearly believed he could do that: the force of his personality of his arguments and above all of his sincerity would impress itself upon the Soviets."

Reagan went into that meeting with challenges more daunting than what U.S. faces in modern Iran. And the president's objective -- to back away from the brink of nuclear war while refusing to draw down America's commitment to the Strategic Defense Initiative (Star Wars) -- seemed, on the surface, to be an untenable proposition. But largely because of his personal touch, it was achieved.

"I think in terms of reaching out, Reagan went against the advice of what we would call today 'the neocons,'" said Lawrence Korb, Assistant Secretary of Defense in the Reagan administration. "He took the lead in negotiating with the Soviets. He broke the impasse that a lot of people in government didn't want him to do it."

But it wasn't just with Gorbachev in which Reagan showed an inclination for personal involvement in foreign affairs. As George Schultz, Reagan's Secretary of State, wrote in a concluding section of his memoir "Understanding Ronald Reagan": "Critics said Ronald Reagan read too many letters and not enough briefing books. I often wished he would spend more time on the briefing books, mastering details more fully and following up more aggressively on the management of foreign policy. But the letters buoyed him up and also gave him a continuing sense of contact with the people."

All of which, aides and biographers say, was part of a broader decision made by Reagan that engagement, even on a non-political level, was an essential political tactic.

"He had a very strong belief in personal diplomacy." said Paul Kengor, author of "The Crusader: Ronald Reagan and the Fall of Communism." Reagan placed "enormous confidence in his personal ability to get along with other leaders. Reagan knew that he generally throughout his life got along well with people and they generally liked him."

Sounds like the Obama foreign policy philosophy to me...

For the Democrats to win in November, put Hillary down as top of the ticket with Obama as VP. Makes a lot of sense since Hillary has shown that she gets the swing votes and is much much more experienced with better policies than Obama. Counting Michigan and Florida:
Clinton - 17,408,441
Obama - 16,209,146
(ABC's most recent tally). So Hillary is up by 199,295 votes.
No matter what Obama supporters say now, if they are realistic and take a long hard look at their candidate, they will realize he has a lot of problems. Not to mention the unsettled issues of Ayers, Rezko/Auchi and the ruthless campaign he ran to get into the Illinois and US senates.

John RYSKAMP
Who are you? What are your credentials??? Where did you get that INFO??
You are Luckey someone has not shot you for spreading lies!!!!

NEW HAMPSHIRE
Rasmussen. 5/21. Likely voters. MoE 4% (4/30 results)

Obama (D) 48 (41)
McCain (R) 43 (51)

OHIO
SurveyUSA. 5/16-18. Likely voters. MoE 4.1% (4/11-13 results)
McCain (R) 39 (47)
Obama (D) 48 (45)

McCain (R) 39 (47)
Obama (D) 48 (45)

Colorado:
SUSA:
3/17: 46 McCain, 46 Obama
5/19: 42 McCain, 48 Obama

Oregon:
Rasmussen:
3/26: 42 McCain, 48 Obama
5/7: 38 McCain, 52 Obama

Pennsylvania:
SUSA:
2/26-28: 47 McCain, 42 Obama
5/16-18: 40 McCain, 48 Obama

Virginia:
SUSA:
4/11-13: 52 McCain, 44 Obama
5/16-18: 42 McCain, 49 Obama

Missouri:
SUSA:
3/14-16: 53 McCain, 39 Obama
5/16-18: 48 McCain, 45 Obama

So. Exactly how is Obama losing the general? This with all the vitriol and hate being spewed out by the Clinton camp. This primary is so over.

How can ANYONE support this person...

HILLARY RAISES ASSASSINATION ISSUE
DEFENDS LONG-RUNNING CAMPAIGN
By GEOFF EARLE

May 23, 2008 --

Hillary Clinton today brought up the assassination of Sen. Robert Kennedy while defending her decision to stay in the race against Barack Obama.

"My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. I don't understand it," she said, dismissing calls to drop out.

Watch a video of the editorial board meeting here.

Obama's camp immediately fired back.

"Sen. Clinton's statement before the Argus Leader editorial board was unfortunate and has no place in this campaign," Obama campaign spokesman said in a statement.

Clinton made her comments at a meeting with the Sioux Falls Argus-Leader's editorial board while campaigning in South Dakota, where she complained that, "People have been trying to push me out of this ever since Iowa."

Obama, the first African-American to advance so far in the race for the White House, has faced threats, sources have said.

Robert Kennedy, the younger brother of President John F. Kennedy, was gunned down in 1968 after winning the California primary. He had been a hero on the left for his civil rights agenda and calls to end the war in Vietnam.

Barack Obama, who leads Clinton by nearly 200 delegates and has already secured a majority of pledged delegates, has been the subject of threats. Early in the campaign, the Secret Service gave him a security detail at the request of Sen. Richard Durbin (D-Illinois).

Clinton criticized an "urgency" to end the campaign prematurely, saying, "Historically, that makes no sense."

Clinton spokesman Howard Wolfson defended the comments to The Post, "She was talking about the length of the race and using the '68 election as an example of how long the races in the past have gone -- she used her husband's race in the same vein."

Obama won't win in November because he has too many flaws in his character as shown by his association with radical and criminal elements in and around Chicago, people and groups he depended on to get started and advance his political career. How many more times will he say, "That is not the man I knew" just to get elected.