[33] JOLLY and DeMOSS, Circuit Judges, with whom SMITH, Circuit Judge, joins, Dissenting:

We respectfully dissent from what we consider to be an issue-evasive and jurisprudentially flawed majority opinion. With little analysis, and much judicially engrafted legislation, it holds that general, undefined, vague, and ambiguous words constitute a clear statement that Congress intended for federal prosecutors and grand juries to police the conduct of state officers acting in their official state capacities. We should make clear that we do not at all suggest that the criminal statute at issue is unconstitutional or must otherwise be stricken — only that as the statute is applied in this case, the indictment and proof fails to state and prove a crime.

INTRODUCTION

First, the majority needs to be reminded that when interpreting a criminal statute, courts must apply the rule of lenity; that is, when choosing between two readings of a criminal statute, the courts must favor the narrower interpretation unless Congress has spoken to the contrary in language that is clear and definite. This is an indisputable rule of statutory construction ignored by the majority. Second, the Supreme Court has emphasized that when a statute is applied, as here, to alter the balance of federalism, congressional intent must be plain on the face of the statute — an intent that even infrared eyes cannot detect from this statute.

The words we interpret today are these few: "For the purpose of this chapter, the term `scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." For the majority to prevail, these words must clearly demonstrate that Congress intended to apply the wire fraud statute to police the integrity of state officials acting in the capacities of their offices. Moreover, these words must satisfy constitutional due process, which requires that citizens be given fair notice that specific conduct constitutes a crime.

The majority utterly fails to address these principles of statutory construction. The reason the majority opinion avoids raising these crucial matters is simple: it cannot possibly conform its conclusions with principles of statutory construction.

Principles of statutory construction are not the only obstacles to the majority's reading of the statute. The legislative history is also devastating to the majority's position that Congress has spoken clearly in Section(s) 1346 to reach the conduct of state officers acting in their official capacity. Because the statute fails on its face to make a crime of the charged conduct, this dissent need not address the matter of legislative history. The legislative history does, however, make plain beyond any doubt that Section(s) 1346 cannot be fairly construed to reflect a clear congressional intent to police the integrity of state officers. Thus, rather than deal with the legislative history, the majority pursues the only course available to it: silence.

Indeed, the only significant issue in this case that the majority squarely faces is the meaning of "honest services," a term that the majority acknowledges is ambiguous and undefined by Congress. One would think that the majority would directly acknowledge that this patent and indisputable ambiguity cripples this prosecution. But no. Instead, the majority assumes a role somewhere between a philosopher king and a legislator to create its own definitions of the terms of a criminal statute. Surely, the majority should recognize the laudatory principle to which we as a Court try scrupulously to adhere: The courts may not assume the place of Congress by writing or rewriting criminal laws pursuant to which citizens will be prosecuted. This is solely the prerogative of Congress. With great respect for the usual judgment of our colleagues, we must say that the majority opinion in this respect is hardly a judicial opinion.

The majority opinion is flawed in other respects as we shall develop more fully in this dissent. Its argument that it makes no sense to "define victims by reference to the definition of the perpetrator" is sophistry, a glib phrase giving the appearance of a truism, resorted to by the majority because it can provide no answer to otherwise define the meaning of "another" as it appears in the statute. Although it may be less than a perfect method of divining the hidden intent of Congress, we suggest that defining "another," which is otherwise completely undefined by Congress, by referring to "whoever," is an absolutely correct grammatical construction of the one-sentence statute; at least it provides some definitional meaning or limits to the term "another." The majority opinion provides no definitional limits for a key term in a criminal statute. The majority also says nothing about the due process problems of sufficient notice of what behavior has been prohibited when such key terms have no definitional limits.

In this dissent, we shall further show that the majority, without any analysis, baldly states that "another" means the citizens as the body politic. It is beyond our capacity to accept the conclusion that by using the term "another" in Section(s) 1346, Congress clearly has referred to the entire "body politic" of the State of Texas. In so concluding without analysis, the majority gives the phrase judicial chutzpa new meaning.

After the majority completes its assumed legislative task of defining honest services, it appears to have some second thoughts about the application of "another" to the body politic, and "pauses" to put aside the frequent invocations of a deprivation of citizens' rights to honest services. The reference to such "rights" of citizens has little relevant meaning beyond a shorthand statement of a duty rooted in state law and owed to the state employer. Despite its rhetorical ring, the rights of citizens to honest government have no purchase independent of rights and duties locatable in state law. To hold otherwise would offer Section(s) 1346 as an enforcer of federal preferences of "good government" with attendant potential for large federal inroads into state matters and genuine difficulties of vagueness. Congress did not use those words, and we will not supply them.

Maj. Op. at 13 (internal citation omitted). It is certainly true that Congress did not use those words. Indeed, that is a major point of this dissent. The indictment, however, used those words. Does the majority conclude that the indictment charges the specifics of a crime unauthorized by Congress? If for no other purpose than to remind the majority, we point out that the indictment charged Brumley with depriving "the citizens of the State of Texas . . . from receiving . . . honest services." Yet the majority says the term has no "purchase." No purchase? The deprivation of the "citizens of Texas rights to honest services" in this case has "purchased" a federal prison sentence for Mr. Brumley.

We turn now to more fully address the substantive issues raised by this appeal. We first address the Supreme Court opinions in McNally and Carpenter, the cases that prompted the passage of Section(s) 1346. We will then show how the Supreme Court has made it unmistakably plain that Congress must make a clear statement when it intends to extend a criminal statute into policing the behavior of state officials. Next we will show that the statutory language cannot possibly be interpreted as such a clear statement, and that the legislative history debunks the majority's position that Section(s) 1346 is a clear statement that Congress intended to police the honesty of state government officials in their official capacities. Finally, we demonstrate that the phrase "honest services" is entirely ambiguous.

McNALLY AND CARPENTER

A thorough understanding of the Supreme Court's landmark decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), is the first order of business. This case involved the prosecution of a former public official of Kentucky and a private individual for alleged violation of the federal mail fraud statute, 18 U.S.C. §(s) 1341. The principal theory of the prosecution in McNally, which was accepted by the courts below, was that the defendants' participation in a self-dealing patronage scheme defrauded the citizens and government of Kentucky of certain "intangible rights," such as the right to have the commonwealth affairs conducted honestly. The jury convicted the defendants and the Court of Appeals affirmed the convictions, relying upon a line of decision from the Courts of Appeals holding that the mail fraud statute proscribed schemes to defraud citizens of their intangible rights to honest and impartial government. The Supreme Court granted certiorari and reversed. The most illuminating language of the majority opinion in McNally provides that: Rather than construe the statute [mail fraud, Section(s) 1341] in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read Section(s) 1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.

Id. at 360 (emphasis added).

This seven to two majority opinion overturned the theories upon which a large number of prior Circuit Court decisions had been based. Justice Stevens' dissent identifies in detail the prior Circuit Court cases and categorizes them in separate footnotes:

Footnote 1

State and federal officials convicted of defrauding citizens of their right to the honest services of their governmental officials, id. at 362;

Footnote 2

Elected officials and campaign workers convicted of mail fraud for using the mail to falsify votes, thus defrauding the citizenry of its right to an honest election, id. at 363;

Footnote 3

In the private sector, agents with clear fiduciary duty to their employers or unions, found guilty of defrauding by accepting kick backs or selling confidential information, id. at 363; and

Footnote 4

In the private sector, defendants convicted for defrauding individuals of their rights to privacy and other non-monetary rights. Id. at 364.

The key language from McNally quoted above clearly states that the majority overruled the body of case law referred to in Justice Stevens' footnotes for two reasons:

1. The majority did not want to construe the statute as involving the federal government in setting standards of disclosure and good government for local and state officials. This is a healthy recognition of the realities of our federal system and pulls the rug out from under the conceptual analysis used by the Circuit Courts in deciding the cases in footnotes 1 and 2 of the dissent; and

2. The majority did not want to construe the mail fraud statute in a manner that would create ambiguity in its outer limits, so it said the statute would apply only to the "protection of property rights," thereby pulling the rug out from under the category of cases described in footnotes 3 and 4.

Both the majority opinion and the dissent in McNally indicate that Congress might change the Court's construction; but the majority made it absolutely clear that Congress "must speak more clearly than it has" if it desired to make such changes.

Shortly after its decision in McNally, the Supreme Court decided Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d. 275 (1987). In Carpenter, a unanimous Supreme Court described its holding in McNally as follows:

We held in McNally that the mail fraud statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government" and that the statute is "limited in scope to the protection of property rights."

Id. at 320 (internal citations omitted).

In Carpenter, the Supreme Court found that the property rights, though intangible, were none the less property rights and that "McNally did not limit the scope of Section(s) 1341 to tangible as distinguished from intangible property rights." Id. Therefore, Carpenter clearly reaffirms the majority opinion in McNally, but recognizes that both tangible and intangible property rights are protected by the mail fraud and wire fraud statutes as they then stood.

Because of the emphasis that the majority opinion places on the circumstance of the employment relationship between Brumley and the TWCC, it should be noted that in Carpenter the Court characterized an employer's contractual right to an employee's honest and faithful services as "an interest too ethereal in itself to fall within the protection of the mail fraud statute." Id. Consequently, Carpenter foreclosed the use of the "intangible right of honest services" doctrine in private employment relationships, just as McNally had foreclosed the use of that doctrine as to the defrauding of "citizens of their intangible rights to honest and impartial government."

PRINCIPLES OF STATUTORY CONSTRUCTION

On the last day of the 100th Congress in October 1988, Congress passed a highly publicized and much debated omnibus drug bill. Attached to that omnibus bill, as one of some 30 other unrelated provisions, was a provision containing the text of what has now been codified as 18 U.S.C. §(s) 1346. See Pub.L. 100-690, Title VII, Section(s) 7603(a), Nov. 18, 1988, 102 Stat. 4508. Our first task is to decide whether the language used by the Congress in Section(s) 1346 satisfies the admonition of the Supreme Court in McNally that Congress "speak more clearly than it has." As with any statutory question, analysis begins with the language of the statute. Kellogg v. United States, (In re West Texas Marketing Corp.), 54 F.3d 1194, 1200 (5th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 523, ___ L.Ed.2d ___ (1995). In determining a statute's plain meaning, the courts assume that, absent any contrary definition, "Congress intends the words in its enactments to carry their ordinary, contemporary, common meaning." Pioneer Investment Services v. Brunswick Associates, 507 U.S. 380, 388, 113 S.Ct. 1489, 1495, 123 L.Ed.2d 74 (1993) (internal quotation marks omitted). As the Supreme Court has stated: "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982) (internal quotation marks omitted). If the language is clear, then "the inquiry should end." United States v. Ron Pair Enterprises, 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989).

In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Supreme Court stated the principles which the Court has long followed in construing criminal statutes passed by Congress: First, as we have recently reaffirmed, "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812 [(1971)]. . . . In various ways over the years we have stated that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal CIT Credit Corp., 344 U.S. 218, 221 [(1952)]. . . . This principle is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U.S. 25, 27 [(1931)]. . . . Second, because of the seriousness of criminal penalties and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies "the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes in Benchmarks, 196, 209 (1967).

Id. at 522-23 (other internal citations omitted).

Therefore, the Supreme Court has recognized that criminal statutes must be construed narrowly. Moreover, the Court has emphasized a second critical principle:

Unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. . . . As this Court emphasized only last term in Rewis v. United States, [ 401 U.S. at 812,] we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the travel act. To do so, we said then, "would alter sensitive federal state relationships [and] could overextend limited federal police resources." While we noted there that "[i]t is not for us to weigh the merits of these factors," we went on to conclude that the "fact that they are not even discussed in the legislative history . . . strongly suggests that Congress did not intend that [the statute have the broad reach]." 401 U.S. at 812 . . . As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal state balance in the way now claimed by the government.

Id. at 523 (internal footnotes and citations omitted) (alterations in original). When legislation has the potential of altering the relationship between state and federal police powers, this Court must adopt a narrow interpretation of the statute.

It is clear, of course, that, under the Supremacy Clause, the Congress may legislate in areas traditionally regulated by the States. Nevertheless, the Court has emphasized that "[t]his is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly." Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991). "If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." Id. at 461 (internal citations omitted) (emphasis added).

INTERPRETING THE TEXT OF SECTION 1346 The text of Section(s) 1346 is only one sentence in length and reads as follows:

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

18 U.S.C. §(s) 1346. A plain reading of the statutory text produces numerous ambiguities and questions:

a. Who is the "deprivor" and who is the "deprivee?"

b. What is an "intangible right?"

c. What are "honest services?"

d. What is "the intangible right of honest services?"

If a criminal statute is to satisfy the "fair warning" test of Bass, answers to these questions must be available to the "common world" in a fashion which is clear and readily understandable so that the line where permitted conduct ends and prohibited conduct begins is certain.

The answer to the first question, "Who is the deprivor?," should be clear to the common man. The chapter referred to is Chapter 63 of Title 18 entitled "Mail Fraud," and the term "scheme or artifice to defraud" appears in four sections: Section 1341, Mail Fraud; Section 1342, Fictitious Names or Addresses; Section 1343, Fraud by Wire, Radio or Television; and Section 1344, Bank Fraud. The pronoun "whoever" is the pronoun used at the beginning of each of these sections. Section 1 of Title I of the United States Code, relating to rules of construction, contains the following definition:

In determining the meaning of any Act of Congress, unless the context indicates otherwise —

"person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; . . . .

If one substitutes for the pronoun "whoever" its statutory definition, and if one also inserts the definition of Section(s) 1346 in Section(s) 1343 (Wire Fraud), which is the relevant section involved in this case, the statute reads as follows:

WHO [any person, individual, corporation, company, association, firm, partnership, society or joint stock company who],

PROHIBITED CONDUCT having devised or intending to devise scheme or artifice [to deprive another of the intangible right of honest services] transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce any writings, signs, signals, pictures or sounds

MOTIVE for the purpose of executing such scheme or artifice; etc.

The answer to the first question, therefore, is that the deprivor is "any person, individual, corporation, company, association, firm, partnership, society or joint stock company."

The answer to the second question, "Who is the deprivee?," is not clear. The word "another" is not defined anywhere in the United States Code. The dictionary says that the first and most frequent use of "another" as a pronoun is "one more; an additional one." Grammarians teach that the word "another," when used as a pronoun, is an indefinite pronoun which has no specific meaning in and of itself but draws its meaning from the context in which it is used. A logical argument could be made, therefore, that the pronoun "another," as incorporated by Section(s) 1346 into Section(s) 1343, would have the same meaning as the lists of nouns incorporated into Section(s) 1343 by the Title 1, Section(s) 1 definition of "whoever." If this second insertion is made, the first portion of 1343 (wire fraud) reads as follows:

[Any person, individual, corporation, company, association, firm, partnership, society or joint stock company who], having devised or intending to devise any scheme or artifice [to deprive any other person, individual, corporation, company, association, firm, partnership, society or joint stock company of the intangible right of honest services] etc.

With these insertions, Section(s) 1343 as amended by Section(s) 1346 can certainly be read to clearly define the deprivor and the deprivee, setting aside for the time being the definitional problem of what constitutes a "deprivation of an intangible right of honest services." But these insertions do not solve the interpretation problem in this case, because the indictment charged Brumley with conspiring to defraud and defrauding "the citizens of the State of Texas, including members of the Texas Industrial Accident Board, an agency of the State of Texas, from receiving the intangible right to honest services," and defrauding "the citizens of the State of Texas including the Industrial Accident Board and its successor (the Texas Workman's Compensation Commission), a state agency, of the intangible right to good, faithful and honest service." There is nothing in the definition of "whoever" in Section(s) 1 of Title 1 which could even remotely be interpreted or construed to mean "a state," "the citizens of a state," "a political subdivision of a state," "a governmental agency," or "an employee or official of a governmental agency." Moreover, the majority opinion impliedly concedes that none of the nouns listed in the definition of Section(s) 1 of Title 1 could be construed to include a "state or state agency" when it states that "the statute does not allow prosecution of a state or state agency." Maj. Op. at 6.

The answers to the questions "What is an intangible right?", "What are honest services?," and what is "the intangible right of honest services" are not clear nor is their meaning readily available to the average citizen. The term "intangible right" is not defined in the United States Code, is not defined in Black's Law Dictionary, and, prior to its use in Section(s) 1346, had never been used in any other statute of the United States. The term "honest services" is not defined anywhere in the United States Code, is not defined in Black's Law Dictionary, and had never been used in the United States Code prior to its use in 1346. The phrase "the intangible right of honest services" is, therefore, inherently undefined and ambiguous. There is no listing in the United States Code of all "intangible rights;" therefore, there is nothing which could be identified as "the intangible right of honest services."

It is therefore incomprehensible to us that the majority can conclude, as it must in order to uphold this conviction, that the inclusion of the words "[f]or the purposes of this chapter, the term `scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services," reflects a clear statement of a Congressional intention to protect the citizenry of a state from corrupt state officials. Given this certain ambiguity of statutory words, there is surely no call for us to proceed further into legislative history to demonstrate that Congress has failed to satisfy the requirements delineated in Bass and Ashcroft. Nonetheless, the egregious error of the majority in applying this statute to the instant facts is emphasized by reference to legislative history. The legislative history demonstrates conclusively that the United States House of Representatives was unwilling to pass a criminal statute to reach the conduct alleged in the instant indictment.

LEGISLATIVE HISTORY

The specific text of what has become 18 U.S.C. §(s) 1346 was inserted in the Omnibus Drug Bill for the first time on the very day that the Omnibus Drug Bill was finally passed by both the House and the Senate. The text of what is now Section(s) 1346 was never included in any bill as filed in either the House of Representatives or the Senate. As a result, the text of Section(s) 1346 was never referred to any committee of either the House or the Senate, was never the subject of any committee report from either the House or the Senate, and was never the subject of any floor debate reported in the Congressional Record.

There are only two items of legislative history pertinent to the text of Section(s) 1346 as actually passed. First, there are remarks on the floor of the House entered by Representative Conyers regarding various provisions in the Omnibus Drug Bill, including the section of that bill which added the new Section(s) 1346 to Title 18. After describing the Supreme Court decision in McNally and its effect on various prior federal Circuit Court opinions, Representative Conyers stated: This amendment restores the mail fraud provision to where that provision was before the McNally decision. The amendment also applies to the wire fraud provision and precludes the McNally result with regard to that provision.

The amendment adds a new section to 18 U.S.C. § 63 that defines the term "scheme or artifice to defraud to include a scheme or artifice to defraud another of the intangible right of honest services." Thus, it is no longer necessary to determine whether or not the scheme or artifice to defraud involved money or property. This amendment is intended merely to overturn the McNally decision. No other change in the law is intended.

134 Cong. Rec. H11,108-01 (daily ed. Oct. 21, 1988) (emphasis added).

It is significant that in this statement Representative Conyers does not use the word "state," nor the words "citizens of a state," nor the words "state official," nor the words "public official," nor the words "state employee." What Representative Conyers does refer to as the change made by the amendment is that it eliminates the necessity "to determine whether or not the scheme or artifice to defraud involved money or property."

Second, several weeks after the passage of the Omnibus Drug Bill, the Senate Judiciary Committee prepared and entered into the Congressional Record a report regarding all of the provisions in the Anti-Drug Abuse Act of 1988 which were within the jurisdiction of the Senate Judiciary Committee, for the purpose of detailing "Congress' intent in enacting these provisions." Regarding the text of what is now 18 U.S.C. §(s) 1346, this report states as follows:

Section 7603. Intangible Rights for Mail and Wire Fraud.

This section overturns the decision of McNally v. United States in which the Supreme Court held that the mail and wire fraud statutes protect property but not intangible rights. Under the amendment, those statutes will protect any person's intangible right to the honest services of another, including the right of the public to the honest services of public officials. The intent is to reinstate all of the pre-McNally case law pertaining to the mail and wire fraud statutes without change.

134 Cong. Rec. S17,360-02 (daily ed. Nov. 10, 1988) (footnotes added).

Such post-enactment legislative history, however, is not entitled to great weight. See Consumer Products Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980). Moreover, additional legislative history reveals that, on at least two occasions, Congress was unwilling to specifically enact a statute that expressly spoke to the conduct of public officials. The first such occasion was H.R. 3050, 100th Cong., 1st Sess., filed July 29, 1987, which provided for the addition of a new section in Chapter 63 of Title 18 of the United States Code, which would have read:

Section 1346. Definition of Defraud for Certain Sections.

As used in Sections 1341 and 1343, the term "defraud" includes the defrauding of the citizens of a body politic —

1. of their right to the conscientious, loyal, faithful, disinterested and unbiased performance of official duties by a public official thereof; or

2. of their right to have the public business conducted honestly, impartially, free from bribery, corruption, bias, dishonesty, deceit, official misconduct and fraud.

This bill was referred to the House Committee on the Judiciary but was never further acted upon in any way. Had this bill become law, Congress would have declared in clear and unmistakable language that the "citizens of a body politic" are protected by federal law from dishonest public servants.

Second, the most comprehensive vehicle by which Congress sought to change the McNally decision in a manner sufficient to satisfy the tests of McNally was Senate Bill 2793 (S2793), titled the "Anti-Corruption Act of 1988." This bill was introduced in the Senate on September 7, 1988, referred to the Judiciary Committee, reported favorably by that committee without a report, and passed later by the Senate on October 14, 1988. This bill was then sent to the House of Representatives, where it was referred to the House Judiciary Committee on October 19, 1988. Concurrently with its passage by the Senate, S2793 was designated by a unanimous consent agreement of the Senate as one of a large number of amendments to "comprise the joint leadership package" which would be attached as amendments to H.R. 5210, the Drug Initiative Act of 1988, Omnibus, which was then before the Senate, having earlier been passed by the House. H.R. 5210 (with S2793 included) was then passed by the Senate and sent back to the House. On October 22, 1988, the House of Representatives reconsidered H.R. 5210 with the leadership package of amendments attached in the Senate and made various amendments thereto, and then passed the revised bill. One of the amendments made by the House of Representatives was to delete the text of S2973 and substitute in its place the language which now appears codified as 18 U.S.C. § 1346. H.R. 5210 as then amended was sent back to the Senate, which concurred in those amendments later on October 22, 1988.

Because of the direct relevance of S2973 to the text of what was ultimately passed as 18 U.S.C. §(s) 1346, a copy of that bill is appended as an addendum to this dissent. Section 2 of this bill (pages 1-6 of addendum) would have created a new Section 225, entitled "Public Corruption," to be inserted in Chapter 11 of Title 18 of the United States Code. This new section would make criminal: (a) depriving or defrauding the inhabitants of a state or a political subdivision of a state of the honest services of an official or employee of such state or subdivision and (b) depriving or defrauding the inhabitants of a state or political subdivision of a state of a fair and impartially conducted election process in any primary, runoff, special or general election. On its face Section 2 of S2793 would have been a fairly comprehensive, articulate and clear attempt to define criminal conduct which would satisfy the requirements of McNally that the Congress speak "more clearly than it has" and, in the area of federal/state relations, that Congress clearly express its intent to affect such relations. If Section 2 of S2793 had been adopted by the House of Representatives, there would not now be any need for determining whether the word "another" means a "state or a political subdivision of a state." There is no report in the legislative history explaining why the House of Representatives declined to accept the full text of S2793 as part of the omnibus Anti-Drug Act of 1988 (H.R. 5210).

We may conclude from the demise of these more comprehensive bills (H.R. 3050 and S2793) that the House of Representatives was unwilling to join the Senate in the comprehensive definition of crime involving "public corruption" as set forth in Section 2 of S2793.

Section 3 of S2793, entitled "White Collar Crime," contemplated the addition of a new Section(s) 1346, entitled "Scheme or Artifice to Defraud," which would be added to Chapter 63 of Title 18 of the United States Code. It is apparent that Section 3 of S2793 is a progenitor in some respects of the text of 18 U.S.C. Section(s) 1346, which was ultimately adopted by both Houses. Change the word "organization" to "another" and put a period after the words "honest services," and one has the text of what was ultimately passed.

The legislative history likewise does not reveal any report or statement as to why the House of Representatives opted to make the changes it made in the portion of Section 3 of S2793 which the House of Representatives retained as Section 7603 of the Omnibus Crime Bill. The word "organization" is defined in Section 18 of Title 18 as meaning "a person other than an individual." The substitution of the pronoun "another" for the noun "organization" would work some enlargement of the class of potential victims, since the word "organization" by definition does not mean individual persons. But the critical question to our inquiry here is whether simply by making this one word change the House intended to accomplish the same results that would have been accomplished if Section 2 of S2793 had also been adopted. Simply to pose the question is to answer it. If the House of Representatives truly agreed with the Senate that "depriving the inhabitants of a state or political subdivision of a state of the honest services of an official or employee of such state or subdivision" should become a federal crime when use was made of the mails or interstate wire, radio or television communications, then the clearest and most comprehensive way to do that (and satisfy the Supreme Court's tests in McNally) would have been to adopt the entirety of Section 2 of S2793. The House of Representatives was unwilling to do that.

Given this legislative history, the following conclusions must be drawn:

1. Both the House and the Senate certainly knew how to "speak clearly and definitively" on the subject of fraud depriving the citizens of a state or political subdivision of the intangible right of good and honest government, but the House refused to do so; and

2. None of the bills containing any such express provisions received a majority vote of both houses of Congress. Instead, what was passed by both houses of Congress was a last minute, "bobtailed" compromise which had never been the subject of hearings in either house.

The wording of Section(s) 1346 simply does not effect a change in the portion of the McNally opinion which held that the mail fraud statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government." The legislative history reinforces this view.

SECTION 1346 FAILS TO GIVE NOTICE

The majority opinion seems to make the test of "speaking more clearly" simply Congress' evidencing an intention to overrule McNally. But overruling McNally does nothing to place in the statutory language the necessary words, phrases and language which would notify the average citizen that these statutes have been dramatically extended to include conduct and activities not previously stated therein. Clearly, when the Supreme Court decided McNally, all of the preexisting Circuit Court constructions, interpretations and applications went down the drain; the convictions of many defendants who had been prosecuted under the pre-McNally law had to be vacated, and conduct occurring prior to the effective date of Section(s) 1346 could no longer be prosecuted under the old law.

McNally placed the burden on Congress to put down in statutory form whatever expanded scope it chose to give to the fraud statutes. In effect, Congress was charged with codifying in statutory form the definitions of the conduct which would be prohibited by the concepts of "intangible rights," "honest services," and "good and honest government," and to expressly indicate whether Congress intended to extend these concepts to the conduct of state officials. The requirement imposed by the Supreme Court to speak more clearly was not for the benefit of the Circuit Courts which had, in fact, given birth to these concepts in the first place. Rather, the requirement to speak more clearly, in addition to addressing federalism concerns, was for the benefit of the public, the average citizen, the average mid-level state administrator like Brumley, who must be forewarned and given notice that certain conduct may subject him to federal prosecution. The staff of the Senate Judiciary Committee and the Department of Justice clearly understood these requirements and drafted S2793 (see addendum) which would satisfy them. This bill passed the Senate, but the House was unwilling to specifically regulate the conduct of state officials. In its place, the House substituted a one-sentence statement that did not define the word "another," did not define the term "intangible right," and did not define the term "honest services." It is difficult to understand how the majority can conclude that the statutory language of Section(s) 1346 "plainly reaches state officials such as Brumley."

HONEST SERVICES

Finally, we have to register our disagreement with the fundamental premise upon which the majority opinion seems to be based, i.e., that Congress can delegate to the federal courts the task of defining the key terms and coverage of a criminal statute. We have found no Supreme Court case which supports that proposition, and the majority opinion cites no authority, either constitutional, statutory or decisional, for that premise. The majority pays lip service to the principle that Congress must define the criminal conduct when it states:

We will not lightly infer that Congress intended to leave to courts and prosecutors, in the first instance, the power to define the range and quality of services a state employer may choose to demand of its employees.

Maj. Op. at 10. Surprisingly, the majority flatly contradicts itself when it states that the passage of Section(s) 1346 has set the Courts "back on a course of defining honest services, and we turn to that task." As stated earlier, research indicates that the term "honest services" has never been used by the United States Congress in any statute prior to its use in Section(s) 1346, and that the term is nowhere defined by Congress. Likewise, there is nothing in the words of the statute itself nor in any of the legislative history of Section(s) 1346 which would indicate any Congressional intent to delegate to the Courts the task of defining the words "honest services," even if Congress could constitutionally do so.

The majority's attempt to define "honest services" demonstrates why such ad hoc definitions cannot possibly satisfy the requirements of "fair notice" to our fellow citizens as to where the line between permitted and prohibited conduct is drawn. On the one hand, the majority says that "the statute contemplates that there must first be a breach of a state owed duty," but on the other hand, it states that "the mere violation of a gratuity statute, even one closer to bribery than the Texas statute, will not suffice." Likewise, at one point the majority states that "we do not reach the question of whether a breach of duty to perform must violate the criminal law of the state," but in another point the majority supports its evidentiary analysis by saying that "Brumley violated a Texas criminal statute." Finally, at two points the majority recognizes that the case law on "honest services" prior to McNally was "not a unified set of rules" and was "uneven." From its review of the pre-McNally cases, the majority found "two uncertainties regarding the draw by this federal statute upon state law, specifically in defining the statutory element of honest services." Maj. Op. at 10. It is obvious, therefore, that the majority has recognized that the term "honest services" has not achieved the status of a commonly accepted and recognized term of art which Congress could have been relying upon in using these words. The majority makes a labored effort to infuse some sort of meaning to these words; but in truth and in fact, the majority finds that meaning in its own subjective notions and not in the words of Congress.

CONCLUSION

Because our colleagues in the majority (1) have closed their eyes to obvious ambiguities in the text of 28 U.S.C. §(s) 1346; (2) have chosen to completely ignore and avoid the legislative history of Section(s) 1346 which that undermines the majority's conclusion; (3) have concluded, without analysis or reference to any principles of statutory construction, that Section(s) 1346 "plainly reaches state officials such as Brumley;" and (4) now legislate the definition of honest services, we find ourselves in total and fundamental disagreement with the majority opinion. We therefore respectfully dissent.

ADDENDUM 100TH CONGRESS 2D SESSION S. 2793

To amend title 18 of the United States Code to punish corruption.

IN THE SENATE OF THE UNITED STATES SEPTEMBER 15 (legislative day, SEPTEMBER 7), 1988

Mr. BIDEN (for himself, Mr. McCONNELL, Mr. METZENBAUM, Mr. SIMON, Mr. THURMOND, and Mr. DeCONCINI) introduced the following bill; which was read twice and referred to the Committee on the Judiciary.

SECTION 1. SHORT TITLE.

This Act may be cited as the "Anti-Corruption Act of 1988."

SEC. 2. OFFENSE.

Chapter 11 of title 18, United States Code, is amended by adding at the end thereof the following new section:

"§ 225. Public Corruption

"(a) Whoever, in a circumstance described in subsection (c), deprives or defrauds, or attempts to deprive or to defraud, by any scheme or artifice, the inhabitants of a State or political subdivision of a State of the honest services of an official or employee of such State or subdivision, shall be fined under this title, or imprisoned for not more than ten years (or, if the defendant intended that the scheme or artifice promote conduct constituting an offense under the laws of the United States or a State for which the maximum term of imprisonment is greater than ten years, shall be imprisoned as required or authorized by the law punishing such offense of for not more than twenty years, whichever is less), or both.

"(b) Whoever, in a circumstance described in subsection (c), deprives or defrauds, or attempts to deprive or to defraud, by any scheme or artifice, the inhabitants of a State or political subdivision of a State of a fair and impartially conduct election process in any primary, run-off, special, or general election, through the procurement, casting, or tabulation of ballots or voter registration forms which are false, fictitious, fraudulent, or illegal under the laws of the State in which the election is held, or through the filing of any false, factitious or fraudulent report required to be filed under State law regarding an election campaign, shall be fined under this title or imprisoned for not more than ten years, or both.

"(c) The circumstances referred to in subsections (a) and (b) are that —

"(1) for the purpose of executing of concealing such scheme or artifice or attempting to do so, the actor —

"(A) places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, of knowingly causes to be delivered by mail according tot he direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing;

"(B) transmits or causes to be transferred by means of wire, radio, or television communication in interstate of foreign commerce any writings, signs, signals, pictures, or sounds;

"(C) transports or causes to be transported any person or thing, or induces any person to travel in or the be transported in, interstate or commerce; or

"(D) uses any facility of interstate of foreign commerce; or

"(2) the scheme or artifice affects in any manner or degree, or would if executed or concealed so affect, interstate or foreign commerce.

"(d) Whoever deprives or defrauds, or attempts to deprive or defraud, by any scheme or artifice, the inhabitants of the United States of the honest services of a public official or person who has been selected to be a public official shall be fined under this title or imprisoned for not more than ten years (or, if the defendant intended that the scheme or artifice promote conduct constituting an offense under the laws of the United States or a State for which the maximum term of imprisonment is greater than ten years, shall be imprisoned as required or authorized by the law punishing such offense, of for not more than twenty years, whichever is less), or both.

"(e) Whoever being an official, or public official, or person who has been selected to be a public official, directly or indirectly, discharges, demotes, suspends, threatens, harasses, or, in any manner discriminates against any employee or official of the United States of any State or political subdivision of such State, or attempts to do so, in order to carry out or to conceal any scheme or artifice described in this section, shall be fined under this title or subject to imprisonment of up to five years or both.

"(f)(1) Any employee or official of the United States or any States or political subdivision of such State who is discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against because if lawful acts done by the employee as a result of a violation of subsection (e) or because of actions by the employee on behalf of himself or others in furtherance of a prosecution under this section (including investigation for, initiation of, testimony for, or assistance in such a prosecution) may in a civil action, obtain all relief necessary to make such individual whole. Such relief shall include reinstatement with the same seniority status such individual would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney's fees.

"(2) An individual is not eligible for such relief if that individual participated in the violation of this section with respect to which such relief would be awarded.

"(g) For purposes of this section —

"(1) the term `State' means a State of the United States, the District of Columbia, Puerto Rico, and any other territory or possession of the United States;

"(2) the term `agency' means a subdivision of the executive, legislative, judicial, or other branch of government, including a department, independent establishment, commission, administration, authority, board, and bureau, and a corporation or other legal entity established and subject to control by a government or governments for the execution of a governmental or intergovernmental program;

"(3) the terms `public official' and `person who has been selected to be a public official' have the meaning set forth in section 201 of this title; the terms `official', `public official', and `person who has been selected to be a public official' shall also include any person acting under color of official authority;

"(4) the term `official' includes a person who has been nominated or appointed to be a public official or who has been officially informed that he or she will be nominated or appointed, and includes any official of an Indian tribal government.".

SEC. 3. WHITE COLLAR CRIME.

Chapter 63 of Title 18 of the United States Code is amended by adding a new section as follows:

"§ 1346. Scheme or artifice to defraud

"For the purposes of this Chapter, the term `scheme or artifice to defraud' includes a scheme or artifice to deprive an organization of the intangible right of honest services in which the defendant received or attempted to receive, for the defendant or another person, anything of value or in which the defendant intended or contemplated loss or harm to the organization."

SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.

(a) TABLE OF SECTIONS. — The table of sections for chapter 11 of title 18, United States Code, is amended by adding at the end thereof the following item:

"225. Public Corruption.".

(b) TABLE OF SECTIONS. — The table of sections for chapter 63 of title 18, United States Code, is amended by adding at the end thereof the following item:

"1346. Scheme Or Artifice To Defraud.".

(c) RICO. — Section 1961(1) of title 18, United States Code, is amended by inserting "section 225 (relating to public corruption)," after "section 224 (relating to sports bribery),".

(d) INTERRUPTION OF COMMUNICATIONS. — Section 2516(1)(c) of title 18, United States Code, is amended by inserting "section 225 (relating to public corruption)," after "section 224 (relating to sports contests),".

SEC. 5. INTERSTATE COMMERCE.

(a) IN GENERAL. — Section 1343 of title 18, United States Code, is amended by striking "transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds" and inserting "uses or causes to be used any facility of interstate or foreign commerce".

(b) CONFORMING AMENDMENTS — (1) The heading of section 1343 of title 18, United States Code, is amended by striking "Fraud by wire, radio, or television" and inserting "Fraud by use of facility of interstate commerce".

(2) The chapter analysis for chapter 63 of title 18, United States Code, is amended by striking the analysis for section 1343 and inserting the following:

"1343. Fraud by use of facility of interstate commerce".