United States v. Kincaid-Chauncey ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10544
Plaintiff-Appellee, D.C. No.
v.  CR-03-00500-2-
MARY KINCAID-CHAUNCEY, LRH
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
February 27, 2008—Las Vegas, Nevada
Filed February 20, 2009
Before: Alex Kozinski, Chief Judge, Marsha S. Berzon and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Berzon
1969
UNITED STATES v. KINCAID-CHAUNCEY 1973
COUNSEL
Franny A. Forsman, Federal Public Defender, Las Vegas,
Nevada, for appellant Mary Kincaid-Chauncey.
Daniel R. Scheiss, Assistant United States Attorney, Las
Vegas, Nevada, for appellee United States.
OPINION
BYBEE, Circuit Judge:
Mary Kincaid-Chauncey appeals her convictions for honest
services wire fraud, aiding and abetting honest services wire
fraud, conspiracy to commit honest services wire fraud, and
Hobbs Act extortion under color of official right. Kincaid-
Chauncey raises three claims of error: She claims that the dis-
trict court precluded her from calling witnesses to support her
1974 UNITED STATES v. KINCAID-CHAUNCEY
defense and that the district court gave erroneous instructions
on both the honest services fraud and the extortion counts. For
the reasons that follow, we affirm the district court’s judg-
ment.
I
This case requires us to delve into the tawdry relationship
between a Las Vegas strip club owner and several former
Clark County elected officials. The Clark County Board of
County Commissioners has jurisdiction over unincorporated
Clark County, Nevada. Its territorial jurisdiction includes,
importantly, the famous Las Vegas strip, with its lucrative
hotels, casinos, and associated enterprises. The Clark County
Commission has seven members, whose responsibilities
include enacting ordinances and issuing permits governing the
operation of businesses in Clark County. Mary Kincaid-
Chauncey, the defendant-appellant in this case, held the
elected office of Clark County Commissioner from 1997 to
2004.
Michael Galardi and his step-father operated a strip club
named Cheetahs in the City of Las Vegas from 1991 to 2003.
Business apparently was good, so, in 1999, Galardi made
plans to expand his adult entertainment operations by opening
two new strip clubs, Jaguars and Leopard Lounge. Galardi
chose to open his new enterprises outside of the City of Las
Vegas, in surrounding Clark County.
Galardi needed to obtain a variety of permits from the
Clark County government to open his new strip clubs, includ-
ing liquor licenses and business permits. Galardi also wanted
the Commission to relax the ordinances governing strip clubs
in Clark County. Specifically, Galardi sought an ordinance
permitting dancers in strip clubs to dance completely nude
and to permit clubs with all nude dancers to serve alcohol. He
also sought to prevent passage of ordinances that would have
required dancers in clubs serving alcohol to be at least 21
UNITED STATES v. KINCAID-CHAUNCEY 1975
years old and forbidden dancers to touch their patrons. When
it became difficult to work within the strictures of the county
ordinances, Galardi sought to annex the land on which Jag-
uars was located into the City of Las Vegas.
In 1999 Galardi began a corrupt relationship with Lance
Malone, who was a Clark County commissioner from 1997 to
2000. After leaving office in 2000, Malone quickly gained
employment with Galardi, working as a “lobbyist” of sorts.
Malone’s chief duties in his new job included establishing
relationships with public officials—including his former col-
leagues on the county commission1 —and delivering bribe
money from Galardi to the officials. The scheme was to be
short-lived, however, as the FBI began investigating Galardi’s
operations in 2000. The Bureau obtained wiretap authoriza-
tions to monitor the telephones of Galardi and Malone in June
2001, the wiretaps continued until December 2002. The FBI
executed search warrants of Galardi’s strip clubs and other
locations on May 14, 2003. Federal agents simultaneously
confronted several people involved in the bribery ring, includ-
ing Galardi, Kincaid-Chauncey, and Kenny.
The FBI’s investigation revealed that the bribery scheme
worked as follows: Galardi would typically give cash—
normally in $5,000 or $10,000 increments—to Malone to dis-
tribute to various public officials, usually county commission-
ers, in exchange for favorable action on ordinances, permits,
and licenses affecting the operation of his two new strip clubs.
Occasionally, Galardi would personally bribe the officials.
The bribery payments occurred at various locations, including
in restaurants, inside parked cars, and at the officials’ homes.
To assure himself that the officials actually received the
1
In addition to Kincaid-Chauncey, two other Clark County commission-
ers were alleged to have received illegal bribes from Galardi: Dario Her-
rera and Erin Kenny. Kenny and Galardi eventually cooperated with the
investigation and pled guilty to various charges. Herrera was tried with
Kincaid-Chauncey.
1976 UNITED STATES v. KINCAID-CHAUNCEY
money Malone was instructed to give them, Galardi told
Malone to have the officials call Galardi, using Malone’s cell
phone, to tell him “thanks” after they received the money.
On February 21, 2006, a second superseding indictment
charged Kincaid-Chauncey, Herrera, and Malone with con-
spiracy, aiding and abetting, honest services wire fraud, and
extortion under color of official right. See 18 U.S.C. §§ 2,
371, 1343, 1346, 1951. The indictment charged Kincaid-
Chauncey with receiving four payments from Galardi.
The first payment alleged in the indictment occurred on
August 2, 2001. Malone met with Kincaid-Chauncey in her
car in the parking lot of a restaurant. After the meeting,
Kincaid-Chauncey called Galardi using Malone’s cell phone,
and told him “thanks for all your help.” On that same day,
Kincaid-Chauncey’s son, who had been having financial diffi-
culties, deposited $3,800 in cash to his bank account. About
one hour after this meeting, Malone called Erin Kenny and
said, “[W]e’ve got Mary Kincaid on board.” Around this time,
Kincaid-Chauncey voted on matters before the county com-
mission that affected Galardi’s business interests without dis-
closing any conflict of interest. Specifically, on August 29,
2001, she voted to approve a limited liquor license for the
Jaguars strip club. On September 25, 2001, she voted to
extend the Jaguars liquor license for an additional month.
Tape-recorded telephone conversations introduced at trial also
established that Kincaid-Chauncey was taking orders from
Malone and Galardi. For example, on September 14, 2001,
Malone said to Kincaid-Chauncey, “Mike has an item on the
agenda on the nineteenth . . . . We also need you on the
twenty-fifth.” Kincaid-Chauncey replied, “Yeah, I’ll be
there.”
The second payment alleged in the indictment occurred on
October 24, 2001. Malone met Kincaid-Chauncey at her home
and paid her $5,000 in cash. Shortly after the meeting,
Kincaid-Chauncey called Galardi to thank him. On the same
UNITED STATES v. KINCAID-CHAUNCEY 1977
day, Malone called Galardi because he found an extra $300
in his pocket when he was changing his pants. Malone said,
“I don’t know if she got it all . . . I think she only got uh forty-
seven.” Malone then called Kincaid-Chauncey and asked her
if she got “a total of five.” She responded that she did. A
week later, on October 31, 2001, and again on November 28,
2001, Kincaid-Chauncey voted to approve liquor licenses for
Galardi’s strip clubs without disclosing her conflict of inter-
est. Kincaid-Chauncey admitted at trial to having received
this $5,000 from Malone, but she testified that the payment
was a campaign contribution to help pay debts incurred in her
son’s unsuccessful campaign for a seat on the North Las
Vegas City Council.
The third payment alleged in the indictment occurred in
February 2002. Malone called Kincaid-Chauncey on February
23, 2002, to set up a lunch meeting with Galardi on February
28. After Kincaid-Chauncey, Malone, and Galardi had lunch
together, Malone and Kincaid-Chauncey got in Kincaid-
Chauncey’s car, where Malone allegedly gave her $5,000. On
March 27 and April 30, 2002, Kincaid-Chauncey again voted
on matters affecting Galardi’s strip clubs without disclosing
her conflict of interest.2
The fourth and final payment alleged in the indictment
occurred in June 2002. Kincaid-Chauncey called Malone on
June 3, 2002, to tell him that her grandson had been accepted
into an Olympic ski school but needed $15,000 for the tuition.
Galardi said that he gave Kincaid-Chauncey $5,000 through
Malone sometime in June 2002. Kincaid-Chauncey admitted
receiving $4,000—not $5,000—from Malone during a tour of
Jaguars with her daughter. A series of recorded telephone
conversations followed this payment in June and July 2002,
in which Malone gave Kincaid-Chauncey explicit instructions
on how Galardi wanted her to vote on ordinances governing
2
As noted infra, Kincaid-Chauncey was acquitted of the Hobbs Act
charge based on this payment.
1978 UNITED STATES v. KINCAID-CHAUNCEY
nude dancing. For example, on July 30, 2002, discussing an
upcoming hearing on the all nude dancing ordinance, Malone
told Kincaid-Chauncey that “I’m sure Mike’s not gonna want
you to . . . hang your head out there . . . and get it chopped
off.” On July 31, 2002, Malone called Kincaid-Chauncey and
told her to put her cell phone on vibrate during the hearing on
the ordinance so he could call to tell her what to say if he
needed to.3 Kincaid-Chauncey told Malone that she would be
voting in favor of an ordinance that limited the touching
between nude dancers and their patrons, even though Galardi
opposed it, because she did not want to “be the only one vot-
ing against it.” On that same day, Kincaid-Chauncey voted for
the limited touch ordinance. A few days later on August 5,
2002, without disclosing her relationship with Galardi, she
submitted a memorandum to the county manager requesting
that the County Commission reconsider the limited touch
ordinance. In her memorandum, she said that she voted in
favor of it because she thought the City of Las Vegas would
be considering, and was likely to pass, a similar ordinance and
she wanted the rules to be uniform in the city and county to
make it easier for the metropolitan police to enforce the ordi-
nances. Her memorandum said that she had since learned that
the city would not be considering such an ordinance. This
claim contradicted the substance of a conversation on July 29,
2002, between Malone and Kincaid-Chauncey before the lim-
ited touch ordinance was passed. In that conversation, Malone
told Kincaid-Chauncey that the limited touch ordinance
would “put the county businesses at a . . . competitive disad-
vantage” with strip clubs in the City of Las Vegas.
On the basis of those four payments, Kincaid-Chauncey
was indicted for one count of conspiracy to deprive the Clark
County Commission and the citizens of Clark County of their
3
Malone in fact did call and leave her a message during the hearing,
suggesting to her what she should say during the meeting. Phone conver-
sations of a similar nature—with Malone telling Kincaid-Chauncey what
to say at various hearings—occurred throughout August 2002.
UNITED STATES v. KINCAID-CHAUNCEY 1979
right to honest services in violation of 18 U.S.C. §§ 371,
1343, and 1346; nine counts of honest services wire fraud in
violation of 18 U.S.C. §§ 2, 1343, and 1346;4 and four counts
of Hobbs Act color of official right extortion in violation of
18 U.S.C. § 1951.5Kincaid-Chauncey stood trial jointly with Dario Herrerra in
March 2006.6 During the eight week trial, Kincaid-Chauncey
pursued two lines of defense. First, she argued that Malone
had deceived Galardi into thinking that he had given the
money to the county commissioners, but had really kept the
money for himself (the Theft Theory). Second, she argued
that Galardi exaggerated the extent of his bribery scheme,
implicating numerous innocent public officials to gain a bar-
gaining advantage with the prosecutors (the Liar Theory).
To pursue these theories, Kincaid-Chauncey questioned
Galardi on cross-examination about whether he paid money to
nine other public officials, including, in no particular order:
Thom Reilly, the Clark County Manager; Mark Scofield, the
Clark County Tax Assessor; Lynette Boggs-McDonald, a Las
Vegas City Council member; Oscar Goodman, the mayor of
the City of Las Vegas; Ardel Jorgensen, a Clark County busi-
ness licensing official; David Roger, the Clark County Dis-
trict Attorney; Lee Gates and Donald Mosley, both Clark
County District Court judges; and Yvonne Atkinson-Gates, a
Clark County Commissioner and the wife of Judge Gates.
Kincaid-Chauncey also introduced evidence of inconsistent
statements regarding whether Galardi paid money to those
officials, and she sought to call each of the nine officials to
contradict Galardi’s testimony.
4
The honest services wire fraud counts were based on telephone calls
made on the following dates: August 2, 2001; September 14, 2001; Octo-
ber 24, 2001; February 23, 2002; June 5, 2002; July 31, 2002; August 5,
2002; August 19, 2002; and September 5, 2002.
5
The Hobbs Act charges were based on payments allegedly received on
August 2, 2001; October 24, 2001; February 28, 2002; and in June 2002.
6
Lance Malone eventually pleaded guilty to a reduced set of charges.
1980 UNITED STATES v. KINCAID-CHAUNCEY
The district court permitted Kincaid-Chauncey to call
Thom Reilly and Mark Scofield. Thom Reilly was the Clark
County Manager during the time period in question. Galardi
testified on cross-examination that he had given $5,000 in
cash to Thom Reilly as a bribe. The district court permitted
Kincaid-Chauncey to call Reilly at trial because Galardi’s tes-
timony “directly concerned a payment which Galardi testified
was made to Malone and that Galardi assumed . . . had been
paid to Reilly.” Reilly testified that he never received any
money from Galardi.
Mark Scofield was the Clark County Tax Assessor. Galardi
testified on cross-examination that he gave Scofield $5,000 in
cash. Galardi was impeached with prior inconsistent state-
ments he made to the FBI concerning another $5,000 check
payment he claimed to have made to Scofield. The district
court permitted Kincaid-Chauncey to call Scofield at trial, but
she declined to do so.
First, the district court ruled that the testimony was admis-
sible to impeach by contradiction under United States v. Cas-
tillo, 181 F.3d 1129 (9th Cir. 1999). Second, the court ruled
that the testimony was admissible, under Federal Rule of Evi-
dence 404(b), to establish Malone’s scheme or plan to steal
the bribe money he received from Galardi. At trial, Kincaid-
Chauncey called Reilly but not Scofield.
The district court ruled that Kincaid-Chauncey could not
call any of the other seven witnesses. Again relying on Cas-
tillo, the court ruled that their testimony was not admissible
to impeach by contradiction because it sought to contradict
testimony elicited on cross-examination. The court also
denied Kincaid-Chauncey’s request to admit the testimony
under Rule 404(b). Kincaid-Chauncey made the appropriate
objections to these rulings at trial.
Kincaid-Chauncey advanced the Theft Theory at trial by
calling Reilly, who testified that he never received money that
UNITED STATES v. KINCAID-CHAUNCEY 1981
Galardi allegedly gave to Malone to give to him and that
Malone never offered him any money. Kincaid-Chauncey also
introduced evidence of Malone’s previous acts of fraud as
well as a telephone call between Malone and his father. In the
call, Malone’s father tells Malone that it would not be a good
idea to keep $20,000 that Galardi had given to Malone to
bribe a public official. Kincaid-Chauncey advanced the Liar
Theory at trial by calling various FBI agents and other gov-
ernment employees who Galardi claimed to have paid off. She
also introduced numerous examples of Galardi’s prior incon-
sistent statements.
As the trial drew to a close, Kincaid-Chauncey objected to
the proposed jury instructions for the honest services fraud
and Hobbs Act charges. She argued that the instructions for
both the honest services fraud counts and the Hobbs Act
counts should require the jury to find the existence of a quid
pro quo as an element of the crime. The district court’s final
jury instructions did not incorporate the changes that Kincaid-
Chauncey proposed.
On May 8, 2006, the jury found Kincaid-Chauncey guilty
of all counts against her except the Hobbs Act charge based
on the February 28, 2002, payment. At sentencing, the district
court imposed a thirty-month term of incarceration to be fol-
lowed by a two year period of supervised release.
II
Kincaid-Chauncey advances three claims. We address each
in turn.
A
Kincaid-Chauncey first argues that the district court erred
in refusing to permit her to call seven of nine proposed wit-
nesses to advance her theories of defense.7 For the reasons
7
We review for abuse of discretion non-constitutional claims of error in
excluding evidence. See United States v. Lynch, 437 F.3d 902, 913 (9th
1982 UNITED STATES v. KINCAID-CHAUNCEY
explained below, we find that the district court did not deny
Kincaid-Chauncey the opportunity to present a defense or
abuse its discretion in refusing to admit the testimony of each
of the seven contested witnesses. Because the determination
of whether the evidence should have been admitted is particu-
lar to each witness, we briefly discuss each of Kincaid-
Chauncey’s proposed witnesses and their expected testimony.
Lynnette Boggs-McDonald was a member of the Las Vegas
City Council from June 1999 until April 2004. She served as
a Clark County Commissioner from April 2004 until she lost
reelection in 2006. Galardi testified on cross-examination that
he had given a campaign contribution to Boggs-McDonald,
but that he did not remember how much or whether he had
paid with cash or a check. He also testified that he did not
expect anything in return for the contribution. This testimony
conflicted with previous statements that Galardi made to
investigators before trial that Galardi paid Boggs-McDonald
$10,000 in cash through Lance Malone. Kincaid-Chauncey
called an FBI agent who testified that Galardi told the FBI
prior to trial that he had paid $10,000 in cash to Boggs-
McDonald. The government and Kincaid-Chauncey stipulated
that Galardi told the FBI before trial that he had paid public
officials, including Boggs-McDonald, “upwards of six fig-
ures.” The district court excluded Boggs-McDonald because
Galardi’s testimony about her was elicited on cross. Boggs-
McDonald was expected to testify that she only received a
$1,000 check as a campaign contribution from Galardi.
Oscar Goodman has been the mayor of the City of Las
Vegas since June 1999. Galardi testified on cross-examination
that he personally gave $10,000 to Oscar Goodman before
Goodman began his original campaign for mayor. Goodman
Cir. 2006) (en banc) (per curiam). We review de novo constitutional
claims that an evidentiary ruling precluded the presentation of a defense.
Id.UNITED STATES v. KINCAID-CHAUNCEY 1983
was expected to testify that he never received any money
from Galardi.
Ardel Jorgensen was the Business Licensing Director for
Clark County. On cross-examination, Galardi testified that he
had Lance Malone give $20,000 in cash to Jorgensen at a
meeting where Galardi was present. Galardi testified that he
saw Malone put the money in Jorgensen’s bag. Although
Galardi did not consider the payment to be a bribe because he
gave it to her in recognition of the help she had already pro-
vided, he acknowledged that it was illegal. Defense counsel
impeached Galardi’s testimony during cross-examination by
asking about statements he made to his former attorneys indi-
cating that he had not paid any money to Jorgensen. The
defense expected that Jorgensen would testify that she never
received any cash payment from Galardi.
David Roger has been the Clark County District Attorney
since 2002. On cross-examination, Galardi testified that he
gave a $20,000 check to Peter Christiansen, Galardi’s attor-
ney, to give to David Roger as a campaign contribution for
Roger’s bid to become the Clark County District Attorney.
However, Galardi testified that Roger returned the check
when it became public that he had accepted a campaign con-
tribution from a strip club owner. Roger was expected to tes-
tify that he never received any illegal contributions from
Galardi.
Donald Mosley has been a judge on the State of Nevada
District Court since 1983. Galardi testified on cross-
examination that he and his father gave about $50,000 to
Mosley over a twenty year period but that they did not expect
anything in return for those payments. Mosley was expected
to testify at trial that he only received about $5,000 from
Galardi during the twenty years in question.
Lee Gates has been a judge on the State of Nevada District
Court since 1991. Galardi testified on cross-examination that
1984 UNITED STATES v. KINCAID-CHAUNCEY
he contributed to Judge Gates’s campaign by giving money to
Peter Christiansen, though he could not remember the precise
amount. He testified that he made the contribution in the hope
that Gates would exert pressure on his wife, Yvonne
Atkinson-Gates, to change her position on upcoming votes
before the Clark County Commission. At trial, Gates was
expected to testify that he did not receive any money from
Galardi.
Yvonne Atkinson-Gates was a Clark County Commissioner
from 1993 until March 2007. On cross-examination, Galardi
testified that he never paid any money directly to Atkinson-
Gates, but that he made a campaign contribution to her hus-
band in the hope that it would influence Atkinson-Gates to
reconsider her position on a matter before the Clark County
Commission. Galardi further stated on cross-examination that
Atkinson-Gates told Malone that “$100,000 would make any
problems [with zoning issues] go away” while Atkinson-
Gates was on a pre-opening tour of the strip club Jaguars.
Atkinson-Gates was called as a witness but was not allowed
to testify about whether she made that statement.
1
The district court ruled that the testimony of these seven
witnesses was inadmissible because it constituted impeach-
ment of cross-examination testimony by contradiction.8
Kincaid-Chauncey asserts that this was error.
8
Kincaid-Chauncey claims that the trial court incorrectly analyzed this
issue as one of “the preclusion of the use of extrinsic evidence of specific
instances of conduct by a witness delineated in Federal Rule of Evidence
608(b).” To the extent that Kincaid-Chauncey believes the district court
excluded the evidence under Rule 608(b), she is mistaken. The court
explicitly relied on United States v. Castillo, a case which abjures reliance
on Rule 608(b) when analyzing questions of impeachment by contradic-
tion. See 181 F.3d 1129, 1132 (9th Cir. 1999) (“Although Castillo briefed
and argued the district court’s ruling under Rule 608(b), impeachment by
contradiction is not governed by that subsection.”). Although impeach-
ment by contradiction is not specifically formalized in the Federal Rules
of Evidence, it is part of the general body of evidentiary law and is a per-
missible theory of impeachment under Federal Rule of Evidence 607. Id.
at 1133.
UNITED STATES v. KINCAID-CHAUNCEY 1985
[1] Impeachment by contradiction “permits courts to admit
extrinsic evidence that specific testimony is false, because
contradicted by other evidence.” United States v. Castillo, 181
F.3d 1129, 1132 (9th Cir. 1999). Impeachment by contradic-
tion is an exception to the collateral fact rule embodied in
Federal Rule of Evidence 608(b), which generally prohibits
the introduction of extrinsic evidence to attack the credibility
of a witness. When impeaching by contradiction, the fact to
be contradicted must be material. 4 JOSEPH M. MCLAUGHLIN,
WEINSTEIN’S FEDERAL EVIDENCE, § 608.20[3][a], at 608-38 (2d
ed. 1999). Impeachment by contradiction is permitted to pre-
vent witnesses from engaging in perjury and then using the
prohibition on collateral fact testimony to conceal the perjury.
Castillo, 181 F.3d at 1132-33 (citing 2A CHARLES A. WRIGHT
& VICTOR J. GOLD, FEDERAL PRACTICE & PROCEDURE, § 6119,
at 116-17 (1993)). We have also recognized that, when mak-
ing the decision whether to permit impeachment by contradic-
tion, trial courts should consider the Rule 403 factors, such as
confusion of the jury or the cumulative nature of the evidence.
See id. at 1133; 4 MCLAUGHLIN, § 607.06[3][b], at 607-79.
[2] Impeachment by contradiction comes with an important
limitation. In general, a witness may be impeached by contra-
diction only if “the statements in issue [have] been volun-
teered on direct examination.” United States v. Green, 648
F.2d 587, 596 n.12 (9th Cir. 1981) (emphasis added). In Cas-
tillo, we read our cases to hold that “extrinsic evidence may
not be admitted to impeach testimony invited by questions
posed during cross-examination.” 181 F.3d at 1133. We
explained that when the testimony to be contradicted is
offered under cross-examination, impeachment by contradic-
tion is far less likely to achieve its intended purpose of rooting
out perjury because “opposing counsel may manipulate ques-
tions to trap an unwary witness into ‘volunteering’ statements
on cross-examination” and because “it is often difficult to
determine whether testimony is invited or whether it is volun-
teered on cross-examination.” Id. at 1133-34. But we held that
the general rule need not “be rigidly enforced so as to exclude
1986 UNITED STATES v. KINCAID-CHAUNCEY
all impeachment by contradiction of testimony given during
cross-examination.” Id. at 1134 & n.1.
[3] In this case, all nine of the witnesses offered by
Kincaid-Chauncey—Reilly, Scofield, and the seven excluded
witnesses—were expected to contradict testimony Galardi
gave during cross-examination. Under Castillo, the district
court could have excluded the testimony of all nine witnesses.
Such a ruling would have been well within our statement in
Castillo that “extrinsic evidence may not be admitted to
impeach testimony invited by questions posed during cross-
examination. Id. at 1133. Nevertheless, after reviewing the
transcript of Galardi’s testimony carefully, the district court
only excluded the testimony of seven of Kincaid-Chauncey’s
nine proffered witnesses. In an exercise of the discretion
afforded in Castillo, the district court permitted Kincaid-
Chauncey to call Reilly and Scofield. The district court
explained that it did so because Galardi specifically testified
that he gave money to Malone to give to those two individu-
als, and they were expected to testify that they never received
any money. As the district court explained with respect to
Reilly, although it was “a very close question” whether to per-
mit his questioning, his testimony was “distinct from all of the
others.”
The district court then reviewed name-by-name its reasons
for excluding the other seven witnesses. None of Galardi’s
trial testimony about six of the seven witnesses stated that he
definitely remembered giving unlawful money to them
directly or through Malone.9 His testimony about three of
9
Galardi did testify on cross-examination that he gave $20,000 to
Malone to give to Jorgensen, who was expected to testify that she never
received any money from Galardi. Her expected testimony thus appears to
meet the criteria the district court placed on whether such testimony would
be admitted. However, Galardi testified that he saw Malone put the money
in Jorgensen’s bag, so it would have been difficult to use this testimony
to support Kincaid-Chauncey’s Theft Theory. As for the Liar Theory,
Galardi’s pre-trial statement that he did not give any money to Jorgensen
was used to impeach him at trial. Jorgensen’s testimony thus would have
added little to Kincaid-Chauncey’s case.
UNITED STATES v. KINCAID-CHAUNCEY 1987
them—Goodman, Roger, and Gates—concerned campaign
contributions that were not alleged to have been given ille-
gally. The testimony expected from Mosley would have sim-
ply disputed the aggregate amount of what apparently was a
series of gifts over a twenty year period. Finally, Atkinson-
Gates would have merely disputed making an entirely collat-
eral statement during a tour of one of Galardi’s strip clubs.
Allowing the defendant to call the mayor, members of the city
council, judges, and other public officials to testify about
extraneous events would have created a huge sideshow to
what was already a trial of notoriety. None of the proffered
testimony was central to the core issues of the trial, and thus
it is precisely the type of evidence that the collateral fact rule
is designed to exclude.
[4] The district court’s decision to exclude the testimony of
the seven witnesses is well within our rule in Castillo and thus
was not an abuse of discretion. Nor did the district court abuse
its discretion by admitting some of the defendant’s witnesses
and not others. The district court plainly could have excluded
all nine of the witnesses; even if, in its discretion, the court
decides to admit the testimony of one or more witnesses, the
court is not obligated to admit the testimony of all proffered
witnesses.
2
Next, Kincaid-Chauncey argues that the testimony of the
witnesses was admissible under Federal Rule of Evidence
404(b)10 as proof of Malone’s common scheme or plan to steal
money from Galardi, which supported her Theft Theory. Of
10
Federal Rule of Evidence 404(b) states in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident . . . .
1988 UNITED STATES v. KINCAID-CHAUNCEY
the seven excluded witnesses, only the testimony of Boggs-
McDonald could possibly have advanced the theory that
Malone was stealing the bribe money and is thus amenable to
a Rule 404(b) analysis. However, Boggs-McDonald’s
expected testimony would not have provided support for the
theory that Malone had a scheme to steal the bribe money that
Galardi gave him. Galardi’s cross-examination testimony con-
cerning Boggs-McDonald was that he remembered making a
campaign contribution, but that he could not remember
whether he had paid her through Malone and that he did not
remember making a statement to FBI investigators that he had
paid her through Malone. The only evidence providing a
foundation that Malone carried the money from Galardi to
Boggs-McDonald—a necessary link to prove the theory that
Malone stole the money—was Galardi’s prior statements to
FBI agents. Yet, as the government points out, under the hear-
say rules these prior inconsistent statements only could be
introduced as impeachment evidence, not substantive evi-
dence. See FED. R. EVID. 801(d)(1). The defendant’s remedy
was to impeach Galardi by cross-examining him on his own
inconsistent statements, not by calling additional witnesses.
Accordingly, the district court did not err in ruling that
Boggs-McDonald’s testimony was not admissible under Rule
404(b).
3
Finally, Kincaid-Chauncey makes an overarching argument
that the district court’s refusal to admit the testimony of these
witnesses deprived her of her Fifth Amendment right to due
process and her Sixth Amendment right to present a defense,
claims that we review de novo. See United States v. Lynch,
437 F.3d 902, 913 (9th Cir. 2006) (en banc) (per curiam).
[5] “The Constitution guarantees a criminal defendant a
meaningful opportunity to introduce relevant evidence on his
behalf.” Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir.
2005) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)).
UNITED STATES v. KINCAID-CHAUNCEY 1989
However, “[a] defendant’s right to present relevant evidence
is not unlimited, but rather is subject to reasonable restric-
tions” and may have to “ ‘bow to accommodate other legiti-
mate interests’ ” in criminal trials. United States v. Scheffer,
523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483
U.S. 44, 55 (1987)). Such interests include the orderly admin-
istration of the trial—governed by the rules of procedure—
and the admission of reliable evidence. Our evidentiary rules
do not violate the constitutional right to present a defense “so
long as they are not ‘arbitrary’ or ‘disproportionate to the pur-
poses they are designed to serve.’ ” Id.; see also United States
v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). To violate
that standard, an evidentiary rule must “infringe[ ] upon a
weighty interest of the accused.” Scheffer, 523 U.S. at 308.
We cannot see how Kincaid-Chauncey was denied her right
to due process or to present a defense. As we discussed above,
the rules against permitting impeachment by contradiction
serve important trial management interests by keeping the
trial focused on germane issues. Moreover, the district court
permitted Kincaid-Chauncey to call two of the three witnesses
(Reilly and Scofield) who would have advanced the Theft
Theory. Kincaid-Chauncey ultimately called Reilly, but not
Scofield. It is difficult to see how Kincaid-Chauncey was
denied due process or an opportunity to put on her defense
when she chose not to put on one of the witnesses she claims
she needed. A third witness Kincaid-Chauncey argues would
have advanced her Theft Theory was Boggs-McDonald. But,
as we pointed out in the previous section, Galardi did not
make any statements on either direct or cross-examination
that he gave Malone any money to give to Boggs-McDonald.
The only statements in the record concerning payment to
Boggs-McDonald via Malone are statements that Galardi
made to the FBI. As unsworn prior inconsistent statements,
these statements could only be admitted to impeach Galardi,
not to establish that Galardi in fact did give money to Malone
to give to Boggs-McDonald. Nothing in the Constitution
1990 UNITED STATES v. KINCAID-CHAUNCEY
requires that Kincaid-Chauncey be permitted to introduce
extrinsic evidence under these circumstances.
None of the six witnesses proffered for the Liar Theory
would have advanced that theory, either. As noted above,
three of the witnesses would have disputed whether Galardi
gave them campaign contributions (Goodman, Roger, and
Gates); one would have disputed the amount of a series of
gifts (Mosley); and one would have disputed whether she
made a collateral statement (Atkinson-Gates). The final prof-
fered witness, Jorgensen, would have directly contradicted
Galardi’s cross-examination testimony, but Kincaid-
Chauncey was permitted to impeach Galardi with his prior
inconsistent statement concerning the payment to Jorgensen.
The marginal value that would have accrued to the defense
from Jorgensen’s testimony does not make the rule governing
impeachment by contradiction “arbitrary” or “disproportion-
ate to the purposes [it is] designed to serve.” Scheffer, 523
U.S. at 308.11
[6] We are confident that no violation of Kincaid-
Chauncey’s constitutional right to present a defense occurred
because she was permitted to advance these two theories
through numerous other methods. The district court permitted
her to call two witnesses to testify in support of the Theft The-
ory. She also introduced evidence of Malone’s previous acts
of fraud under Rule 404(b), and she introduced a recorded
telephone conversation where Malone’s father told Malone it
11
It we were to accept Kincaid-Chauncey’s argument that the Constitu-
tion requires district courts to admit extrinsic evidence in these circum-
stances, it would virtually eliminate the prohibition on introducing
extrinsic evidence for impeachment purposes whenever a testifying co-
defendant cooperates with the government: Although she styles her
defense in part as the “Liar Theory,” the theory is nothing more than the
routine impeachment of a co-conspirator who turned state’s evidence. The
end result would be that the impeachment by contradiction exception to
the prohibition on extrinsic impeachment evidence would swallow the
general rule.
UNITED STATES v. KINCAID-CHAUNCEY 1991
would not be a good idea to keep for himself $20,000 that
Galardi had given to Malone to give to a public official.
Kincaid-Chauncey had a full and fair opportunity to present
the Liar Theory, as well. It is obvious that Galardi was a trou-
blesome witness for the government, as he was frequently
confronted with prior inconsistent statements made to either
the FBI or his previous attorneys. The record is replete with
rigorous cross-examination of Galardi on the consistency of
his statements and testimony from FBI agents, which called
the truthfulness of Galardi’s testimony into question.
[7] For these reasons, we conclude that the district court’s
exclusion of the seven witnesses did not deprive Kincaid-
Chauncey of due process or her constitutional right to present
a defense.
****
In sum, we conclude that the district court did not err in
excluding the testimony of the seven challenged witnesses.
B
Kincaid-Chauncey next challenges the jury instructions
given on the Hobbs Act charges. She alleges that the district
court erred by failing to instruct the jury that an explicit quid
pro quo was necessary to convict her of violating the Hobbs
Act.12 Although we agree that the government must prove the
existence of a quid pro quo to obtain a conviction under the
Hobbs Act for non-campaign related payments, we reject the
notion that the quid pro quo needs to be explicitly stated.
12
We review the question of whether a jury instruction correctly states
the elements of a crime de novo. United States v. Phillips, 367 F.3d 846,
854 (9th Cir. 2004). “In reviewing jury instructions, the relevant inquiry
is whether the instructions as a whole are misleading or inadequate to
guide the jury’s deliberation.” United States v. Frega, 179 F.3d 793, 806
n.16 (9th Cir. 1999).
1992 UNITED STATES v. KINCAID-CHAUNCEY
[8] The Hobbs Act, among other things, prohibits a wide
variety of activities that fall under the general rubric of extor-
tion. Specifically, it says:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by . . . extortion or
attempts or conspires so to do, or commits or threat-
ens physical violence to any person or property in
furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title
or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). The statute defines “extortion” as “the
obtaining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, or
fear, or under color of official right.” Id. § 1951(b)(2)
(emphasis added).
To convict Kincaid-Chauncey of Hobbs Act extortion
under a color of official right theory, the government was
required to prove that she (1) was a government official; (2)
who accepted property to which she was not entitled; (3)
knowing that she was not entitled to the property; and (4)
knowing that the payment was given in return for official acts;
(5) which had at least a de minimis effect on commerce. See
18 U.S.C. § 1951(b)(2) (defining extortion); Evans v. United
States, 504 U.S. 255, 268 (1992); United States v. Boyd, 480
F.3d 1178, 1179 (9th Cir. 2007) (requiring “only a de minimis
effect on interstate commerce to support a Hobbs Act prose-
cution”); United States v. Du Bo, 186 F.3d 1177, 1179 (9th
Cir. 1999) (intent is a required element of a Hobbs Act con-
viction).
[9] In McCormick v. United States, the Supreme Court held
that when the defendant is charged with color of official right
extortion and the unlawfully gained property is in the form of
a campaign contribution, the government must prove that
UNITED STATES v. KINCAID-CHAUNCEY 1993
there was an explicit quid pro quo. 500 U.S. 257, 271-74
(1991); see also United States v. Ganim, 510 F.3d 134,142
(2d Cir. 2007) (“[P]roof of an express promise is necessary
when the payments are made in the form of campaign contri-
butions.”). However, “[w]hether or not there is a quid pro quo
requirement in the non-campaign context is an issue that has
not been directly addressed by the Supreme Court.” United
States v. Collins, 78 F.3d 1021, 1034 (6th Cir. 1996). Never-
theless, “[a]lmost all the circuits that have addressed this pre-
cise issue have held that the quid pro quo requirement applies
to all Hobbs Act extortion prosecutions, not just to those
involving campaign contributions.” United States v. Tucker,
133 F.3d 1208, 1215 (9th Cir. 1998) (collecting cases); see
also Evans, 504 U.S. at 278 (Kennedy, J., concurring) (“[T]he
rationale underlying the Court’s holding [in McCormick]
applies not only in campaign contribution cases, but in all
§ 1951 prosecutions.”); Ganim, 510 F.3d at 143; United States
v. Antico, 275 F.3d 245, 258 (3d Cir. 2001); United States v.
Giles, 246 F.3d 966, 972-73 (7th Cir. 2001); Collins, 78 F.3d
at 1035; United States v. Martinez, 14 F.3d 543, 553 (11th
Cir. 1994).
[10] In Tucker, we assumed without deciding that a prose-
cution for extortion under color of official right in the non-
campaign contribution context required a quid pro quo. 133
F.3d at 1215 (upholding against a sufficiency of the evidence
challenge Hobbs Act color of official right extortion convic-
tions). Today, we join our sister circuits and make explicit the
Tucker assumption: We hold that a conviction for extortion
under color of official right, whether in the campaign or non-
campaign contribution context, requires that the government
prove a quid pro quo.
[11] That being said, it is well established that to convict
a public official of Hobbs Act extortion for receipt of property
other than campaign contributions, “[t]he official and the
payor need not state the quid pro quo in express terms, for
otherwise the law’s effect could be frustrated by knowing
1994 UNITED STATES v. KINCAID-CHAUNCEY
winks and nods.” Evans, 504 U.S. at 274 (Kennedy, J., con-
curring). An explicit quid pro quo is not required; an agree-
ment implied from the official’s words and actions is
sufficient to satisfy this element. See id. at 268 (majority opin-
ion) (“[The] Government need only show that a public official
has obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts.”);
Ganim, 510 F.3d at 143; Antico, 275 F.3d at 258; Giles, 246
F.3d at 972.
Applied to this case, these principles clearly demonstrate
that the jury was properly instructed on the Hobbs Act counts.
The district court instructed the jury as follows:
In order for a defendant to be found guilty of [violat-
ing § 1951], the Government must prove each of the
following elements beyond a reasonable doubt:
First, the defendant was a public official.
Second, the defendant obtained money, which the
defendant knew he or she was not entitled to.
Third, the defendant knew that the money was given
in return for taking some official action.
And, four, commerce or the movement of an article,
commodity, or people in commerce from one state to
another was affected in some way.
In the case of a public official who obtains money,
other than a campaign contribution, the Government
does not have to prove an explicit promise to per-
form a particular act made at the time of the pay-
ment. Rather, it is sufficient if the public official
understands that he or she is expected as a result of
the payment to exercise particular kinds of influence
as specific opportunities arise.
UNITED STATES v. KINCAID-CHAUNCEY 1995
Kincaid-Chauncey argues that this instruction was erroneous
because it “instructed the jury that no proof of a quid pro quo
was required for counts involving non-campaign contribu-
tions.” We reject her argument.
[12] Although “[n]o specific instruction to find an express
quid pro quo was given,” Antico, 275 F.3d at 259, this
instruction adequately stated the implicit quid pro quo ele-
ment that Evans requires. The instruction tells the jury that it
can only find a defendant guilty if it finds that she “knew that
the money was given in return for taking some official
action.” It then elaborates that the government does not have
to show an express promise, but the public official must
understand that “she is expected as a result of the payment to
exercise particular kinds of influence as specific opportunities
arise.” “[A]lthough the magic words quid pro quo were not
uttered, a simplified version of the concept, the idea that ‘you
get something and you give something,’ was.” Giles, 246 F.3d
at 973.
[13] The circuits that have considered similar language in
jury instructions for Hobbs Act color of official right extor-
tion charges have approved it. In United States v. Ganim, for
example, the former mayor of Bridgeport, Connecticut, was
charged with violating, among other statutes, § 1951 for
receiving a variety of non-campaign related payments and
kickbacks. See 510 F.3d at 137-40. At trial, the district court
instructed the jury on the quid pro quo element: “The govern-
ment does not have to prove an explicit promise to perform
a particular act made at the time of payment. It is sufficient
if the defendant understood he was expected as a result of the
payment to exercise particular kinds of influence, that is, on
behalf of the payor, as specific opportunities arose.” Id. at
144. The Second Circuit held that there was no error in that
charge, in light of the fact that the preceding paragraph of the
jury instruction specified that the payment needed to be “in
return for official acts.” Id. at 145. As in Ganim, this jury
charge—that “the defendant knew that the money was given
1996 UNITED STATES v. KINCAID-CHAUNCEY
in return for taking some official action”—required a link
between the payment and the exercise of official acts. See
also United States v. Bradley, 173 F.3d 225, 231 (3d Cir.
1999) (upholding similarly worded jury instruction because it
“complies with the most recent Supreme Court holding on the
issue of whether an agreement is required for conviction
under the Hobbs Act”); accord Giles, 246 F.3d at 972 (“[W]e
. . . agree with the Ninth Circuit in Tucker that the govern-
ment need not show an explicit agreement, but only . . . that
the public official understood that as a result of the payment
he was expected to exercise particular kinds of influence on
behalf of the payor.”); Tucker, 133 F.3d at 1215 (“The gov-
ernment need not show an explicit agreement . . . the govern-
ment need only show that [the public official] received the
payment knowing that [it] was made in return for official
acts” (internal quotation marks omitted)); United States v.
Coyne, 4 F.3d 100, 114 (2d Cir. 1993) (“[I]t is sufficient if the
public official understands that he or she is expected as a
result of the payment to exercise particular kinds of influence
. . . as specific opportunities arise.”).
[14] Accordingly, we find no error in the district court’s
jury instruction concerning non-campaign related payments
received by Kincaid-Chauncey charged as Hobbs Act viola-
tions.
C
Finally, Kincaid-Chauncey asserts that the district court
erred in failing to instruct the jury that the crime of honest ser-
vices fraud requires proof of a quid pro quo. For the reasons
that follow, we conclude that the district court’s jury instruc-
tions were adequate.
1
The wire fraud statute states:
UNITED STATES v. KINCAID-CHAUNCEY 1997
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pre-
tenses, representations, or promises, 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 for the purpose of executing such scheme or
artifice, shall be fined under this title or imprisoned
not more than 20 years, or both.
18 U.S.C. § 1343. For decades, federal prosecutors have used
§ 1343, as well as the substantially similar mail fraud statute,
18 U.S.C. § 1341, to develop a theory of “honest services
fraud.” Honest services fraud occurs when an employee
deprives his employer of its right to have its affairs conducted
“free from deceit, fraud, dishonesty, conflict of interest, and
self-enrichment,” and consistent with the employee’s fidu-
ciary duties to the employer. United States v. Woodward, 149
F.3d 46, 54 (1st Cir. 1998). In cases involving public officials,
the theory relies on the idea 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.” United States v. Silvano, 812 F.2d 754, 759 (1st Cir.
1987) (quoting United States v. Mandel, 591 F.2d 1347, 1363
(4th Cir. 1979)).
In McNally v. United States, the Supreme Court held that
the mail fraud statute did not extend to cover honest services
fraud. 483 U.S. 350, 359-60 (1987). Concerned about the
ambiguity of the outer bounds of an honest services fraud the-
ory and afraid to “involve[ ] the Federal Government in set-
ting standards of disclosure and good government for local
and state officials,” the McNally Court instructed Congress to
“speak more clearly” if it wanted to make honest services
fraud a crime. Id. at 360.
[15] Congress “chose to ‘speak more clearly’ ” the very
next year by adding § 1346 to Title 18 of the United States
1998 UNITED STATES v. KINCAID-CHAUNCEY
Code. United States v. Weyhrauch, 548 F.3d 1237, 1243 (9th
Cir. 2008); see Act of Nov. 18, 1988, Pub. L. 100-690, 102
Stat. 4181, 4508 (1988) (codified at 18 U.S.C. § 1346). Sec-
tion 1346 supplies a definition: “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.” By enacting § 1346, Congress revived the
pre-McNally rules on honest services fraud. See, e.g., Wey-
hrauch, 548 F.3d at 1243 (“[W]e turn for guidance in constru-
ing the statute to our pre-McNally case law and any relevant
post-McNally decisions, and then consider pre- and post-
McNally decisions from our sister circuits.”); United States v.
Sorich, 523 F.3d 702, 707 (7th Cir. 2008) (“[Section 1346]
superseded McNally and reinstated the line of cases preceding
it.”); United States v. Williams, 441 F.3d 716, 722 (9th Cir.
2006) (“[B]y overruling McNally, Congress restored the pre-
McNally landscape.”); United States v. Rybicki, 354 F.3d 124,
136-37 (2d Cir. 2003) (en banc). But see United States v.
Brumley, 116 F.3d 728, 733 (5th Cir. 1997) (“Congress [in
passing § 1346] could not have intended to bless each and
every pre-McNally lower court ‘honest services’ opinion . . . .
Congress, then, has set us back on a course of defining ‘hon-
est services,’ and we turn to that task.”).
“The ‘intangible rights’ theory [of honest services fraud]
has been a subject of controversy in the history of the federal
mail and wire fraud statutes,” Williams, 441 F.3d at 721, and,
we would add, it continues to cause controversy despite (or
perhaps because of) Congress’s statutory abrogation of
McNally. The greatest source of controversy, “given the
amorphous and open-ended nature of § 1346,” has arisen over
“the need to find limiting principles” to cabin the broad scope
of § 1346.13 Sorich, 523 F.3d at 707. Without some kind of
13
The courts of appeals have turned to at least four different kinds of
limiting principles for § 1346. The Fifth Circuit has held that the public
official must have violated some state law to be convicted of honest ser-
vices fraud. See, e.g., Brumley, 116 F.3d at 734-35; see also United States
UNITED STATES v. KINCAID-CHAUNCEY 1999
limiting principle, honest services wire fraud could potentially
make relatively innocuous conduct subject to criminal sanc-
tions. See Julie R. O’Sullivan, The Federal Criminal “Code”
Is a Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM.
L. & CRIMINOLOGY 643, 663 (2006) (“[R]ead literally,
[§ 1346] would make a crime of the nondisclosure of virtually
every breach of any public or private employment relationship
—turning § 1346 into a ‘draconian personnel regulation’ that
transforms private and governmental ‘workplace violations
into felonies.’ ” (quoting United States v. Czubinski, 106 F.3d
1069, 1077 (1st Cir. 1997))).
Playing off of this sentiment, Kincaid-Chauncey claims
that, without a quid pro quo requirement, the honest services
v. Panarella, 277 F.3d 678, 692-93 (3d Cir. 2002) (finding violation of
state law to be sufficient to demonstrate a violation of § 1346, but declin-
ing to decide whether it was necessary to show a violation of § 1346). We
have recently held that “the government does not need to prove an inde-
pendent violation of state law to sustain an honest services fraud convic-
tion.” Weyhrauch, 548 F.3d at 1248. The Seventh Circuit has held that
“[m]isuse of office . . . for private gain is the line that separates run of the
mill violations of state-law fiduciary duty . . . from federal crime,” United
States v. Bloom, 149 F.3d 649, 655 (7th Cir. 1998) (emphasis added), but
defines “private gain” broadly to include “illegitimate gain, which usually
will go to the defendant, but need not.” Sorich, 523 F.3d at 709. The First
and Tenth Circuits, in contrast, have held that intent is a sufficient limiting
element. See United States v. Sawyer, 239 F.3d 31, 41 (1st Cir. 2001)
(“Sawyer II”); United States v. Welch, 327 F.3d 1081, 1106 (10th Cir.
2003) (“ ‘[T]he only intent that need be proven in an honest services fraud
is the intent to deprive another of the intangible right of honest services.’ ”
(quoting Rybicki, 287 F.3d at 262)). Finally, the Third Circuit has held that
when the theory of prosecution is that a public official accepted a bribe,
honest services fraud requires a quid pro quo. United States v. Kemp, 500
F.3d 257, 281-82 (3d Cir. 2007). As explained in further detail infra, we
agree with the Third Circuit that, for a bribery theory of honest services
fraud, a quid pro quo is required; we also agree with the First and Tenth
Circuits that all honest services frauds require proof of the defendant’s
specific intent to defraud the public. Because Kincaid-Chauncey has not
so argued, we are not presented with the opportunity to decide whether
§ 1346 also requires private gain.
2000 UNITED STATES v. KINCAID-CHAUNCEY
fraud statute “criminaliz[es] behavior which is not clearly
wrongful and which the official could not know was wrong-
ful.” She argues that McCormick and Evans, which estab-
lished a quid pro quo requirement for Hobbs Act color of
official right extortion prosecutions, require a similar result
here; otherwise, numerous relatively innocuous acts would be
swept into the statute’s reach. We agree that a limiting princi-
ple needs to be identified for § 1346 prosecutions. And we
agree that a quid pro quo requirement may be a useful limit-
ing principle for some theories of honest services fraud prose-
cution. However, we do not believe that a quid pro quo
should be required in all § 1346 prosecutions; in fact, impos-
ing a quid pro quo requirement on all § 1346 cases risks being
under-inclusive, because some honest services fraud, such as
the failure to disclose a conflict of interest where required,
may not confer a direct or easily demonstrated benefit. See
United States v. Paranella, 277 F.3d 678, 692 (3d Cir. 2002).
McCormick and Evans, while instructive, are clearly not
controlling. As we discussed in the previous section, those
cases concerned prosecutions under the Hobbs Act for color
of official right extortion. Importantly, Hobbs Act extortion is
defined as “the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.” 18
U.S.C. § 1951(b)(2) (emphasis added). Because depriving
another of property is a statutory prerequisite to a Hobbs Act
violation, the quid pro quo requirement goes to the heart of
the harm that the Hobbs Act prohibition against color of offi-
cial right extortion is designed to punish: a public official
using his position of power to demand property to which he
knows he is not entitled. Like the Hobbs Act, § 1343 also
punishes the “obtaining . . . [of] property” through wire fraud.
But § 1343 covers a broad range of public and private actions,
and depriving another of property is not a necessary element
of a § 1343 violation. As Congress made perfectly clear post-
McNally, it is also a violation of § 1343 “to devise any
scheme or artifice to defraud” through the wires, by which
UNITED STATES v. KINCAID-CHAUNCEY 2001
Congress meant to include “a scheme or artifice to deprive
another of the intangible right of honest services.” 18 U.S.C.
§ 1346. Fraud to obtain property is one means of violating
§ 1343, but it is not the only means for doing so.14
[16] We have long recognized that the wire fraud statute
requires proof of specific intent to defraud. See, e.g., United
States v. Bohonus, 628 F.2d 1167, 1172 (9th Cir. 1980) (“The
specific intent requirement [in § 1343] is an aspect of the
‘scheme to defraud’ requirement; i.e., there is no fraudulent
scheme without specific intent.”). Moreover, we also recog-
nized pre-McNally that to sustain an honest services fraud
conviction, “[n]either breach of a fiduciary duty, nor the
receipt of secret profits . . . would suffice, standing alone, to
show [an honest services fraud] violation.” Id. Instead, “there
must be a recognizable scheme formed with intent to
defraud.” Id. This specific intent requirement for honest ser-
vices fraud survives McNally by virtue of § 1346, see Wil-
liams, 441 F.3d at 722, and is necessary to distinguish legal
conduct from honest services fraud. See Welch, 327 F.3d at
1106 (“A scheme where the accused intends to gain property,
including money, at the expense of a victim is within the pur-
view of the mail and wire fraud statutes. Yet, the intent to
defraud does not depend upon the intent to gain, but rather,
on the intent to deprive.” (citations omitted)); Sawyer II, 239
14
The public’s intangible right to honest services cannot be construed as
“property” traditionally understood. See Ove v. Gwinn, 264 F.3d 817, 825
(9th Cir. 2001) (“[T]he deprivation of ‘honest services’ does not constitute
concrete financial loss [sufficient to establish an injury to state a RICO
claim].”). Although both the Hobbs Act and § 1346 may be used to root
out public corruption, a broader problem—violations of fiduciary duties,
public or private—animates § 1346. See, e.g., Williams, 441 F.3d at722-23 (citing cases applying § 1346 to private individuals who breach
fiduciary duties); Sawyer II, 239 F.3d at 39 (“Underlying the applicability
of §§ 1341[, 1343,] and 1346 to government officials 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.” (internal quotation marks and citations omitted)).
2002 UNITED STATES v. KINCAID-CHAUNCEY
F.3d at 41, 46-47; United States v. Sawyer, 85 F.3d 713,
729-31 & nn.12, 15 (1st Cir. 1996) (“Sawyer I”).
The political system functions because lobbyists and others
are able to persuade elected officials of the wisdom or error
of policy proposals. We echo the admonition that “[s]uch
endeavors . . . are protected by the right ‘to petition the Gov-
ernment for a redress of grievance[s]’ guaranteed by the First
Amendment of the United States Constitution.” Sawyer I, 85
F.3d at 731 n.15. Attempts to persuade or mere favoritism,
evidenced by a public official’s willingness to take a lobby-
ist’s telephone call or give a lobbyist greater access to his
appointment schedule, are not sufficient to demonstrate either
the lobbyist’s or the public official’s intent to deprive the pub-
lic of honest services. Accord United States v. Sun-Diamond
Growers of Cal., 526 U.S. 398, 404-06 (1999) (acknowledg-
ing that there are some noncriminal gifts given to public offi-
cials in order “to build a reservoir of goodwill that might
ultimately affect one or more of a multitude of unspecified
acts, now and in the future”). If proof that an individual
attempted to influence a public official and that the public
official failed to disclose that influence were sufficient to
demonstrate a violation of § 1346, every individual who wrote
a letter to his member of Congress last year (not to mention
every member of Congress who received one) risks becoming
a federal felon. This would be an untenable result. The
requirement of a specific intent to defraud avoids this out-
come.
Although we have rejected Kincaid-Chauncey’s invitation
to read a quid pro quo requirement generally into honest ser-
vices fraud, we find that her argument has merit in one impor-
tant instance. The courts have recognized two principal
theories of honest services fraud in cases involving public
officials: fraud based on a public official’s acceptance of a
bribe and fraud based on a public official’s failure to disclose
a material conflict of interest. See, e.g., Weyhrauch, 548 F.3d
at 1247 (“We are persuaded that Congress’ intent in reinstat-
UNITED STATES v. KINCAID-CHAUNCEY 2003
ing the honest services doctrine after McNally was to bring at
least the two core categories of official misconduct, [(1) tak-
ing a bribe or otherwise being paid for a decision while pur-
porting to be exercising independent discretion and (2)
nondisclosure of material information,] within the reach of
§ 1346.”); United States v. Urciuoli, 513 F.3d 290, 295 n.3
(1st Cir. 2008) (“Typical cases [of honest services fraud]
involve votes paid for by bribes or based on private undis-
closed financial interests of the legislator . . . or other non-
disclosures in relation to official duties.”); Kemp, 500 F.3d at
279 (“Honest services fraud . . . typically occurs in either of
two situations: (1) bribery, where a [public official] was paid
for a particular decision or action; or (2) failure to disclose a
conflict of interest resulting in personal gain.” (internal quota-
tion marks and citation omitted; second alteration in origi-
nal)); United States v. Brown, 459 F.3d 509, 521 (5th Cir.
2006) (“[C]ases upholding convictions arguably falling under
the honest services rubric can be generally categorized in
terms of either bribery and kickbacks or self-dealing.”); Ryb-
icki, 354 F.3d at 139-41 (categorizing honest services fraud
case as either “bribery” or “self-dealing”); Sawyer II, 239
F.3d at 46 (stating that the elements of honest services fraud
are satisfied if government proves “either that [the defendant]
intended to improperly influence a public official in her
duties, or that he intended for public officials to fail to dis-
close a conflict of interest”); Woodward, 149 F.3d at 57(“[T]wo of the ways that a public official can steal his honest
services from his public employer [include] (1) the official
can be influenced or otherwise improperly affected in the per-
formance of his duties; or (2) the official can fail to disclose
a conflict of interest, resulting in personal gain.”); see also
Sorich, 523 F.3d at 707 (“[I]n most honest services cases, the
defendant violates a fiduciary duty in return for cash-
kickbacks, bribes, or other payments.”); United States v. Jen-
nings, 487 F.3d 564, 577 (8th Cir. 2007) (upholding honest
services fraud conviction on failure to disclose conflict of
interest theory); United States v. Hasner, 340 F.3d 1261, 1272
2004 UNITED STATES v. KINCAID-CHAUNCEY
(11th Cir. 2003) (“A government official may be guilty of
honest services fraud if he withholds material information.”);
United States v. deVegter, 198 F.3d 1324, 1327-28 (11th Cir.
1999) (“[T]he paradigm case of honest services fraud is the
bribery of a public official . . . .”).
[17] When the government’s theory is that a public official
accepted money in exchange for influence, we agree that at
least an implicit quid pro quo is required. See Kemp, 500 F.3d
at 281-82. This requirement is necessary to ensure that the
defendant had the requisite intent to defraud and to avoid con-
victing people for having the “mere intent to curry favor.” Id.
at 281. Without a link between the item of value received and
an understanding that the public official receiving it is to per-
form official acts on behalf of the payor when called upon,
there is no discernible way to distinguish between an elected
official responding to legitimate lobbying and a corrupt politi-
cian selling his votes to the highest bidder. The Supreme
Court has rejected such broad theories of criminal liability in
a similar context. See Sun-Diamond Growers, 526 U.S. at
404-05, 408 (requiring a link between receipt of an illegal
gratuity and an official act in order to sustain conviction for
violating the gratuity statute, 18 U.S.C. § 201(c), lest “the giv-
ing of gifts by reason of the recipient’s mere tenure in [public]
office constitute[ ] a violation”).
[18] Like the quid pro quo requirement for Hobbs Act
extortion under color of official right charges, the quid pro
quo necessary for a bribery honest services fraud conviction
need not be explicit, and the district court need not use the
words “quid pro quo” when it instructs the jury so long as the
essential idea of give-and-take is conveyed. See Giles, 246
F.3d at 973. Nor need the implicit quid pro quo concern a spe-
cific official act. See Kemp, 500 F.3d at 282 (“[T]he govern-
ment need not prove that each gift was provided with the
intent to prompt a specific official act.”); accord United States
v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) (“The quid
pro quo requirement is satisfied so long as the evidence shows
UNITED STATES v. KINCAID-CHAUNCEY 2005
a course of conduct of favors and gifts flowing to a public
official in exchange for a pattern of official actions favorable
to the donor.” (internal quotation marks omitted)).15 Other the-
ories of honest services fraud—for example, when a govern-
ment official violates a conflict of interest disclosure
requirement—do not require a quid pro quo because they are
sufficiently limited by the specific intent requirement that we
have long recognized in all mail and wire fraud prosecutions.
See also United States v. Selby, ___ F.3d ___, 2009 WL
102711, at *9 (9th Cir. January 15, 2009) (upholding convic-
tion of honest services wire fraud based on a conflict of inter-
est in violation of 18 U.S.C. § 208).
2
We now apply these principles to the facts of this case. The
district court instructed the jury on the wire fraud counts16 as
follows:
15
It is sufficient, for example, if the evidence establishes that the gov-
ernment official has been put on “retainer”—that is, that the government
official has received payments or other items of value with the understand-
ing that when the payor comes calling, the government official will do
whatever is asked. Only individuals who can be shown to have had the
specific intent to trade official actions for items of value are subject to
criminal punishment on this theory of honest services fraud. The retainer
theory of quid pro quo eliminates the possibility that an innocent lobbyist
or politician will be convicted for depriving the public of honest services.
The Third and First Circuits have both explicitly approved such “retain-
er” theories of honest services fraud, although they called them by differ-
ent names. See Kemp, 500 F.3d at 282 (“[W]e agree with the government
that the District Court’s instruction to the jury that it could convict upon
finding a ‘stream of benefits’ was legally correct.”); Sawyer I, 85 F.3d at
730 (“[A] person with continuing and long-term interests before an official
might engage in a pattern of repeated, intentional gratuity offenses in order
to coax ongoing favorable official action in derogation of the public’s
right to impartial official services.”); see also Jennings, 160 F.3d at 1014(stating, in a federal bribery case, that the quid pro quo requirement is sat-
isfied if “payments [are] made with the intent to retain the official’s ser-
vices on an ‘as needed’ basis, so that whenever the opportunity presents
itself the official will take specific action on the payor’s behalf”).
16
For the campaign contributions alleged as acts in furtherance of the
honest services fraud scheme, the district court gave an explicit quid pro
quo instruction, which Kincaid-Chauncey does not challenge as inade-
quate.
2006 UNITED STATES v. KINCAID-CHAUNCEY
In order for a defendant to be found guilty of [wire
fraud], the Government must prove each of the fol-
lowing elements beyond a reasonable doubt.
First, the defendant made up or knowingly partici-
pated in a scheme or plan to deprive the Clark
County Board of County Commissioners and the cit-
izens of Clark County of their right to honest ser-
vices.
Second, the defendant acted with the intent to
deprive the Board of County Commissioners and the
citizens of Clark County of their right to honest ser-
vices.
And, third, the defendant transmitted, or caused
someone to transmit, a wire communication in inter-
state commerce to carry out or to attempt to carry out
the scheme or plan. . . .
What must be proved beyond a reasonable doubt is
that the defendant, with intent to defraud, knowingly
and willfully devised, intended to devise, or partici-
pated in a scheme to defraud substantially the same
as the one alleged in the indictment.
These instructions appropriately directed the jury’s atten-
tion to the issue of intent to defraud. The instructions state
that Kincaid-Chauncey could not be found guilty unless she
“made up or knowingly participated in a scheme or plan” to
deprive the County or its citizens “of their right to honest ser-
vices.” The instructions repeat that Kincaid-Chauncey must
have “acted with the intent to deprive the Board of County
Commissioners and the citizens of Clark County of their right
to honest services.” (emphasis added). The instructions go on
to say that the government must prove beyond a reasonable
doubt “that the defendant with intent to defraud, knowingly
UNITED STATES v. KINCAID-CHAUNCEY 2007
and willfully devised, intended to devise, or participated in a
scheme to defraud.” (emphasis added).
The instructions then proceed to define what it means to
intend to defraud the public of honest services:
Public officials inherently owe a duty to the public
to act in the public’s best interest. If, instead, the
official accepts something of value with an intent to
be influenced, the official has defrauded the public
of the official’s honest services even though no tan-
gible loss to the public has been shown because the
public official deprived the public of its right to hon-
est and faithful government.
In addition, when an official acting with the intent to
defraud, fails to disclose a personal interest in a mat-
ter over which he or she has decision-making power,
the public is deprived of its right to honest services
because it is deprived of its right either to disinter-
ested decision making itself or full disclosure as to
the official’s motivation behind an official act. It is
not enough for the Government to prove that the
defendant failed to disclose such a conflict of inter-
est. Rather, the Government must prove that the
defendant acted with the intent to defraud. The Gov-
ernment proves intent to defraud if it proves that the
scheme was reasonably calculated to deceive persons
of ordinary prudence and comprehension. A public
official’s duty to disclose material information need
not be expressly imposed by statute or code because
a public official inherently owes a fiduciary duty to
the public to make governmental decisions in the
public’s best interest.
The focus of honest services fraud is on the fraudu-
lent and deceptive conduct of the public official who
abuses a position of trust, and the Government is not
2008 UNITED STATES v. KINCAID-CHAUNCEY
required to link any particular payment to a specific
act on the part of the public official.
This instruction permitted the jury to find that Kincaid-
Chauncey defrauded the public of her honest services on one
of two theories: that she accepted something of value with the
intent to be influenced or that she failed to disclose a conflict
of interest and thereby intended to defraud the public. We
must reverse Kincaid-Chauncey’s convictions for honest ser-
vices fraud if the instructions regarding either of those two
theories stated the necessary elements inaccurately, Martinez
v. Garcia, 379 F.3d 1034, 1040 (9th Cir. 2004), and the error
was not harmless, Neder v. United States, 527 U.S. 1, 9
(1999).
The first theory permitted a finding of guilt only if the jury
found that Kincaid-Chauncey “accept[ed] something of value
with an intent to be influenced.” Because this is a bribery the-
ory of prosecution, the intent to defraud must have been
shown at least through an implicit quid pro quo. The intent
element described in this instruction is rather thin; if given in
isolation, this instruction might well be inadequate to ensure
that the jury found that Kincaid-Chauncey had acted with the
intent to defraud. Two factors, however, prevent us from
reaching that conclusion.
First, the instructions do not permit the jury to convict a
defendant simply for having the “intent to be influenced.”
Instead, the defendant needed to “accept something of value”
in conjunction with that intent. Though the district court spe-
cifically stated that “the Government is not required to link
any particular payment to a specific act on the part of the pub-
lic official,” this instruction is not very different from the
implicit quid pro quo instruction we just approved in connec-
tion with the Hobbs Act charges against Kincaid-Chauncey.
The Hobbs Act instruction stated: “[T]he Government does
not have to prove an explicit promise to perform a particular
act made at the time of the payment. Rather, it is sufficient if
UNITED STATES v. KINCAID-CHAUNCEY 2009
the public official understands that he or she is expected as a
result of the payment to exercise particular kinds of influence
as specific opportunities arise.” There is little distance
between the knowledge that a payment creates an expectation
to “exercise particular kinds of influence” and the intent to be
influenced, motivated by the receipt of something of value.
[19] The district court’s instruction that “the Government
is not required to link any particular payment to a specific act
on the part of the public official,” contrary to Kincaid-
Chauncey’s argument, did not remove the necessary link
between the receipt of the item of value and the intent to be
influenced. The Third Circuit has used nearly identical lan-
guage to describe the “stream of benefits” theory of honest
services fraud. See Kemp, 500 F.3d at 282 (“[T]he govern-
ment need not prove that each gift was provided with the
intent to prompt a specific official act.”). This instruction,
though thin, was sufficient to convey the idea of an implicit
quid pro quo.
[20] Second, we are required to review the jury instructions
as a whole, Frega, 179 F.3d at 806 n.16, and the instructions
here contain numerous references to the specific intent to
defraud the public, which strengthen the quid pro quo element
in the instructions. For example, the district court cautioned
the jury that “[a] public official does not commit honest ser-
vices fraud if his or her intent was limited to the cultivation
of a personal, business, or political friendship.” Rather, the
official must have had an intent “to be improperly influenced
in his or her official duties.” The jury was also instructed that
“[a] public official’s receipt of hospitality does not defraud
the public of its right to honest services unless the public offi-
cial accepts such hostility [sic] with the intent to be influenced
or to deceive the public.” The instructions required that the
jury focus on “the fraudulent and deceptive conduct of the
public official who abuses a position of trust.” To satisfy the
specific intent to defraud, the instructions required the gov-
ernment to prove beyond a reasonable doubt “that the scheme
2010 UNITED STATES v. KINCAID-CHAUNCEY
was reasonably calculated to deceive persons of ordinary pru-
dence and comprehension.” The jury thus could not convict
for mere influence or political friendships. Accord Kemp, 500
F.3d at 281-82 (approving an instruction that “left no danger
that the jury would convict upon merely finding that [the
defendants] provided benefits to [a public official] in a gen-
eral attempt to curry favor or build goodwill”). Instead, con-
viction required “fraudulent and deceptive conduct.” Thus,
while the instructions stated that all a finding of guilt required
was receipt of an item of value coupled with an intent to be
influenced, the rest of the instructions prevented a conviction
based on the type of legitimate “influence” that is necessary
to the functioning of any political system. The district court
did not use the words “quid pro quo,” but the instructions, on
the whole, adequately conveyed “the idea that ‘you get some-
thing and you give something.’ ” Giles, 246 F.3d at 973.
Because the instructions, taken as a whole, contained an
implicit quid pro quo requirement, they adequately stated the
elements of honest services fraud on a bribery theory.
[21] The second theory on which the jury instructions per-
mitted a finding of guilt on the honest services fraud counts
was the failure to disclose a conflict of interest. This portion
of the instruction specifically notes that the mere failure to
disclose a conflict of interest is inadequate, but that the gov-
ernment must also prove that Kincaid-Chauncey acted with
the specific intent to defraud in her failure to disclose a con-
flict of interest. The instruction permitted conviction if “the
public official participated in the matter without disclosing
her conflict of interest, provided that the non-disclosure was
coupled with an intent to defraud.” The instruction thus
required that Kincaid-Chauncey satisfy the requisite mental
state for an honest services fraud conviction based on a non-
disclosure theory. As we stated above, this theory of honest
services fraud does not require demonstration of a quid pro
quo to prove the required intent to defraud.17
17
Again, Kincaid-Chauncey has not argued that the failure to disclose
a conflict of interest theory of honest services fraud also requires a viola-
tion of a specific, applicable conflict of interest or disclosure requirement,
or personal gain, so we do not decide whether it does.
UNITED STATES v. KINCAID-CHAUNCEY 2011
[22] We conclude that the instructions adequately stated the
elements of § 1346 for both theories of prosecution.
III
The judgment of conviction is AFFIRMED.
BERZON, Circuit Judge, concurring:
I agree with the majority’s conclusion that a quid pro quo
requirement is not necessary to all § 1346 prosecutions. I also
agree that, because Kincaid-Chauncey appeals only the lack
of a quid pro quo instruction, the question of whether a
§ 1346 prosecution also requires a showing of private gain or
a violation of a specific conflict of interest disclosure standard
is not properly before us. See Maj. Op. at 1998-99 n.13. And
I recognize that our recent decision in United States v. Wey-
hrauch, 548 F.3d 1237, 1248 (9th Cir. 2008), would compel
the conclusion that a violation of a state law disclosure
requirement is not necessary to sustain an honest services
fraud conviction, had that specific question properly been
before us here. I write separately, however, to express my
view that where the government’s § 1346 theory rests on a
defendant’s failure to disclose a conflict of interest, reference
to some well-defined external disclosure standard, expressed
in state law or elsewhere, is necessary to limit an otherwise
amorphous standard for criminal liability. Proving a specific
intent to defraud — which, in my view, always includes an
intent to deceive — is a necessary element of an honest ser-
vices fraud prosecution, but is not sufficient as a limiting prin-
ciple in the conflict of interest context. For, particularly where
public officials are the target of such prosecutions, vague or
amorphous disclosure requirements risk political misuse and
manipulation.
A public official’s failure to disclose a material interest in
a matter over which the official exercises discretionary
2012 UNITED STATES v. KINCAID-CHAUNCEY
decision-making power may fall within the scope of § 1346,
as several courts of appeal have recognized. See, e.g., United
States v. Jennings, 487 F.3d 564, 577 (8th Cir. 1997); United
States v. Woodward, 149 F.3d 46, 63 (1st Cir. 1998); United
States v. Antico, 275 F.3d 245, 262-63 (3d Cir. 2001). An
official’s decision that tacitly favors private interests can
undermine the public’s right to the official’s honest services
and can threaten the integrity of the political process. See
United States v. Panarella, 277 F.3d 678, 692 (3d Cir. 2002)
(“[N]on-disclosure of a conflict of interest in a fiduciary set-
ting falls squarely within the traditional definition of fraud,
and poses a . . . threat to the integrity of the electoral system
. . . .”). But recognizing that a broad type of conduct may give
rise to criminal liability does not specifically define it. As
courts confronting this issue have recognized, “some conflicts
of interest are tolerable,” United States v. Bloom, 149 F.3d
649, 654 (7th Cir. 1998), and not every violation of a fidu-
ciary duty should be criminal. United States v. Welch, 327
F.3d 1081, 1107 (10th Cir. 2003). Thus, as the majority
observes, the broad nature of § 1346 has left courts to search
for a limiting principle, one that would separate illicit behav-
ior from more innocuous behavior that Congress did not
intend to make a federal crime. See Maj. Op. at 1998 (citing
United States v. Sorich, 523 F.3d 702, 707 (7th Cir. 2008)).
Although the need for a limiting principle is apparent in all
§ 1346 prosecutions, more precise specification is of particu-
lar importance where the government’s theory of honest ser-
vices fraud rests on a failure to disclose an alleged conflict of
interest. As an initial matter, ascertaining what constitutes a
conflict of interest — or whether a particular interest is suffi-
ciently material to warrant disclosure — is not necessarily a
self-evident determination. True, in some cases, such as the
failure to disclose a substantial personal investment in a com-
pany receiving favorable legislative treatment, it is reasonably
clear that such conduct would satisfy any meaningful defini-
tion of “conflict of interest” and falls well within what Con-
gress likely meant by a deprivation of the public’s “intangible
UNITED STATES v. KINCAID-CHAUNCEY 2013
right to honest services.” See Jennings, 487 F.3d at 654(upholding conviction where legislator-defendant personally
guaranteed $670,000 in loans to company receiving a grant).
But other cases are much less clear-cut. Determining
whether a particular relationship rises to the level of an
improper conflict of interest can involve judgment calls that
implicate subjective notions of morality and professional eth-
ics. For this reason, statutes governing public employees and
codes of professional ethics do not speak in general terms
about the conflicts that can lead to the imposition of criminal
liability or disciplinary sanctions. Rather, such requirements
are spelled out in great detail. See, e.g., Cal. Gov’t Code
§§ 87100-03 (regulating conflicts of interest for public
employees); Model Rules of Prof’l Conduct R. 1.7-1.11 (gov-
erning conflicts of interest in the client-lawyer relationship).
Naturally, because separating permissible conduct from
impermissible conduct can be an exercise in line drawing, dif-
ferent jurisdictions reach varying conclusions with respect to
conduct that triggers conflict of interest rules. For example, in
some instances, regulations seemingly prohibit public offi-
cials from participating in actions that implicate any of their
personal financial interests, whereas others provide a floor of
permissible financial interest before liability attaches. Com-
pare, e.g., Ga. Code Ann. § 45-10-3(9) (prohibiting a public
official from “tak[ing] any official action with regard to any
matter under circumstances in which he knows or should
know that he has a direct or indirect monetary interest in the
subject matter of such matter or in the outcome of such offi-
cial action”), with Cal. Gov’t Code § 87103(a) (allowing such
activity where the official has less than $2000 invested in an
interested business). Moreover, although it appears intuitively
obvious that a prohibition against self-interested transactions
might also extend to transactions in which immediate family
members have an interest, it is less obvious who counts as
“immediate family.” Jurisdictions reach different conclusions
on this factor as well. Compare, e.g., Cal. Gov’t Code
2014 UNITED STATES v. KINCAID-CHAUNCEY
§ 82029 (defining “immediate family” as one’s “spouse and
dependent children”), with D.C. Code § 1-1106.01(i)(5)
(defining “immediate family” as the “spouse or domestic part-
ner and any parent, brother, or sister, or child of the public
official, and the spouse or domestic partner of any such par-
ent, brother, sister, or child”).
The point is not to dwell on the minutia or merits of various
conflict of interest regulations, but rather to illustrate that it is
often not readily apparent whether a problematic conflict of
interest exists and therefore whether an official’s failure to
disclose such information should or should not give rise to
criminal liability. Without reference to some external disclo-
sure standard, § 1346 could well impose criminal liability on
activity that offends some people’s subjective sense of imper-
missible private entanglement, but may appear to others not
to involve any conflict of interest. Cf. Paranella, 277 F.3d at
698 (observing that characterizations of fraud as “a broad
concept that is measured in a particular case by determining
whether the scheme demonstrated a departure from funda-
mental honesty, moral uprightness, or fair play” do not “allay
fears that the federal fraud statutes give inadequate notice of
criminality” (internal quotations omitted)). Moreover, it is
also unclear what mitigating steps an official might take that
could render the conflict sufficiently immaterial to avoid dis-
closure.
Furthermore, resolving what constitutes an impermissible
conflict of interest does not solve all of the ambiguity pre-
sented by § 1346 prosecutions. The fraud inheres not in the
conflict itself, but in the failure to disclose it — “[a]n offi-
cial’s intentional violation of the duty to disclose provides the
requisite deceit.” Woodward, 149 F.3d at 63 (internal quota-
tion omitted). But again, it is not self-evident what adequate
disclosure means in any given case. How should disclosure be
made? To whom is disclosure owed? Courts elaborating the
conflict of interest theory of honest services fraud typically
observe that employees owe duties of disclosure to their
UNITED STATES v. KINCAID-CHAUNCEY 2015
employers, see United States v. Rybicki, 354 F.3d 124, 140
(2d Cir. 2003) (en banc), and, in the case of public officials,
to the public. See Paranella, 277 F.3d at 697 (“[D]isclosure
laws permit the public to judge for itself whether an official
has acted on a conflict of interest.”). However, without more,
observing that a duty of disclosure is owed does not necessar-
ily inform the conduct that would satisfy the disclosure
requirement in any given case. Is it sufficient that a public
official note the conflict at the time of the vote? In advance?
Must the conflict be widely publicized, or will a notation in
an obscure public record suffice? Is disclosure always an ade-
quate antidote, or is the official’s recusal necessary in some
circumstances?
Without a reference to external disclosure standards, the
conflict of interest theory of honest services fraud risks
imposing a dangerously amorphous standard of criminal lia-
bility. Courts have long been concerned that the mail fraud
statute’s potentially broad scope could give insufficient notice
of criminal liability and lead to the creation of federal com-
mon law crimes. See Sorich, 523 F.3d at 707-08 (“[G]iven the
amorphous and open-ended nature of § 1346, . . . courts have
felt the need to find limiting principles . . . [to reduce] the risk
of creating federal common law crimes . . . .”); United States
v. Brumley, 116 F.3d 728, 746 (5th Cir. 1997) (Jolly &
DeMoss, JJ., dissenting) (“[A]d hoc definitions cannot possi-
bly satisfy the requirements of ‘fair notice’ to our fellow citi-
zens as to where the line between permitted and prohibited
conduct is drawn.”).
The stakes are considerably higher in the case of public
officials. The lack of statutory specification can give rise to
selective prosecution and political misuse. See Thomas M.
DiBiagio, Politics and the Criminal Process: Federal Public
Corruption Prosecutions of Popular Public Officials Under
the Honest Services Component of the Mail and Wire Fraud
Statutes, 105 Dick. L. Rev. 57, 57-58 (2000) (“With no estab-
lished standards, a federal public corruption prosecution,
2016 UNITED STATES v. KINCAID-CHAUNCEY
based on the intangible right to honest services, is particularly
vulnerable to being snarled by politics.”); see also United
States v. Margiotta, 688 F.2d 108, 143 (2d Cir. 1982) (Winter,
J., dissenting) (“It may be a disagreeable fact but it is never-
theless a fact that political opponents not infrequently
exchange charges of ‘corruption,’ ‘bias,’ ‘dishonesty,’ or
deviation from ‘accepted standards of . . . fair play and right
dealing.’ Every such accusation is now potentially translatable
into a federal indictment.” (alteration in the original)). As the
Third Circuit observed, “[d]eprivation of honest services is
perforce an imprecise standard, and rule of lenity concerns are
particularly weighty in the context of prosecutions of political
officials, since such prosecutions may chill constitutionally
protected political activity.” Paranella, 277 F.3d at 698. The
conflict of interest theory, unhinged from an external disclo-
sure standard, places too potent a tool in the hands of zealous
prosecutors who may be guided by their own political motiva-
tions. Prosecutors might also feel political pressure to pursue
certain state or local officials; there may be no sufficient con-
straint without reference to an external disclosure standard.
Finally, requiring a “specific intent to defraud” cannot
always function as a sufficient limiting principle — one that
would effectively prevent such political misuse — in the
absence of a well-specified and commonly understood notion
of when non-disclosure amounts to “fraud.” One can certainly
intend to withhold a particular piece of information, but it is
nearly meaningless to say that such a withholding was done
with the specific intent to deceive if there is no extrinsic stan-
dard governing whether the disclosure was required in the
first place. Requiring a “specific intent to defraud” is neces-
sary to satisfy the mental state required under the mail fraud
statute, but determining whether that element is satisfied also
requires reference to some external source of disclosure obli-
gations.
Our recent decision in Weyhrauch held only that the gov-
ernment need not prove a violation of a state law disclosure
UNITED STATES v. KINCAID-CHAUNCEY 2017
requirement to sustain an honest services fraud conviction.
548 F.3d at 1248. We declined to adopt a state law limiting
principle out of concern that requiring a violation of state law
would “limit[ ] the reach of the federal fraud statutes only to
conduct that violates state law,” id. at 1245, and would
thereby constrain Congress’s ability to protect federal inter-
ests to the independent decisions of the states. Id. at 1246.
That is, we rejected the idea that state law could supply the
sole source of conflict of interest disclosure obligations. But
because the conduct at issue in that case fell “comfortably
within” either a bribery or conflict of interest theory of honest
services fraud, including, notably, strong evidence of a quid
pro quo arrangement, we had no occasion to define what an
appropriate limiting principle would be. Id. at 1247.
I therefore concur in the majority opinion only because the
challenge to the honest services fraud instruction did not
encompass the concerns explored in this concurrence. Had the
issue been raised, I would have agreed with the Third Circuit
that the government must prove a violation of an externally
established conflict-of-interest-based disclosure standard.