U.S. v. Waymer

• Decision Date: 16 June 1995
• Docket Number: No. 93-9319,93-9319
• Citation: 55 F.3d 564
• Parties: 100 Ed. Law Rep. 590 UNITED STATES of America, Plaintiff-Appellee, v. Robert W. WAYMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 564

55 F.3d 564

100 Ed. Law Rep. 590

UNITED STATES of America, Plaintiff-Appellee, v. Robert W. WAYMER, Defendant-Appellant.

No. 93-9319.

United States Court of Appeals, Eleventh Circuit.

June 16, 1995.

Henry C. Johnson, Jr., Decatur, GA and Dwight Lowell Thomas, Atlanta, GA, for appellant.

Joe D. Whitley, U.S. Atty., William L. McKinnon, Jr., and Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and COX, Circuit Judges, and JOHNSON, Senior Circuit Judge.

JOHNSON, Senior Circuit Judge:

In this appeal from the Northern District of Georgia, Robert W. Waymer seeks reversal of his convictions on twenty-two counts of mail fraud and eleven counts of money laundering. For the reasons stated below, we affirm.

I. STATEMENT OF THE CASE

A. Factual Background

Waymer was an elected member of the Atlanta Board of Education ("the Board"). Buddy Allen was the President and General Manager of Allen Service Company, the parent to several companies, including Peatross Service Company. John Assmar was a real estate broker.

In 1986, Allen agreed to pay Assmar fifteen percent of the gross proceeds of any service contracts Assmar obtained on behalf of Allen's companies. In 1986, Assmar, acting on behalf of Peatross, began a pilot sanitation and pest control program for two Atlanta public schools. By the 1988-89 school year, Allen's companies provided pest control and other services to all 113 Atlanta public schools.

In mid-1988, Assmar died. Shortly thereafter, Allen paid more than $30,000 to Assmar's widow as Assmar's commission for the remainder of 1988. Although this commission grew out of Assmar's role in obtaining Allen's contracts with the school system, by the time of Assmar's death, he was doing virtually nothing to assist in the performance of the contracts.

After Assmar's death, but prior to the end of 1988, Waymer approached Allen and told him that he and Assmar had been partners and that he wanted to assume Assmar's role in Allen's school system contracts. Allen responded that he had already paid Assmar's widow the fifteen percent commission for 1988. Waymer approached Allen again at the end of 1988. At that time, Allen agreed to pay Waymer the fifteen percent if Waymer provided him with an assurance from the school system that Waymer could do business with Allen at the same time that he was a member of the Board.

Waymer told Dr. Woodrow Wilson, the Associate Superintendent of the Atlanta school system, that he was considering doing business with someone who did business with the school system and asked his advice. Because Waymer was in the real estate business, Wilson assumed Waymer was talking about real estate work. He advised Waymer that it was allowable if the other party's business with the school system was accomplished through a sealed bid procedure. Wilson further advised Waymer to abstain if matters came before the Board involving that business and to disclose the relationship to the Board and Superintendent. Waymer then wrote Wilson a letter stating that he was engaged in real estate and marketing activities with Allen, that Waymer had done consulting work for Allen since 1986, and that Waymer would make full disclosure of his relationship with Allen. Waymer's letter did not inform Wilson that Allen would be paying Waymer fifteen percent of Allen's companies' proceeds from the contract with the school system and that Waymer would be required to perform almost no services for Allen in order to receive the payments. Neither Waymer nor Wilson took the matter before the entire Board.

From the beginning of 1989 to the end of 1991, Allen paid Waymer by checks made payable to Elloree Real Estate Company. All of the checks were deposited into the Elloree business account. Each time Waymer deposited a check from Allen's companies into the Elloree account, he wrote one or more checks on that account to himself and deposited the money in his personal account. In all, Allen paid Waymer more than $200,000.

B. Procedural History

In April 1993, a superseding indictment charged Waymer with twenty-four counts of mail fraud, in violation of 18 U.S.C.A. Secs. 1341 (West 1984 and Supp.1994) and 1346 (West Supp.1994), and eleven counts of money laundering, in violation of 18 U.S.C.A. Sec. 1956(a)(1)(B)(i) (West Supp.1994). The mail fraud counts alleged (1) a scheme to defraud the citizens of Atlanta of Waymer's honest services and (2) a scheme to defraud Allen of money and property. The money laundering counts relied upon the mail fraud counts as the specified unlawful activity constituting the source of the laundered proceeds. Waymer pleaded not guilty.

At the trial, which commenced in July 1993, the court granted a motion for judgment of acquittal on two of the mail fraud counts. The jury returned guilty verdicts on all remaining mail fraud counts based on the scheme to defraud the citizens of Atlanta of Waymer's honest services. ¹ Waymer was also convicted on all money laundering counts. He was sentenced to concurrent terms of thirty-three months' imprisonment.

Waymer raises the following issues on appeal: (1) whether section 1346 is unconstitutionally vague or overbroad; (2) whether the school system's mailing of checks to Allen's companies satisfies the mailing requirement of section 1341; (3) whether the evidence was sufficient to establish mailing of the twenty-two checks at issue; and (4) whether the fact that Waymer was being paid fifteen percent of the proceeds of Allen's companies' contracts with the Board was "material." ²

II. DISCUSSION

A. Vagueness and overbreadth challenges to section 1346

Federal law prohibits the use of the mails in furtherance of a scheme to defraud. 18 U.S.C.A. Sec. 1341. To prove mail fraud, the government must show that the accused (1) intentionally participated in a scheme or artifice to defraud and (2) used the United States mails to carry out that scheme or artifice. United States v. Hooshmand, 931 F.2d 725, 731 (11th Cir.1991). The "honest services amendment" to the mail fraud statute, 18 U.S.C.A. Sec. 1346, allows the United States to predicate a mail fraud prosecution on a "scheme or artifice to deprive another of the intangible right of honest services." ³ Waymer contends that section 1346 is unconstitutionally vague and overbroad. Our review is de novo.

1. Vagueness

Because "honest services" are not defined in the mail fraud statute, Waymer contends that section 1346 is unconstitutionally vague. A statute is not unconstitutionally vague if it "define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Waymer's void-for-vagueness challenge to section 1346 does not involve the First Amendment; therefore, we review section 1346 only as applied in the instant case. United States v. Awan, 966 F.2d 1415, 1424 (11th Cir.1992). In other words, we need only examine the vagueness of the statute in light of the particular facts of this case. Id.

The constitutionality of a vague statutory standard is closely related to whether the standard incorporates a requirement of mens rea. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979). "A statutory requirement that an act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain. But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware." United States v. Conner, 752 F.2d 566, 574 (11th Cir.) (quoting Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035-36, 89 L.Ed. 1495 (1945) (Douglas, J., concurring)), cert. denied sub nom., Taylor v. United States, 474 U.S. 821, 106 S.Ct. 72, 88 L.Ed.2d 59 (1985); see also United States v. Margiotta, 688 F.2d 108, 129 (2d Cir.1982) ("[t]he broad language of [section 1341], intended by Congress to be sufficiently flexible to cover the wide range of fraudulent schemes mankind is capable of devising, is not unconstitutionally vague because section 1341 contains the requirement that the defendant must have acted willfully and with a specific intent to defraud."), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).

Applying that principle to this case, we note that to convict a person of mail fraud, the government must prove specific intent to defraud. 18 U.S.C.A. Sec. 1341 (West Supp.1994). Hooshmand, 931 F.2d at 732. Here, the jury found that Waymer specifically intended to commit a fraud on Atlanta's citizens. Waymer does not maintain that the jury was improperly instructed as to specific intent. Nor does he argue that the evidence was insufficient to support the jury's conclusion that he specifically intended to defraud the citizens of Atlanta of his honest services. Therefore, his vagueness challenge must fail. Accordingly, we hold that the term "honest services" in section 1346, as applied to Waymer, is not unconstitutionally vague.

2. Overbreadth

Waymer contends that section 1346 could be used to prosecute expression protected by the First Amendment and, thus, is facially overbroad. Application of the overbreadth doctrine is employed as a last resort and is not to be invoked when a limiting construction has been or could be placed on the challenged statute. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). In cases like this one, where the statute at issue regulates conduct and not merely speech, the statute will not be struck down unless its overbreadth is "not only real, but also substantial in relation to the statute's plainly legitimate sweep." Id. If a conduct-regulating statute reflects...