U.S. v. Buckley

• Decision Date: 08 October 1982
• Docket Number: No. 81-1597,81-1597
• Citation: 689 F.2d 893
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jeremiah P. BUCKLEY, Ellsworth B. Sargent, Washington Water Power Co., and Sargent-Tyee Construction Co., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 893

689 F.2d 893

UNITED STATES of America, Plaintiff-Appellant, v. Jeremiah P. BUCKLEY, Ellsworth B. Sargent, Washington Water

Power Co., and Sargent-Tyee Construction Co.,

Defendants-Appellees.

No. 81-1597.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1982.

Decided Oct. 8, 1982.

Michael P. Ruark, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellant.

Arthur Harrigan, Seattle, Wash., argued, for defendants-appellees; W. A. Helsell, Seattle, Wash., G. W. Akers, Payton Smith, Seattle, Wash., on brief.

Appeal from the United States District Court for the Western District of Washington.

Before KILKENNY, HUG, and SKOPIL, Circuit Judges.

SKOPIL, Circuit Judge:

The Government appeals the dismissal of an indictment of one count of mail fraud in violation of 18 U.S.C. § 1341. The district court dismissed the indictment on the ground that the Government had not alleged, or shown that it could prove, that a lobbyist disclosure form, mailed by appellee Washington Water Power Company ("WWPC"), contained false information. Because the indictment provided a minimally adequate description of the charge sufficient to enable preparation of a defense and a plea of double jeopardy, we reverse.

FACTS

In January 1981 the grand jury indicted the appellees on one count of mail fraud. ¹ The mail fraud charge alleged a money-washing scheme that operated from 1972 to 1976, in part to avoid a state law requiring disclosure of contributions to state legislators. As of 1974, state law required that both lobbyists and their employers report lobbying expenditures. Wash.Rev.Code §§ 42.17.170, 42.17.180.

The indictment alleged that Buckley distributed $15,000 to state legislators on behalf of WWPC after receiving it in early June 1975. The indictment alleged that Buckley filed reports from January 1973 to January 1976 in which he "intentionally failed to disclose the money paid to him in accordance with the scheme described in paragraph 2 of this indictment ² and subsequently On or about April 1, 1976, within the Western District of Washington, JEREMIAH P. BUCKLEY, ELLSWORTH B. SARGENT, WASHINGTON WATER POWER COMPANY, and SARGENT-TYEE CONSTRUCTION COMPANY, the defendants herein, for the purpose of executing the aforesaid scheme and artifice and attempting to do so, knowingly caused to be delivered by mail, according to the direction thereon, an envelope addressed to the "Public Disclosure Commission, 403 Evergreen Plaza, 711 Capitol Way, Olympia, Washington 98504" containing Public Disclosure Commission Form L-3, Lobbyist Employer's Report, for the year 1975, from WASHINGTON WATER POWER COMPANY.

distributed by JEREMIAH P. BUCKLEY to members of the Washington State Legislature on behalf of WASHINGTON WATER POWER COMPANY." The only allegation of use of the mails in furtherance of the alleged fraudulent scheme is contained in the 28th and final paragraph of the indictment:

The district court granted in part the defendants' motion for a bill of particulars, including a request for further information about paragraph 28 of the indictment. The Government provided the following information relevant to paragraph 28:

The L-3 filed by Washington Water Power Corporation for the year 1975 failed to report any of the money received from Robert A. Perry and spent on behalf of Washington Water Power Corporation by Jeremiah Buckley.

The defendants moved for dismissal of the mail fraud count. The court granted the motion on the ground that the indictment and Bill of Particulars did not "establish that any payments to any particular legislators made by Buckley in 1975 were not reported on the Form L-3 filed on April 1, 1976." The court found that without an explicit allegation that Buckley made payments to legislators in 1975 and intentionally omitted them from the Form L-3, there were insufficient facts supporting the allegation that the Lobbyist Form L-3 was false, and thus mailed in furtherance of the alleged scheme to defraud.

The Government appeals, pursuant to 18 U.S.C. § 3731.

DISCUSSION

I Standard of Review

An indictment is sufficient if it contains the elements of the charged crime in adequate detail to inform the defendant of the charge and to enable him to plead double jeopardy. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). Two corollary purposes of an indictment are: (1) to ensure that the defendants are being prosecuted on the basis of the facts presented to the grand jury, and (2) to allow the court to determine the sufficiency of the indictment. See Russell v. United States, 369 U.S. 749, 768-71, 82 S.Ct. 1038, 1049-51, 8 L.Ed.2d 240 (1962); United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980); United States v. Cecil, 608 F.2d 1294, 1296-97 (9th Cir. 1979); United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979). ³

Indictments alleging a scheme to defraud must provide sufficient facts to fulfill the purposes of an indictment. See United States v. Cecil, 608 F.2d at 1297 (citing with approval United States v. Curtis, 506 F.2d 985 (10th Cir. 1974), which held a mail fraud indictment invalid for failure to identify with particularity the nature of the alleged scheme). Yet, the issue in judging the sufficiency of the indictment is whether the indictment adequately alleges the elements of the offense and fairly informs the defendant of the charge, not whether the Government can prove its case. United States v. Thordarson, 646 F.2d 1323, 1337 & n.25 (9th Cir.), cert. denied, 454 U.S. 1055, 102 S.Ct. 601, 70 L.Ed.2d 591 (1981).

The allegations of the indictment are presumed to be true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n.16, 72 S.Ct. 329, 332 n.16, 96 L.Ed. 367 (1952). The Government need not allege its theory of the case or supporting evidence, but only the "essential facts necessary to apprise a defendant of the crime charged." United States v. Markee, 425 F.2d 1043, 1047-48 (9th Cir.), cert. denied, 400 U.S. 847, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970). We review de novo the sufficiency of the indictment. See United States v. Bohonus, 628 F.2d at 1173; United States v. Chenaur, 552 F.2d at 301. ⁴

II Fraudulent Scheme

The essential elements of mail fraud under 18 U.S.C. § 1341 are: (1) a scheme to defraud; and (2) a knowing use of the mail to execute the scheme. United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). The appellees contend that the alleged scheme was not a scheme to defraud under the statute, relying on United States v. Dixon, 536 F.2d 1388 (2d Cir. 1976). In Dixon, the court held that nondisclosure by a corporate official of certain loans in violation of SEC regulations was not a scheme to defraud because the shareholders did not rely on the disclosure regulations, and the nondisclosure was not intended to secure money or property in a fraudulent manner. Id. at 1398-400. In contrast, the Government alleges that the defendants here did not disclose all of their contributions to state legislators in violation of a state statute for the purpose of hiding contributions that were intended to influence the officials improperly.

Fraudulent schemes include those that are "contrary to public policy or which fail to measure up to the 'reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.' " United States v. Bohonus, 628 F.2d at 1171.

In Bohonus, we concluded that "depriving an employer of one's honest services and of its right to have its business conducted honestly can constitute a 'scheme to defraud' under § 1341." Id. at 1171-72. See also United States v. Louderman, 576 F.2d 1383, 1387-88 (9th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 257, 58 L.Ed.2d 243 (1978) (scheme to gather private information by deception was fraudulent).

In light of Bohonus and Louderman, we hold that the Government adequately alleged a "scheme to defraud" Washington citizens of their statutory right to know who made what political payments to whom, and a knowing use of the mails to further the scheme in violation of the mail fraud statute.

III Use of the Mail

The district court concluded that the indictment would have sufficiently alleged use of the mails to execute a scheme to defraud if it had alleged that WWPC had filed a false Lobbyist Employer's Report in 1976 that did not disclose payments to legislators.

The Government concedes that "the only way (the disclosure form) could be in execution or furtherance (of a scheme to defraud) is if it were false." It argues that it was not necessary for it to allege that the report was false, and insists that it was sufficient for it to allege that the mailing of the report was for the purpose of executing the scheme. It contends that the allegation of a false mailing is evidentiary in nature and relates only to its theory of the crime, not to the sufficiency of the indictment. The Government contends that it need not explicitly state that WWPC filed a false form by failing to report 1975 payments to legislators because it implied that fact when it alleged a money laundering scheme in 1975, payments to legislators as a result of that scheme, and the mailing of a Lobbyist Employer's Report for the year 1975 in furtherance of the scheme. We agree.

Because the indictment implicitly alleged the falsity of the disclosure report, it was clear enough to give the defendants notice of the crime charged and to allow them to plead double jeopardy. See United States v. Castor, 558 F.2d 379, 385 (7th Cir. 1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 720, 54 L.Ed.2d 752 (1978) (Government need not allege evidentiary facts sufficient to prove its allegation that mailings were made in furtherance of a fraudulent scheme). The Government's allegation that the mailing of the disclosure form...