U.S. v. Davis
| Decision Date | 08 March 1988 |
| Docket Number | No. 86-4076,86-4076 |
| Citation | 841 F.2d 1127 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. S. Robert DAVIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before ENGEL, KRUPANSKY and DAVID A. NELSON, Circuit Judges.
The defendant, who had business dealings with a corrupt local government official, was found guilty of mail fraud. The defendant contends on appeal that he was convicted on the basis of a supposed scheme to deprive the citizenry of its "intangible rights" to honest and faithful services from the official. After this case was briefed, the United States Supreme Court held in McNally v. United States, 483 U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), that one may not be convicted of mail fraud under a pure "intangible rights" theory. We shall reverse the defendant's conviction on that basis.
The defendant, S. Robert Davis, was indicted in June 1986 for a scheme allegedly begun in March 1981 and continued through January 2, 1982. The indictment charged that in violation of the mail fraud statute, 18 U.S.C. Sec. 1341, "S. ROBERT DAVIS, the defendant, devised and intended to devise a scheme or artifice to defraud the citizens of the City of Upper Arlington, Ohio, of their rights to honest and faithful services from their public officials, and, in furtherance of the scheme, did use or cause the use of the United States mails." The alleged scheme involved a waterline constructed by the defendant at his own expense in and about a subdivision known as Squirrel Bend, located in the City of Upper Arlington, Ohio. Under a local ordinance, the defendant could certify the costs of construction to the city, and, based upon the cost certification, the city would then collect and remit to the defendant a tap-in charge from residents wishing to tap into the waterline.
The indictment charged that Harold W. Hyrne, the city manager at the time, agreed not to question costs certified by the defendant as long as such costs approximated those previously estimated by the city; that Mr. Hyrne used an inflated cost certification submitted by the defendant to calculate a tap-in charge to a property owner; and that Mr. Hyrne and the defendant agreed that in exchange for the defendant's later giving Mr. Hyrne an opportunity to purchase some common stock at a discount, Mr. Hyrne would not collect certain inspection fees from the defendant. The indictment charged four counts of mail fraud based on four mailings made in the process of collecting and transmitting the tap-in charge.
The case was tried to a jury under the "intangible rights" theory. Under this theory, as the jury was told during the prosecutor's opening statement, Under this theory, deprivation of money or property of the citizens is not necessary for conviction. The court so charged the jury:
...
To continue reading
Request your trial
-
US v. Davis
...only concerns the deprivation of "money or property." In following McNally, the Court of Appeals reversed Davis' conviction. United States v. Davis, 841 F.2d 1127 (6th Cir. 1988). The government then reindicted Davis under the proper theory of mail fraud, stating that he had devised a "sche......
-
U.S. v. Davis
... ... As noted above, moreover, if the jury had acquitted Mr. Davis in the trial on the original indictment, there could have been no new trial even if the Supreme Court had affirmed Gray in McNally instead of reversing it. The potential for prosecutorial abuse that led us to find a termination of jeopardy in Saylor simply had no counterpart here ... The defect in the charging instrument at issue in United States v. Ball, supra, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (a failure to specify the time and place of a murder victim's death), like the ... ...
-
U.S. v. Zauber
...alleging that the kickback scheme's purpose was to deprive the pension fund beneficiaries of money. United States v. Davis, No. 88-4076 (6th Cir. March 8, 1988) [841 F.2d 1127 (table)] Text available on WESTLAW, 1988 WL 19175 (per curiam) (citing United States v. Heller, 579 F.2d 990, 999 (......