I saw that via How Appealing &read the op, since we have a local judge under indictment on this count (among other crimes).

Unfortunately, given that none of the other justices joined in his opinion, I'm not sure how much "renewed interest" that demonstrates.

As a legal writing tip, I would suggest to students that citing four dissents in six pages is probably not the best way to argue your position. Even if one of them is your own dissent.

I have no very strong views on the merits, but it does seem that there is genuine confusion and it ought to be settled one way or another, and more important that it be settled some way than any particular way.

Good stuff. Incidentally, Alex Kozinski has a new article out on overcriminalization that discusses, among other things, the honest service statute.

Justice Scalia writes:

Courts have upheld convictions of a local housing official who failed to disclose a conflict of interest, United States v. Hasner, 340 F. 3d 1261, 1271 (CA11 2003) (per curiam); a businessman who attempted to pay a state legislator to exercise “informal and behind-the-scenes influence on legislation,” United States v. Potter, 463 F. 3d 9, 18 (CA1 2006); students who schemed with their professors to turn in plagiarized work, United States v. Frost, 125 F. 3d 346, 369 (CA6 1997); lawyers who made side-payments to insurance adjusters in exchange for the expedited processing of their clients’ pending claims, United States v. Rybicki, 354 F. 3d 124, 142 (CA2 2003) (en banc); and, in the decision we are asked to review here, city employees who engaged in political-patronage hiring for local civil-service jobs, 523 F. 3d 702, 705 (CA7 2008).

None of the five cases Justice Scalia cites -- I've added links to the decisions -- impress me much as cases in which the defendants did not have fair warning that they were doing something criminal. The term "honest services" lacks the precision of a speed limit expressed in miles per hour, but it does convey that if someone is getting secret third-party consideration to influence the way they exercise the responsibilities of their job (a/k/a "kickbacks"), that's deprivation of honest services.

In particular, I would urge people to look at the facts in Hasner and Frost, which are difficult to summarize but seem a lot worse to me than Justice Scalia's summary would indicate.

@Anderseon: I would be interested to hear from any prosecutorial types who think that the "honest services" statute is necessary, and why.

Setting aside the two questions of (i) whether it's necessary to federalize the crime, or (ii) whether it's necessary to formulate the statute in terms of "honest services," I think it's the equivalent of a commercial bribery statute: you can't pay somone kickbacks, or provide non-monetary consideration for the same purpose. One reason to criminalize that behavior is that kickbacks are by nature leveraged -- people accepting a kickback are causing damages many times (indeed, perhaps hundreds of times) the value of the kickback -- so you can't be made whole by going after the wrongdoer after the fact for damages.

Go Nino

I could agree with that

Too bad the court just cannot come out and say the federal government was never delegated any internal police powers.

Didn't the first Congress enact a long string of federal crimes? If so, it would be surprising if there were an original understanding to that effect that the first Congress missed.

Wife: Arrest him!

More: For what?

Wife: He's dangerous!

Roper: For all we know he's a spy!

Daughter: Father, that man's bad!

More: There's no law against that!

Roper: There is, God's law!

More: Then let God arrest him!

Wife: While you talk he's gone!

More: And go he should, if he were the Devil himself, until he broke the law!

Roper: So, now you give the Devil the benefit of law!

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?

This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?

Yes, I'd give the Devil benefit of law, for my own safety's sake!

-- Robert Bolt, A Man For All Seasons

Sections 3 &7 do not punish the state crimes of murder or manslauther. Rather, it only criminalizes murders committed in "any place *** under the sole and exclusive jurisdiction of the United States," id. at 113, and Section 5 punishes the theft from the federal government the body of an executed criminal.

Yep, all enumerated powers belonging to Congress outside of State jurisdiction.

Scalia makes good points, but part of the problem is that, at least in Cook County, these guys would never have been investigated, much less indicted. (The only reason they were indicted is that they didn't role over on higher-ups in the Daley administration).

Public corruption here is wide-spread, so people rely on the federal prosecutors to clean it up.

Reading the Scalia dissent, an ember of hope in me grew a little brighter that my inability to make sense of United States v. Turner, a follow-on case from Sorich in the Seventh Circuit, may reflect incomprehensibility in the applicable law rather than total ineptitude on my part.

J. Aldridge,

Oh, I'm not making an argument about whether the commerce clause cases are right or wrong, I'm just trying to understand what your position is.

Just curious. What is the purpose of citing your prior dissents if nobody joined in any of them, as opposed to simply restating the relevant arguments without citation?

Is it a way of creating evidence of a long running "conflict" in the law, or at least doubt, even you are the only one creating the conflict of doubt?

Is it a way of demonstrating stubbornness or "will"; of signaling, "I've said it before, I'm saying it again, and I'm going to keep on saying it until someone pays attention?"

Is it a matter of maintaining intellectual integrity by avoiding uncredited plagiarism of... oneself?

Or perhaps, more charitably (or at least less snarkily), is it a way of being intellectually honest by admitting that, yes, I've presented these arguments before, only to have them rejected (by everyone else).

"No prosecution concerning the favor-tainted tickets, prosecution (hung jury, with a promised retrial) for the less-than-$5 faxer."

How many tickets did the prosecutor get?

Charles - what else is the intellectually honest and forthright judge supposed to do when a new case involves issues that have moved you to write separately before. One way or another you have to write or join an opinion explaining why you are abandoning your position in earlier cases, or clarifying how your earlier position(s) affect your vote in this case.

"Public corruption here is wide-spread, so people rely on the federal prosecutors to clean it up."

People used to rely on the ballot box for that. That is what cleaned up the Federal Govt. in the fall elections of 1875 when radical republicans were sent packing in droves.

People used to rely on the ballot box for that. That is what cleaned up the Federal Govt. in the fall elections of 1875 when radical republicans were sent packing in droves.

First, that's a sick joke about reconstruction-era politics.

I think it's the equivalent of a commercial bribery statute: you can't pay somone kickbacks, or provide non-monetary consideration for the same purpose.

The U.S. Attorney's Office in Los Angeles is investigating the local Catholic cardinal and other high church officers under the deprivation of honest services statute because they concealed the pedophilia of priests and enabled their continued child abuse. Apparently these officers thereby deprived their parishioners of honest services. The L.A. Times story reporting this quoted lawyers as calling it a highly creative approach. This kind of creativity is the product of a vague statute. There may also be first amendment problems with the theory, too.

Second, that assumes that corruption is always unpopular.

Third, that assumes that the ballot box itself isn't subject to manipulation, directly or indirectly.

The ballot box became subject to corruption and manipulation not from the people, but through foreign influence. Research the many different immigrant societies and Tammany Hall.



foreign influences. Ever since President Wasington declared neutarality

I have made largely the same argument concerning the torture statute, whose elements are incapable of objective definition and not only invite the federal courts to create a common law crime of torture, but also invite incorporating foreign common law into the statute.

Unfortunately, (1) that argument has been decisively rejected in the federal courts, and (2) Congress has explicit Constitutionally granted power to define and punish offenses against the law of nations, so if you want Congress to stop incorporating foreign common law into the statute, you might want to stop advocating for judicial activists to do your dirty work for you and get a constitutional amendment.

Dilan, just to be fair to the troll, Congress has the power to define and punish offenses, not to make some vague and amorphous conduct illegal. If you believe, as proposed, that torture is actually incapable of objective definition, then Congress must narrow its definition to give fair warning of what conduct is prohibited.

Would Justice Scalia say the same thing about an obscenity conviction?

For that matter, as a non-lawyer I admit I have no idea was precisely is covered by criminal involuntary manslaughter laws. These vary a lot by jurisdiction and appear to be inherited from the notion of common law crimes. Obviously, the state has a genuine interest in preventing unnecessary deaths but it's not clear to me how Scalia's argument doesn't also apply to manslaughter statutes.

After all, many legal actions have a non-zero probability of causing another person's death. Whether there is criminal liability in a case where someone dies as a result of someone else's action depends on subjective determinations of negligence.

MarkField said: "Utter nonsense. Corruption was inherent in the system at that time. Major politicians of both parties took full advantage of it. Think Simon Cameron or Roscoe Conkling or myriad others."

You should familiarize yourself congressional findings on fraudulent naturalization practices by immigrant societies.

It seems to me that Markfield's point is that immigrant societies and foreign influences were not the only source of corruption in politics. In fact, J. Aldridge, I find it hard to believe that the framers did not believe that there was some home-grown corruption or dangerous factions that might rend the fledgling republic.

Now, I read your earlier comments as saying that political corruption came only because of foreign influences (a la immigrant participation in the Tammany machine). If I am wrong, I apologize for making a straw man of your argument. But if I read you correctly, then the view that corruption came only from "foreign influences" is quite naive and discounts the notion that full fledged, pure-blooded Americans (whoever that would include) might have their darker moments and be capable of corruption, even systemic corruption.

MarkField: See: Letters and Other Writings of James Madison (Philadelphia: 1865), 14-15.

Found it, thanks.

Note: Although I agree with Justice Scalia that this law is at teetering on the brink of unconstitutional vagueness, and of course there is no general federal common law. I agree that actual connections to federal spending or threats to the federal fisc are extremely attenuated and the relationship seems to be even more remote than the relationship between growing a cannibis plant in a pot in ones home and interstate commerce. I also agree that federal powers have been interpreted broadly beyond reason. Particularly in criminal matters, the nexus between the act penalized and the federal interest should be made stricter. If not required to be demonstrated beyond a reasonable doubt, it should at least require a greater showing than the sort of mere remote possibility that the Supreme Court has found sufficient to incur the federal penal power.

Nonetheless I don't think there's anything unconstitutional federal judges creating common law crimes and using common law processes when Congress authorizes them to do so as part of a proper use of federal powers and gives them adequate standards to go by. My inclination to agree with Scalia in this case is due only to a dearth of standards and attenuated relationship with a federal interest, not the use of common law such.

Common law crimes existed when the Constitution and Bill of Rights were ratified and nobody thought them unconstitutional. Congress authorized federal courts to define common-law admiralty crimes very early in our history; it set up anti-trust law in a common-law fashion; and it has asked the courts to engage-law processes on numerous other occassions. So long as Congress specifically asks the courts to define common-law crimes and either gives them standards to work within or refers to an existing common-law tradition to obtain precedents from, I don't see that our long history of such law has suddenly become unconstitutional simply because Justice Scalia has decided he doesn't like it.

Justice Scalia has consistently expressed a preference for basing law on rules rather than standards. He's entitled to his preference. But the question of which approach to use in any given situation is, like all policy choices, fundamentally a legislative question, and legislatures are entitled to use methods judges don't like or think beneath them. To use vague constitutional phrases to overturn a long-established tradition well-accepted by the framers simply because, at bottom, one doesn't like it is to engage in the same sort of judicial activism Justice Scalia has consistently accused other judges of engaging in.

But Bart also said that there is something wrong with using international law to interpret the statute. But since Congress expressly has the power to criminalize violations of international law, that claim doesn't fly.

The situation is actually much better than this, though. When the Senate ratified the UN Convention Against Torture it did so with the reservation that the treaty definition of torture not include anything not already included within the 8th Amendment's prohibition on cruel and unusual punishment.

In other words, all the torture statute did was make certain violations of the 8th Amendment federal crimes and to extend the law to non-U.S. nationals.

My comments are from the case United States v. Thomas Spellissy and Stratic Defense International, Inc. The Defendents were convicted to conspire to deprive the intangible right of a contractor's honest services to the Department of Defense. Recently, the Government’s primary argument is procedural bar; however, procedural bar is no defense to the truth and constitutional right violations. A defendant who challenges his conviction can overcome the procedural bar if he can demonstrate that the constitutional error “has probably resulted in the conviction of one who is actually innocent.” Bousley v. United States, 523 U.S. 614, 623-24 (1998) (quotation omitted). Now the record is complete in this case, as far as we know and all can be seen from the reflective vantage of hindsight, it is quite apparent that Spellissy was the victim of a concerted effort to convict him at all costs of crimes that he not only did not commit, but that are glaringly inconsistent with his lengthy record of unblemished and highly distinguished military service to the United States.
The case was about bribery and wire fraud. AUSA O’Neill stated at trial,
“As I began with, there are five charges. And they are all about the bribery and the wire fraud.”
There is no mention of a conspiracy to commit mail fraud by O’Neill in any part of the case. There is a variance between wire fraud and mail fraud charges because they are two separate statutes.
The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the Government has treated them fairly by, say, listening to their side of the story. The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In this case, there is no question that Spellissy’s constitutional rights have been violated and he has suffered extreme prejudice resulting in a serious miscarriage of justice – a wrongful conviction.
The Government in its most recent appeal reply brief has done nothing to effectively counter Spellissy’s argument that the District Judge found Spellissy guilty of an offense, mail fraud, which was not properly charged in the indictment as to Count One, the conspiracy count. This is because there was no substantiated evidence presented at trial from which all of the necessary elements of a conspiracy to bribe a public official and/or to commit wire fraud could be shown as charged in the indictment. More importantly, Spellissy is actually innocent and the complete record reflects no reasonable juror could have found proof beyond a reasonable doubt that an agreement had been formed between the alleged co-conspirators and Spellissy knowingly participated in an agreement to achieve an illegal goal.
Furthermore, the Government has erroneously or misunderstood Spellissy’s contention that he suffered from cumulative errors, violations of his Fourth, Fifth and his Sixth Amendment rights. Spellissy was deprived of meaningful cross examination against the true witnesses against him causing his Sixth Amendment rights to be violated. No one testified at trial, to include Agent Calvert, against Spellissy to convict him of conspiracy. By not having the opportunity to cross examine the witnesses who allegedly told Agent Calvert that there was criminal culpability against Spellissy on the Norway trip, he was deprived of his right to confrontation.
Contrary to the Government’s Brief at p. 56, Spellissy’s motion, Dkt 158, clearly cited numerous errors by the Court, the Prosecutor and trial counsel. The Government correctly cites “the cumulative effect of multiple errors may so prejudice a defendant’s right to a fair trial that a new trial is required, even if the errors considered individually are non-reversible.” United States v. Thomas, 62 F.3d 1332, 1343 (11th Cir. 1995).
This Court will clearly see how Agent Calvert’s and AUSA O’Neill’s overzealous and disreputable conduct in seeking a search warrant for Spellissy’s home, based upon a completely erroneous, dishonest, and false probable cause affidavit, misled the Magistrate Judge into believing that certain crimes had been committed when they simply were not. (Dkt 158-3). Succinctly stated, Spellissy did not violate 18 U.S.C. § 207 because he didn’t attend the 70mm warhead meeting which became the main topic of discussion at the Franks hearing and his alleged attendance at the meeting led the District Judge to find probable cause existed for a 18 U.S.C. § 207(a)(2) violation. Additionally, the record completely and accurately reflects the manner in which Special Agent Calvert lied, cherry-picked data and manipulated facts and the law in order to intentionally mislead the Magistrate Judge into issuing him a search warrant. Unfortunately, the Trial Judge was a victim to this fraud upon the Court and made factually incorrect orders based on the Government’s lack of honesty and due diligence during their investigation. The record accurately reflects how AUSA O’Neill suppressed evidence and prejudiced the jury by making false statements during closing and rebuttal arguments at the trial. (Spellissy Brief, p.32-38).
AUSA McNamara asserts in her Brief that the conclusions supported by the facts and record are scandalous and Spellissy agrees.
The Government’s Brief has false information in their statement of facts. First, p. 21, Spellissy never told Agents that he went to Norway with Jones to discuss the 70mm warhead. Spellissy was in Norway at the request of the Government and excused himself from the 70mm meeting and this is stated in Rooney’s Affidavit and Jones’ sworn testimony. The government asserts that Spellissy went to Norway with Don Jones to discuss the 70mm from an interview summary document authored by Agent Calvert who has no credibility. Second, on p. 22 the Government summarizes that Jones’ testimony could have been arranged by video. This is completely false and very misleading. This offer was only made for an interview with General Brown. An email from USSOCOM Lawyer, Lieutenant Colonel Weir telling the trial attorney that Jones is unavailable for interview or to be called as a witness for the Motion to Suppress Hearing and trial because he was deployed to Iraq. It’s a mere coincidence Jones was sent to Iraq after the Government conducted their interviews. Last, on page 23, Spellissy never said he was in Norway as a NAMMO ‘rep’ to the Government. The Government has all of Spellissy’s contracts and knows that he has no contract with NAMMO.

The Government did not argue in their Brief that Spellissy was or could be convicted on a theory of conspiracy to commit mail fraud thus “depriving the United States of the intangible right of Burke’s honest services” and accordingly this Court would have no occasion to decide whether that is a viable theory under the charges in Count One of the indictment and the evidence because the offense was not properly charged in the indictment. The Government states in their Brief, p.59, “Spellissy was convicted of conspiracy to commit bribery and wire fraud,” this is not true. The record is clear and undisputed that the Trial Judge, after trial at the JNOV Hearing found Spellissy and his company guilty of conspiracy that “they agreed to commit the offense of mail fraud, that is, deprive the United States of the intangible right of William Burke’s honest services.” (Spellissy’s Brief, p.55 &Dkt 72, p.2). The government did not appeal this finding.
In the Supreme Court’s Murray v. Carrier, 477 U.S. 478, 485 (1986), the Court found that procedural default would be excused, even in the absence of cause, when a constitutional violation has probably resulted in a conviction of one who is actually innocent. In this case there is no question at the JNOV Hearing the Court found Spellissy guilty of an offense not charged in the indictment. The government is misleading the Court in their statement of facts by partially citing the record that the District Court left the conspiracy convictions intact. (Government’s Brief p.4). This is not the whole truth. It is without question the Trial Judge changed the jury finding of guilty from “conspiracy to commit bribery and wire fraud” to “conspiracy to commit mail fraud, to deprive the United States of the intangible right of William Burke’s honest services.” The Court states,
“Count One in this case alleges that Mr. Spellissy and SDI, along with the unindicted coconspirator, Mr. Burke, conspired to commit the offense of mail fraud, as well as bribery by, in effect, having Mr. Burke provide preferential treatment to contractors represented by Mr. Spellissy and SDI.” (Dkt 113, p.57, line 57).

Count One does not even mention one word about the offense of mail fraud.
Also see Dkt 58, the Jury instructions for Count One, p.8-13. There is no mention of the term “honest services” in the jury instruction for Count One.
The Court concluded in its order,

“As to Count One (Conspiracy), the evidence introduced, including but not limited to Government's Exhibits 10, 11 and 12, sufficiently established that these Defendants and William Burke, an unindicted co-conspirator, agreed to commit the offense of mail fraud, that is, deprive the United States of the intangible right of William Burke's honest services, that the Defendants knew of the conspiratorial goal and that the Defendants voluntarily participated in accomplishing that goal.” (Dkt 72, p.2).

A constructive amendment occurs when the evidence at trial or the jury instructions broaden the scope of the indictment by allowing a defendant to be convicted of an offense different from that charged in the indictment. See United States v. Miller, 471 U.S. 130, 135-145 (1985); Stirone v. United States, 361 U.S. 212, 218-219 (1960). In this case the broadening of the indictment occurred at the JNOV Hearing.
In United States v. DuBo, 186 F.3d 1177 (9th Cir. 1999), and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the Supreme Court, and the Ninth Circuit, determined that the Indictment must plead to specific statutory language in each of the charges filed against the defendant. As such, there is specific language in each statute that must be identified to put a defendant on proper notice of what constitutes the charge of the grand jury.
The Fifth Circuit has held in United States v. Cabrera-Terran, 168 F.3d 141, 143 (5th Cir. 1999), that the failure of the indictment to charge each and every essential element of an offense is a serious constitutional violation. See also United States v. Morales-Rosales, 838 F.2d 1359, 1361-62 (5th Cir. 1988), that criminal information ...does not charge...the second element of the offense...the failure of an information to charge an offense is a jurisdictional defect that is not waived by a guilty plea. See also United States v. Eldrington, 726 F.2d 1029, 1031 (5th Cir. 1984). The failure to charge an essential element of a crime is by no means a mere technicality. See United States v. King, 587 F.2d 956, 963 (9th Cir. 1978). See United States v. Kurka, 818 F.2d 1427, 1431 (9th Cir. 1987). It is not amenable to harmless error review. See United States v. Spruill, 118 F.3d 221, 227 (4th Cir. 1997). See also United States v. Brown, 995 F.2d 1493 (10th Cir. 1993) (“failure of the indictment to allege all the essential elements of an offense ... is a jurisdictional defect requiring dismissal ... The absence of prejudice to the defendant does not cure what is necessarily a substantive, jurisdictional defect in the indictment”); United States v. Gayle, 967 F.2d 483 (11th Cir. 1992) (“A criminal conviction will not be upheld if the indictment upon which it is based does not set forth the essential elements of the offense”); citing United States v. Italiano, 837 F.2d 1480 (11th Cir. 1988); United States v. Deisch, 20 F.3d 139 (5th Cir. 1994) (“To be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense”).
The Grand Jury Clause of the United States Constitution provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Constitution Amendment V. The court said that: “to comport with the Fifth and Sixth Amendments, a criminal indictment must (1) contain all of the elements of the offense so as to fairly inform the defendant of the charges against him, and (2) enable the defendant to plead double jeopardy in defense of future prosecutions for the same offense.” United States v. Santeramo, 45 F.3d 622, 624 (2nd Cir. 1995) (per curiam).
At Sentencing the Court stated,
“And I accept that the seriousness of the offense of conviction, that is, the conspiracy to deprive the Department of Defense of the honest services or intangible right of honest services of Bill Burke…” (Dkt 114 p.77, lines 18-22).

The conspiracy count should be vacated because Spellissy was not charged with conspiracy to commit mail fraud, thus “depriving the United States of the intangible right of Burke’s honest services” in Count One. There is no mention of the words mail fraud, or depriving the United States of the right of Burke’s honest services or depriving Sentel of Burke’s honest services in Count One. The mail fraud elements of the offense for conviction are not stated in Count One.

Spellissy is “Actually Innocent”
The Government asserts in their Brief on p. 59 that Spellissy “did not even address his factual innocence of the crimes charged in the indictment which differed from crimes that were the focus of the search warrant.” It is extremely difficult for a defendant to defend himself when the Government is prosecuting using false data and its lead investigator is not honest. (Dkt 72). The Court let the search warrant stand by concluding that there was probable cause because Spellissy attended the “70mm meeting” which the Court now knows he did not attend the meeting which would have caused a conflict of interest. The Court is incorrect when it stated in Dkt 166, “In short, Jones’ and Rooney’s testimony would not have established that the information Calvert relied on was false or that he was reckless in relying on it, the appropriate inquiry in a Franks hearing.” Now that we have Jones’ and Rooney’s testimony it can be concluded that every paragraph of the Affidavit that alleges criminal culpability is either false, misleading or has omissions of truth. Jones’ testimony confirms that there is no “taped interview,” no tape was provided, and this is shocking! This would have been very important for a Jury and/or the Court to be aware of and now only the Court is aware of this because Jones’s and Rooney’s testimony were taken after trial.
Next, at trial, Burke denies the conspiracy and the bribery. The Court stated, “The only credible testimony from Bill Burke is that he denied the criminal conspiracy, denied bribery.” (Dkt 113 p. 14). At trial, Spellissy learned that Burke was coerced and intimidated by Federal Agents and he couldn’t financially afford to defend himself. (Dkt 110, p. 498). Burke also told the Court that Agent Calvert told him that Spellissy’s company, SDI, is an illegal business. (Dkt 110, p. 465-466). All of this led Burke into entering a plea. This is a lie and the Court acknowledged this lie when it stated, “The evidence of that order [Motion to Suppress, Dkt 44] was kept out appropriately, but it may very well underscore, because there was testimony from at least one witness that Mr. Spellissy’s business was illegal, when it clearly was not.” (Dkt 72 p. 55). Government witness Dr. Uhler gave false testimony at trial (Spellissy’s Brief, p. 37). Then at the closing of the trial, the AUSA in trying to desperately salvage his case, gives false statements and in a state of frustration calls his own witness a liar to the Jury. (Spellissy’s Brief, p. 35- 37).
During the JNOV Hearing the District Court should have thrown out the whole case when AUSA O’Neill desperately argued,
O’Neill: Therefore, my reading of case law, Your Honor, is that the jury, despite my admonition to the contrary, was perfectly within their right to believe that William Burke was credible on his guilty plea and not credible when he denied his involvement.

The Court: You are going to get me reversed if you make that argument to the 11th Circuit.

O’Neill: Really, Your Honor.

The Court: That bootstraps the government’s case by plea agreement and guilty plea, … (Dkt 113, p. 29)

The only evidence that the AUSA has to prove its case is Burke’s plea agreement and the fact that a witness had pled guilty to a crime in the indictment is not evidence in and of itself of the guilt of any other person. The record clearly reflects that Spellissy is factually innocent of conspiracy. The initial complaint that started the investigation was false and there were no charges from that erroneous complaint. (Dkt 33-2). The affidavit for search warrant contained statements and omissions that demonstrated a reckless disregard for the truth. (Dkt 44). Spellissy was not charged with any crime for what the purpose of the search warrant was. (Dkt 1 &Government’s Brief p. 59). No one testified and there is no substantive evidence in the record to convict Spellissy of conspiracy as properly charged in the indictment. There is no materiality or of any specific actions taken constituting the crime such as is required in an indictment. There can not be a conspiracy between Spellissy and his company SDI because they are one in the same person and the Government has agreed to this at the JNOV hearing. (Dkt 113 p. 38 lines 2-4). Government witness, Burke, denied the existence of a conspiracy. (Dkt 113 p.38) The District Court ruled that the offense of conviction occurred after Spellissy retired from the military, December 31, 2004. (Dkt 146 p.6). There is no charge in the indictment or evidence in the record to justify the conviction in accordance with the Judge’s orders in Dkts 72 and 146. The indictment did not charge Spellissy with conspiracy to commit mail fraud (Dkt 1) and the Judge erred when he found Spellissy guilty for conspiracy to commit mail fraud because the mail fraud elements or the honest service statute elements are not charged in the conspiracy count. Compare Dkt 1 to the findings in Dkt 72. The indictment must contain a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c).
The following is a factual analysis of the evidence to the Indictment by paragraph:

Count One
(The Conspiracy Count)
A. Introduction
1. Defendant THOMAS F. SPELLISSY was the president of defendant STRATEGIC DEFENSE INTERNATIONAL, INC., which was incorporated in the State of Florida on April 23, 2004.

There is no evidence in the trial record to support this statement of materiality. (Dkt 112 p. 992 p.8).

2. William E. Burke was the president of Carlisle Bradford Enterprises, which was incorporated in the State of Florida on September 9, 2004.

In evidence from Burke’s trial testimony. (Dkt 109 p.359).

3. The United States Special Operations Command was located at MacDill Air Force Base, Tampa, Florida. The United States Special Operations Command was part of the United States Department of Defense.

This statement is true and universally known.

4. Defendant THOMAS F. SPELLISSY was employed as a consultant by various companies seeking to transact business with the United States Special Operations Command.

In evidence by Government’s Trial Exhibit 3A-3M. What is omitted and also misleading is the fact that Spellissy was a government contractor and consultant with equal to or greater access to the USSOCOM than Burke and had decision making or at the very least recommendation authority which is evidenced by saving USSOCOM $2,000,000.00 on a classified program connected to the Foreign Comparative Test Program. (Government’s Trial Exhibit 3A-3M and Dkts 38, 158, 159, 160).
5. William E. Burke was employed by a private contractor and assigned to the United States Special Operations Command Special Operations Acquisition and Logistics Center, Management Directorate. In that capacity, William E. Burke was acting for and on behalf of the United States and the United States Department of Defense.

In evidence by Burke’s testimony. (Dkt 109).

B. The Agreement
6. From on or about a date in early 2004 to on or about July 26, 2005, in the
Middle District of Florida, and elsewhere,
THOMAS F. SPELLISSY
and
STRATEGIC DEFENSE INTERNATIONAL, INC.,
defendants herein, did unlawfully, willfully and knowingly conspire, combine, confederate and agree with others known and unknown to the grand jury to:

Spellissy and SDI cannot conspire with each other. (Dkt 113). How can one defend himself against the others known and unknown to the grand jury when they are also unknown to Spellissy?
6a. Defraud the United States by impeding, impairing, obstructing, and defeating the lawful government functions of the Department of Defense in the operation of its program in a manner that was honest, fair, and free from deceit, craft, trickery, corruption, and dishonesty; and to

Spellissy had permission to work for his company, SDI, disclosed all his conflicts of interests to the Government and everything was legal and above board. (Dkts 38, 113, p.47, 121). What program is the government referring to and in what way was Spellissy or SDI not honest?
6 b. Commit offenses against the United States, to wit:

(1) To give, offer, and promise anything of value to any public official, and offer and promise any public official anything of value to any other person and entity, with intent to influence any official act, and to influence such public official to commit and aid in committing, and collude in, and allow, any fraud, and make opportunity for the commission of any fraud, on the United States, in violation of Title 18, United States Code, Sections 201(b)(1)(A) and (B) and 2; and”

There is no evidence in the record of anything of value promised to anyone to include Burke. (Dkts 72, 110 &111).

(2) “Having devised and intending to devise any scheme and artifice to defraud, transmit and cause to be transmitted by means of wire, radio, and television communication in interstate and foreign commerce, any writings, signs, signals, pictures and sounds for the purpose of executing such scheme and artifice, in violation of Title 18, United States Code, Sections 1343, 1346 and 2”

There was no scheme and artifice to defraud because all of Spellissy’s actions were above board. The Judge stated, “But you know Mr. Spellissy obtained permission from his commanding officer to do exactly what he ended up doing. It was perfectly legal and above board.” (Dkt 113 p. 47 lines 21-24). The Trial Judge did not find any evidence of conspiracy to commit wire fraud at the JNOV Hearing. (Dkts 113 &72). There is no “mail fraud” in this charge and the words “depriving the United States of the intangible right of Burke’s honest services” are not present. “To prove a conspiracy to commit wire fraud, . . . it is enough to prove that the defendant knowingly and voluntarily agreed to participate in a scheme to defraud and that the use of the interstate wires in furtherance of the scheme was reasonably foreseeable. The elements of wire fraud under 18 U.S.C. § 1343 are (1) intentional participation in a scheme to defraud and (2) use of the interstate wires in furtherance of the scheme. A scheme to defraud requires proof of material misrepresentations, or the omission or concealment of material facts, reasonably calculated to deceive persons of ordinary prudence.” See United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003), cert. denied, 124 S.Ct. 2195 (2004), 125 S.Ct. 1366 (2005). There is no evidence that Spellissy or his company, SDI knowingly devised or participated in a scheme to defraud or for obtaining money or property by means of false pretenses. In this case there is no intentional participation in a scheme and the use of wire was used to pay Burke for legitimate work which was reported on a Form 1099 to the IRS. (Dkt 72 p. 2-3). The Trial Judge stated to Spellissy at Sentencing, “And I am convinced that what you did was not with the mindset of violating the law. I don’t think there’s any question because of your character.” (Dkt 114 p. 81 lines 2-4). Therefore, if you have no mindset to violate the law how can you have intentional participation or to act knowingly to achieve an illegal objective. There can be no conspiracy.
C. Manner and Means

7. It was a part of the conspiracy that defendant THOMAS F. SPELLISSY would and did form a company, defendant STRATEGIC DEFENSE INTERNATIONAL, INC., which was used to make illegal payments to William E. Burke.

There were no illegal payments made. Spellissy was acquitted on the bribery

charges. (Dkt 72 &Spellissy Brief p. 54).

8. It was further part of the conspiracy that William E. Burke would and did form a company, Carlisle Bradford Enterprises, which was used to accept illegal payments from defendant THOMAS F. SPELLISSY.

No illegal payments were accepted by Burke (Dkts 72, 113 &Spellissy Brief p. 54).

9. “It was further part of the conspiracy that defendant THOMAS F. SPELLISSY would and did notify William E. Burke as to which companies he represented.”

Burke was aware of a few companies Spellissy represented. (Dkt 110). However, Spellissy had disclosed his clients to the Government through the Jacobs Sverdrup Government contract, the Program Executive Officer for Special Programs and the Program Mangers. (Dkts 72, 114, 158 and Government’s Trial Exhibit 3). Also, see Spellissy Brief p. 53. This was not disputed by the Government in their Brief. Spellissy identified to the Government who his clients were. There was no secret as to who Spellissy represented.
10. It was further part of the conspiracy that William E. Burke would and did provide preferential treatment to specific contractors represented by defendant THOMAS F. SPELLISSY.

Government witness James Pettigrew testified that there was no evidence of preferential treatment by Burke to Spellissy. (Dkt 11 p.680). Burke denied any agreement to do anything illegal and at trial stated that Spellissy never asked him to do anything illegal. (Dkts 110, 111, 72). Preferential treatment is not defined and the specific contractors represented by Spellissy were never identified by the Government. There is no evidence that Burke was in a position with the authority to do what the government alleges. Burke cannot approve, disapprove, rank or change an acquisition proposal for testing. No witness testified that Burke had this authority. See sworn testimony of James Santa Lucia and Snellgrove at Spellissy Brief p. 54-55. There is no evidence of where Burke made or could make a recommendation to benefit Spellissy. Burke was a private contractor who possessed no authority and his influence on the process was not even identifiable as the following testimony from Dr. Uhler, USSOCOM’s Acquisition Executive, during the sentencing hearing demonstrates:
Question: Okay. As for you personally, did you personally ever seek Bill Burke’s opinion on a project or proposal?

Uhler: I did not.

Question: Did you personally ask Bill Burke for his opinion as to the ranking of proposals?

Uhler: I did not.

Question: Did you personally – so then the answer would be that you personally never relied on Bill Burke’s personal opinion in the course of your work?

Uhler: I did not. (Dkt 114, p. 33).

Jones’ states in his testimony,

“His [Burke’s] role was to – again, my understanding, was to brief the Foreign Comparative Test Program to personnel who participated in it, let him know what it was about and help them with the process of fulfilling the program.” (Dkt 159, p. 24)

Jones’ also testified,

Question: Do you remember or do you know whether or not a program manager can change a U.S. SOCOM priority without coordinating with the end users at the units?

Jones: No. The end users are the ones who determine the priorities. (Dkt 159, p. 24)

Therefore, the record is clear that Burke could not give Spellissy preferential treatment.
11. It was further part of the conspiracy that defendant THOMAS F. SPELLISSY would and did provide illegal payments to William E. Burke for providing preferential treatment to certain projects.

No illegal payments were made. (Dkt 72). Burke was not in a position to give preferential treatment. (Dkts 151-8, 151-9, 159).



D. Overt Acts

In furtherance of the conspiracy and to effect the objects thereof, the following overt acts, among others, were committed in the Middle District of Florida and elsewhere:

(1) On or about April 23, 2004, defendant THOMAS F. SPELLISSY formed a company, defendant STRATEGIC DEFENSE INTERNATIONAL, INC.

There is no evidence in the trial record to support this statement of materiality. (Dkt 112 p. 992 p.8).
(2) On or about September 9, 2004, William E. Burke formed a company, Carlisle Bradford Enterprises.

This statement is in evidence from Burke’s testimony at trial. (Dkt 109 p.359).

(3) On or about October 1, 2004, defendants THOMAS F. SPELLISSY and STRATEGIC DEFENSE INTERNATIONAL, INC. sent an electronic message to William E. Burke.

(4) On or about October 1, 2004, William E. Burke sent an electronic message to defendants THOMAS F. SPELLISSY and STRATEGIC DEFENSE INTERNATIONAL, INC.

(5) On or about October 1, 2004, defendants THOMAS F. SPELLISSY and STRATEGIC DEFENSE INTERNATIONAL, INC. sent an electronic message to William E. Burke.

(6) On or about October 2, 2004, William E. Burke sent an electronic message to defendants THOMAS F. SPELLISSY and STRATEGIC DEFENSE INTERNATIONAL, INC.

These emails were brought into to evidence by an FBI agent. (Dkt 109, p.274) The FBI agent offered no analysis of the emails. He simply read them to the Court. (Dkt 109, p.277) These emails were explained by Burke at trial. There is not a statement in those emails that demonstrated criminal culpability. (Testimony in Dkts 110 and 111).
Paragraphs (7) through (17) are all in evidence. These alleged overt acts were the invoices between Burke and SDI and the request for payment checks and the two checks that were sent to Burke for work performed on behalf of SDI. (Dkts, 72 109, 110, 111 and 113).

Spellissy was acquitted on Counts Two and Three (Bribery) and granted a New Trial on Counts Four and Five (Wire Fraud Counts). (Dkt 72). The bottom line is Burke didn’t and couldn’t provide preferential treatment to Spellissy and the government presented no evidence on how Burke could provide preferential treatment to Spellissy as evidenced by Uhler’s, Santa Lucia’s and Snellgrove’s testimony. (Spellissy’s Brief p. 54-55).



As discussed in Spellissy’s initial brief, and as discussed further, Spellissy’s conviction for conspiracy should be reversed.


For more info on this case go to Fight4Spellissy.com

Scott Horton has a post on the Scalia dissent, heartily endorsing it from his usual point of view, and listing cases where the DOJ Public Integrity Section seems to have, well, acted ironically.

I could quote the whole thing, I see, but I'll just link, if that's okay.

Just to be clear, I'm not trying to pick a fight over the vagueness of the torture statute. I'm only saying that it might be difficult, in foresight, to determine what a jury might convict on later.

Oren: I dont't have the case cite handy, but the case can be found quickly on Westlaw and I have given the cite in previous threads. It rejects all the challenges that the bart depalmas of the world make against the statute.

Yes! Go, Nino! No one mentioned the application to anti-trust law. Isn't that one of the worst examples?

The U.S. Attorney's Office in Los Angeles is investigating the local Catholic cardinal and other high church officers under the deprivation of honest services statute because they concealed the pedophilia of priests and enabled their continued child abuse. Apparently these officers thereby deprived their parishioners of honest services.

Following this reasoning, if a businessman uses the "means of wire, radio, or television communication in interstate or foreign commerce" (i.e., what normal people call "the phone") to call his wife and tell her he'll be working late, when in fact he's planning to take the hot young intern out for dinner and (he hopes) a roll in the hay, there's nothing, other than their own self-restraint, to stop the feds from prosecuting him for depriving his wife of honest spousal dealings.

Re: Scott Horton's post that I linked above, he's updated it with a link to “Whose Rights? Why States Should Set the Parameters for Federal Honest Services Fraud Prosecutions” by Michael Avery in the Boston College Law Review -- I thought anyone interested in the issue might appreciate the link.

As another decision from the Supreme Court today indicates, see http://www.supremecourtus.gov/opinions/08pdf/07-608.pdf (broadly construing the Federal Gun Control Act), a renewed interest in construing federal criminal statutes narrowly is probably a long way off. Notably, Scalia was again in dissent.