Revised August 12, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-10292

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CYNTHIA BENNETT EVANS,

also known as Cindy,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

July 24, 1998

Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Cynthia Bennett Evans appeals from her conviction and sentence

on charges of mail fraud under 18 U.S.C. § 1341. Because the

alleged mailings did not, as the statute requires, serve Evans’s

purpose of executing her scheme to defraud her employer of her

honest and faithful services, we reverse the mail fraud convictions1 The Texas Department of Criminal Justice is a departme nt of

the State of Texas. The Board of Pardons and Paroles is a division

of the Texas Department of Criminal Justice.

2 At trial it was suggested that Clay had murdered a man in Fort

Worth’s Como neighborhood and had thereby earned the nickname “Cold

Blooded” for his propensity for violence. Clay insisted, however,

that when he “used to go in the gambling shack and shoot the dice,”

he would holler “oh, cold blooded,” and everyone just started using

that as his name.

-2- and vacate that sentence. The judgment of the district court is in

all other aspects affirmed.

I

.

Cynthia Evans was employed as a parole officer for the Board

of Pardons and Paroles of the Texas Department of Criminal

J ustice. 1 She worked out of an office in Fort Worth, Texas. In

her official capacity, Evans supervised par olees and was

responsible for making decisions and recommendations concerning

them.

Among the parolees supervised by Evans was a drug dealer named

John Clay, a/k/a Cold Blooded. 2 Clay had been released on parole

after serving four years of a forty-year sentence for drug-related

offenses. Immediately upon his release into Evans’s supervision,

Clay borrowed $10,000 from a friend and started dealing crack

cocaine. He quickly ran into potential trouble, however, by

failing two consecutive drug tests conducted at the parole office.

Clay twice tested positive for cocaine, and because he was not

using cocaine at the time, he reasoned that he must have been-3-

absorbing th e drug through his skin during the process of

converting powder cocaine into crack. He decided that he needed to

get Evans on his “team.”

According to Clay, at the beginning of his relationship with

Evans, she was a “very strict” parole officer who “played always by

the book.” Recognizing, however, that he would be sent back to

prison if he co ntinued to fail drug tests, Clay began trying to

bribe Evans. She resisted his first attempt. While Evans was

visiting him in the field, Clay offered to buy “some rims for her

car.” Evans declined the offer and threatened to report any future

bribery attempts by Clay. He persisted. During a subsequent visit

to the parole office, Clay told Evans: “What I’m going to do when

I get up is drop some money behind me, and you can either pick it

up and report it to lost and found, or you can go get your hair and

nails done.” Clay dropped $100 on the floor, and when he made an

appointment for his next visit to the parole office, Evans thanked

him for her hair and nails.

Evans and Clay developed a number of ways to evade the

reporting and testing requirements of Clay’s parole. To circumvent

the drug-testing requirement, Evans suggested that Clay come to the

parole office very early, before the arrival of any male officers

who could supervise the collection of Clay’s urine sample. Clay

would then put water in the cup. If there was a supervisor present

and Clay had to actually provide a urine sample, he would not seal

the package and he would then tell Evans that the sample was-4-

“dirty” so that she could make some arrangement to avoid a positive

result.

After the first bribe, Clay would leave with Evans a bribe of

$100-$300 on each monthly visit. Then, after three or four months,

Evans began asking for more money. Clay began paying her bribes of

up to $700 at a time. Often, the payments were made to cover

specific items requested by Evans: a television receiver, eyelid

tattoos that resembled eyeliner, limousine rental, a honeymoon. He

also provided Evans with drugs and paid for her car to be washed.

Clay estimated that he ultimately paid up to $25,000 in bribes to

Evans, including about $8,000 for Evans’s wedding.

Clay and Evans also developed a personal relationship. Clay

would provide drugs to Evans, and they used drugs together at

times. They also began having sexual relations after about six

months. The two would meet often for lunch or dinner and other

occasions, such as when Clay join ed Evans and her son for the

Fourth of July. A supervisor in Evans’s office testified that

these sorts of personal contacts with parolees are improper.

By virtue of the relationship established with Evans, Clay was

able to violate routinely the conditions of his parole. He smoked

marijuana and used cocaine once or twice a month while under

Evans’s supervision. He would travel across the country (for

example, to watch the Dallas Cowboys win Super Bowl XXX in Phoenix,

Arizona) and out of the country (for example, to the Bahamas,

Nassau, and Jamaica on ocean cruises) without o btaining official3 For example, she falsely indicated that she had visited Clay

at his supposed place of employment, Mr. C’s Car Wash, after that

business had ceased operations.

-5- approval. And, most significantly, he sold crack cocaine to over

a thousand customers across several states. Evans knew of all

these parole violations, yet she failed to report them as her job

required.

One of Evans’s duties as a parole officer was to visit

parolees at their places of residence and employment. The State of

Texas pays the travel expenses for these trips. The parole

officers keep a log of their visits with each parolee (referred to

as a “chronological record”), and they submit travel vouchers for

reimbursement from the state. Evans falsely recorded required

visits in Clay’s record which were never made. 3 She also turned in

false travel vouchers, which were in turn mailed to Austin, Texas,

for processing. Testimony at trial established that if entries in

a parolee’s record failed to reco ncile with the parole officer’s

submitted travel vouchers, this irregularity would raise a red flag

and invite closer scrutiny by a supervisor.

A federal investigation of Clay’s drug syndicate resulted in

the discovery of Clay’s arrangement with Evans. Evans was named as

a defendant in a multiple-defendant indictment covering the entire

scope of Clay’s operations. She was charged with aiding and

abetting a conspiracy to distribute cocaine and cocaine base. A

superseding indictment against Ev ans alone charged her with4 The statute provides, in pertinent part:

Whoever, having devised or intending to devise

any scheme or artifice to defraud

. . . for the

purpose of executing such scheme or artifice or

attempting so to do

, places in any post office or

authorized depository for mail matter, any matter

or thing whatever to be sent or delivere d by the

Postal Service, or deposits or causes to be

d eposited any matter or thing whatever to b e sent

or delivered by any private or commercial

interstate carrier, or takes or receives therefrom,

any such matter or thing, or knowingly causes to be

delivered by mail or such carrier according to the

direction ther eon, or at the place at which it is

directed to be del ivered by the person to whom it

is addressed, any such matter or thin g, shall be

fined under this title or imprisoned not more than

five years, or both.

18 U.S.C. § 1341 (emphasis supplied); s ee also 18 U.S.C. § 1346

(“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.”).

-6- extortion and mail fraud. A jury convicted her on all counts, and

she was sentenced to seventy-two months of imprisonm ent. Evans

timely appealed, contesting the sufficiency o f the evidence to

support the convictions and the district court’s upward departure

from the Sentencing Guidelines.

II.

In counts seven through eleven of the superseding indictment,

Evans stands accused of violating the federal mail fraud statute. 4

Evans contends that the evidence presented by the government is

insufficient as a matter of law because it fails to establish that5 To the extent that the indictment accuses Evans of depriving

“the citizens of the State of Texas of her honest and faith ful

services,” we note that any such scheme cannot be prosecuted under

the federal mail fraud statute, as “the rights of citizens to

honest government have no purchase independent of rights and duties

locatable in state law.” United States v. Brumley , 116 F.3d 728,

735 (5th Cir.) (en banc), cert. denied , 118 S. Ct. 625 (1997).

-7- the alleged mailings were “fo r the purpose” of perpetuating a

fraud. 18 U.S.C. § 1341; s ee United States v. Vontsteen

, 872 F.2d

626, 628 (5th Cir. 1989). We agree.

As required b y F ED

. R. C RIM

. P. 7(c)(1), the superseding

indictment recites the following essential facts constituting the

offense charged:

2. THE SCHEME

From on or about February 1 7, 1994, and

continuing through on or about February 29, 1996,

in the Northern Distri ct of Texas and elsewhere,

CYNTHIA BENNETT EVANS

, defendant, knowingly and

willfully devised and intended to devise a sc heme

to defraud the Board of Pardons and Paroles of the

Texas Department of Criminal Justice and the

citizens of the State of Texas[ 5 ] of her honest and

faithful services by using her knowledge, authority

and official position as a parole officer to assist

John Clay, who is not named as a Defendant herein,

in avoiding arrest and incarceration for violating

conditions of parole.

3. ACTS IN FURTHERANCE OF THE SCHEME

(A) It was a part of the scheme that CYNTHIA

BENNETT EVANS , defendant, would agree to submit or

cause to be submitted falsified urine specimens for

John Clay to a laboratory for analysis for the

presence of illegal controlled substances.

(B) It was a further part of the scheme that

CYNTHIA BENNETT EVANS , defendant, would make false

and incomplete entries into the business records of-8- the Board of Pardons and Paroles to conceal

information regarding activities of John Clay which

constituted violations of conditions of parole.

(C) It was a further part of the scheme that

CYNTHIA BENNETT EVANS

, defendant, would make

entries or cause entries to be made into the

business records of the Board of Pard ons and

Paroles indicating that CYNTHIA BENNETT EVANS

, defendant, made periodic visits to John Clay’s

place of employment and place of residence.

(D) It was a further part of the scheme that

CYNTHIA BENNETT EVANS

, defendant, would agree to

and did provide John Clay with information obtained

through her employment as a parole officer

regarding other individuals and associates of John

Clay who were on parole.

(E) It was a further part of the scheme that

when CYNTHIA BENNETT EVANS

, defendant, was

contacted by telephone by an individual known to

th e grand jury, on or about January 10, 1996,

regarding possible illegal activity of John Clay,

CYNTHIA BENNETT E VANS t old that person that John

Clay was an automobile salesman, when CYNTHIA

BENNETT EVANS knew that John Clay was not employed

as an automobile salesman.

(F) It was a further part of the scheme that,

beginning in or about February of 1994 and

continuing through on or about February of 1996,

CYNTHIA BENNETT EVANS

, defendant, would agree to

and did accept payments in cash from John Clay.

(G) It was a further part of the scheme that,

beginning in or about February of 1994 and

c ontinuing through on or about February of 1 996,

CYNTHIA BENNETT EVANS

, defendant, would agree to

and did accept property a nd other benefits from

John Clay, including: window tinting for her

personal automobile, a television set, and the use

of a rented limousine.

(H) It was a further part of the scheme that,

beginning in or about February of 1994 and

c ontinuing through on or about February of 1 996,

CYNTHIA BENNETT EVANS

, defendant, would agree to-9- and did accept mari h uana and cocaine from John

Clay.

The preceding language was incorporated by reference into each of

five mai l fraud counts, each representing a separate instance of

Ev ans filing a travel voucher with her supervisor. Each of the

five counts contains the following additional language (altered in

each case to reflect the pertinent date):

2. USE OF THE MAIL

For the purpose of executing and attempting to

execute the scheme to defraud, CYNTHIA BENNETT

EVANS

, defendant, did knowingly and willfully cause

to be placed in an authorized depository for mail

matter an envelope addressed to Financial

Management, Attention Jerry Wall, 8712 Shoal Creek

Boulevard, Suite 100, Austin, Texas 78711, which

envelope contained a travel voucher and travel

record of CYNTHIA BENNETT EVANS dated October 2,

1995, such env elope and contents to be sent and

delivered by the United States Postal Service.

At the close of the prosecution’s case, Evans moved, pursuant

to F ED

. R. C RIM

. P. 29(a), for a judgment of acquittal on all mail

fraud counts. In support of that motion, counsel argued that the

mailed travel vouchers had “no bearing whatsoever on the level of

supervision or whether anything occurs in regard to the parolee’s

status.” The motion was denied. After presenting all of her

evidence, Evans renewed her Rule 29 motion, thereby preserving the

issue for appeal. It was again denied. Subsequently, following

the guilty verdict, Evans once more moved for a judgment of

acquittal, this time pursuant to F ED

. R. C RIM

. P. 29(c), specifically

arguing that “[t]he Go vernment failed to prove by sufficient-10-

evidence that the mailings as set forth in counts 7 through 11 were

‘for the purpose of executing the scheme’” as required by 18 U.S.C.

§ 1341. Yet again, the district court declined to throw out the

mail fraud counts.

These rulings were in error. Judgment of acquittal should

have been granted on the mail fraud counts because the government’s

evidence did not establish that Evans’s travel vouchers were mailed

in furtherance of her scheme to defraud the State of Texas.

In Kann v. United States , 323 U.S. 88, 65 S. Ct. 148 (1944),

corporate officers had been convicted for mail fraud based on their

fraudulent scheme of setting up a dummy corporation to divert

corporate funds to themselves. The theory of prosecution depended

upon mailings between banks which took place as a plainly

anticipated result of the defendants’ acts of cashing fraudulently

obtained checks. The Supreme Court reversed the convictions,

reasoning that at the time a che ck was cashed, “[t]he scheme in

each case had reached fruition.” Kann , 323 U.S. at 94, 65 S. Ct.

151. “It cannot be said that the mailings in question were for the

purpose of executing the scheme, as the statute requires.” Id

.

Likewise, in Parr v. Unit ed States , 363 U.S. 370, 80 S. Ct.

1171 (1960), employees of a school district used credit cards to

make unauthorized purchases of gasoline. The invoices for the

gasoline purchases would be mailed to the school district, which

made its payments by returning checks through the mail. As in-11-

Kann

, the Court concluded that “the scheme . . . had reached

fruition” at the time the defendants received the gasoline, and the

convictions were reversed. P arr

, 363 U.S. at 393, 80 S. Ct. at

1184.

This approach was once again applied in United States v. Maze

,

414 U.S. 395, 94 S. Ct. 645 (1974), in which the defendant had been

convicted for mail fraud based on his scheme of using a sto len

credit card to buy food and stay at a hotel. The alleged mailings

in furtherance of the defendant’s scheme were those that would

inevitably be made from the merchants to the bank and from the bank

to the true owner of the credit card. Relying on the previous

holdings in Kann and Parr

, the Supreme Court concluded that the

mailings were not sufficiently related to the scheme. The Court

noted:

Congress could have drafted the mail fraud statute

so as to require only that the mails be in fact

used as a result of the fraudulent scheme. But it

did not do this; instead, it required that the use

of the mails be “for the purpose of executing such

scheme or artifice . . . .”

Maze , 414 U.S. at 405, 94 S. Ct. at 651 (footnote omitted).

Finally, we are instructed by this Court’s previous decision

in United States v. Vontsteen

, 872 F.2d 626 (5th Cir. 1989), cert.

denied , 498 U.S. 1074, 111 S. Ct. 801 (1991), superseded on other

grounds

, 950 F.2d 1086 (5th Cir.) (en banc), cert. denied

, 505 U.S.

1223, 112 S. Ct. 3039 (1992). There, the defendant was employed at-12-

a company that bought and sold oil field pipe. He caused the

company to buy pipe on credit and then re sell it. The defendant

abused his position by pocketing profits and refusing to pay the

original pipe suppliers. He was prosecuted for mail fraud, and the

government alleged that the relevant mailings were the invoices

sent from the defrauded suppliers to the defendant’s employer. The

conviction was reversed; as in Parr and Maze

, the fraud was

completed prior to and independent of the mailing which was alleged

to have been in furtherance of the scheme. S ee Vontsteen

, 872 F.2d

at 628-29.

We find that the relationship of the mailings to the scheme to

defraud in this case is conceptually indistinguishable from those

ruled to b e outside the scope of the mail fraud statute in K ann

,

Parr

, Maze

, and Vontsteen

. Here, the government presented very

limited evidence pertaining to the relevant mailings. In this

regard, the first relevant witness presented by the prosecution was

Delia Bustillo, the custodian of records for the Financial Travel

Records division of the Texas Department of Criminal Justice in

Austin. Bustillo testified merely for the purpose of entering into

evidence Evans’s falsified travel vouchers; she offered no

testimony that would link the mailing of the vouchers to Evans’s

scheme to defraud. The next witness, Christy Dolive, Clay’s new

parole officer and the custodian of his record at the Fort Worth

office where Evans worked, was used to introduce Clay’s parole6 Though irrelevant to our de t ermination that the mailings

alleged in this case were not proved to have been made “for the

purpose of executing” Evans’s fraudulent scheme, we note that this

evidence

-- the only evidence in the record regarding the procedure

by which the travel vouchers would be mailed to Austin

-- does not

seem sufficient to prove that Evans knowingly caused the vouchers

to be mailed, as the statute requires. S ee 18 U.S.C. § 1341.

Other than the mere circumstance that Evans worked in the office

where all of this took place, there is no evidence in the record

that Evans knew or should have known that the travel vouchers were

mailed to Austin after she turned them in to her supervisor. In

the absence of such evidence, it seems doubtful that the government

could have satisfie d its burden to prove that Evans knowingly

caused the mailing of the travel vouchers.

-13- record into evidence. On cross-examination, she testified that all

of the parole officers in the office submit travel vouchers for all

of their state-related trips in the field. Finally, the last

witness on this point was Andrew Presswood, a supervisor of parole

officers at the Fort Worth office. He testified about various

procedures in the parole office pertaining to supervising parolees,

record-keeping, and reimbursement for travel expenses. With

respect to the travel vouchers, Presswood testified that “ [t]he

officer completes their [ sic ] own travel vouchers.

. . . [i]t goes

to their [ s ic ] respective supervisor for review and signature by

the supervisor.

. . . [t]hen it goes into an area of the clerk, and

the staff mails it.” 6 Presswood also noted that it “would be a

problem” if a parolee’s chronological record noted visits that did

not correspond to travel vouchers requesting reimbursement for

those visits. On cross-examination, Presswood confirmed that once

the travel vouchers are sent to Austin, they are simply processed-14-

for reimbursement. The vouchers are not scrutinized for

irregularities regarding individual parolees.

The object of the alleged scheme to defraud was the

circumvention of Clay’s par ole restrictions. Toward this end,

Evans sub mitted false urine samples, made false and incomplete

entries in Clay’s chronological record, falsely reported visits to

Clay in the field, provided Clay with information, and helped Clay

to maintain the appearance of gainful employment. She accepted

bribes of cash, personal property, drugs, and other benefits. But

the aim of the scheme constituted defrauding the state of its right

to Evans’s honest and faithful services for the purpose of

assisting Clay in violating conditions of parole. The mailing of

the travel vouchers did not serve that goal because Evans had

cleared the final hurdle when her supervisor approved her submitted

travel vouchers.

The government contends that the mailings were for the purpose

of executing the scheme because the scheme could not succeed if

Evans had not submitted the travel vouchers. Put another way,

Evans’s supervisor would have discovered the scheme if she did not

submit the travel vouchers. While that much is true, the

submission of the vouchers to the supervisor and the supervisor’s

approval of those vouchers constituted the completion of the fraud.

When the supervisor completed his review of the travel records and

no su spicion had been raised, “the scheme had reached fruition.”

The mailings took place afterwards; the scheme in no way depended7 This argument also demonstrates why United States v. Schmuck

,

489 U.S. 705, 109 S. Ct. 1443 (1989), is distinguishable from this

case. Unlike the S chmuck case, there was no “relationship of trust

and goodwill” between Evans and employees in Austin that had to be

maintained in order for the scheme to continue undetected. S ee

Schmuck , 489 U.S. 714, 109 S. Ct. at 1450.

8 See Antonin Scalia, Common-Law Courts in a Civil-Law System:

The Role of United States Federal Courts in Interpreting the

-15- upon the mailings or anything that happened after that point. As

counsel noted at oral argument, if Evans’s travel vouchers had been

thrown away by her supervisor, the scheme would have continued just

the same. 7 The mailing was entirely incidental to the scheme;

there was nobody in Austin who might have uncovered the scheme

because Evans did or did not submit travel vouchers.

The required nexus between the defendant’s fraudulent scheme

and her use of the mails in furtherance of that scheme -- a nexus

which must be established in order to prove a crime under 18 U.S.C.

§ 1341

-- is the element that provides a basis for exerting federal

jurisdiction over the crime of mail fraud. S ee Vontsteen

, 872 F.2d

at 628 & n.2. The problem with this mail fraud prosecution is not

that Evans did not commit criminal acts, but that her criminal acts

of fraud should have been prosecuted under the applicable state

law, see, e.g.

, T EX

. P ENAL C ODE A NN

. §§ 36.02, 36.08 (Ver non 1997),

not a federal statute which cannot be stretched beyond its plain

language. In reversing Evans’s mail fraud convictions, we reject

the prosecution ’s invitation to endorse a novel spin on clear

statutory language in order to save a con viction. 8 Instead, weConstitutio n and Laws

, i n A NTONIN S CALIA

, A M ATTER OF I NTERPRETATION :

F EDERAL C OURTS AND THE L AW 3, 22 (1997) (“The text is the law, and it is

the text that must be observed.”); cf. Dennis W. Arrow, Pomobabble:

Postmodern Newspeak [] and Constitutional “Meaning” for the

Uninitiated , 96 M I CH

. L. R EV

. 461 (1997) (demonstr ating

sarcastically the capacity of text to be manipulated).

-16- simply adhere to and enforce the plain text of the statute.

Congress has limited the scope of federal jurisdiction over mail

fraud, cf. Maze

, 414 U.S. at 405, 94 S. Ct. at 651, and the

prosecution in this case, in seeking to exploit a truly marginal

relation to the mails, strayed beyond the boundary established by

Congress.

Because the alleged mailings of travel vouchers were not “for

the purpose of executing” Evans’s scheme to defraud the State of

Texas of her honest and faithfu l services as 18 U.S.C. § 1341

requires, we reverse her convictions on those five counts.

III

.

Evans contends that the district court erred in departing

upward from the Sentencing Guidelines in imposing the sentence on

her extortion convictions. Although we have reversed the mail

fraud convictions, Evans was sentenced to short e r, concurrent

sentences on those counts. Thus, we must proceed to consider the

propriety of the court’s upward departure.

Using the November 1995 Sentencing Guidelines manual, the

district court grouped Evans’s five counts of extortion and five-17-

counts of mail fraud pursuant to U.S.S.G. § 3D1.2(d). In such a

case, the guideline which would result in the greatest sentence is

used. S ee U.S.S.G. § 3D1.3(b). The court determined that the

extortion counts resulted in a greater sentence under § 2C1.1 than

would the mail fraud counts under § 2C1.7. A base offense level of

10 was prescribed by § 2C1.1(a), and the court applied a two-level

increase for repeated incidents of extortion (§ 2C1.1(b)(1)) and an

eight-l evel increase because Evans was an official holding a

sensitive position (§ 2C1.1(b)(2)(B) & cmt. 1). This resulted in

a total offense level of 20. Evans had no criminal history, so she

fell into category I, for which the guidelines provide a sentencing

range of 33-41 months.

The district court determined that an upward departure from

the guidelines wa s warranted because the case presented “an

aggravating

. . . circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission in

formulating the guidelines that should r esult in a sentence

different from that described.” 18 U.S.C. § 3553(b); U.S.S.G.

§ 5K2.0. Adopting by reference the findings of the presentence

report, the court listed a number of factors which informed its

decision to depart upward. These factors included: the risk posed

to the community inherent in a massive drug-dealing ope ration to

distribute over 1.5 kilograms of crack cocaine and 150 kilograms of

powder cocaine; the use of illegal drugs; and obstruction of-18-

justice by falsifying various parole records. The court concluded

that these were unique factors which took Evans’s offense outside

the heartland of cases taken into consideration by the Sentencing

Commission, and upward departure was therefore warranted. S ee Koon

v. United States

, 518 U.S. 81, 95, 116 S. Ct. 2035 , 2045 (1996).

An additional six-level upward departure to an offense level of 26

was therefore imposed. Evans was sentenced to a 72-month prison

term.

Evans asserts that, with one exception, all of the above

factors are inherent results of extortion. She argues that upward

departure was prohibited because the Sentencing Commission must

have taken those factors into account in setting the guidelines.

Evans concedes that her use of drugs is exceptional, and would

support an upward departure, but not one as severe as that applied

in her case. With respect to the danger presented to the public

and the obstruction of justice incident to permitting the operation

of a large drug-dealing operation, Evans contends that these

possibilities were antici pated by the base offense level set for

extortion and the eight-level increase applied when an official in

a sensitive position is involved.

We review the district court’s application of the Sentencing

Guidelines for abuse of discretion. S ee Koon

, 518 U.S. at 98-100,

116 S. Ct. at 2046-48. The procedure for considering upward

departure is now well-settled.-19- [A] sentencing court considering a departure should

ask the following questions:

“1) What features of this case,

potentially, take it outside the Guidelines’

‘heartland’ and make of it a speci al, or

unusual, case?

“2) Has the Commission forbidden

departures based on those features?

“3) If not, has the Commission encouraged

departures based on those features?

“4) If not, has the Commission

discouraged departures based on those

features?”

Koon

, 518 U.S. at 95, 116 S. Ct. at 2045 (quoting United States v.

Rivera

, 9 94 F.2d 942, 949 (1st Cir. 1993)). The district court

followed this procedure, setting out its reasons for departure, as

described above. The factors considered by the district court have

not been forbidden, and, in fact, are encouraged. The Sentencing

Commission’s policy statement on criminal purpose states that “[i]f

the defendant committed the offense in order to f acilitate or

conceal the commission of another offense, the court may increase

the sentence above the guideline range to reflect the actual

seriousness of the defendant’s conduct.” U.S.S.G. § 5K2.9. This

is, indeed, exactly what the district court did. In moving Evans’s

criminal offense level to 26, the court compared her to another

member of Clay’s organization who had a similar level of

culpability. Her sentence was designed to reflect the “actual

seriousness” of her serious abuse of office.-20-

There is some truth to Evans’s protest that in the case of any

extortion involving a government official , violations of the law

and a public hazard are foreseeable results. Evans’s case is,

however, truly extraordinary. Even if incidental violations of law

and dangers to the public were taken into account by the Sentencing

Commission, the sheer scale of the violations and the extremely

serious threat posed to public safety remove Evans’s case from the

heartland of cases envisioned. The district court did not abuse

its discretion in so holding, and we affirm the sentence imposed.

IV

For the foregoing reasons, we REVERSE Cynthia Bennett Evans’s

mail fraud convictions, and her sentence on those counts is

VACATED. The district court’s disposition in all other respects is

AFFIRMED.

REAVLEY, Circuit Judge, dissenting in part:

I would a ffirm the mail fraud convictions because the

indictment charged and the evidence proved an ongoing scheme that

included the use of the mail to collect the travel vouchers. The

indictment cannot be read to allege that Evans acted gratuitously

in assisting Clay; it alleges that she acted for personal financial

gain. Counts 1 through 5 allege that she accepted bribes from Clay

in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Counts 6-21-

through 11 allege the commission of mail fraud involving the use of

travel vouchers. Count 6, which details the overall mail fraud

scheme, all eges that Evans devised a scheme “to defraud [her

employer] of her honest and faithful services,” and that the acts

in furtherance of the scheme included the receipt of cash payments

from Clay, as well as the making of “false and incomplete entries

into the busine ss records” of her employer, including travel

v ouchers indicating “periodic visits to John Clay’s place of

employment and place of residence.” The indictment can fairly be

read to allege that the scheme’s financial rewards to Evans

included not only the payments from Clay, but the payment of false

travel vouchers by her employer.

Evans falsely recorded required visits in Clay’s record which

were never made, and submitted corresponding travel vouchers, and

the evidenc e was sufficient to prove that Evans knowingly caused

the vouchers to be mailed. On the appropriate box on the vouchers,

Evans requested that the reimbu rsements be paid directly to her.

Supervisor Presswood testified that the vouchers are mailed to an

office in Austin, and paid from that office. A rational jury could

conclude that Evans must have realized that the vouchers, which are

handwritten on printed forms, were mailed to Austin when she

received her payment from the Austin office.

As to the Supreme Court authority discussed by the majority,

I would distinguish those decisions the majority find s

indistinguishable, an d find indistinguishable the one case the-22-

majority distinguishes. K ann v. United States

, 323 U.S. 88, 65 S.

Ct. 148 (1944), involved the cashing of fraudulent checks by the

defendants. The Supreme Court ruled that the scheme had “reached

fruition” before the checks were mailed. “The persons intended to

receive the money had received it irrevocably. It was immaterial

to them, or to any consummation of the scheme, how the bank which

paid or credited the check would collect from the drawee bank.”

323 U.S. at 94; 65 S. Ct. at 151. In the pending case, Evans did

not receive all the fruits of her fraud, and did not complete the

fraud on her employer, until the vouchers were mailed, and payments

from Austin were received by her.

United States v. Maze , 414 U.S. 395, 94 S. Ct. 645 (1974),

held that a defendant who made fraudulent use of a credit card to

obtain goods and services at motels was not liable under the mail

fraud statute, where th e alleged mailings were the invoices sent

from the motels to the bank that issued the card. The Court again

held that the fraud reached f ruition before the invoices were

mailed. “Indeed, from [defendant’s] point of view, he probably

would have preferred to have the invoices misplaced by the various

motel personnel and never mailed at all.” 414 U.S. at 402, 94 S.

Ct. at 649.

The defendants in Parr v. United States , 363 U.S. 370, 80 S.

Ct. 1171 (1960), were accused of misappropriating funds from a

school district. Most of the mail fraud counts were premised on-23-

mailings related to the collection of school taxes, rather than the

misappropriation of school funds resulting from the taxes. The

Court reversed the convictions under these co unts because “the

indictment did not allege, and there was no evidence tending to

s how, that the taxes assessed and collected were excessive,

‘padded’ or in any way illegal

. . . .” 363 U.S. at 387, 80 S. Ct.

at 1181. Even counsel for defendants conceded that if an employee

“improperly ‘pads’ or increases the amounts of the statements and

causes them to be mailed to bring in a fund to be looted, such

mailings, not being those of the employer

. . . would constitute an

essential step ‘for the purpose of executing [a] scheme’ to

defraud, in v iolation of § 1341.” 363 U.S. at 386, 80 S. Ct. at

1181. In the pending case, the documents mailed -- the travel

vouchers -- were themselves fraudulent because Evans “padded” the

claims for reimbursement with travel that never occurred.

I would affirm under Schmuck v. United States , 489 U.S. 705,

109 S. Ct. 1443 (1989). In S chmuck

, the defendant rolled back the

odometers of automobiles and sold them to car dealers, who then

resold them to retail customers. The alleged mailings associated

with the fraud were the mailing of title application forms from the

dealers to the state department of transportation, a necessary step

in transferring title to the retail customer. The Court noted that

defendant Schmuck had longstanding relations with some of the

dealers, and that “[h]is was an ongoing fraudulent venture. A-24- g:\opin\97-10292.opn rational jury could have concluded that the success of Schmuck’s

venture depended upon his continued harmonious relations with, and

good reputation among, retail dealers, which in turn required the

smooth flow of cars from dealers to their Wisconsin customers.”

489 U.S. at 711-12, 109 S. Ct. at 1448. The Court distinguished

Kann

, Parr

, and Maze

, and affirmed the convictions, reasoning that

“a fa ilure of this passage of title would have jeopardized

Schmuck ’s relationship of trust and goodwill with the retail

dealers upon whose unwitting cooperation his scheme depended.” 489

U.S. at 714, 109 S. Ct. at 1450.

As in S chmuck

, Evans’ ongoing fraudulent scheme depended on

continued harmonious relations with her employer. Failure to

submit routine travel vouchers consistent with Clay’s parole file

put at risk her relationship of trust and goodwill with her

employer, since Presswood testified that an inconsistency between

the travel vouchers and the parole f ile would have raised a red

flag.

The facts of the pending case present a more compelling case

of mail fraud than t he facts of S chmuck

. First, the documents

mailed in Schmuck were themselves totally innocent , while in the

pending case the mailed travel vouchers were fraudulent. Second,

to the exten t that S chmuck turned on a relationship of trust and

goodwill, such a relationship was even more important to Evans than

to Schmuck. The defendant and the dealers in Schmuck had ongoing-25- g:\opin\97-10292.opn business relations, to be sure, but in the pending case Evans was

an employee who occupied a sensitive post.