1 District Judge of the Eastern District of Louisiana, sitting by

designation. 

### United States Court of Appeals,

For the Fifth Circuit

No. 95-50533

United States of America

Plaintiff-Appellee

VERSUS

Kevin GRAY, Gary THOMAS, and Troy DRUMMOND

Defendants-Appellants

Appeal from the United States District Court

for the Western District of Texas

September 18, 1996

Before DUHÉ, DENNIS, Circuit Judges, and DUVAL, 1 District

Judge.

DUVAL, District Judge:

PROCEDURAL BACKGROUND

By grand jury indictment, Appellants Kevin Gray (hereinafter

"Gray"), Gary Thomas (hereinaft e r "Thomas") and Troy Drummond

(here inafter "Drummond") (hereinafter collectively "appellants")

and others were charged with conspiracy to commit mail and wire

fraud, and with various counts of mail and wire fraud in violation2 18 U.S.C. § 371 provides:

If two or more persons conspire either to commit any offense against

the United States, or to defraud the United States, or any agency thereof in any

manner or for any purpose, and one or more of such persons do any act to effect the

object of the conspiracy, each shall be fined under this title or imprisoned not

more than five years, or both.

3 18 U.S.C. § 1341, in pertinent part, provides:

Whoever, having devised or intending to devise any scheme or artifice

to defra ud, or for obtaining money or property by means of false or

fraudulent pretenses, representations, or promises...places in any post

office or authorized depository for mail matter, an y matter or thing

whatever to be sent or delivered by the Postal Service...or knowingly

causes [such matter or thing] to be delivered by mail...shall be fined

under this title or imprisoned not more than five years, or both....

4 18 U.S.C. § 1343 provides:

Whoever, having devised or intending to devise any scheme or artifice

to defraud, or for obtaini ng money or property by means of false or

fraudulent pretenses, representation, or promises, transmits or causes

to be transmitted by means of wire, radio or television communication

in interstate or fo reign commerce, any writings, signs, signals,

pictures, or sounds for the purpose of exec uting such scheme or

artifice, shall be fined under this titled or imprisoned not more than

five years, or both. If the violation affects a financial institution,

such person shall be fined not more that $1,000,000 or imprisoned not

more that 30 years, or both.

5 18 U.S.C. § 1346 provides:

For the purposes of this chapter, the term "scheme o r artifice to

defraud" includes a scheme or artifice to deprive anoth er of the

intangible right of honest services.

2 of 18 U.S.C. §§ 2, 371 2

, 1341 3

, 1343 4 and 1346 5

. All three were

c onvicted of the conspiracy charge; Gray was convicted of two

counts of wire fraud (Count s 13 & 14); Thomas was convicted of

three counts of wire fraud (Counts 6, 7, & 8); and Drummond was

convicted of four counts (Counts 2, 3, 4, & 5). Each filed timely

motions for judgment of acquittal which were denied by the District

Court. Each was sentenced to three years of probation and 50 hours

community service; Thomas received a $1500 fine while Gray and

Drummond received a $1000 fine. Each now appeals.

Specifically, Gray, Thomas and Drummond challenge the6 The following scenario is an illustrative example of appellants'

scheme:

A McLennan Community College student, Shannon Brantley, who lacked

approximately 22 hours toward a degree, enrolled in a correspondence

program at Southeastern Assemblies of God. The evidence at trial

indicated that Gray completed Brantley's final exam in Earth Science

and that appellant, Drummond, provided Brantley with the answers to the

final exam in Algebra. The successful completion of these two courses

enabled Brantley to enroll at Baylor. This scheme, however, was

unbekno wnst to Southeastern Assemblies of God and Baylor at the time

Brantley received his degree and transferred to Baylor and began

playing basketball in the fall of 1993.

3 sufficiency of the evidence supporting their conspiracy, mail fraud

and wire fraud convictions. All argue that the scheme was merely

a breach of fiduciary duty but not mail or wire fraud. Appellants,

Gray and Thomas also challenge portions of the jury charges read to

the jury. Furthermore, Gray and Thomas contend that § 1346 is

unconstitutionally vague as it is applied to them.

FACTUAL BACKGROUND

The indictment charged members of the mens' basketball

coaching staff at Baylor University, and others, with executing a

fraudulent scheme to establish ac ademic eligibility for five

transfer students to play basketball at Baylor during the 1993-94

academic year. In its simplest terms, the coaches helped the five

players, recruited from two-year colleges , to obtain the credits

required for eligibility and possibly schol arships by providing

these students with written course work or answers to

correspondence exams, which were then sent to the sponsoring

schools as the students' work. 6

Gray and Thom as were assistant mens' basketball coaches in

1993. Drummond was an assistant basketball coach at Westark

Community Col lege in Ft. Smith, Arkansas in early, 1993.4

Thereafter, in August, 1993, Drummond was hired by Baylor as the

"restricted earnings coach."

Baylor University was a member of the Southwest Conference and

Division 1A of the NCAA. The NCAA regulations fix academic

eligibility requirements for student athletes transferring from

two-year colleges to four-year Division 1A schools like Baylor.

Failure to comply with the NCAA's rules could result in the

imposition of sanctions.

Five students were focused upon d uring the trial of this

matter. Those students were Jerome Lambert, Marcus Thompson,

Shannon Brantley, Jason Ervin and Tyrone Davis. The specific facts

surrounding the coaches efforts on behalf of these students is not

disputed and thus, not germane to the legal analysis.

ANALYSIS

I

The defendants contend that insufficient evidence supports

their convictions for conspiracy, mail fraud and wire fraud. It is

fundamental that we, as an appellate court, owe great deference to

a jury verdict. Therefore, in assessing a challenge to the

sufficiency of the evidence, we will consider the evidence in the

light most favorable to the verdict and will afford the government

the benefit of all reasonable inferences and credibility choices.

United States v. Walters

, 87 F.3d 663, 667 (5th Cir. 1996) (citing

Unite d States v. Ayala , 887 F.2d 62, 67 (5th Cir.1989)). The

evidence is sufficient if a rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt5

based upon the evidence presented at trial. W alters

, 87 F.3d at

667.

T o prove conspiracy pursuant to 18 U.S.C. § 371, the

government must prove: (1) an agreement between two or more

persons, (2) to commit a crime, and (3) an overt act committed by

one of the conspirators in furtherance of the agreement. U nited

States v. Mackay

, 33 F.3d 489 (5t h Cir. 1994). That statute

further requires the government to prove that a conspiracy existed,

that the defendant knew of the conspiracy and that he knowingly and

voluntarily joined it. Id.

To prove mail fraud pursuant to 18 U.S.C. § 1341, the

government must prove: (1) a scheme to defraud, (2) which involves

the use of the mails, (3) for the purpose of executing the scheme.

United States v. Nguyen , 28 F.3d 477, 481 (5th Cir. 1994); United

States v. Pazos , 24 F.3d 660, 665 (5th Cir. 1994).

To prove wire fraud pursuant to 18 U.S.C. § 1343, the

government must prove (1) a scheme to defraud and (2) the use of,

or causing the use of, wire communications in furtherance of the

scheme. U nited States v. Loney , 959 F.2d 1332, 1337 (5th Cir.

1992).

The indictment alleged and the jury was charged that Gray,

Thomas and Drummond could have committed fraud under either of two

theories: (1) they deprived victims of property, and (2) they

deprived victims of the right to honest services. The victims of

the scheme alleged in the indictment included Baylor, Westark

Community College and others.7 Appellants also rely on U nited States v. Lemire , 720 F.2d 1327 (D.C.

Cir. 1983), cert. denied

, 467 U.S. 1226 (1984) (failure to dis close conflict of

interest not sufficient to maintain conviction based on breach of fiduciary duty),

United States v. Starr

, 816 F.2d 94 (2d Cir. 1987) (mail fraud conviction reversed

where alleged victims got exactly what they bargained for and did not feel cheated);

United States v. Regent Office Supply

, 421 F.2d 1174 (2d Cir. 1970) (reversed mail

fraud convictions holdin g that mere proof of false statement was not criminal

violation); United States v. Schwartz , 924 F.2d 410 (2d Cir. 1991); United States

v. Lew

, 875 F.2d 1327 (D.C. Cir. 1983) (conviction reversed because no evidence that

Lew made false representations to alleged victims but instead to o thers), cert.

denied , 467 U.S. 1226 (1984).

6 Gray, Thomas and Drummond ma ke a number of arguments in

support of their contention that sufficient evidence does not

support their convictions for conspiracy, mail fraud and wire

fraud. They argue first that the mail and wire fraud statutes do

not encompass the type of property deprivation at issue, i.e.

scholarships and degrees, in this case relying on United States v.

Walters , 997 F.2d 1219 (7th Cir. 1993). Second, Gray, Thomas and

D rummond advance the argument that the government seeks t o

criminalize mere deceit alleging that they lack ed the intent to

either harm the victims or to obtain personal benefit relying on

United States v. Ballard , 663 F.2d 534 (5th Cir. 1981), modified

,

680 F.2d 352 (5th Cir. 1982, Unit B). 7 We address these

separately.

A

Gray, Thomas and Drummond first argue that the mail and wire

fraud statutes do not encompass the type of property deprivation at

issue in this case. Specifically, appellants urge that the

granting of scholarships and degrees was simply an incidental

property loss not amounting to fraud relying on Walters , 997 F.2d

1219 (7th Cir. 1993). This challenge lacks merit.8 In 1988, Congress enacted § 1346 allegedly attempting to override the

Supreme Court's de cision in M cNally v. United States

, 107 S. Ct. 2875 (1987).

McNally held that the mail fraud statute did not criminalize sc hemes to defraud

citizens of their rights to honest government. I d. at 2881. Congress' purpose in

enacting § 1346 as expressed by Representative Conyers and the S enate Judiciary

Committee and cited, though not favorably, by this circuit in U nited States v.

Brumley

, 79 F.3d 1430 (5th Cir. 1996) was to restore the mail fraud statute to its

pre- McNally position by allowing mail fraud convictions to be predicated on deprivations of honest services. S ee United States v. Martinez

, 905 F.2d 709, 715

(3d Cir. 1990).

7 Walters, an agent, signed 58 college football players to

contracts while they were still playing pursuant to the NCAA rules.

These contracts violated NCAA rules. I d. at 1221. After

compl eting college, many of these players reneged on their

agreements with Walters. I d. Thereafter, Walters and others were

indicted for mail fraud. The fraud alleged: causing the

universities to p ay scholarship funds to athletes who had become

ineligible as a result of the agency contracts. After finding that

the "scheme or artifice to defraud" clause and the "obtaining money

or property" clause of 18 U.S.C. § 1343 contemplate a transfer of

some kind, the court reversed the convictions holding that losses

that occur only as byproducts of a deceitful scheme do not satisfy

the statutory requirement. Id. at 1225.

Walters is distinguishable from the instant case. Indeed, the

conduct in Walters occurred prior to the enactment of 18 U.S.C. §

1346. 8 Thus, W alters holding that 18 U.S.C. § 1343 contemplates

"a transfer of some kind" is inapplicable to the acts alleged in

the instant case since they occurred after the enactment of

18 U.S.C. § 1346.

As with any question of statutory meaning, we begin with the

language of the statute. B rumley

, 79 F.3d at 1434-35 (citing8

Kellogg v. United States

, ( In re West Texas Marketing Corp. ), 54

F.3d 1194, 1200 (5th Cir.), cert

. denied

, U.S. , 116 S. Ct.

523, 133 L.Ed.2d 430 (1995)). In determining a statute's plain

meaning, we assume that absent any contrary definition, "Congress

intends the w ords in its enactments to carry their ordinary,

contemporary, common meaning." B rumley

, 79 F .3d at 1435 (citing

Pioneer Investment Services v. Brunswick Associates

, 507 U.S. 380,

388, 113 S. Ct. 1489, 1495, 123 L.Ed.2d 74 (1993) (internal

quotation marks omitted)). As the Supreme Court has stated:

"There is, of course, no more persuasive evidence of the purpose of

a statute that the words by which the legislature undertook to give

expression to its wishes." I d. (citing Griffin v. Oceanic

Contra ctors, Inc. , 458 U.S. 564, 571, 102 S. Ct. 3245, 3250, 73

L.Ed.2d 973 (1982) (internal quotation marks omitted)).

The statute in question, 18 U.S.C. § 1343, in pertinent part,

provides:

Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by

means of false or fraudulent pretenses... for the purpose of

executing such scheme or artifice, shall be fined under this

titled or imprisoned not more than five years, or both....

Nothing in the term "scheme or artifice to defraud" mandates

"a transfer of some kind" as defined in 18 U.S.C. § 1346 which

states that:

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.

Therefore, Walters holding that 18 U.S.C. § 1343 contemplates

a "transfer of some kind" is inapplicable to situations occurring9

after the enactment of 18 U.S.C. § 1346. Indeed, it is uncontested

that appellants actions occurred after the enactment of 18 U.S.C.

§ 1346. Further, it is clear that appellants devised and executed

a scheme to deprive Baylor of its int angible right of the honest

services of its employees . Accordingly, appellants reliance on

Walters is misplaced.

B

Gray, Thomas and Drummond next argu e that these convictions

improperly criminalize mere deceit because they lacked the

requisite intent to either harm the victims or to obtain personal

benefit relying on Ballard

. Appellants properly look to preMcNally precedent, Ballard

, in deciding this case alleging mail and

wire fraud. However, appellants misconstrue the B allard decision.

Essentia lly, appellants argue that their scheme was not

intended to harmBaylor but rather to help Baylor by ensuring a

successful basketball team.

This argument lacks merit in light of the "honest services

amendment" to the mail and wire fraud statutes, 18 U.S.C. § 1346,

which allows the government to predicate a fraud prosecution on a

"scheme or artifice to deprive another of the intangible right of

honest services." In B allard

, a pre- McNally case, this Court held

that a breach of fiduciary dut y of honesty or loyalty

involving a violation of the duty to disclose could only

result in criminal mail fraud where the information withheld

from the employer was ma terial and that, where the employer

was in the private sector, information should be deemed

material if the employee had reason to believe the information

would lead a reasonable employer to change its b usiness

conduct.

Ballard , 680 F.2d at 353.10

In Ballard

, several people were prosecuted for conspiracy and

m ail fraud based on a "daisy-chain" scheme to sell oil to the

Florida Power Company ("FPC") through a chain of buyers and

sellers, each of whom took the maximum profits authorized by law.

Granlund, a consultant under contract with FPC, masterminded the

scheme and received a commission on each sale. The defendants were

all convicted of mail fraud charges predicated on an alleged scheme

to deprive certain oil companies of the employees' h onest and

faithful services.

This Court found that "a breach of fiduciary duty can

constitute illegal fraud ... only when there is some detriment to

the e mployer." B allard

, 663 F.2d at 540. This Court went on to

find that the detriment can be a deprivation of an employee's

faithful and honest services if a violation of the employee's duty

to disclose material information is involved. Thus, the Court

focused its inquiry on the duty t o disclose and materiality.

Materiality exists whenever "an employee has reason to believe the

information would lead a reasonable employer to change its business

conduct." Id.

In reversing certain of the convictions, this Court found that

the withhel d information, i.e. the daisy-chain scheme and

Granlund's profits, was not material because the employer-oil

companies were receiving the maximum profit allowed by law. In

affirming Granlund' s conviction, however, the Court found that

Granlund's failure to disclose the scheme and his profits to FPC

was material as FPC might have been able to purchase the oil at a11

lower price. Thus, Granlund's failure to disclose was material and

thus, his actions were within the scope of the mail fraud statute.

In the i nstant case, the information withheld, i.e. the

"coaches' cheating scheme", was material because Baylor did not get

the quali ty student it expected. Further, appellants failure to

disclose the scheme to Baylor was material as Baylor might have

been able to recruit other qualified , eligible students to play

basketball . Instead, once the scheme was suspected, Baylor was

forced to institute a cos tly investigation and the players under

suspicion were withheld from competition. It is quite reasonable

to believe that Baylor would have changed its business conduct had

it known of the "cheat ing scheme." Accordingly, appellants

challenge lacks merit.

II

Gray and Thomas further contend that portions of the jury

instructions were err oneous. We review objected to instructions

for abuse of discretion and will reverse a conviction only if the

instructions fail to correctly state the law. U nited States v.

Coleman

, 997 F.2d 1101, 1105 (5th Cir. 1993); United States v.

Townsend

, 31 F.3d 262, 270 (5th Cir. 1994), c ert. denied

, 115 S.

Ct. 773 ( 1995). On the other hand, we review unobjected-to jury

instructions for plain error. Fed.R.Crim.P. 52(b); s ee also United

States v. Ramirez

, 810 F.2d 1338, 1344 (5th Cir. 1987). Plain

error is that error "so obvious that our failure to notice it would

seriously affect the fairness, integrity, or public reputation of

judicial proc eedings and result in a miscarriage of justice.12

Ramirez

, 810 F.2d at 1344 (citations omitted). Appellants

challenges to the jury charges lack merit.

Over objection, the district court submitted an instruction to

the jury which stated that "[w]here an employee breaches a duty to

his employer by concealing material information which he has a duty

to disclose and where such non-disclosure may result in harm to the

employer, the act constitutes a s cheme to defraud within the

purview of the statute...." This definition of materiality of

nondisclosed information given by the Court substantially tracks

the language of Ballard and thus, correctly states the law.

Accordingly, appellants challenge lacks merit.

The unobjected-to instruction at issue states:

An employee assisting ineligible students to obtain

scholarships from his employer may con stitute a scheme to

defraud within the scope of the mail fraud and wire fraud

statutes, if that is done with the requisite intent to

defraud.

Gray and Thomas contend that this charge improperly "singled

out" one part of the government's case, i.e., deprivation of

property, and, thus, is not sufficient to sustain a mail fraud

conviction in light of the trial court's statements dur ing

sentencing. Indeed, the trial judge stated that

the convictions can only stand as convictions of the scheme or

artifice of depriving Bay lor of the defendants' honest

services, and any losses suffered by Baylor are not relevant

to the application of the sentencing guidelines....

The government, however, correctly points out that the indictment

alleges that the scheme charged included an intent to d efraud

Baylor of property in the form of scholarships in addition to

charging a scheme or artifice to defraud of honest services.9 See Part III.

1 0 However, even if the charge did "single out" property deprivation, the

evidence adduced at trial indicated that Baylor's successful basketball team would

enure to the coaches be nefit. Indeed, Drummond actually received a coaching

position at Baylor as a res ult of his recruiting efforts. Further, even if

appellants intended no personal, tangible benefit, "intent to defraud" is defined

in the charge, in pertinent part, as "caus[ing] some loss to some person." Clearly,

appellants scheme to defraud caused a loss to Baylor. Accordingly, the unobjectedto charge does not constitute plain error.

13 Thus, the trial judge's statements during s entencing cannot

restrict the indictment and the evidence adduced at trial.

Further, the charge at issue does not improperly "single out"

one portion of the government's case. Indeed, the charge, in

pertinent part, actually states that

An employee assisting ineligible students to obtain

scholarships from his employer may constitute a scheme to

defraud within the scope of the mail fraud and wire fraud

statutes, if that is done with the requisite intent to

defraud.

Now the object of a fraudulent scheme need not be the

deprivation of a tangible interes t. Artifices designed to

dep rive another of the right of honest services also may

violate the statute.

Thus, the unobjected-to charge, when read in context, clearly

states that the object of the scheme can either be tangible

property or the intangible right to honest services. Because we

find that 18 U.S.C. § 1346 is constitutional 9 and we find

sufficient evidence supporting appellants' convictions, this charge

does not constitute plain error. 10

III

Gray and Thomas next contend that 18 U.S.C. § 1346 is

unconstitutionally vague as applied to them in this case.

Specifically, Gray and Thomas argue that the term "honest services"14

gives too much discreti on to law enforcement. The "void-forvagueness" do ctrine requires that a penal statute define the

criminal offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in a manner that does

not encou rage arbitrary and discriminatory enforcement. P osters

'N' Things, LTD. v. U.S. , 114 S. Ct. 1747, 1754 (1994) (citations

omitted). The Supreme Court has repeatedly held, however, that

"vagueness ch allenges to statutes which do not involve First

Amendment freedoms must b e examined in light of the facts of the

case at hand." U nited States v. Mazurie

, 419 U.S. 544, 550 (1975);

see also Chapman v. United States , 500 U.S. 453, 467 (1991).

The constitutionality of 18 U.S.C. § 1346 has been addressed

by at least two circuits. In U nited States v. Waymer

, 55 F.3d 564

(11th Cir. 1995), the Eleventh Circuit held that the statute was

not vague or overly broad. In so holding, the Court found that the

requirement that the defendant act willfully and with a specific

intent to defraud provided the necessary specificity for limited

prosecutions. The Court further stated that if the evidence proved

the requisite intent then the statute was relieved of the objection

that the prosecutor had unlimited discretion. Id. at 568.

The statute was also upheld in United States v. Bryan

, 58 F.3d

933 (4th Cir. 1995). The B ryan court noted that this type of

vagueness challen ge was generally rejected in pre- M cNally cases.

Id. at 941, n. 3.

Evaluating 18 U.S.C. § 1346 in light of the instant case, Gray

and Thomas clearly acted willfully and with the intent to defraud15

Baylor of their honest services. Indeed, Gray and Thomas completed

a qualifying test for off-campus recruiting certifying their

knowledge and compliance with the NCAA rules. Further, the

testimony at trial indicated that a coach was required to notify

Baylor officials of any rule violation. We conclude therefore that

G ray and Thomas fail to demonstrate that 18 U.S.C. § 1346 is

unconstitutionally vague as applied to them.

IV

For the reasons we have stated in this opinion, the

defendants' convictions and sentences are AFFIRMED.