Appeal from the United States District Court for the District of New Jersey, D.C. Crim. No. 85-00345-03.
Anthony Piccolo appeals a judgment of sentence. We have jurisdiction under 28 U.S.C. § 1291 (1982).
Piccolo was a participant in a commercial kickback scheme, the essential aspects of which were as follows. Delmarva Power and Light Company ("Delmarva Power") contracted with United Engineers & Constructors, Inc., ("United Engineers") for construction services. Timothy McCuen was employed by United Engineers Engineers as a purchasing agent. United Engineers planned to award a subcontract for some of the work on the Delmarva Power project. One of the bidders for this subcontract was Union Boiler Company ("Union Boiler"). After initially bidding and finding that it was the low bidder, Union Boiler learned from McCuen that it could increase its bid significantly and still remain its status as low bidder. Union Boiler increased its bid by $303,000, received the contract, and divided the extra money with McCuen and other participants.
Piccolo's role in this criminal scheme was to launder some kickback money. Piccolo caused his company, Baron Maintenance Service, Inc., ("Baron Maintenance") to issue an invoice in the amount of $32,000 to Union Boiler for painting services that it never performed. Union Boiler then issued a $32,000 check to Baron Maintenance, and Baron Maintenance in turn issued a check for some part of that amount to McCuen through a corporation that McCuen has set up for that sole purpose of laundering kickback money. For his efforts, Piccolo kept part of the money.
Following a jury trial, Piccolo was convicted on one count each of violation of the Travel Act, 18 U.S.C. § 1952 (1982) ("Count II"), mail fraud, 18 U.S.C. § 1341 (1982) ("Count III"), and conspiracy to commit either of these two substantive offenses, 18 U.S.C. § 371 (1982) ("Count I"). He was sentenced to two years' imprisonment on Count I. In addition, he received a suspended sentence and a term of prohibition on Counts II and III. This appeal followed.
Piccolo's most substantial argument for the reversal of his conviction on Counts I and III is that the jury instructions given by the district court permitted the jury to convict Piccolo for conduct outside the proscription of the mail fraud statute. Specifically, Piccolo contends that the jury was permitted to convict him of mail fraud if it found that he participated in a scheme to defraud United Engineers of the company's intangible right to the honest and faithful services of its employee, McCuen, even if the object of wrongfully obtaining money or property was not part of the scheme. Relying on the Supreme Court's recent decision in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987), Piccolo argues that a conviction based on such instructions must be reversed.
In McNally, the Court held that the "mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government." Id. at 2879. Accordingly, the Court reversed McNally's conviction because the jury instructions at his trial permitted conviction for mail fraud based solely on a scheme to deprive the citizens of Kentucky of their intangible right to have state government conducted in an honest fashion.
Piccolo argues that the jury instructions at his trial were similarly flawed. He contends that his conviction must be reversed unless the instructions required the jury to find the object of the scheme was to deprive another of money or property.
Because there was no timely objection to the jury instructions, our review is limited to an assessment of whether the instructions contained plain errors or defects affecting substantial rights. See Fed. R. Crim. P. 30, 52(b). We are satisfied that if, as Piccolo contends, the jury instructions allowed conviction for conduct outside the proscription of the mail fraud statute, such instructions would constitute both plain error and defect affecting Piccolo's due process rights.
Piccolo bases his challenge to his conviction on one particular instruction rather than on the jury charge as a whole. The Supreme Court has noted that, when determining the effect of a single challenged instruction on the validity of a conviction, the reviewing court must view the challenged instruction in the context of the overall charge rather than in "artificial isolation."*fn1 Cupp v. Naughten, 414 U.S. 141, 147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 70 L. Ed. 857, 46 S. Ct. 442 (1926)). The Court further stated that
a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one ...