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United States v. Ochs

United States Court of Appeals for the First Circuit

March 15, 1988

Nos. 87-1465, 87-1501

Opinion

 [*516]  BOWNES, Circuit Judge.

Paul Ochs, Jr. and Richard M. Dray were convicted in February 1987 of conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341. According to the indictment, Ochs and Dray conspired during 1984 to obtain a building permit from the City of Boston for a fraudulently low fee by deliberately underestimating the cost of renovation at a commercial building in downtown Boston. The indictment charged that, to facilitate this scheme, Dray, an attorney, double billed the building owner for certain legal fees and then split the windfall [**2]  with Ochs, the construction project manager, and with the city official who approved the building permit. At the government's request, the district court instructed the jury that Ochs and Dray could be convicted for conspiring to deprive the city of its intangible right to the honest and faithful services of its employee, even if no financial harm to the city were involved. On appeal, the principal argument advanced by Ochs and Dray is that this instruction was plainly erroneous under McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987) --decided after the convictions in this case -- and that their convictions must therefore be reversed. Although conceding that McNally applies to this case and that the instruction in question was erroneous under McNally, the government argues that  [*517]  the convictions should be affirmed because the erroneous instruction was harmless surplusage. We reverse and remand for a new trial.

I. BACKGROUND

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842 F.2d 515 *; 1988 U.S. App. LEXIS 3249 **; 25 Fed. R. Evid. Serv. (Callaghan) 238

United States of America, Appellee, v. Paul Ochs, Jr., Defendant, Appellant; United States of America, Appellee, v. Richard Dray, Defendant, Appellant

Prior History:  [**1]   Appeals from the United States District Court for the District of Massachusetts, Hon. Douglas Woodlock, U.S. District Judge.

CORE TERMS

convictions, mail fraud, intangible right, indictment, defraud, district court, cases, deprivation, conspiracy, fiduciary, honest, faithful service, commissions, building permit, charges, hearsay, courts, instructions, conspired, billing, profits, counts, bribe, construction costs, estimated cost, coconspirator, deliberations, intangible, lowballing, double

Criminal Law & Procedure, Inchoate Crimes, Conspiracy, General Overview, Fraud Against the Government, Conspiracy to Defraud, Banking Law, Criminal Offenses, Bank Fraud, Mail Fraud, Elements, Trials, Entry of Judgments, Appeals, Standards of Review, Verdicts, Jury Instructions, Particular Instructions, Requests to Charge, Reversible Error, Torts, Fraud & Misrepresentation, Nondisclosure, Governments, Local Governments, Employees & Officials, Fiduciaries, Accusatory Instruments, Indictments, Evidence, Exemptions, Statements by Coconspirators