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United States Court of Appeals for the Second Circuit
December 29, 2003, Decided
Docket Nos. 00-1043, 00-1044, 00-1052, 00-1055
[*126] SACK, Circuit Judge:
We agreed to rehear this case in banc in order to consider whether 18 U.S.C. § 1346, which provides that ] "for the purposes of the chapter [of the United States Code that prohibits, inter alia, mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343], the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services," is unconstitutionally vague. Based upon a review of the case law extant at the time that Congress enacted section 1346, we conclude that the statute clearly prohibits a scheme or artifice [*127] to use the mails or wires to enable an officer or employee of a private entity (or a person in a relationship that gives rise to a [**4] duty of loyalty comparable to that owed by employees to employers) purporting to act for and in the interests of his or her employer (or of the person to whom the duty of loyalty is owed) secretly to act in his or her or the defendant's own interests instead, accompanied by a material misrepresentation made or omission of information disclosed to the employer. Section 1346 is therefore not unconstitutionally vague as applied to the facts of this case, in which the defendants arranged for secret gratuities to be paid to claims adjusters employed by insurance companies against whom the defendants' clients asserted claims. Our analysis reveals that the statute's clear prohibition applies to a wide swath of behavior. We conclude that the statute is not unconstitutional on its face. Finally, we agree with the three-judge panel that first heard this appeal, see United States v. Rybicki, 287 F.3d 257, 266-67 (2d Cir. 2002) ("Rybicki"), that during the course of the trial of this case in the United States District Court for the Eastern District of New York (Carol Bagley Amon, Judge), the jury was properly instructed on all of the elements of the crimes for which the defendants [**5] were convicted, and that a reasonable jury could have found on the evidence admitted at trial that the defendants had committed all the elements of those crimes. We therefore affirm the judgments of conviction and sentence of the district court.
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354 F.3d 124 *; 2003 U.S. App. LEXIS 26529 **
UNITED STATES OF AMERICA, Appellee-Cross-Appellant, - v. - THOMAS RYBICKI, FREDRIC GRAE, GRAE, RYBICKI & PARTNERS, P.C., Defendants-Appellants-Cross-Appellees.
Subsequent History: As Amended January 29, 2004. As Amended February 4, 2004.
US Supreme Court certiorari denied by Rybicki v. United States, 2004 U.S. LEXIS 5519 (U.S., Oct. 4, 2004)
Prior History: [**1] Rehearing in banc: October 16, 2002. Appeal from the United States District Court for the Eastern District of New York (Carol Bagley Amon, Judge). Sitting in banc, we conclude that 18 U.S.C. § 1346 -- which provides that "for the purposes of the chapter [of the United States Code that prohibits, inter alia, mail fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343], the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services" -- is not unconstitutionally vague. The defendants were therefore properly convicted of and sentenced for violating 18 U.S.C. §§ 1341, 1343, 1346 and 371 (conspiracy).
United States v. Rybicki, 287 F.3d 257, 2002 U.S. App. LEXIS 7376 (2d Cir. N.Y., 2002)
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