United States v. Ratcliff ( 2007 )

REVISED August 13, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 31, 2007
No. 05-30666
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellant - Cross-Appellee
v.
BARNEY DEWEY RATCLIFF, JR
Defendant - Appellee - Cross-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana, Baton Rouge
Before KING, GARZA, and PRADO, Circuit Judges.
KING, Circuit Judge:
Defendant-appellee-cross-appellant Barney Dewey Ratcliff,
Jr. was charged by indictment with fourteen counts of mail fraud,
in violation of 18 U.S.C. § 1341, based on alleged activities
involving election fraud in Louisiana. The district court
granted Ratcliff’s motion to dismiss the counts, concluding that
the indictment did not allege a scheme to defraud anyone of money
or property, thereby failing to state the offense of mail fraud
under § 1341. The United States now appeals, arguing that a
scheme to obtain the salary and employment benefits of elected
1
office through election fraud satisfies the requirements of the
mail fraud statute. We AFFIRM.1
I. FACTUAL AND PROCEDURAL BACKGROUND
Livingston Parish, Louisiana, operates under a home rule
charter providing that its citizens elect a parish president for
a four-year term. See LA. CONST. art. VI, § 5; LIVINGSTON PARISH HOME
RULE CHARTER § 3-02. In 1999, Ratcliff was the incumbent
Livingston Parish president and a candidate for reelection.
Candidates for public office in Louisiana must abide by the
provisions of Louisiana’s Campaign Finance Disclosure Act
(“CFDA”), LA. REV. STAT. ANN. §§ 18:1481-:1532. The CFDA prohibits
any candidate for parishwide elective office, including the
parish presidency, from receiving contributions, loans, or loan
guarantees in excess of $2500 from any individual. Id. §§
18:1483(7)(b), :1505.2(H). Candidates must also file campaign
finance disclosure reports with the Louisiana Board of Ethics
(the “Board” or “Board of Ethics”). Id. § 18:1484. The reports
are to detail all campaign contributions, loans, loan guarantors,
and expenditures. Id. § 18:1495.5.
According to the indictment, Ratcliff obtained several loans
violative of the CFDA from September to November 1999. On
September 23, 1999, Ratcliff obtained a $50,000 bank loan for the
1
Because we affirm the dismissal of Ratcliff’s indictment,
we do not address his cross-appeal, as it is moot.
2
purpose of financing his reelection campaign. Ratcliff had
insufficient income and assets to qualify for the loan, and a
local businessman with sufficient assets served as cosigner. One
week later, on October 7, Ratcliff obtained another $50,000 loan
with the same businessman as cosigner. The cosigner also
assigned a $50,000 certificate of deposit as collateral.
On October 12, Ratcliff filed with the Board of Ethics a
campaign finance disclosure report in which he disclosed the
first loan and the businessman’s guarantee of that loan. On
October 19, a staff member of the Board advised Ratcliff that the
businessman’s guarantee possibly violated the CFDA. In response,
Ratcliff informed the Board that he had instructed the bank to
prepare new loan documents for his signature alone.
On October 22, Ratcliff obtained two new loans to pay off
the loans that had been improperly guaranteed by the businessman.
The indictment charges that the new loans were secured by a
pledge of $99,000 in cash, supplied by one of Ratcliff’s wealthy
supporters who had a financial interest in the transfer of a
permit for operation of a landfill in Livingston Parish to Waste
Management, Inc. (“Waste Management”). The transfer, which was
allegedly supported by Ratcliff, was a major election issue.
Ratcliff obtained another $50,000 loan on November 3, allegedly
secured by a pledge of $55,000 in cash supplied by the same
wealthy supporter. The indictment asserts that Ratcliff knew
that his receipt of the cash for all three loans violated the
3
$2500 individual loan limitation and that he did not report it in
his campaign finance disclosure reports.
Ratcliff was reelected as parish president on November 20.
During the course of the campaign, Ratcliff had contracted with a
political consultant to help with his reelection bid, and by the
time of the election, Ratcliff owed the consultant over $57,000.
On November 22, a Waste Management lobbyist allegedly gave
Ratcliff approximately $44,000 in cash for Ratcliff’s political
consultant to hold as collateral until Ratcliff paid the
consultant the money owed. The indictment alleges that Ratcliff
knew that his use of the cash to secure a campaign debt violated
the $2500 statutory limitation and that Ratcliff did not disclose
the illegal loan in his campaign finance disclosure reports.
In addition to Ratcliff’s failure to report the amount and
source of certain cash and loans he received, he allegedly misled
the Board of Ethics during its investigation of his activities.
Specifically, the indictment alleges that Ratcliff falsely
represented that he had the creditworthiness to obtain the
original loans on September 23 and October 7, 1999, without a
cosigner and that the replacement loans were obtained on the
basis of his independent creditworthiness. And despite requests
from the Board for information on his use of collateral to secure
the replacement loans, Ratcliff allegedly failed to disclose that
the collateral was borrowed cash. The indictment also asserts
that Ratcliff used the mails to submit a campaign finance
4
disclosure report and two letters concerning the ethics
investigation to the Board of Ethics, as well as to receive the
financial benefits of office.
After Ratcliff’s reelection as parish president, Ratcliff
served in office from January 10, 2000, to January 12, 2004.
During this term, Ratcliff allegedly received over $300,000 in
salary and employment benefits from the parish.
On November 3, 2004, Ratcliff was charged by indictment with
fourteen counts of mail fraud and one count of making a false
statement to a financial institution.2 With regard to the mail
fraud counts, the Government alleged that Ratcliff used the mails
in a scheme to defraud Livingston Parish of the salary and
employment benefits of elected office through misrepresentations
he made to the Board of Ethics concerning the financing of his
campaign. According to the Government, Ratcliff secured his
reelection as parish president by obtaining the illegal funding
and concealing his violations from the Board of Ethics.
On March 1, 2005, Ratcliff filed a motion to dismiss the
mail fraud counts. After hearing oral argument on the motion,
the district court granted the motion on May 23. The Government
appealed.
II. DISCUSSION
2
The count involving a false statement to a financial
institution is not at issue in this appeal.
5
The Government contends that Ratcliff’s indictment
sufficiently charged the offense of mail fraud because the salary
and employment benefits of elected office constitute “money or
property” under the mail fraud statute and because fraudulent job
procurement can constitute mail fraud in the election context
just as it can in the typical hiring context. Ratcliff counters
that any misrepresentations he allegedly made to the Board of
Ethics, which is a state entity, were unrelated to the salary and
benefits paid as a matter of course by Livingston Parish, which
is a distinct, local entity.
We review the sufficiency of an indictment de novo, taking
the indictment’s allegations as true. United States v. Crow, 164
F.3d 229, 234 (5th Cir. 1999). The Federal Rules of Criminal
Procedure require that the indictment be “a plain, concise and
definite written statement of the essential facts constituting
the offense charged.” FED. R. CRIM. P. 7(c)(1). The indictment
is sufficient if it “alleges every element of the crime charged
and in such a way as to enable the accused to prepare his defense
and to allow the accused to invoke the double jeopardy clause in
any subsequent proceeding.” United States v. Bieganowski, 313
F.3d 264, 285 (5th Cir. 2002) (citation and internal quotation
marks omitted). When reviewing the indictment, we must keep in
mind that “the law does not compel a ritual of words” and that an
indictment’s validity depends on practical, not technical,
considerations. Crow, 164 F.3d at 235 (quoting United States v.
6
Devoll, 39 F.3d 575, 579 (5th Cir. 1994)). And “[t]he starting
place for any determination of whether the charged conduct [is]
proscribed by [a criminal] statute is a reading of the language
of the charging instrument and the statute itself.” United
States v. White, 258 F.3d 374, 381 (5th Cir. 2001) (second and
third alterations in original) (quoting United States v. Morales-
Rosales, 838 F.2d 1359, 1361 (5th Cir. 1988)).
To sufficiently charge the offense of mail fraud,3 the
3
The mail fraud statute provides in full:
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, representations, or promises, or to
sell, dispose of, loan, exchange, alter, give away,
distribute, supply, or furnish or procure for
unlawful use any counterfeit or spurious coin,
obligation, security, or other article, or anything
represented to be or intimated or held out to be
such counterfeit or spurious article, 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 delivered by the
7
indictment must allege that (1) the defendant devised or intended
to devise a scheme to defraud, (2) the mails were used for the
purpose of executing, or attempting to execute, the scheme, and
(3) the falsehoods employed in the scheme were material.4 United
Postal Service, or deposits or causes to be
deposited any matter or thing whatever to be 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 thereon, or at the place at which it is
directed to be delivered by the person to whom it
is addressed, any such matter or thing, shall be
fined under this title or imprisoned not more than
20 years, or both. If the violation affects a
financial institution, such person shall be fined
not more than $1,000,000 or imprisoned not more
than 30 years, or both.
18 U.S.C. § 1341.
4
While specific intent is also an essential element of mail
fraud, it need not be specifically charged in the indictment.
Caldwell, 302 F.3d at 409 n.8. Additionally, materiality need
not be specifically charged “if the facts alleged in the
8
States v. Caldwell, 302 F.3d 399, 409 (5th Cir. 2002). The first
element includes a defendant’s scheme or artifice (1) “to deprive
another of the intangible right of honest services,” 18 U.S.C.
§ 1346, (2) “for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises,”5 18 U.S.C.
§ 1341, or (3) “to sell, dispose of, loan, exchange, alter, give
away, distribute, supply, or furnish or procure for unlawful use
any counterfeit or spurious . . . article,” 18 U.S.C. § 1341.
See Caldwell, 302 F.3d at 406. Only the second type of scheme or
artifice is at issue in this appeal, as Ratcliff was charged with
indictment warrant an inference of materiality.” Id. at 409
(internal quotation marks, alteration marks, and citations
omitted).
5
Although the mail fraud statute’s proscription of certain
schemes “for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises” could be
construed independently of the statute’s proscription of “any
scheme or artifice to defraud,” 18 U.S.C. § 1341, the Supreme
Court has held that the phrases are to be read together and that
the phrase discussing money or property “simply made it
unmistakable that the statute reached false promises and
misrepresentations as to the future as well as other frauds
involving money or property.” McNally v. United States, 483 U.S.
350, 358-59 (1987).
9
a scheme to defraud Livingston Parish of the money and property
represented by “the powers, privileges, salary, and other
benefits” of his elected office.
We do not dispute the Government’s contention that a salary
and other financial employment benefits can constitute “money or
property” under the statute; as the Eighth Circuit put it when
discussing a scheme to defraud an employer of wages, “[m]oney is
money, and ‘money’ is specifically mentioned in the statutory
words.” United States v. Granberry, 908 F.2d 278, 280 (8th Cir.
1990) (emphasis omitted); see also Pasquantino v. United States,
544 U.S. 349, 356-57 (2005) (recognizing that money in the public
treasury is the government’s “money” for purposes of the mail
fraud statute). But the real question before us is whether the
indictment alleges a scheme to defraud the alleged
victim——Livingston Parish——of that money.6 See United States v.
Rico Indus., Inc., 854 F.2d 710, 713 (5th Cir. 1988) (“The mail
fraud statute protects only against schemes or artifices to
defraud the property rights of citizens.”). As the Supreme Court
has explained, “the words ‘to defraud’ commonly refer ‘to
wronging one in his property rights by dishonest methods or
schemes,’ and ‘usually signify the deprivation of something of
6
The indictment does not allege that Ratcliff devised a
scheme to defraud the Board of Ethics, the state, or any other
party besides Livingston Parish of money or property.
10
value by trick, deceit, chicane, or overreaching.’” McNally v.
United States, 483 U.S. 350, 359 (1987) (quoting Hammerschmidt v.
United States, 265 U.S. 182, 188 (1924)). Accordingly, in
determining whether the indictment alleges a scheme to defraud
Livingston Parish of money or property, we must look to whether
the alleged scheme is one to deprive the parish of money or
property through misrepresentations, thereby wronging the
parish’s property rights.7 See id. at 360 (holding that the mail
fraud statute is “limited in scope to the protection of property
rights”); see also Cleveland v. United States, 531 U.S. 12, 19
(2000) (recognizing the Court’s “[r]eject[ion of] the argument
that ‘the money-or-property requirement . . . does not limit
schemes to defraud to those aimed at causing deprivation of money
or property’”); Carpenter v. United States, 484 U.S. 19, 27
(1987) (“Sections 1341 and 1343 reach any scheme to deprive
another of money or property by means of false or fraudulent
pretenses, representations, or promises.”).8
7
Of course, the mail fraud statute does not require a
completed fraud, just that the defendant has “devised or
intend[ed] to devise” a scheme to defraud. 18 U.S.C. § 1341;
Neder v. United States, 527 U.S. 1, 25 (1999).
8
The Government defines the words “to deprive” as merely
meaning “to take something away from.” However, the cases cited
above illustrate that the deprivation must involve a wronging of
11
Applying these principles, it is evident that Ratcliff’s
indictment does not allege a scheme to defraud Livingston Parish
of any money or property. According to the indictment, Ratcliff
devised a scheme (1) to conceal campaign finance violations from
the Board of Ethics, which would (2) deceive the voting public
about the campaign contributions he received, which would (3)
secure his reelection to office, which would (4) cause Livingston
Parish to pay him the salary and other financial benefits
budgeted for the parish president. Although the charged scheme
involves Ratcliff ultimately receiving money from the parish, it
cannot be said that the parish would be deprived of this money by
means of Ratcliff’s misrepresentations, as the financial benefits
budgeted for the parish president go to the winning candidate
regardless of who that person is. Nor would the parish be
deprived of its control over the money by means of Ratcliff’s
fraud, as the parish has no such control other than ensuring that
the benefits are paid to the duly elected candidate. There are
no allegations, for example, that the parish was deceived into
paying the parish president’s salary to someone who did not win
the election or to someone who failed to meet the parish’s
minimum requirements for office.9 Indeed, there are no
the victim’s property rights.
9
We express no opinion on these situations, as they are not
before us in this appeal.
12
allegations that the parish would be deceived, either directly or
indirectly, into taking any action at all; rather, the indictment
alleges a scheme to deceive the Board of Ethics and the voters.
Though the misrepresentations in a mail fraud scheme need not be
made directly to the scheme’s victim, see, e.g., United States v.
Pepper, 51 F.3d 469, 473 (5th Cir. 1995), the alleged scheme must
nevertheless be one to defraud the victim. Ratcliff’s indictment
provides no basis to find a scheme to defraud Livingston Parish
through misrepresentations made to the Board of Ethics. The
misrepresentations simply did not implicate the parish’s property
rights.
The Sixth Circuit recently reached a similar result in
United States v. Turner, 465 F.3d 667 (6th Cir. 2006). In that
case, Turner was indicted on charges that, inter alia, he engaged
in a scheme to violate state campaign finance laws and to mail
false campaign finance reports to the state in order to cover up
the violations, thereby assisting the election of two state
officials who received salaries from the state while in office.
Id. at 670. The Sixth Circuit surveyed the case law and
concluded that “applying the mail fraud statute to a case of
election fraud based on a theory that the candidate attempted to
obtain money in the form of a salary would be a novel application
of the mail fraud statute.” Id. at 678. Looking to the merits
of the theory, the court determined that in the election fraud
context, “the government and citizens have not been deprived of
13
any money or property because the relevant salary would be paid
to someone regardless of the fraud. In such a case, the citizens
have simply lost the intangible right to elect the official who
will receive the salary.” Id. at 680. The court further decided
that the allegedly defrauded state had “no control over the
appropriation of the salary beyond ensuring payment to the duly
elected official,” and that “[a]lthough the salary comes from the
public fisc, there is no discretion regarding either whether or
to whom it is paid.” Id. at 682. Accordingly, the court
concluded that “there is no resulting property deprivation” from
the alleged scheme. Id.
The Government makes several arguments seeking to avoid this
conclusion here. First, the Government contends that several
courts in other circuits have embraced the so-called “salary
theory,” under which a mail fraud charge can be supported by a
scheme to use deceit to obtain a job and the salary that comes
with it. Yet even if the salary theory were to be accepted in
this circuit, the cases discussing and accepting the theory
involve situations in which a job applicant falsely represented
his qualifications or skills in order to obtain a job, deceiving
the employer into hiring or promoting someone that he would not
have otherwise hired or promoted.10 In United States v.
10
The Government contends that three circuit court cases
approve of the salary theory in an election fraud context, but
14
none of the cases provides any analysis of the issue. In United
States v. Walker, the defendant was convicted of mail fraud for
his involvement in a scheme to ensure the reelection of a
candidate for office, and the alleged objects of the scheme were
to deprive the people of his city and state of both the salary of
office and the intangible right to honest services. 97 F.3d 253,
255 (8th Cir. 1996). The only issue addressed by the Eighth
Circuit that involved the defendant’s scheme was whether the jury
instructions properly required the jury to unanimously agree on
the object of the scheme. Id. The Government points to a
footnote in which the court listed several other claims that it
found meritless, including the claim that the district court
erred by “not dismissing the indictment.” Id. at 256 n.2.
Although the Government assures us that its brief in the case
raised the salary theory to the court, the Walker footnote’s
summary disposal of the claim bears no reference to the theory or
the grounds on which the court based its ruling.
The defendant in United States v. Schermerhorn was acquitted
of mail fraud charges that alleged a scheme to conceal illegal
campaign contributions in order to defraud the state and its
taxpayers of the salary and benefits he would receive in office.
906 F.2d 66, 68 (2d Cir. 1990); United States v. Schermerhorn,
713 F. Supp. 88, 88-89 (S.D.N.Y. 1989). The defendant argued in
his appeal that the district court should have dismissed the mail
15
Granberry, for example, the defendant obtained the job of school-
bus driver by concealing a murder conviction, which would have
prevented his hiring if known to the school district. 908 F.2d
fraud counts before the trial and that the evidence introduced to
the jury in conjunction with the counts prejudiced the jury
against him on other charges of which he was convicted.
Schermerhorn, 906 F.2d at 69. The Second Circuit disagreed,
stating only that the district court did not abuse its discretion
in denying the motion to dismiss the mail fraud counts “[b]ecause
the mail fraud indictment stated a claim under the mail fraud
statute as interpreted in McNally.” Id. The opinion contains no
discussion of the court’s reasoning or the defendant’s arguments
to the court.
The Second Circuit’s earlier decision in Ingber v. Enzor,
841 F.2d 450 (2d Cir. 1988), also involved a mail fraud
conviction in an election fraud context, but only addressed the
retroactivity of the Supreme Court’s holding in McNally. As the
Government concedes, the court did not explicitly address the
salary theory, and even if the case could be read as implicitly
approving of the theory, the opinion contains no analysis of the
issue.
As none of these cases contains any reasoning relevant to
the issues presented in this appeal, we do not find them
persuasive.
16
at 279. The Eighth Circuit reversed the district court’s
dismissal of the indictment, holding that the defendant’s alleged
scheme deprived the school district of money because the district
did not get what it paid for——a school-bus driver who had not
been convicted of a felony. Id. at 280. The court also
concluded that the scheme deprived the school district of the
property right to choose the person to whom it transferred money.
Id. Similarly, the defendants in United States v. Doherty were
Boston policemen who schemed to steal copies of civil service
examinations and sell them to other policemen so that they could
cheat and obtain promotions. 867 F.2d 47, 51 (1st Cir. 1989).
The First Circuit held that such a scheme fell within the
prohibition of the mail fraud statute because it deprived the
employer “of control over how its money was spent.” Id. at 60
(quoting McNally, 483 U.S. at 360). Unlike these situations,
Ratcliff’s charged conduct posed no harm to any of Livingston
Parish’s property rights: the parish does not bargain for
elected officials of a particular quality such that Ratcliff’s
fraud could have denied it the value for which it paid, and the
parish does not have control over the recipient of the parish
president’s salary such that Ratcliff’s misrepresentations
deprived it of that control. As the Sixth Circuit summarized
when distinguishing these cases, “these examples, which address
the government’s role as employer, where job qualifications can
be economically quantified, are not analogous to an election
17
fraud case, where the government’s role is purely administrative
and the public’s role is a political one.” Turner, 465 F.3d at
682.
Responding to these distinctions, the Government contends
that if a job procurement theory can successfully support a
charge of mail fraud when a government employer is making the
hiring decision itself, the result should not change merely
because the parish has effectively delegated its hiring decision
to the electorate. We disagree, however, with the notion that
the electoral process constitutes an effective delegation of
hiring authority from the parish government to the voters. The
power to select the parish president does not originate from the
parish government, but rather is vested in the electorate under
the Louisiana Constitution and Livingston Parish’s Home Rule
Charter. See LA. CONST. art. 6, § 11 (“The electors of each local
governmental subdivision shall have the exclusive right to elect
their governing authority.”); LIVINGSTON PARISH HOME RULE CHARTER § 3-
02 (“The president shall be elected at large by the qualified
voters of the parish according to the election laws of the state
for a four (4) year term.”). Although the parish government is
obligated to pay whichever candidate the voters elect, it has no
discretion in the matter; its role is purely administrative,
“implicat[ing] the [g]overnment’s role as sovereign, not as
property holder.” Cleveland, 531 U.S. at 23-24; Turner, 465 F.3d
at 682. There is thus no basis to view the electorate as an
18
agent of the government such that false statements influencing
the voters could be viewed as a fraud on the parish.
Finally, the Government contends that the scheme alleged in
this case is no different than fraudulent contract procurement
schemes, in that courts have allowed mail fraud charges to be
brought in such situations without any actual financial loss to
the victim. But the cases cited by the Government do not address
the scope of the mail fraud statute, instead discussing whether
fraudulently procured contracts can cause a financial loss to the
victim for sentencing purposes if the contracts were properly
performed by the perpetrator of the fraud. See United States v.
Sublett, 124 F.3d 693, 695 (5th Cir. 1997); see also United
States v. Pendergraph, 388 F.3d 109, 113-14 (4th Cir. 2004);
United States v. Schneider, 930 F.2d 555, 558 (7th Cir. 1991).
Moreover, the cases only discuss loss in “a narrow financial
sense,” Schneider, 930 F.2d at 558, and one of the cases
recognized that fraud through “nonmonetizable losses” exists
where a contractor imposes a risk of loss on his employer by
misrepresenting that he meets the qualifications required by his
employer or otherwise fraudulently denies the employer of value
for which he contracted, see id. We have not suggested that a
mail fraud scheme must actually cause a financial loss to the
victim, merely that a scheme to defraud a victim of money or
property, if successful, must wrong the victim’s property rights
in some way. See McNally, 483 U.S. at 358-59. Unlike fraudulent
19
contract procurement schemes in which the employer is deprived of
value for which it contracted or control over its money, the
scheme alleged in the indictment implicates none of Livingston
Parish’s property rights.
Our analysis in this appeal also takes into account
federalism concerns, and on this front we are informed by the
Supreme Court’s decision in Cleveland v. United States, 531 U.S.
12 (2000). The defendant in Cleveland was charged with mail
fraud for obtaining a license to operate video poker machines by
means of false statements to a state licensing board. The Court
held that such a license does not constitute “property” in the
hands of the deceived state, as it is without value before being
issued, and therefore cannot support a charge of mail fraud. See
id. at 22-23. The Court further recognized that the state’s core
concern in issuing video poker licenses is regulatory rather than
proprietary and that accepting the indictment’s theory of mail
fraud would broadly expand federal criminal jurisdiction to cover
a wide range of conduct that has traditionally been regulated by
state and local governments, which the Court declined to do in
the absence of a clear statement by Congress. Id. at 20-21, 24-
25.
In construing the meaning of the terms of the mail fraud
statute, we are similarly guided by the principle that “‘unless
Congress conveys its purpose clearly, it will not be deemed to
have significantly changed the federal-state balance’ in the
20
prosecution of crimes.” Jones v. United States, 529 U.S. 848,
858 (2000) (quoting United States v. Bass, 404 U.S. 336, 349
(1971)). Like the poker licensing system at issue in Cleveland,
Louisiana law establishes a comprehensive regulatory system
governing campaign contributions and finance disclosures for
state and local elections, with state civil and criminal
penalties in place for making misrepresentations on campaign
finance disclosure reports. LA. REV. STAT. ANN. §§ 18:1505.4-
:1505.6. And like the Court in Cleveland, “[w]e resist the
Government’s reading of § 1341 . . . because it invites us to
approve a sweeping expansion of federal criminal jurisdiction in
the absence of a clear statement by Congress.” 531 U.S. at 24.
Finding a scheme to defraud a governmental entity of the salary
of elected office based on misrepresentations made during a
campaign would “subject to federal mail fraud prosecution a wide
range of conduct traditionally regulated by state and local
authorities.” Id. In practice, the Government’s theory in this
case would extend far beyond the context of campaign finance
disclosures to any misrepresentations that seek to influence the
voters in order to gain office, bringing state election fraud
fully within the province of the federal fraud statutes. The
mail fraud statute does not evince any clear statement conveying
such a purpose, and the terms of the statute, as interpreted by
Supreme Court precedent, simply do not proscribe the conduct for
which Ratcliff was indicted. See Turner, 465 F.3d at 683.
21
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
22