United States v. Frank Runnels, (86-1923), Arnold Shapero, (86-1922) , 842 F.2d 909 ( 1988 )

BOGGS, Circuit Judge.

In his petition for rehearing, Shapero points out that he did not plead guilty to the original indictment brought against him and Runnels, the indictment on which Runnels was ultimately tried. Instead, Shape-ro pled guilty to a superseding information which specifically charged him only with a scheme intended “to defraud the members of local 22 ... of the right to have the business of Local 22 conducted honestly, fairly ..., free from corruption ... and fraud.” Thus, he was not charged with, nor did he plead guilty to, acts falling within the general ambit of the mail fraud statute, such as the act of depriving the union members of a benefit that might otherwise have been available to them. The Supreme Court has now indicated that a mail fraud conviction may rest on the deprivation of benefits that have monetary value, though they are not in a sum that has been liquidated, or perhaps even subject to ascertainment, Carpenter v. United States, — U.S. —, 108 S.Ct. 316, 321, 98 L.Ed.2d 275 (1987). However, Shapero was not charged with such a crime. Therefore, Shapero’s conviction based on his guilty plea must be REVERSED, and the case REMANDED to the district court with instructions to dismiss the information.

We express no opinion on whether the government may properly present a new indictment or information to which Shapero may then plead. See Montana v. Hall, — U.S. —, 107 S.Ct. 1825, 1826-27, 95 L.Ed.2d 354 (1987).

In the case of Runnels, on the other hand, the indictment and the jury instructions encompassed the mail fraud statute in the broadest terms of the statutory language. He was tried for, had an opportunity to defend against, and was convicted of fraud in its common meaning. The indictment in Count One charges a conspiracy based on a “scheme or artifice to defraud in violation of 18 U.S.C. 1341; the scheme and artifice was intended; ... (b) to obtain money by means of false and fraudulent pretenses.... ” Count Two charges mail fraud by causing mailings for the “purpose of executing the aforementioned scheme and artifice....”

The judge instructed the jury that the government’s theory was based on the indictment, and that an essential element of Count One was “[t]hat the conspiracy described in the indictment was willfully formed ...;” (emphasis supplied). He also instructed on Count Two in the words of the statute, adding that the words “scheme” and “artifice” in the statute “include any plan ... to deprive the members of [local 22] of intangibles.... ” (emphasis supplied). However, the instruction was not limited to the “intangible rights” theory. It also permitted the jury to convict if it believed that Runnels’s actions did constitute a conventional fraud. The court also instructed that the defense’s case was based on the theory that Runnels took no money at all, and, in the alternative, that any money he took was in no way money of the union members. Thus, the jury had a conventional fraud theory before it, as well as the improper “intangible rights” theory.

As indicated in Carpenter v. United States, — U.S. at —, 108 S.Ct. at 321, the mail fraud statute is broad enough to encompass the deprivation of any real benefit, including those growing out of a fiduciary obligation. That is exactly what we have in this case. There is nothing about Runnels’s situation that would remove it from the conventional analysis, set out in our original opinion, that allows a conviction to stand in certain types of cases even though one underpinning of the conviction has been swept away. The jury’s verdict shows conclusively that it found every item necessary to support all elements of a conviction under the mail fraud statute. There has thus been no unfairness, procedural or substantive, to Runnels and his conviction is AFFIRMED.