United States v. Selby ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30183
Plaintiff-Appellee, D.C. No.
v.  CR 05-234-BR
JANE G. SELBY, ORDER AND
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, United States District Judge, Presiding
Argued and Submitted
May 6, 2008—Portland, Oregon
Filed February 9, 2009
Before: Richard C. Tallman and Richard R. Clifton,
Circuit Judges, and Edward R. Korman,* District Judge.
Per Curiam Opinion
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
1409
1412 UNITED STATES v. SELBY
COUNSEL
Per Olson, Hoevet, Boise & Olson, P.C., Portland, Oregon,
for the appellant.
Karin J. Immergut, United States Attorney, and Kelly A. Zus-
man, Assistant United States Attorney, Portland, Oregon, for
the appellee.
ORDER
The Opinion previously filed on January 15, 2009 is with-
drawn, and the Opinion filed with this Order is filed in its
stead.
UNITED STATES v. SELBY 1413
OPINION
PER CURIAM:
Jane Selby, a former official of the Bonneville Power
Administration (“BPA”) appeals her jury conviction for hon-
est services wire fraud, in violation of 18 U.S.C. § 1343; mak-
ing false claims and statements, in violation of 18 U.S.C.
§ 1001; and felony conflict of interest, in violation of 18
U.S.C. § 208. Selby contends the district court erred by deny-
ing her motions for judgment of acquittal because the evi-
dence was insufficient to convict. We affirm the district
court’s decision.
I
Jane Selby held a significant administrative position at the
BPA, a federal agency which produces and transmits power
throughout the Pacific Northwest. She was one of three “Tier
3 managers” in the Transmission and Marketing Division and
appears to have been the most trusted of the three by her
supervisor, Charles Meyer, BPA’s Vice President of Trans-
mission and Sales. At the time of the events at issue here,
Meyer had assigned Selby to a special detail to determine why
various information technology projects were behind schedule
and over budget, and to work alongside other Tier 3 managers
in the department to help complete the projects. Selby’s
assignment was to help manage the transition to the new com-
puter system, along with Mark Reynolds, the Tier 3 manager
in charge of BPA’s information technology staff, and Lorie
Hoffman, the Tier 3 manager in charge of the transmission
scheduling staff. Selby also served as acting Vice President
when Charles Meyer was away.
Jane Selby is married to Scott Selby. In March 2002, Scott
Selby was hired as a salesman by a software company called
Knowmadic, Inc., during the time it was seeking to expand
the scope of an existing agreement to sell software (“ASCI”
1414 UNITED STATES v. SELBY
or “ASCI/CWI”) to BPA. Jane Selby had approached Know-
madic’s Vice President about hiring her husband, telling him
that Scott was “very computer literate and savvy. And that he
had been unemployed for quite a long time, and was looking
for a job.” Knowmadic then hired Scott and assigned him to
the BPA account to work on-site at BPA’s Vancouver, Wash-
ington, office. Scott earned a base salary plus commissions.
His duties included the sale of Knowmadic products to BPA
and persuading other public power customers to sign up to use
the ASCI system.
BPA and Knowmadic entered into an initial agreement on
May 11, 2001, for the purchase of ASCI software. Jane Selby
was not involved in the negotiations for this initial procure-
ment agreement. However, she subsequently promoted exten-
sive additional use of Knowmadic’s software and participated
in the decision-making process to implement further use of
Knowmadic’s products. This activity led to her indictment for
violating 18 U.S.C. § 208, which prohibits covered federal
employees from certain kinds of participation in the decision-
making process on federal contracts or matters in which the
employee or her spouse as a financial interest, and related
counts of wire fraud in violation of 18 U.S.C. § 1343, making
a false statement during the course of an inspector general
investigation of her conduct in violation of 18 U.S.C. § 1001,
and witness tampering in violation of 18 U.S.C. § 1512.
A jury in the United States District Court for the District of
Oregon returned a guilty verdict on the conflict of interest,
wire fraud, and false statement counts, and a not guilty verdict
on the witness tampering count. Selby was sentenced to five
years probation on each count of conviction. On appeal, she
challenges the sufficiency of the evidence on each of the three
counts.
II
The district court had jurisdiction under 18 U.S.C. § 3231.
We have appellate jurisdiction under 28 U.S.C. § 1291. We
UNITED STATES v. SELBY 1415
review de novo whether sufficient evidence exists to support
a conviction where the defendant moves for acquittal at the
close of the government’s evidence. See United States v.
Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). Sufficient evi-
dence exists when, “viewing the evidence in the light most
favorable to the prosecution, [a] rational trier of fact could
have found the elements of [each of] the crime[s] proved
beyond a reasonable doubt.” United States v. Bailon-Santana,
429 F.3d 1258, 1262 (9th Cir. 2005).
III
[1] We first address Selby’s claim that the evidence was
insufficient to support her conviction under 18 U.S.C. § 208.
Under 18 U.S.C. § 208(a), it is unlawful for an executive
branch employee to participate “personally and substantially
. . . through decision, approval, disapproval, recommendation,
the rendering of advice, investigation, or otherwise” in a
“contract, claim, controversy . . . or other particular matter,”
with the knowledge that she or her spouse has a financial
interest in the matter. At issue here is the scope of conduct
proscribed by the statute. Selby contends her conduct related
to the ASCI project did not fall within the scope of conduct
contemplated by the statute. Specifically, she contends that
the evidence was insufficient to establish that she participated
substantially in the ASCI project, or that she knowingly or
willfully violated the law. We consider the scope of each of
these elements of the offense in light of the evidence adduced
at trial supporting the verdict.
A. Substantial Participation
Selby argues that § 208 does not apply because her partici-
pation with the ASCI project occurred “post-procurement,
i.e., after BPA had signed a contract with Knowmadic and
after BPA had committed itself financially to the endeavor.”
Because her conduct “occurred during the implementation of
1416 UNITED STATES v. SELBY
the ASCI project, and had nothing to do with contracting,
invoicing, or the taking of delivery of goods and services,”
she argues that the type of activity in which she engaged was
“not proscribed by the statute.” The statute is broader than the
narrow interpretation Selby urges upon us.
[2] We have not previously considered the precise scope of
§ 208’s “participation” requirement. In United States v. Irons,
640 F.2d 872 (7th Cir. 1981), the Seventh Circuit undertook
an extensive analysis of the legislative history of 18 U.S.C.
§ 208, and concluded that it “demonstrates an intention to
proscribe rather broadly employee participation in business
transactions involving conflicts of interest and to reach activi-
ties at various stages of these transactions . . . [The scope of
18 U.S.C. § 208 includes] acts which [lead] up to the forma-
tion of the contract as well as those . . . which might be per-
formed in the execution of the contract.” Id. at 877. We
adopted much of this analysis in United States v. Jewell, 827
F.2d 586 (9th Cir. 1987),1 where we explained:
the import of the Seventh Circuit’s statement is
clear: liability for conflict of interest may be founded
on a variety of acts leading up to the formation of a
contract even if those acts are not specifically men-
tioned in the text of section 208(a). The section’s
“catch all” language (“participates . . . through deci-
sion, approval, recommendation, the rendering of
advice, investigation, or otherwise. . . .”) was
designed to allow prosecution on the basis of any
type of action taken to execute or carry to comple-
tion a contract.
Id. at 587 (emphasis in original).
1
In Jewell, we held that separate acts of participation did not support
separate counts of liability, but did not consider which acts fell within the
statute. 827 F.2d at 588.
UNITED STATES v. SELBY 1417
[3] We reiterate our agreement with the Seventh Circuit.
The wording Congress chose is broader than the narrow inter-
pretation Selby urges. We hold that where, as here, an
employee suffers from a conflict of interest, liability may lie
for actions taken after the initial procurement is authorized.
Where Selby continued to actively participate in BPA’s inter-
nal agency deliberations leading up to its decisions to expand
the scope of the work to be done by Knowmadic, and where
Selby continued to recommend or urge co-workers to recom-
mend expansion of the contract, and the result was additional
procurement resulting in additional sales commissions to be
paid to her husband, Selby violated § 208.
This broad reading of § 208 comports with our sister cir-
cuits’ approach to this statute. The Fifth Circuit, in United
States v. Nevers, 7 F.3d 59, 61-62 (5th Cir. 1993), examined
the legislative history of § 208 and concluded Congress had
intended to correct the “fundamentally defective” predecessor
statute, which “allow[ed] public officials to engage in a large
number of activities which were wholly incompatible with the
duties of public office” by broadening the provision to
embrace “any participation on behalf of the Government in a
matter in which the employee has an outside financial inter-
est.” Id. at 62 (emphasis in original). The Seventh Circuit in
Irons confirms this reading of the statutory history, conclud-
ing the revised § 208 “was enacted with the purpose of broad-
ening rather than narrowing the scope of covered business
activity.” Id. at 876. It rejected the contention that the statu-
tory language limited its applicability to “matters generally
preliminary to the formation of the contract.” Id.
Selby claims the Sixth Circuit’s approach in United States
v. Ponnapula, 246 F.3d 576 (6th Cir. 2001), would preclude
liability here because that circuit interpreted the phrase “per-
sonally and substantially” to exclude employees “performing
purely ministerial or procedural duties.” Specifically, the
Sixth Circuit held that an attorney hired by the government to
act as the trustee in a foreclosure sale did not participate “sub-
1418 UNITED STATES v. SELBY
stantially” in the formation of a contract for sale, where her
conduct was limited to publishing legal notices of the sale and
performing administrative tasks at the closing. Id. at 583. The
court concluded that “[a] statute aimed at preserving the
integrity of the decisionmaking process does not need to
extend to employees who have no discretion to affect that pro-
cess.” Id. Selby also points to the language of the holding in
Irons—“acts which comprise execution of the contract”—to
argue that, because her involvement with ASCI occurred only
after the original contract was signed, the statute does not
apply here.
Neither Ponnapula nor Irons support Selby’s claims
because the record reveals that she did have a significant dis-
cretionary role in the ASCI contract, and that she was
involved in the deal while there was still opportunity to
change the financial outcome. Selby’s involvement was not,
as she characterizes it, merely ministerial or purely “post-
contractual.” Notwithstanding her lack of official decision-
making authority over the ASCI project, the evidence at trial
was sufficient for a jury to find that Selby could and did influ-
ence the decision process in favor of Knowmadic.
BPA and Knowmadic entered into the initial contract on
May 11, 2001. It provided for the purchase of one copy of the
Knowmadic software, associated maintenance, and related
technical support. Selby was not involved in negotiations for
this contract. In the spring of 2002, BPA was approaching an
important deadline for the implementation of a major auto-
mated ordering function for its electricity customers. The soft-
ware BPA had planned to use, ETMS, would apparently not
be ready on time. Knowmadic’s ASCI software was an alter-
native to ETMS, and Knowmadic met with BPA staff to dis-
cuss the possibility of expanding ASCI use.
The evidence shows that Selby actively sought to counter
internal opposition to the expanded use of ASCI. Lorie Hoff-
man, the Tier 3 manager in Transmission and Marketing Divi-
UNITED STATES v. SELBY 1419
sion, whose department the ASCI program was designed to
support, was outspoken in her opposition to expanded use of
ASCI. She was opposed to the ASCI program because BPA
“had a number of resources being used, a number of people
being used to develop the ETMS system” and because a lot
of money had been expended and it was “going to be moving
into our new scheduling system.” She and others in the sched-
uling group expressed concern that “we had multiple kind[s]
of tasks and multiple applications . . . being developed at the
same time, and it seemed to be diverting us from what we
thought we were trying to accomplish with the ETMS sys-
tem.” Selby attempted to counter this argument in internal
communications with BPA staff. When the project manager,
Exe, drafted an announcement about the proposed change,
Selby added language indicating BPA had been doing busi-
ness with Knowmadic since 2001 in direct response to the
objections to diverting resources away from the existing plan.
On March 29, 2002, BPA and Knowmadic entered into a
second “contract” for the provision of ASCI software and
hardware, amending the May 11, 2001, agreement. The
March 29, 2002, agreement provided for additional services
to be procured on a time-and-materials basis, not to exceed
$2,401,250.00, and a performance period of March 29, 2002,
to July 1, 2002. Significantly, unless BPA chose to sign spe-
cific work orders for materials and new services, Knowmadic
would not derive any benefit from the March 29, 2002, agree-
ment.
BPA proceeded to implement Knowmadic’s ASCI software
on a broader basis than originally contemplated. BPA manag-
ers discussed even further expansion of ASCI capabilities,
and Reynolds testified he consulted with Selby “at least week-
ly” about how BPA’s resources should be allocated among
various projects, including ASCI and ETMS. Reynolds
believed Selby favored expanding ASCI rather than ETMS.
When Exe gave an internal presentation describing ASCI and
explaining why BPA was supporting ASCI over ETMS, Selby
1420 UNITED STATES v. SELBY
arranged for other staff members to ask questions to convey
the impression that ASCI enjoyed support among the staff.
Reynolds testified that Selby was “instrumental” in arranging
for cash awards for BPA staff members who were involved in
the ASCI project. Selby acknowledges in her opening brief
that “[t]he evidence showed that [she] advocated for ASCI/
CWI at a time when there was internal resistance, and that she
discussed with [the project manager] ways to address those
concerns.”
By August 2002 it was apparent that ETMS would not be
functional anytime soon, and BPA began considering expand-
ing ASCI as a permanent replacement for ETMS. As we dis-
cuss below, Selby improperly forwarded an internal e-mail
about the agency’s deliberations to her husband Scott at
Knowmadic. Selby was aware that the other Tier 3 managers
“still had outstanding issues on whether to actually implement
[ASCI].” She suggested to Charles Meyer, the BPA Vice
President in charge of Transmission Marketing and Sales, that
he “intervene and bring it to a closure.” She then scheduled
a meeting with the various players on August 26, 2002, for
the purpose of deciding whether to proceed with hourly
scheduling. At the meeting Selby advocated going forward.
The managers finally agreed to recommended that BPA pro-
ceed to expand ASCI, and set September 10 as the deadline
for implementing the new functions.
Later the same week, Reynolds discussed additional pur-
chases by BPA in connection with adding new functions to
ASCI with Scott Selby and Knowmadic sales representatives.
On August 30, 2002, Reynolds signed two work authoriza-
tions for the purchase of additional software licenses, servers,
and consulting services for the ASCI program. These pur-
chase orders added up to $2,750,000, from which Scott Selby
would receive commissions.
In October 2002, Selby was promoted to internal operations
manager, which gave her supervisory authority over Reyn-
UNITED STATES v. SELBY 1421
olds, the information technology manager. That month,
BPA’s procurement officer investigated invoices from Know-
madic and noted the authorizing documents had not gone
through the regular procurement process. He met with Know-
madic representatives, including Scott Selby, and learned
Scott was Jane Selby’s husband. He informed Knowmadic
that the situation was inappropriate and “could not continue.”
He also testified that Reynolds told Knowmadic representa-
tives that Selby “was still trying to find a way to keep the deal
together for the 2 million 750.” Following an internal investi-
gation of the Knowmadic relationship and disputed invoices,
BPA and Knowmadic settled on a payment of approximately
$1,300,000, for which Scott Selby received a commission of
$10,493.52.
[4] This evidence provided ample basis from which the jury
could reasonably find that what Jane Selby refers to as her
“post-contractual” activities actually constituted significant
participation in an ongoing procurement process. While her
activities may have post-dated the May 11, 2001, basic con-
tract, Selby exercised substantial influence over the decision-
making process at the time when BPA was most aggressively
expanding its contractual relationship with Knowmadic by
expanding the scope of the vendor’s work. Based on this evi-
dence, any rational trier of fact could have found beyond a
reasonable doubt that Selby participated substantially in the
ASCI matter.
B. Knowledge
[5] Selby next argues the evidence was insufficient for the
jury to find that she acted knowingly. The text of § 208 pro-
hibits participation by a government employee in matters
which, “to his knowledge,” he or his spouse has a financial
interest. The district court instructed the jury that the govern-
ment must prove that Selby “knew about the financial interest
and knew her participation would have a direct and predict-
able effect . . . [i]n other words, that there was a close causal
1422 UNITED STATES v. SELBY
link between her alleged participation in the matter and the
expected effect of the matter on [the] financial interest.” The
question is whether the jury had sufficient evidence to over-
come Selby’s testimony regarding her own state of mind.
Selby testified at trial and now argues on appeal that she
did not know her actions would affect her husband’s compen-
sation. We have held that “[a] trier of fact is not compelled
to accept and believe the self serving stories of vitally inter-
ested defendants.” United States v. Cisneros, 448 F.2d 298,
305 (9th Cir. 1971). Moreover, “[d]isbelief of a defendant’s
own testimony may provide at least a partial basis for a jury’s
conclusion that the opposite of the testimony is the truth.”
United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975);
see also United States v. Price, 623 F.2d 587, 591 (9th Cir.
1980). Instead, we look to whether the evidence of her action
provided a sufficient basis for the jury to conclude that Selby
acted with knowledge of the likely financial outcome.
Selby contends the evidence was insufficient to show that
she knew her participation would have a direct and predict-
able effect because it was unclear what effect the decision to
proceed with expanding ASCI capabilities would have on the
Knowmadic contract. In particular, she contends that the func-
tion added in August and September 2002 “was built into the
ASCI tool from the beginning” and “was not an enhance-
ment.”
However, the jury heard testimony from several witnesses
that the decision to proceed with the hourly function would
involve substantial additional work by Knowmadic. An
employee of a Knowmadic subcontractor who worked on the
ASCI project testified that adding the hourly function “would
mean revamping the entire application.” This dovetailed with
the testimony of Mark Reynolds, who agreed that this addi-
tion of the hourly scheduling function “involve[d] additional
software development work by technology specialists.”
UNITED STATES v. SELBY 1423
Additionally, on August 22, Selby forwarded to her hus-
band an internal draft e-mail, which had also been sent to her
for her input. After summarizing “a few points to make sure
that [he] had captured what we had discussed,” the draft e-
mail concluded with a statement by Reynolds that he
“[would] be giving the ‘green light’ to include hourly prod-
ucts as part of the production roll out of ASCI/CWI. Reynolds
testified that the e-mail, which provided the basis for the wire
fraud count, contained “inside information.” Significantly,
Selby acknowledged that “[i]n retrospect [she] should have
asked Mark [Reynolds]” before she sent it to her husband.
Given their intimate relationship, forwarding an internal
office e-mail could rationally be explained by her knowledge
of Scott’s financial interest in the matter.
Moreover, the jury heard evidence that Selby had com-
pleted two conflict of interest memoranda during the period
at issue. When Reynolds learned Scott Selby had been hired
at Knowmadic, he told Selby it was necessary to follow the
agency’s conflict of interest disclosure procedures. BPA’s
ethics officer confirmed it was necessary for Selby to recuse
herself from Knowmadic matters. On June 11, 2002, Selby
circulated her first recusal memorandum within BPA. In rele-
vant part, the memorandum reads as follows:
I am seeking to disqualify myself from decisions
related to the use of the Knowmadic software prod-
uct because of a Conflict of Financial interest. I have
a personal financial interest in Knowmadic because
my spouse is an employee of the company.
The jury also received evidence that Selby’s second recusal
memorandum contained false information. Selby filed the sec-
ond memorandum on January 13, 2003, just after BPA com-
pleted its internal investigation of the disputed Knowmadic
invoices. The memorandum incorrectly states that Scott Selby
became a Knowmadic employee in June 2002, rather than
April 2002. Selby testified that she put down the wrong date
1424 UNITED STATES v. SELBY
by mistake. However, the jury was entitled to draw an adverse
inference that she acted with wrongful intent by deliberately
misstating the dates of her husband’s employment with
Knowmadic.
[6] Ultimately, the jury was entitled to conclude Selby
knew that promoting additional ASCI functionality would
lead directly to a broader contractual relationship with Know-
madic, and in turn, financial gain for her husband, who earned
commissions on sales to BPA. In light of Selby’s recusal
memoranda, the jury could also conclude Selby specifically
knew of her husband’s financial interest during the period
covered by her “mistake” in dates, the very sort of ethical
dilemma proscribed by § 208.
C. Willfulness
Selby also argues the evidence was insufficient to prove
she “did not act in willful violation of the law.” The willful-
ness requirement arises under 18 U.S.C. § 216(a)(2), the pen-
alty provision relating to § 208. The district court instructed
the jury that the government was required to prove that Selby
acted “with the purpose of violating a known legal duty.”
Selby contends there is insufficient evidence that she acted
willfully because the BPA ethics advisor told her that “she
could participate in implementation, as long as she stayed
away from contract negotiations and other financial matters.”
[7] Upon meeting with BPA’s ethics advisor, Selby pre-
pared and signed her first recusal memorandum. This memo-
randum, circulated on June 11, 2002, declared Selby’s
disqualification from “decisions related to the use of the
Knowmadic software product.” Both Selby and the ethics
officer signed the document. The record therefore supports
the conclusion that during the spring of 2002, Selby knew and
acknowledged that BPA’s ethics rules required her complete
disqualification from the decisionmaking process.
UNITED STATES v. SELBY 1425
[8] As discussed above, Selby did not in fact stay away
from contract and financial matters. She actively participated
in deliberations at a time when BPA was expanding its busi-
ness relationship with Knowmadic. Though Selby testified
that she was merely participating in “implementation,” in
accordance with the ethics officer’s advice, the jury was not
required to credit her testimony. The evidence was sufficient
for a rational juror to conclude that Selby had willfully vio-
lated § 208.
IV
Selby also challenges her conviction for making false state-
ments under 18 U.S.C. § 1001, which prohibits giving false
information in any matter within the jurisdiction of a depart-
ment or agency of the United States. A conviction under
§ 1001 requires the government to prove beyond a reasonable
doubt that the defendant: 1) made a statement, 2) that was
false, and 3) material, 4) with specific intent, 5) in a matter
within the agency’s jurisdiction. United States v. Camper, 384
F.3d 1073, 1075 (9th Cir. 2004). Selby challenges the suffi-
ciency of the evidence of materiality and intent.
A. Materiality
The false statement at issue appears in Selby’s second
recusal memorandum. As discussed above, Selby indicated in
the memorandum that Scott began working for Knowmadic
on June 1, 2002, when in fact he started on April 1, 2002.
Selby contends the updated memorandum was written to
clarify the scope of her recusal following Scott’s resignation
from Knowmadic, and the statement had no connection to
BPA’s decisions about Selby’s recusal. However, as the dis-
trict court noted, the relevant agency decisions for purposes
of the statement’s materiality are BPA’s decisions about the
disputed Knowmadic invoices, worth over $2,750,000. The
false statement as to Scott’s employment dates—and therefore
1426 UNITED STATES v. SELBY
his entitlement to commissions from sales she influenced
within the agency—was relevant for the BPA’s analysis
regarding the scope and length of the conflict of interest.
[9] A rational juror could have found that Selby’s false
statement regarding her husband’s start date was material to
the agency’s decisionmaking.
B. Intent
Selby also contends the evidence was insufficient to prove
she intended to make the false statement to the BPA. She
maintains the misstatement was merely an inadvertent mis-
take.
The jury was entitled to conclude otherwise. As we have
noted in other criminal fraud contexts, “[i]t is settled law that
intent to defraud may be established by circumstantial evi-
dence.” United States v. Milwitt, 475 F.3d 1150, 1162 (9th
Cir. 2007) (quoting United States v. Rogers, 321 F.3d 1226,
1230 (9th Cir. 2003)); see also United States v. Bucher, 375
F.3d 929, 934 (9th Cir. 2004) ( “Culpable intent can be
inferred from the defendant’s conduct and from the surround-
ing circumstances”).
[10] Selby made the false statement under circumstances
that support a reasonable inference that she knew it was false.
Viewing the evidence in the light most favorable to the prose-
cution, any rational juror could have found that Selby acted
with the required intent.
V
Finally, Selby contends the evidence at trial was insuffi-
cient to support her conviction of wire fraud under 18 U.S.C.
§ 1343. The charge at trial alleged Selby sent the August 22
e-mail to her husband in furtherance of a scheme to deprive
BPA of its right to honest services. A conviction under § 1343
UNITED STATES v. SELBY 1427
requires the government to prove: 1) a scheme to defraud, 2)
use of the wires in furtherance of the scheme, and 3) specific
intent to defraud. 18 U.S.C. § 1343; United States v. Sullivan,
522 F.3d 967, 974 (9th Cir. 2008). Selby challenges the suffi-
ciency of the evidence on all three elements.
A. Scheme to Defraud
First, she claims that because the evidence was insufficient
to support the conflict of interest conviction, it was necessar-
ily insufficient to support the conviction for wire fraud under
18 U.S.C. § 1343. In particular, she claims that she “did not
fail to disclose her husband’s financial interest in Know-
madic; nor did she secretly influence decision-making with
regard to the ASCI project.”
[11] However, as discussed above, we find the evidence
was sufficient for a rational juror to conclude that Selby had
a conflict of interest in violation of § 208, and that she had not
been entirely candid in disclosing that conflict to her
employer. The jury was not required to credit her testimony
that she had made the sort of complete and honest disclosure
that would defeat a wire fraud charge. Therefore, the evidence
was sufficient for a rational juror to conclude she had engaged
in a scheme to defraud BPA. 18 U.S.C. § 1346 (amending
fraud statutes to include schemes to deprive another of the
“intangible right of honest services”); see United States v.
Bohonus, 628 F.2d 1167, 1171 (9th Cir. 1980) (“The requisite
‘scheme or artifice to defraud’ is found in the deprivation of
the public’s right to honest and faithful government.”).
B. Use of the Wires
[12] Second, Selby claims her use of the wires was not in
furtherance of the scheme. However, the use of the wires need
not be an essential element of the scheme in order to further
the scheme. See United States v. Shipsey, 363 F.3d 962, 971
(9th Cir. 2004); United States v. Lo, 231 F.3d 471, 478 (9th
1428 UNITED STATES v. SELBY
Cir. 2000). The internal e-mail Selby forwarded to her hus-
band, which documented BPA’s debate on whether to expand
ASCI, is sufficient to establish the element of the use of the
wires in furtherance of the scheme.
C. Intent
Finally, Selby claims the government failed to prove that
she intended to deceive the BPA. She argues that although she
should not have forwarded the e-mail, it does not show intent
“to deceive her employer or to secretly pass on information to
Knowmadic.”
[13] As we discussed above, the jury was entitled to reject
Selby’s testimony regarding her intent. Extensive evidence
showed that Selby was actively involved in promoting addi-
tional business between BPA and Knowmadic, in which her
husband had a financial interest, in violation of the fraud stat-
ute. She forwarded to her husband an e-mail discussing
BPA’s internal deliberations just before BPA informed
Knowmadic that it planned to expand the use of ASCI. Given
these circumstances, a rational juror could have found that
Selby forwarded the internal email to her husband with “cul-
pable intent.” See Bucher, 375 F.3d at 934.
VI
Viewing this evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the
essential elements of all three crimes beyond a reasonable
doubt. Because the evidence established that the defendant
knowingly violated § 208 and the related provisions of Title
18 with which she was charged, her judgment of conviction
is AFFIRMED.