United States v. Nelson Italiano , 837 F.2d 1480 ( 1988 )

HATCHETT, Circuit Judge:

In this criminal appeal, we are called upon to determine whether the Supreme Court’s recent interpretation of the federal mail fraud statute in McNally v. United States, 483 U.S. -, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) is applicable in a slightly different factual scenario. Holding that McNally applies, we vacate the conviction and judgment.

FACTS

Appellant, Nelson A. Italiano worked for Coaxial Communications of the Suncoast, Inc. (Coaxial Communications), a corporation formed for the purpose of obtaining a cable television franchise contract with the city of Tampa, Florida. In seeking to obtain the city of Tampa franchise, Coaxial Communications decided to establish a presence in the area by securing franchises in the neighboring city of Temple Terrace and in Hillsborough County. Although less lucrative, Coaxial Communications’ management believed that the establishment of these franchises would enhance the company’s chances of obtaining the city of Tampa franchise.

In the spring of 1980, Italiano approached Charles F. Bean, a Hillsborough County commissioner, and indicated to Bean that Coaxial Communications was interested in obtaining a cable television franchise. Italiano told Bean that the owner of Coaxial Communications was a wealthy man and that Bean might anticipate amassing great wealth if he supported Coaxial Communication’s efforts to obtain the cable television franchise. After having conversations with fellow-commissioners Robert Curry and Jerry Bowmer, Bean learned that Curry and Bowmer were also committed to supporting Coaxial Communication’s efforts to be awarded the franchise.

On June 11, 1980, by a margin of three-to-two, the Hillsborough County Board of County Commissioners voted to grant a cable television franchise to Coaxial Communications. County Commissioners Bean, Curry, and Bowmer voted for Coaxial Communications; Commissioners Platt and Da-vin voted against Coaxial Communications. On July 23, 1980, the Hillsborough County Commission ratified the contract between Hillsborough County and Coaxial Communications by an identical three-to-two vote.

Between the time of the awarding of the franchise contract and its ratification, Itali-ano gave Bean envelopes containing $2,500 in cash on at least two occasions. On each occasion, Italiano told Bean that the money was from Dennis McGillicuddy, a principal of Coaxial Communications.

Ultimately, Coaxial Communications did not obtain the cable television franchise for the city of Tampa. Coaxial Communications, having obtained the franchise for the county of Hillsborough, sold that franchise and left the area.

PROCEDURAL HISTORY

In May, 1985, a federal grand jury in the Middle District of Florida returned a forty-five count indictment charging twenty-five individuals and five corporations with racketeering, fraud, extortion, obstruction of justice, and several Travel Act offenses relating to a widespread bribery scheme within Hillsborough County, Florida. The grand jury charged appellant, Italiano, with a single count of mail fraud in violation of 18 U.S.C. § 1341.

On July 10, 1985, Italiano moved to dismiss the indictment on the ground that the mail fraud statute “was only intended to reach schemes that have as their goal an economic loss suffered by the victims and not an intangible right to good government.” The district court, on December 10, 1985, denied that motion, along with all others which were pending. A jury found Italiano guilty of mail fraud, as charged in Count IV of the indictment. The district court sentenced him to two years confinement in the custody of the Attorney General.

ISSUE

The sole issue in this appeal is whether the district court erred by denying Itali-ano’s motion to dismiss the indictment on the ground that it failed to allege that the county or state was deprived of property or money by the alleged scheme.

DISCUSSION

Italiano, relying upon the Supreme Court’s recent pronouncement in McNally v. United States, 483 U.S.-, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) that the federal mail fraud statute is not implicated based on the intangible right of the citizenry to good government, argues that the district court erred by not dismissing the indictment. Italiano argues that the indictment charged that he violated the mail fraud statute, but did not charge that the state or county was deprived of any money or property as a result thereof.

In response, the government admits that the indictment does not charge a deprivation of money or property. It argues, however, that a state bribery violation is still actionable under the mail fraud statute, even in light of McNally, if it is calculated to deprive its victim of money or property.

A. The Indictment

“A grand jury indictment must set forth each essential element of an offense in order for a resulting conviction to stand.” United States v. Outler, 659 F.2d 1306 (11th Cir.1981) (citing Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). This rule serves a twofold function. First, it comports with the sixth amendment requirement that each criminal defendant “be informed of the nature and cause of the accusation.” Inclusion of the essential elements of the offense in an indictment will provide the accused with the minimal information necessary to satisfy this requirement. Second, and more relevant to the facts of this case, is that the fifth amendment right to an indictment for defendants charged with serious crimes is only furthered where the grand jury is able to properly perform its fact-finding function. As we stated in Out-ler, “[a] grand jury can perform its function of determining probable cause and returning a true bill only if all elements of the offense are contained in the indictment.” Outler, 659 F.2d at 1310.

With this view in mind, we review Count IV of the indictment in which Italiano is charged with mail fraud in violation of 18 U.S.C. § 1341.¹ The essential elements of a mail fraud prosecution are (1) a scheme to defraud and (2) the use of the mails in execution or furtherance of that scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954); United States v. Sawyer, 799 F.2d 1494, 1501-02 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 961, 93 L.Ed.2d 1009 (1987).

Prior to the Supreme Court’s pronouncement in McNally, several circuit courts of appeals had affirmed mail fraud convictions under expansive interpretations of the mail fraud statute. One theory which emerged as a result of liberal interpretation of the mail fraud statute is the “intangible rights doctrine.” This doctrine, based on the theory that citizens have a right to honest and impartial government, has historically served as a vehicle by which the government has sought mail fraud convictions against government officials. See, e.g., United States v. Von Barta, 635 F.2d 999, 1005-06 (2d Cir.1980), cert. denied, 450 U.S. 998, 101 S.Ct. 1703, 68 L.Ed.2d 199 (1981); United States v. Keane, 522 F.2d 534 (7th Cir.1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976); United States v. States, 488 F.2d 761, 766 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974).

As explained by the Sixth Circuit in United States v. Gray, 790 F.2d 1290 (6th Cir.1986), rev’d sub nom., McNally v. United States, 483 U.S. -, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), these cases

are premised on an underlying theory that a public official acts as ‘trustee for the citizens and the State ... and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty’ to the citizens and the State. The logic continues that, as the cestui, the public is entitled to the faithful and disinterested services of government servants and employees, and a public official may not deprive the public of its rights.

Gray, 790 F.2d at 1294 (quoting United States v. Mandel, 591 F.2d 1347, 1363 (4th Cir.), aff'd in relevant part, 602 F.2d 653 (4th Cir.1979) (in banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980) (citation omitted)).

McNally has emasculated the vitality of the intangible rights doctrine. In McNally, a public official of the Commonwealth of Kentucky and another person were indicted for engaging in a kickback scheme whereby the government official, acting on behalf of the commonwealth, used his political influence to direct governmental insurance business to insurance companies in which the defendants had undisclosed financial interests. After a jury convicted the defendants on mail fraud and conspiracy counts and the court of appeals affirmed those convictions, the defendants appealed on the ground that the alleged kickback scheme was not cognizable under the federal mail fraud statute.²

The Supreme Court in McNally observed that the sparse legislative history underlying section 1341 “indicates that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.” McNally, 483 U.S. at -, 107 S.Ct. at 2879, 97 L.Ed.2d at 300. Furthermore, the Court continued, Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896), “the first case in which [the] Court construed the meaning of the phrase ‘any scheme or artifice to defraud,’ held that the phrase is to be interpreted broadly insofar as property rights are concerned, but did not indicate that the statute had a more extensive reach.” McNally, 483 U.S. at-, 107 S.Ct. at 2879, 97 L.Ed.2d at 300. Thus, the Court ultimately concluded that “[r]ather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure in good government for local and state officials, we read section 1341 as limited in scope to the protection of property rights.” McNally, at -, 107 S.Ct. at 2881, 97 L.Ed.2d at 302.

Having determined that the mail fraud statute was not intended to protect the intangible right of the citizenry to have public officials perform their duties honestly, the Court observed that nothing in the jury charge required the jury to find that the commonwealth was deprived of money or property. McNally, at-, 107 S.Ct. at 2881, 97 L.Ed.2d at 302. Neither, the Court continued, was the jury charged “that in the absence of the alleged scheme the Commonwealth would have paid a lower premium or secured better insurance” or that in order to convict, the jury “must find that the Commonwealth was deprived of control over how its money was spent.” McNally, at -, 107 S.Ct. at 2882, 97 L.Ed.2d at 302. Rather, as the Court understood the jury charge, it was sufficient for the jury to find that the defendants had breached a fiduciary duty of failing to disclose their conflicts of interest, thereby depriving the commonwealth of its right to a fair and honest government. Hence, finding that the jury instructions on the mail fraud count permitted a conviction for conduct not within the purview of the mail fraud statute, the Court reversed the convictions.³ McNally, at-, 107 S.Ct. at 2882, 97 L.Ed.2d at 303.

The indictment in this case is fatally flawed for the same reason that the jury instructions in McNally were infirm. Far more instructive than our mere statements applying McNally, however, are the revelations gained through a comparison of the jury instructions in McNally and the indictment in this case. Count III of the Italiano indictment alleges that Italiano, along with others,

knowingly and willfully devised and intended to devise a scheme and artifice to defraud the citizens of Hillsborough County, and the citizens of the State of Florida generally of their right to the following:

a. conscientious, loyal, faithful, disinterested and unbiased services, decisions, actions and performance of official duties of the Board of County Commissioners, Hillsborough County, Florida; and

b. to have the business of the Board of County Commissioners, Hillsborough County, Florida, and its affairs conducted honestly and impartially, free from deceit, craft, trickery, corruption, fraud, undue influence, dishonesty, conflict of interest, unlawful obstruction and impairments and in accordance with the laws of the State of Florida and Hillsbor-ough County.

In McNally, the district court informed the jury of the charges in the indictment by instructing them that:

Count 4 of the Indictment charges in part that the defendants devised a scheme or artifice to:

(a.)(l.) defraud the citizens of the Commonwealth of Kentucky and its governmental departments, agencies, officials and employees of their right to have the Commonwealth’s business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud; and

(2.) obtain (directly and indirectly) money and other things of value, by means of false and fraudulent pretenses, representations, and promises, and the concealment of facts.

And for the purpose of executing the aforesaid scheme, the defendants, James E. Gray and Charles J. McNally, and Howard P. ‘Sonny’ Hunt, Jr., and others, did place and cause to be placed in a post office or authorized deposit for mail matter, matters and things to be sent and delivered by the Postal Service, and did take and receive and cause to be taken and received therefrom such matters and things and did knowingly cause to be delivered thereon and at the place at which it was directed to be delivered by the person to whom it was addressed, matters and things.

McNally, at-n. 4, 107 S.Ct. at 2878 n. 4, 97 L.Ed.2d at 298-99 n. 4.

In attempting to distinguish this case from McNally, the government argues that a mail fraud prosecution having state bribery as a predicate is still viable in the aftermath of McNally. To buttress this claim, the government relies upon paragraph 2 of Count IY of the indictment which incorporates by reference paragraph fourteen of Count II.⁴ Paragraph fourteen alleges that:

14. Between in or about January, 1980 and in or about December, 1980, Nelson Italiano and others, corruptly offered, promised and gave Charles Frank Bean III and ROBERT E. CURRY, public servants, and Charles Frank Bean III and ROBERT E. CURRY corruptly requested, solicited, agreed to accept and accepted, a benefit with an intent and purpose to influence an act which Nelson Italiano believed to be, and Charles Frank Bean III represented as being, within the official discretion of Charles Frank Bean III and ROBERT E. CURRY relating to Cable Television Franchise Agreement No. 80-563; chargeable under Florida Statutes, Sections 838.015 and an act of racketeering involving bribery as defined by Title 18, United States Code, Section 1961(1).

The government’s argument is premised upon the validity of remarks by Justice Stevens in his dissenting opinion in McNally. Justice Stevens in dissenting addressed the effect of McNally’s holding on cases involving intangible rights other than the general right of the citizenry to a fair and impartial government. Addressing, in particular, the effect of McNally’s holding on cases involving employee fraud, Justice Stevens wrote:

When a person is being paid a salary for his loyal services, any breach of that loyalty would appear to carry with it some loss of money to the employer— who is not getting what he paid for. Additionally, ‘[i]f an agent receives anything as a result of his violation of a duty of loyalty to the principal, he is subject to a liability to deliver it, its value, or its proceeds to the principal.’ Restatement (Second) of Agency, § 403 (1958). This duty may fulfill the Court’s ‘money or property’ requirement in most kickback schemes.

McNally, at-n. 10, 107 S.Ct. at 2890 n. 10, 97 L.Ed.2d at 313 n. 10 (Stevens, J., dissenting). In a subsequent case, Carpenter v. United States, — U.S.-, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), the Supreme Court arguably embraced Justice Steven’s remarks regarding employee fraud.

In Carpenter, Winans, the co-author of a Wall Street Journal column, which because of its perceived quality and integrity had the potential of affecting stock market prices, entered into a scheme with other individuals whereby they employed advance confidential information, such as the timing and contents of the column, to buy and sell in the market based upon the probable impact of the column. As a consequence of this scheme, Winans and others were indicted for having violated a variety of securities laws and mail and wire fraud laws. In finding the defendants guilty as charged, the district court found, and the court of appeals agreed, that Winans and others had fraudulently misappropriated “property,” within the meaning of the mail and wire fraud statutes, by releasing the prepublication information.

In affirming the convictions for mail and wire fraud, the Supreme Court held that the scheme to appropriate the Wall Street Journal’s confidential business information was a protected property right cognizable under the mail and wire fraud statutes, and its intangible nature did not render it any less so. Carpenter, — U.S. at-, 108 S.Ct. at 320. In so holding, the Court reasoned that “McNally did not limit the scope of 1341 to tangible as distinguished from intangible property rights.” Carpenter, — U.S. at -, 108 S.Ct. at 320.

In refuting the claim that revealing pre-publication information amounted to nothing more than a violation of work place rules rather than conduct proscribed by the mail fraud statute, the Court noted that the term “to defraud” as used in section 1341 must be interpreted according to its “common understanding.” To this end, the Court recognized that “ ‘[i]t is well established, as a general proposition, that a person who acquires special knowledge or information by virtue of a confidential or fiduciary relationship with another is not free to exploit that knowledge or information for his own personal benefit but must account to his principal for any profits derived therefrom.’ ” Carpenter, — U.S. at -, 108 S.Ct. at 321 (quoting Diamond v. Oreamuno, 24 N.Y.2d 494, 497, 301 N.Y.S.2d 78, 80, 248 N.E.2d 910, 912 (1969)).

Based on the foregoing language in Carpenter, in this case the government contends that a mail fraud prosecution having bribery, as defined by state law, as its predicate is still cognizable under the “money or property” requirement of McNally. Specifically, the government argues that the county commissioners, by accepting bribes from Italiano, breached their fiduciary relationship with the county; hence, they were accountable to the county government for any profits which were derived from the bribery transactions. Notwithstanding the Supreme Court’s acknowl-edgement that an agent is generally liable to his principal for any profits derived where the agent exploits his fiduciary relationship for his own personal gain, we need not address the merits of this argument because it is irrelevant in this case. This is not the theory upon which the grand jury returned its indictment. In this case, the grand jury stated what it found the citizenry was deprived of — good government.

The fifth amendment provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; _” Although it is seldom that an indictment fails to fulfill its purpose — to inform the accused of the nature of the charges against him — it is well-recognized that another purpose is to be served by the requirement that an indictment set forth the essential elements of an offense. “This purpose, as defined in United States v. Cruikshank, 92 U.S. [2 Otto] 542, 558, 23 L.Ed. 588, 593 is ‘to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.’ ” Russell v. United States, 369 U.S. 749, 768, 82 S.Ct. 1038, 1049, 8 L.Ed.2d 240 (1962) (quoting United States v. Cruikshank, 92 U.S. (2 Otto) 542, 558, 23 L.Ed. 588 (1876)). Viewed in this light, it is evident that the rule is designed not only for the protection of the defendant, “but for the benefit of the prosecution as well, by making it possible for courts called upon to pass on the validity of convictions under [a] statute to bring an enlightened judgment to that task.” Russell, 369 U.S. at 769, 82 S.Ct. at 1050. Of even greater relevance here is that it would hinder our task in reviewing a conviction as well as serve as an affront to our criminal justice system to permit an accused to be subject to jeopardy based on facts which were not presented to nor found by the grand jury:

A grand jury, in order to make ... [a] determination, must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.

Russell, 369 U.S. at 770, 82 S.Ct. at 1050; accord Outler, 659 F.2d at 1310.

For these reasons, we express no judgment as to the cogency of the government’s argument that the mail fraud statute is violated when an employee uses the mails in furtherance of a scheme to accept unauthorized compensation. Having reviewed the indictment, it is obvious that the government did not present such facts, pursue this theory when presenting facts to the grand jury, or lead the grand jury ultimately to return its indictment on such a theory. Rather, as previously mentioned, the gravamen of the indictment is that the citizens of Hillsborough County were deprived of their right to have the affairs of the county “conducted honestly and impartially, free from deceit, craft, trickery, corruption, fraud, undue influence, dishonesty, conflict of interest, unlawful obstruction and impairments and in accordance with the laws of the State of Florida and Hills-borough County.” The Supreme Court has held almost exact language insufficient for a mail fraud conviction.

The allegations in the indictment, even given a broad interpretation, are only susceptible of one interpretation: that the citizens of Hillsborough County were deprived of their intangible right to “good government.” Accordingly, the government may not now seek to uphold Italiano's conviction on facts and theory different from that charged by the grand jury. We will not overlook the plain language of the indictment. As the Supreme Court admonished over a century ago: “If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by grand jury ... [would] be frittered away until its value [was] almost destroyed_” Ex parte Bain, 121 U.S. 1,10, 7 S.Ct. 781, 786, 30 L.Ed. 849 (1886).⁵

B. Jury Instructions

We note also that the jury instructions served only to exacerbate, rather than ameliorate, the infirmities which permeated the indictment. In reviewing the sufficiency of jury instructions, we have previously said that our task is to “examine the entire charge to determine whether, taken as a whole, it adequately presented the issues and the law to the jurors.” United States v. Hewes, 729 F.2d 1302, 1316 (11th Cir.1984), cert. denied sub nom. Caldwell v. United States, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). To this end, the district court must be granted wide latitude in wording the jury instructions “and will not be reversed so long as the charge correctly states the substance of the law.” Hewes, 729 F.2d at 1316 (quoting United States v. Sorrells, 714 F.2d 1522, 1531 (11th Cir.1983)).

Turning to the jury instructions in this case, the district court instructed the jury as follows:

In this case, as you know, the indictment charges the defendant in a single count, Count Four, with the commission of a mail fraud offense. Specifically it is alleged that the Defendant Nelson Itali-ano, together with Robert E. Curry and others, knowingly and willfully participated in a scheme to defraud the citizens of Hillsborough County and the citizens of the state of Florida generally of their right to: A, the conscientious, loyal, faithful, disinterested and unbiased services, decisions, actions and performances of official duties of the Board of County Commissioners of Hillsborough, Florida; and, B, to have the business of the Board of County Commissioners, Hillsborough County, Florida, and its affairs, conducted honestly and impartially, free from deceit, craft, trickery, corruption, fraud, undue influence, dishonesty, conflict of interest, unlawful obstruction and impairments, in accordance with the laws of the state of Florida, and Hillsbor-ough County.

So as not to belabor the point, we need only comment that the district court’s jury instructions, which rely heavily on the intangible right of the citizenry to honest and fair government, are defective for the same reasons which the Court condemned the jury instructions given in McNally. The fact that the district court also instructed the jury that it must also find a violation of state bribery law as a predicate offense does not cure the insufficiency of the jury instructions.

CONCLUSION

We emphasize that at the time the grand jury returned this indictment, several courts of appeals had held that public officials could be successfully prosecuted under the mail fraud statute for depriving citizens of good government; unfortunately, the law changed after the return of this indictment. It is too late now for the government to claim that its indictment was returned by a grand jury cognizant of and acting in accordance with the new teachings of the Supreme Court.

We hold that the district court erred by denying Italiano’s motion to dismiss the indictment where it failed to allege that either the county or state was defrauded of money or property by the alleged scheme. Accordingly, Italiano’s conviction of mail fraud in violation of section 1341 is reversed and the judgment is vacated.

REVERSED and VACATED.

1 . The federal mail fraud statute, 18 U.S.C. § 1341, provides in pertinent part:

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, ... for the purpose of executing such scheme or artifice or attempting so to do [uses the mails or causes them to be used,] shall be fined not more than $1,000 or imprisoned not more than five years, or both.

2 . United States v. Gray, 790 F.2d 1290 (6th Cir.1986), rev'd sub nom. McNally v. United States, 483 U.S. -, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987).

3 . In light of McNally, the Supreme Court has also vacated judgments of conviction for mail fraud based on the intangible rights doctrine in Holzer v. United States, — U.S.-, 108 S.Ct. 53, 98 L.Ed.2d 18 (1987), vacating United States v. Holzer, 816 F.2d 304 (7th Cir.1987) and McMahan v. United States, - U.S. -, 107 S.Ct. 3254, 97 L.Ed.2d 754 (1987), vacating United States v. McMahan, 788 F.2d 234 (4th Cir.1986). In addition, various circuit courts of appeals have also overturned mail or wire fraud convictions which were predicated on the intangible rights doctrine. See, e.g., United States v. Herron, 825 F.2d 50 (5th Cir.1987) (reversing wire fraud convictions where jury was not required to find that defendants "defrauded the United States out of money or property”); United States v. Cook, 833 F.2d 109 (7th Cir.1987) (reversing judgment in part where mail and wire fraud convictions were premised upon "defrauding an official body of intangible rights” such as "loyal and faithful services”); United States v. Gimbel, 830 F.2d 621, 626 (7th Cir.1987) (reversing mail and wire fraud convictions where indictment alleged that defendant devised a scheme to deprive the Treasury Department of “Currency Transaction Reports and other ‘accurate and truthful information' ”); Sigmond v. Brown, 828 F.2d 8, 9 (9th Cir.1987) (affirming summary judgment granted in favor of defendant where alleged predicate acts of mail fraud in plaintiffs RICO action "failed to present any plausible evidence that the defendants’ conduct deprived [plaintiff] of any property or money”).

4 . The government's argument must be considered in light of the fact that Italiano is not charged.with bribery or any other offense in Count II.

5 . Although we express no view concerning the government’s assertion that a bribery scheme, standing alone, is a sufficient basis upon which to sustain a conviction under the federal mail fraud statute, we note that at least one court of appeals has endorsed this view. See United States v. Runnels, 833 F.2d 1183 (6th Cir.1987). In Runnels, the Sixth Circuit, after acknowledging that the intangible rights doctrine is no longer viable after McNally, launched what it called “an alternative rationale, based on the fraud that occurs when a fiduciary breaches his duty by appropriating an economic benefit that properly should be the principal’s_” At 1186. In so concluding, the Sixth Circuit reasoned thusly:

The existence of ... a bribe or kickback makes it unnecessary to invoke the intangible rights doctrine. The fiduciary’s acquisition of an economic benefit which properly belongs to the principal, through an intentional breach of a fiduciary duty owed to the principal, is in itself sufficient to support a finding of guilt under 18 U.S.C. § 1341.

To understand why this is so, it is useful to consider the relevant elements of a conviction under section 1341 (1) a scheme to (2) obtain by deceit (3) money or property. First, the agreement between the breaching fiduciary and the person paying him constitutes a scheme. Second, the breach itself provides the necessary deception. Third, the bribe or undue profit acquired through a breach of a fiduciary duty does not properly belong to the breaching fiduciary.

Runnels, at 1187 (footnotes and citations omitted). See also United States v. Fagan, 821 F.2d 1002, 1010-11 and n. 6 (5th Cir.1987) (affirming mail fraud convictions based, in part, on evidence that a corporation had been deprived of its property rights "to the kickbacks its employee Riley received from [the defendant]”).