James J. Frank v. United States ( 1990 )

CUDAHY, Circuit Judge,

dissenting:

McNally invalidated mail fraud convictions based on schemes to defraud the public of its intangible right to good government and to the honest and loyal services of government employees and officials. The Court held that Congress had intended to penalize only fraudulent schemes designed to effect a deprivation of money, or property and not of “intangible rights.”¹ Perhaps because the prosecutors of this circuit were among the first to successfully employ the “intangible rights” theory of mail fraud in public corruption cases (see, e.g., United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974)), this circuit has had an understandably strong reluctance to invalidate mail fraud convictions based on intangible rights deprivations. For the most part, these efforts to salvage mail fraud convictions involving public corruption are commendable since they treat technicality with sophistication in the interest of substantial justice. Nonetheless, in all of our cases which distinguish away McNally, there has been reality and legitimacy to our efforts to fit the doctrine to the facts charged. With all respect, however, I do not believe that observation can be made of the efforts to save the case before us from invalidation.

Here the indictment charged essentially that the government of Indiana was deprived of information necessary to the administration of justice. This allegation was pure and simple of the intangible rights genre. A driver’s license is simply evidence of a named person’s right to drive a motor vehicle; it is not in itself, in the context of this case, a thing of value or “property” — despite the fact that such a license might technically be the “property” of the BMV. The defendant’s activity here simply interrupted and permanently blocked the governmental flow of information. This is what the government lost — information — and the driver’s license did not incorporate or symbolize what was lost. It was merely a device for facilitating the flow of information. Cf. Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (holding that information which had independent economic value was “property” for purposes of mail and wire fraud.) The defendant’s coming into possession of the license document was purely incidental to the information blockage. Moreover, neither the indictment nor the proof shows any effort or intent to take any alleged “property” or to deprive an owner of money or property. In this case, the majority attempts a “reach” which even the claims of substantial justice cannot possibly justify.

I therefore respectfully dissent.

1 . Congress promptly overruled McNally as to future prosecutions and thus indicated its approval of the intangible rights theory.