To prove mail fraud, the government must establish "(1) the defendant's knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails . . . in furtherance of the scheme." United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001). Congress has clarified that "the term `scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."
To establish a violation of these statutes, the Government must prove "(1) the defendant's knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails or interstate wire communications in furtherance of the scheme." United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001). In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court considered the reach of § 1341 and acknowledged that the mail fraud statute had been "interpreted broadly."
To prove mail fraud, the government must establish "(1) the defendant's knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails . . . in furtherance of the scheme." United States v. Antico, 275 F.3d 245, 261 (3d Cir.2001). Congress has clarified that "the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."
In our recent decisions interpreting honest services fraud, we emphasized the need to establish a violation of state law in such cases to serve as a limiting principle on the federal prosecution of local political actors. See United States v. Panarella, 277 F.3d 678, 693 (3d Cir. 2002); United States v. Antico, 275 F.3d 245, 262 n. 18 (3d Cir. 2001). Although the Government suggests that Murphy's violation of the New Jersey Bribery Act, N.J.S.A. 2C:27-2, which was the predicate offense in the Travel Act charges, could serve as the state law source of a fiduciary obligation, we are not persuaded by this argument.
In addition to "the existence of a scheme to defraud" under one of these theories, the substantive elements of mail fraud pursuant to § 1341 are "the use of the mails — whether the United States Postal Service or a private carrier — in furtherance of the fraudulent scheme," and "culpable participation by the defendant, that is, participation by the defendant with specific intent to defraud." United States v. Dobson, 419 F.3d 231, 238 (3d Cir. 2005); see also United States v. Kemp, 500 F.3d 257, 279 (3d Cir. 2007) (holding that mail fraud elements include "(1) the defendant's knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails . . . in furtherance of the scheme.") (quoting United States v. Antico, 275 F.3d 245, 261 (3d Cir. 2001)). The Indictment also charges Defendants under 18 U.S.C. § 2.
The Third Circuit has not had occasion to address what constitutes an explicit quid pro quo, as it has addressed the quid pro quo requirement only in the non-campaign contribution context. See United States v. Salahuddin, 765 F.3d 329, 343 (3d Cir. 2014); United States v. Antico, 275 F.3d 245, 260 (3d Cir. 2001); United States v. Bradley, 173 F.3d 225, 232 (3d Cir. 1999). As Allinson notes, the "wink and a nod" phrase appears in Justice Kennedy's concurring opinion in Evans v. United States, 504 U.S. 255 (1992), a Supreme Court case decided shortly after McCormick.
Accordingly, after reviewing the legislative history and evaluating competing constructions of the statute, the Supreme Court held in Evans that to prove a conviction for extortion under color of official right, “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” 504 U.S. at 268, 112 S.Ct. 1881.We interpreted Evans in United States v. Antico, 275 F.3d 245 (3d Cir.2001), and explained that “no ‘official act’ ... need be proved to convict under the Hobbs Act.” Id. at 257.
Nevertheless, "[a]lmost all the circuits that have addressed this precise issue have held that the quid pro quo requirement applies to all Hobbs Act extortion prosecutions, not just to those involving campaign contributions." United States v. Tucker, 133 F.3d 1208, 1215 (9th Cir. 1998) (collecting cases); see also Evans, 504 U.S. at 278, 112 S.Ct. 1881 (Kennedy, J., concurring) ("[T]he rationale underlying the Court's holding [in McCormick] applies not only in campaign contribution cases, but in all § 1951 prosecutions."); Ganim, 510 F.3d at 143; United States v. Antico, 275 F.3d 245, 258 (3d Cir. 2001); United States v. Giles, 246 F.3d 966, 972-73 (7th Cir. 2001); Collins, 78 F.3d at 1035; United States v. Martinez, 14 F.3d 543, 553 (11th Cir. 1994). In Tucker, we assumed without deciding that a prosecution for extortion under color of official right in the non-campaign contribution context required a quid pro quo. 133 F.3d at 1215 (upholding against a sufficiency of the evidence challenge Hobbs Act color of official right extortion convictions).
"Thus, the statute supports two classes of extortion: extortion induced by `wrongful use of force' and extortion `under color of official right.'" United States v. Antico, 275 F.3d 245, 255 (3d Cir. 2001). Here, the government pursued the "under color of official right" theory of Hobbs Act extortion.
In interpreting § 1346, we therefore look to both post- McNally cases interpreting § 1346 and pre- McNally cases interpreting § 1341 and § 1343 for guidance. See United States v. Antico, 275 F.3d 245, 262, 2001 U.S.App. LEXIS 25318, at *41 n. 16 (3d Cir. 2001) ("[C]ommentary and judicial reflection indicate that [§ 1346] was enacted to overturn McNally and restore the evolution of mail and wire fraud to its pre- McNally status."); United States v. Lopez-Lukis, 102 F.3d 1164, 1169 (11th Cir. 1997) ("[W]e consider pre- McNally cases as persuasive authority in evaluating the scope of honest services."). "Honest services fraud typically occurs in two scenarios: (1) bribery, where a legislator was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain."