In the case of Money being given to Hutcherson over and above anything he should have been given by Law or by actual personnel rules and which the Council nor the people were aware this Law does follow. The Ethics Commission did not rule on it because they said it was a management decision, but the Council on behalf of the People should have known these funds were paid by reason that payment was not done for 90 days a year but for two years straight while no work was being done because of Hutcherson’s inability to work. It appears this was Tebo and Tomlinson’s decision and falls under the Public Corruption laws.
C. Mail and Wire Fraud – 18 USC §§1341 (Mail), 1343 (Wire)
1) The mail and wire fraud statutes were enacted as anti-fraud statutes, designed to
combat as criminal the common law crime of larceny by trick. Even thought the
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statutes’ terms do not specifically embrace corruption, they are extensively used
to prosecute acts of public corruption.
2) For mail fraud, the prosecutor must prove only (a) a scheme to defraud, and (b)
the mailing of a letter for the purpose of executing the scheme; and for wire
fraud, the prosecutor must prove only (a) a scheme to defraud, and (b) the use of
interstate wire communications in furtherance of the scheme. For purposes of the
statute, the requisite mailing can be done through the postal service or a private
carrier, and the requisite wire communications include radio transmissions,
telephone calls and e-mails. Significantly, the requisite mailing or wiring need
not itself contain any fraudulent information and may be entirely innocent.
However, they must be shown to be at least a “step” in the scheme. (Schmuck v.
United States, 489 U.S. 705, 712 ).
3) With respect to the statutes’ use in public corruption cases, a fraudulent scheme
includes “a scheme . . . to deprive another of the intangible right of honest
services.” (18 USC §1346). It is this definition which makes the statutes a
flexible tool for prosecutors to prosecute public corruption at the state or local
4) A typical “honest services” corruption case arises in two situations. First,
“bribery” where the public official was paid for a particular decision or action,
which includes a pattern of gratuities over a period of time to obtain favorable
action. Secondly, “failure to disclose” a conflict of interest, resulting in personal
enrichment, which encompasses circumstances where the official has an express
or implied duty to inform others of the official’s personal relationship to the
matter at hand even though no public harm occurred or there was no misuse of
office. As to the “conflict of interest” situation, the basis for its condemnation is
that “[w]hen an official fails to disclose a personal interest in a matter over which
he has decision-making power, the public is deprived of its right either to
disinterested decision making itself or, as the case may be, to full disclosure as to
the official’s potential motivation behind an official act.” (United States v.
Sawyer, 85 F3d 713, 724 [1st Cir. 1966]). Notably, a person who holds no public
office but participates substantially in the operation of government, e.g., a
political party leader, may be subject to prosecution under an “honest services”
theory. (See, United States v. Margiotta, 688 F.2d 108 [2d Cir. 1982]).
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5) While there is the need to show in a bribery case an intent to give or receive
something of value in return for an official act, in a failure to disclose case, the
failure is itself sufficient to show the requisite intent. Moreover, there is no need
to show the scheme came to fruition or caused harm.
6) A public official may be charged with a separate count for each mailing or wiring
in furtherance of the charged scheme.
7) In 2002, Congress amended the statutes to allow for a maximum sentence of up
to 20 years imprisonment for each violation of the statutes.
8) A violation of the statute serves as the foundation for RICO offenses.