
USCA1 Opinion

	




          February 19, 1993                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                      __________                                      __________             No. 92-1536                                    UNITED STATES,                                      Appellant,                                          v.                             BARKER STEEL CO., INC., AND                                   ROBERT B. BRACK,                                Defendants, Appellees.                                      __________                                     ERRATA SHEET                       The Order  of Court  On Petition For  Rehearing En             Banc issued on February 19, 1993, is amended as as follows:                       On the first page under list of Judges delete "and             Fuste,* District  Judge,"  and on  the  bottom of  the  page             delete  "Of   the  District  of  Puerto   Rico,  sitting  by             designation."             February 19, 1993                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                      __________                                      __________             No. 92-1536                                    UNITED STATES,                                      Appellant,                                          v.                             BARKER STEEL CO., INC., AND                                   ROBERT B. BRACK,                                Defendants, Appellees.                                      __________                                        Before                                 Breyer, Chief Judge,                                         ___________                             Bownes, Senior Circuit Judge                                     ____________________                Torruella, Selya, Cyr, Boudin, Stahl, Circuit Judges,                                                      ______________                                      __________                                    ORDER OF COURT                          ON PETITION FOR REHEARING EN BANC                             Entered:  February 19, 1993                       Upon  consideration of the  petition for rehearing             en banc, it is ordered that the same be denied.                       BREYER, Chief Judge, with whom  Torruella, Circuit                               ___________                        _______             Judge joins (concurring in en banc denial of rehearing).  We             _____             agree  with  the  majority that  we  should  not  grant this             petition  for  en banc  review.   But,  that is  because the             particular  facts of this case do not compel us to reach the             major  legal issue that petitioners would  like to raise, an             issue that  we  believe is  important.   The  panel  opinion             points  out that  an  indictment charging  a conspiracy  "to             defraud the United States,"  18 U.S.C.   371, must  do more,             in this case, than simply charge a conspiracy, an overt act,             and the  object of "impairing, obstructing  or defeating the             lawful function of any  department of Government."  It  must             also charge improper means, means             that   the   panel  describes   as   "affirmative  acts   of             misrepresentation  and  deceit."    Is this  description  of             improper means overly broad?  Would it permit prosecutors to             cast their criminal net too wide?  After all, "do good; shun             evil," while sound moral advice, is not appropriate language             for a criminal statute.                       More  specifically, must  the  improper means  (in             cases  like the one before us) include conduct that not only             is deceitful,  but also is of  a kind that  the law normally             independently  forbids?    Without  some  such  requirement,             Section  371  would  seem  to criminalize  conduct  that  an             offender, in advance, could reasonably have believed was not             criminal.  (Imagine,  for   example,  officials  of  non-MBE             Company A who  lie to  officials of MBE  Company B,  causing             them to miss an important bid deadline, so that the contract             is awarded to Company A rather than Company B).  At the same             time, the "other law"  requirement need not necessarily mean             other  federal criminal  laws; other  laws, including  state                    ________________             criminal laws,  and, perhaps,  certain civil laws,  can make             clear to potential offenders that certain types of specified             conduct are both dishonest and forbidden.  Nor need one read             Section  371 as  requiring  a prosecutor  to  prove all  the             elements of  a violation of the other law.  It might well be             sufficient  to show an instance of the basic type of conduct                                                    __________             that the  other law  forbids, rather than  proving secondary             matters, such as actual  effects, or more technical matters,             such  as statutes of limitations.   The merits  of some such             "other  law" requirement, and its consistency with precedent             on the subject, seem to me to warrant argument.                       We  have not asked  for argument, however, because             the  information,  as  described  by the  panel,  meets  the             criteria suggested above.   The information makes clear that             the "affirmative acts of  misrepresentation and deceit" here             at  issue   involve  conduct  that  in   all  likelihood  is             independently criminal.   The government  alleges that  "MBE             contracts can only be  awarded to MBE's who actually  do the             work," it says that Rusco did not do any of the work, and it             says  that  Rusco  submitted false  documentation  to  state             certifying agencies which documentation "contained false and             misleading information and material omissions which directly             affected Rusco's eligibility."  Fairly read, the information             says that  the defendant aided Rusco  in telling significant             lies to state agencies  in order to obtain from  the federal             government money that it  would not otherwise have obtained.             This is conduct of the kind that criminal  statutes normally             forbid. Also, the essence of the conduct which occurred here             --  making  misrepresentations  to  an entity  in  order  to             procure  payments from  it --  was in  fact criminal  in the                                            ___             states  in which the conduct occurred. See, e.g., Mass. Gen.                                                    ___  ____             L.  ch. 266,   30 (larceny and "false pretenses"); R.I. Gen.             Laws    11-41-4  (same); N.H.  Rev. Stat.  Ann. ch. 637    4             (1991)  ("theft by  deception"); Commonwealth  v. Schoening,                                              ____________     _________             396 N.E.2d 1004 (Mass.  1979) (prosecution for conspiracy to             defraud government official  under false pretenses statute);             State v. Ricci, 533 A.2d  844 (R.I. 1987) (prosecution under             _____    _____             false pretenses statute of contractor who lied regarding job             specifications to obtain payment from city).                        For  this reason, we agree  with the court that it             need not consider the need for an "other law" requirement in             Section 371 prosecutions at this time.
