February 19, 1993

               UNITED STATES COURT OF APPEALS
                   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
                   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.
