
USCA1 Opinion

	




          June 24, 1996     United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________          No. 95-1689                                    UNITED STATES,                                      Appellee,                                          v.                                  F. WILLIAM SAWYER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of this Court issued on May 30, 1996, is amended          as follows:                      Page 35, line 4 - change "is" to "in"                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1689                                    UNITED STATES,                                      Appellee,                                          v.                                  F. WILLIAM SAWYER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Thomas  R.  Kiley,  with  whom  Carl  Valvo,  Steven H.  Goldberg,            _________________               ___________   ___________________        Matthew  L. Schemmel, and Cosgrove,  Eisenberg & Kiley,  P.C., were on        ____________________      ___________________________________        brief for appellant.            Timothy W. Jenkins, Gary C. Adler,  and O'Connor & Hannan, L.L.P.,            __________________  _____________       _________________________        were on brief for State Government Affairs Council, amicus curiae.            Ralph D. Gants,  Susan Murphy, and Palmer  & Dodge, were on  brief            ______________   ____________      _______________        for The  Massachusetts Association  of Professional  Lobbyists, amicus        curiae.            Michael  Kendall,  Assistant United  States  Attorney,  with  whom            ________________        Jonathan  Chiel,  Acting  United  States Attorney,  and  Amy  Lederer,        _______________                                          ____________        Assistant United States Attorney, were on brief for appellee.                                _____________________                                     May 30, 1996                                _____________________                      STAHL, Circuit Judge.  Appellant F. William  Sawyer                      STAHL, Circuit Judge.                             _____________            appeals his  convictions for mail and  wire fraud, interstate            travel  to commit  bribery,  and conspiracy  to commit  those            offenses.   The  district court imposed  a $10,000  fine, and            sentenced him to imprisonment for  twelve months and one day.            In  this appeal, Sawyer claims that  the district court erred            in its jury instructions and in evidentiary rulings, and that            the evidence was insufficient to establish his guilt beyond a            reasonable doubt.  For the reasons that follow, we vacate the            convictions and remand for further proceedings.                                          I.                                          I.                                          __                                        Facts                                        Facts                                        _____                      Viewing the  record in the light  most favorable to            the verdict, United States  v. Wihbey, 75 F.3d 761,  764 (1st                         _____________     ______            Cir. 1996),  a rational jury  could have found  the following            facts from the trial evidence.                      During the  indictment period, 1986  to March 1993,            the  John Hancock  Mutual Life Insurance  Company ("Hancock")            employed  the defendant-appellant,  F. William  Sawyer,  as a            senior  lobbyist within its  Government Relations Department.            As  the  largest  life insurance  company  in  Massachusetts,            Hancock had a continuing and abiding interest in the  state's            insurance laws.  Sawyer's job  was to lobby the Massachusetts            Legislature  on Hancock's  behalf.   In  particular, his  job            description required him  to: research and  develop Hancock's                                         -2-                                          2            position  on  pertinent  legislation;   communicate  relevant            information  to representative government  officials in order            to effect  a favorable outcome  and to protect  the Company's            interests;  and establish  and  maintain  relationships  with            legislators as well as with members of industry associations.                      A principal  focus of Sawyer's  lobbying activities            was the Legislature's  Joint Insurance Committee  ("Insurance            Committee"), composed of state representatives  and senators.            The  Insurance  Committee  has  the ability  to  impact  life            insurance  regulations  more   than  any  other   legislative            committee.  To  this end, it reviews approximately  300 bills            per  year, about  fifty of  which affect  the life  insurance            industry.    During  each  year  of  the  indictment  period,            Massachusetts  life insurance  companies actively  sought the            passage   of  about  five  bills,  most   of  which  made  it            successfully through the Insurance Committee "in some form or            another."  Robert J. Smith,  a research analyst and  director            for  the  Committee, testified  that,  during the  indictment            period, Sawyer was one  of three lobbyists who  appeared most            often to  lobby  for  bills  sought  by  the  life  insurance            industry.                      The Insurance Committee  is co-chaired by a  senate            and  house member, each with  equal control over  the fate of            bills assigned to the Committee.  The Chairs have the ability            to schedule  hearings, assign  bills to the  hearing calendar                                         -3-                                          3            and   subsequent  executive   sessions,  advocate   bills  at            executive  sessions, and  take other  action to  advance them            through  the Committee.   Each  Chair could  "carry" a  bill,            i.e., actively  guide it through the Legislature  as a whole;            ____            alternatively, a Chair could send it to the "Study Committee"            which usually shelved it.                      During  the indictment  period, Sawyer  focused his            lobbying  activities on  the house  members of  the Insurance            Committee,  some  of  whom   took  action  that  directly  or            indirectly  affected  Hancock's  interests.    Representative            Francis  H. Woodward  was the  House  Chair of  the Insurance            Committee  from  1986  to   1990.    Research  analyst  Smith            identified Sawyer  as the  lobbyist  he saw  most often  with            Representative  Woodward  during  Woodward's  tenure  as  the            Committee's  House Chair.   During  this time,  the Insurance            Committee  never rejected Woodward's recommendations on bills            affecting the life insurance industry and Woodward  "carried"            most  of the  bills sought  by the industry.   Representative            Frank  Emilio,  a  member  from  1986 to  1990,  sponsored  a            September  1990 bill  on behalf  of Hancock.   Representative            John  F.  Cox  sponsored  bills  that  Hancock  supported  in            November   1990   and   December   1991.       In   addition,            Representatives   Walsh,   Mara,   and   Driscoll   sponsored            legislation sought by the life insurance industry.                                         -4-                                          4                      "Legislative   Reports"   issued  by   the  Hancock            Government  Relations Department to  senior Hancock officers,            and signed by Sawyer,  outlined specific lobbying efforts and            proceedings  in  the Massachusetts  Legislature  pertinent to            Hancock's interests.  In July 1990, Sawyer wrote a memorandum            to Hancock's Management  Committee summarizing the successful            efforts of Hancock lobbyists, including himself, in excluding            Hancock  from a bill that would have  subjected it to a $100-            million tax liability.  In a September 1990 memorandum to the            Management Committee,  Sawyer referred to a  1990 bill, filed            by Representative Emilio, that  allowed Hancock to assess and            report  its  real estate  advantageously.    A November  1990            letter from  Ralph F. Scott, Hancock's  Assistant Legislative            Counsel,  to Representative  Cox  indicated  that Sawyer  and            Scott planned to work with Cox in obtaining  favorable action            on a specific bill that he had sponsored for Hancock.                      During  the  indictment  period,  Sawyer  paid  for            numerous meals,  rounds of golf, and  other entertainment for            and with Massachusetts legislators, including many members of            the Insurance Committee.   Although Sawyer initially paid for            most  of  these  activities  himself, they  were  treated  as            business  expenses and  reimbursed  by  Hancock  (hereinafter            "expenditures").   In  accordance with  Hancock's procedures,            Sawyer  would complete  monthly  expense vouchers,  attaching            receipts and  a  handwritten  calendar  that  identified  the                                         -5-                                          5            recipients of the expenses.   Sawyer's supervisor, Raeburn B.            Hathaway,   the  head   of  Hancock's   Government  Relations            Department, reviewed  Sawyer's expense vouchers  and approved            them  for  reimbursement.   Hathaway's  secretary would  then            detach the detailed calendars  from the vouchers, keeping the            calendars  within the  Government  Relations Department,  and            forward the voucher, alone,  to the accounting department for            payment.                      Analysis of Sawyer's expense vouchers and calendars            during  the indictment  period  revealed that  the top  three            recipients of his expenditures were: Representative Woodward,            who received  more than  $8,000 worth of  expenditures during            his  tenure  as  Insurance   Committee  House  Chair;  Robert            Howarth,  an Insurance  Committee  member from  1986 to  1992            (over  $3,000);  and  Representative  Emilio  (over  $2,500).            After these three legislators  left office, Sawyer, on behalf            of Hancock, expended practically nothing on entertaining them            (Woodward, $0; Howarth, $8.33; and Emilio, $85.65).                      Specifically,   Sawyer's   expenditures    included            thousands of  dollars for golf -- in and out of state -- with            various  Massachusetts  legislators including  Representative            Francis   Mara,  Woodward's   1991  successor   as  Insurance            Committee  House  Chair.    Sawyer also  hosted  dinners  for            legislators and  their families.   In September  1992, Sawyer            provided Representative Mara  and his wife tickets for a show                                         -6-                                          6            in  Hancock's private box at  the Wang Center  and ordered an            accompanying dinner.                      The apparent  catalyst for this  prosecution was  a            December  1992  trip  to  Puerto  Rico  where  Sawyer,  other            lobbyists,   and   a   group   of    legislators,   including            Representative Mara, travelled  for a legislative conference.            The  group did not stay  at the conference  site, but instead            went to a different  resort where Sawyer paid for many of the            legislators'  meals,  transportation,   and  golf.    Hancock            reimbursed Sawyer  for some $4,000  of entertainment expenses            from the Puerto Rican trip.1                      Both  Sawyer  and  his  supervisor,  Hathaway,  had            reason  to  believe  that  these expenditures  could  or  did            violate  certain state  laws.   In  his  office, Sawyer  kept            internal Hancock memoranda,  newspaper articles, and opinions            of the  Massachusetts  Ethics Commission,  all explaining  or            reporting on Massachusetts ethics-in-lobbying.  While some of            the   documents  varied   in   their  interpretations,   they                                            ____________________            1.  In   1986,   Sawyer   and   his   wife   travelled   with            Representative Woodward and  his wife to New  Orleans for the            Super Bowl.  Hancock provided the game tickets and reimbursed            Sawyer for the  airfare.  The  district court instructed  the            jury that, because this  trip occurred before the mail  fraud            statute  proscribed  honest  services  fraud,  it  could  not            provide  the sole  basis for  a mail  fraud conviction.   The            court  added, however, that the jury  could consider the trip            as evidence of  Sawyer's state  of mind with  respect to  the            alleged scheme to defraud.                                         -7-                                          7            nonetheless  advised  on   compliance  with  laws   regarding            gratuities, gifts, and lobbying expenditures.                      In  April 1993,  a reporter  from the  Boston Globe            newspaper queried Richard  Bevilacqua, Hancock's Director  of            Employee   and   Customer   Communications,  about   Sawyer's            entertainment of legislators during the 1992 Puerto Rico trip            and about  Hancock's legislative  agenda during  that period.            Bevilacqua, in turn, asked Sawyer about the  trip, and Sawyer            opined, "it's difficult to take anyone out to lunch or dinner            these  days without  going  over [the]  amount [permitted  by            law]."    This set  of events  prompted  Hancock to  begin an            internal    investigation     into    Sawyer's    legislative            expenditures.2   Bruce A.  Skrine, vice  president, corporate            counsel  and  secretary for  Hancock,  asked  Sawyer for  his            expense records.  Contemporaneous with Sawyer's production of            the  records,  Sawyer  told  Skrine that  the  expenses  were            "consistent with the  way . .  . things  were done on  Beacon            Hill."   Sawyer also told  Skrine that his  reason for making            the  expenditures was "to get to know" the legislators and to            develop "a  certain relationship  so that you  could turn  to                                            ____________________            2.  In  the  Spring of  1993,  the  United States  Attorney's            Office for the  District of Massachusetts  ("USAO") commenced            an investigation into Hancock's involvement  in the allegedly            illegal expenditures on legislators.   In March 1994, Hancock            entered into a civil settlement with the USAO whereby it paid            a fine of about $1,000,000 and promised to cooperate with the            USAO.   In return, the  USAO agreed not  to prosecute Hancock            for any matter relating to the investigation.                                         -8-                                          8            them"; he  further indicated that he  made these expenditures            to  "build  and  maintain  relationships,"  gain  "access  to            legislators," and get  legislators to "return his  calls as a            result of [the expenditures]."                      Sawyer caused  the mailing of items  related to the            expenditures   on   legislators,   including    golf   bills,            reimbursement requests,  and credit card bills.   Sawyer also            caused the  making of  interstate telephone calls  to arrange            for some of the entertainment.                      Following  a nine-day  trial,  the  jury  convicted            Sawyer of fifteen counts  of mail fraud, nine counts  of wire            fraud, eight  counts of interstate travel  to commit bribery,            and  one count of conspiracy.   The jury  acquitted Sawyer of            two additional mail fraud counts.                                         II.                                         II.                                         ___                              Mail and Wire Fraud Counts                              Mail and Wire Fraud Counts                              __________________________                      The   government  charged   that  Sawyer   and  his            unindicted co-conspirator -- his Hancock supervisor, Hathaway            --  engaged  in  a  scheme  to deprive  the  Commonwealth  of            Massachusetts and  its citizens  of the right  to the  honest            services of their state legislators,3  and used the mails and                                            ____________________            3.  According to  the indictment,  the  legislators' duty  of            honest services included the obligation to perform their jobs            as  Massachusetts   lawmakers   free  from   deceit,   fraud,            dishonesty,  favoritism and self-enrichment.   By  consent of            the parties, the district  court struck the word "favoritism"            in this description.   United States v. Sawyer, 878  F. Supp.                                   _____________    ______            279, 294 (D. Mass. 1995).   In addition to this general  duty                                         -9-                                          9            interstate telephone  wires in furtherance of  the scheme, in            violation of 18 U.S.C.    1341, and 1343.4                      Sawyer contends that his  convictions impermissibly            involve the  federal government in setting  standards of good            government for  local and  state officials.   He  argues that            this  case  is  exemplary  of the  "dangers  of  standardless            federal  criminal  enforcement  and  unbridled  prosecutorial            discretion long-recognized under the mail fraud statute."  We            have  already   considered  and  rejected   these  arguments,                                            ____________________            of   honest  services,   the   indictment  stated   that  the            legislators had a specific duty to abide by the Massachusetts            laws set forth  in the indictment.  The indictment identified            both the  Commonwealth of Massachusetts and  its citizenry as            the  fraud victims; for simplicity, we will refer only to the            public (or "citizenry") as the victim.                      With  regard   to  the   scheme  to   defraud,  the            indictment  charged,  inter  alia,  that  Sawyer  gave,   and                                  _____  ____            legislators accepted, travel, lodging,  golf, meals and other            entertainment  in violation of Massachusetts law; that Sawyer            monitored   the   public   coverage   of   the  Massachusetts            Legislature so that  he could ensure the nondisclosure of his            gratuities;  that  Sawyer was  given  greater  access to  the            Insurance Committee  and its  House Chair than  was available            generally  to  the citizenry;  that  the House  Chair  of the            Insurance  Committee  repeatedly   performed  official   acts            advocated by Sawyer  on behalf of Hancock;  and that Sawyer's            direct  supervisor  approved  of,  and  authorized  Hancock's            reimbursement of Sawyer for, his illegal gratuities.            4.  In relevant part, 18 U.S.C.    1341 and 1343 provide:                      Whoever, having devised  or intending  to                      devise any scheme or artifice to defraud,                      or  for obtaining  money  or property  by                      means of false  or fraudulent  pretenses,                      representations,  or promises . . . [uses                      the mails or wires,  or causes their use]                      for the purpose of executing  such scheme                      or artifice  . . . [shall be punished].                                         -10-                                          10            however.   See United States v. Silvano, 812 F.2d 754, 758-59                       ___ _____________    _______            (1st Cir. 1987).   Congress may protect the integrity  of the            interstate  mails  and  wires  by  forbidding  their  use  in            furtherance of  schemes to defraud a state  and its citizens,            whether or not it can  forbid the scheme itself.  See  id. at                                                              ___  ___            758  (citing Badders  v.  United States,  240  U.S. 391,  393                         _______      _____________            (1916)); United  States v.  Rendini, 738  F.2d 530, 533  (1st                     ______________     _______            Cir. 1984).5                      Sawyer also contends that the government has failed            to  establish that  he committed  "honest services"  mail and            wire fraud  ("honest services  fraud") within the  meaning of            the  statutes.  To explain  our resolution of  this issue, we            provide a brief overview of the law of honest services fraud.            The ultimate issue  is whether or not  the "scheme" presented            at trial actually targeted the Massachusetts' citizens' right                                            ____________________            5.  Some have  observed that these  statutes are increasingly            used effectively  to convict  and punish for  the substantive            fraud,  and that the  use of the  mails or wires  is merely a            "jurisdictional  hook"  to  bring  the   conduct  within  the            proscription  of the mail and wire fraud statutes.  See Peter                                                                ___            J. Henning, Maybe It Should Just Be Called Federal Fraud: The                        _________________________________________________            Changing  Nature of the Mail  Fraud Statute, 36  B.C. L. Rev.            ___________________________________________            435  (1995); cf. Schmuck v. United States, 489 U.S. 705, 722-                         ___ _______    _____________            23  (1989)   (Scalia,   J.  dissenting)   (disagreeing   with            majority's   conclusion   that  certain   mailings   were  in            furtherance of the  demonstrated scheme,  and observing  that            "[t]he  law  does  not  establish a  general  federal  remedy            against  fraudulent conduct, with the use of the mails as the            jurisdictional hook . . . . In other words, it is mail fraud,            not  mail  and  fraud,  that  incurs  liability."   (internal            citations, quotations and alterations omitted)).                                         -11-                                          11            to "honest services"  within the  meaning of  the mail  fraud            statute.                      To prove  mail and wire fraud,  the government must            prove, beyond a reasonable doubt: (1) the defendant's knowing            and willing participation in a  scheme or artifice to defraud            with the specific intent  to defraud, and (2) the use  of the            mails or interstate wire communications in furtherance of the            scheme.6  United States  v. Montminy, 936 F.2d 626,  627 (1st                      _____________     ________            Cir. 1991)  (listing mail  fraud elements); United  States v.                                                        ______________            Cassiere, 4 F.3d  1006, 1011  (1st Cir.  1993) (listing  wire            ________            fraud elements).   Because the relevant language in  both the            mail and wire  fraud statutes  is the same,  we analyze  both            offenses together  for the  purposes  of this  case and,  for            simplicity, we refer only  to mail fraud.  See  United States                                                       ___  _____________            v. Boots, 80 F.3d 580, 586 n.11 (1st Cir. 1996).               _____                      Traditionally,  the  mail  fraud   statute  reached            schemes  that deprived the  fraud victim of  property or some            other item of economic  value.  See generally, United  States                                            ___ _________  ______________            v.  Grandmaison, 77 F.3d 555,  565-66 (1st Cir.  1996).  Some                ___________            courts  later expanded the scope of the statutes to encompass            schemes  intended to  defraud citizens  of their  intangible,                                            ____________________            6.  The use of the  mails or wires to further  the fraudulent            scheme  need   only  be  "incidental."     United  States  v.                                                       ______________            Grandmaison, 77 F.3d 555, 566 (1st Cir. 1996).  Moreover, the            ___________            "[d]efendant[] need  not personally use the  [mails or] wires            as long as such use was a reasonably foreseeable part  of the            scheme  in which [he] participated."  United States v. Boots,                                                  _____________    _____            80 F.3d 580, 585 n.8 (1st Cir. 1996).                                         -12-                                          12            non-property  right to  the honest  services of  their public            officials.    See generally,  W.  Robert  Gray, Comment,  The                          ___ _________                               ___            Intangible-Rights    Doctrine     and    Political-Corruption            _____________________________________________________________            Prosecutions Under the Federal Mail Fraud Statute, 47 U. Chi.            __________________________________________________            L.  Rev.  562, 563  (1980) and  cases  cited therein.   Those            courts rationalized that a  public official "acts as `trustee            for the citizens and the State . . . and thus owes the normal            fiduciary duties of a trustee, e.g., honesty  and loyalty' to                                           ____            them."   Silvano, 812 F.2d  at 759 (quoting  United States v.                     _______                             _____________            Mandel,  591 F.2d  1347,  1363 (4th Cir.),  aff'd in relevant            ______                                      _________________            part  en banc,  602  F.2d 653,  653  (4th Cir.  1979),  cert.            _____________                                           _____            denied, 445 U.S. 961 (1980)).            ______                      In  1987, the  United  States  Supreme Court  held,            contrary to every  circuit court that had  decided the issue,            that  the mail  fraud  statute did  not  prohibit schemes  to            defraud  citizens of their  intangible, non-property right to            honest and  impartial government.  McNally  v. United States,                                               _______     _____________            483 U.S. 350, 359 (1987); see United States v. Ochs, 842 F.2d                                      ___ _____________    ____            515,  521   (1st  Cir.   1988)  (noting  Court's   unexpected            decision),  cert.  denied, 498  U.S.  895  (1990).   Congress                        _____  ______            quickly reacted to the McNally decision by enacting 18 U.S.C.                                   _______              1346, which provides that, for the purposes of, inter alia,                                                              _____ ____            the  mail  and wire  fraud  statutes,  "the term  `scheme  or            artifice to defraud' includes a scheme or artifice to deprive            another of the intangible right of honest services."  We have                                         -13-                                          13            recognized that    1346 was intended to  overturn McNally and                                                              _______            reinstate the reasoning of  pre-McNally case law holding that                                            _______            the mail fraud statute reached schemes to defraud individuals            of  the intangible  right  to honest  services of  government            officials.  See Grandmaison, 77 F.3d at 565-66.7                        ___ ___________                      The  concept of  governmental "honest  services" in            this context  eludes easy  definition.   As Judge Winter  has            aptly noted:                      One searches in vain for even the vaguest                      contours of the legal obligations created                      beyond   the    obligation   to   conduct                      governmental   affairs    "honestly"   or                      "impartially,"  to  ensure one's  "honest                      and faithful participation" in government                      and to obey  "accepted standards of moral                      uprightness,  fundamental  honesty,  fair                      play and right dealing" . . . . (citation                      omitted) [T]he quest for  legal standards                      is not  furthered  by reference  to  "the                      right  to good  government" and  the duty                      "to act in a disinterested manner."                                            ____________________            7.  See also 134 Cong. Rec.  H11108-01, 1988 WL 182261  (Oct.                ___ ____            21,  1988) (statement  of Rep.  Conyers) ("This  amendment is            intended merely to overturn  the McNally decision.  No  other                                             _______            change in the  law is intended."); 134  Cong. Rec. S17360-02,            1988 WL 182529 (Nov. 10, 1988), Section Analysis of Judiciary            Committee  Issues in  H.R.  5210, (Statement  of Sen.  Biden)            ("[Section  1346] overturns the decision  in McNally .  . . .                                                         _______            The  intent is to reinstate  all of the  pre-McNally case law                                                         _______            pertaining  to  the  mail  and wire  fraud  statutes  without            change").   But see United  States v. Brumley,  79 F.3d 1430,                        ___ ___ ______________    _______            1440 (5th Cir.  1996) (holding that    1346 does not  clearly            reach  schemes   to  defraud  citizens  of   their  right  to            government officials' honest services).                        Given  the  peculiar  history  and  evolution  of            honest-services mail  fraud, we  review case law  from before            and after the McNally decision for guidance in discerning the                          _______            parameters of this federal crime.                                         -14-                                          14            United States v.  Margiotta, 688 F.2d  108, 142-143 (2d  Cir.            _____________     _________            1982) (Winter, J., concurring in part and dissenting in part)            (quoting Mandel,  591 F.2d at  1361), cert. denied,  461 U.S.                     ______                       _____ ______            913 (1983).                      The cases  in which a deprivation  of an official's            honest services is found  typically involve either bribery of            the  official  or her  failure  to  disclose  a  conflict  of            interest, resulting  in  personal gain.   In  a leading  case            involving  the bribery  of  a state  governor on  legislative            matters,  the  Fourth Circuit  explained  how  bribery of  an            official can constitute honest services fraud:                      [T]he fraud  involved in the bribery of a                      public official lies in the fact that the                      public  official  is  not exercising  his                      independent   judgment   in  passing   on                      official  matters. .  . .  When a  public                      official has been bribed, he breaches his                      duty    of     honest,    faithful    and                      disinterested  service.  .   .  .   [T]he                      official has been paid for his decisions,                      perhaps  without   even  considering  the                      merits of  the matter.   Thus, the public                      is not  receiving what it expects  and is                      entitled to, the public official's honest                      and faithful service.            Mandel, 591 F.2d at 1362; see  also, Boots, 80 F.3d at 592-94            ______                    ___  ____  _____            (involving scheme  to bribe Native-American  police chief  in            exercise  of  his border  patrol  duties);  United States  v.                                                        _____________            Holzer,  816 F.2d  304,  308 (7th  Cir.) (judge's  systematic            ______            receipt of bribes and "loans" to influence official actions),            vacated,  484 U.S.  807 (1987)  (ordering reconsideration  in            _______            light of  McNally); United States  v. Isaacs, 493  F.2d 1124,                      _______   _____________     ______                                         -15-                                          15            1149-51 (7th Cir.) (public officials received bribes intended            to  induce  special  favors  and  preferential treatment  for            certain racing interests), cert. denied, 417 U.S. 976 (1974).                                       _____ ______                      A  public  official  has  an  affirmative  duty  to            disclose material  information to  the public employer.   See                                                                      ___            Silvano 812 F.2d at 759.  When  an official fails to disclose            _______            a  personal interest in a matter over which she 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.   See id.  (upholding conviction  of                                       ___ ___            city fiduciary  who failed  to disclose material  information            about  unnecessary   spending  of   city  money   for  secret            enrichment of fiduciary's friend).  Thus, undisclosed, biased            decision making  for personal  gain, whether or  not tangible            loss to  the public  is shown,  constitutes a deprivation  of            honest services.  See e.g., Grandmaison, 77 F.3d at 567 (city                              ___ ____  ___________            board member  took secret action to influence award of public            contract   to    official's   private   construction-business            interest);  United States v.  Waymer, 55 F.3d  564 (11th Cir.                        _____________     ______            1995) (board of education  member received secret commissions            from companies contracting with school system), cert. denied,                                                            _____ ______            No. 95-887, 64 U.S.L.W. 3653, 3656 (U.S. May 20, 1996).                      The broad scope of the mail fraud statute, however,            does not encompass every instance of official misconduct that                                         -16-                                          16            results in the  official's personal  gain.   For example,  in            United States  v.  McNeive, 536  F.2d  1245, 1246  (8th  Cir.            _____________      _______            1976),   a  city   plumbing  inspector   repeatedly  accepted            unsolicited   gratuities  in   connection   with   his   non-            discretionary, administrative duty to issue plumbing permits.            Although McNeive  may have violated a  city ordinance banning            the  acceptance of  gratuities by  city officials,  the court            found  his conduct beyond the reach of the mail fraud statute            because  there   was   no  evidence   that   the   gratuities            disadvantaged the city in  any respect or that  they deterred            McNeive from otherwise conscientiously performing his duties.            Id. at  1251.  In  short, the "scheme"  was shown  to neither            ___            involve nor  contemplate the deprivation of  McNeive's honest            services to the city or public.                      Likewise,  in  United States  v. Rabbitt,  583 F.2d                                     _____________     _______            1014,  1026  (8th Cir.  1978),  cert. denied,  439  U.S. 1116                                            _____ ______            (1979),   the  Eighth   Circuit   reversed  the   mail  fraud            convictions of Rabbitt, a  state representative.  Rabbitt had            offered to introduce a friend's architectural firm to certain            public officials responsible for awarding state architectural            contracts, in return for a ten percent commission on any work            awarded.    Id. at  1020.   The  government charged  that his                        ___            receipt  of the resulting,  undisclosed commissions defrauded            the citizens of Rabbitt's honest services.  Id. at 1025.  The                                                        ___            evidence showed, however, that  the officials who awarded the                                         -17-                                          17            architectural  contracts did  so on  merit alone  and Rabbitt            played no  role in the selection  of the firm.   Id. at 1026.                                                             ___            Because  Rabbitt   did  not  control  the   awarding  of  the            contracts, or otherwise fail  to fulfill his official duties,            his  conduct  did not  deprive  the  citizens of  his  honest            services.   Id.  (noting case's  resemblance to  McNeive, 536                        ___                                  _______            F.2d  at  1251-52).     The  court  also  observed  that  the            government failed to  cite any applicable standard  requiring            Rabbit to disclose his  interest in the contracts, and  thus,            the  citizens  were  not  deprived  of   any  right  to  such            disclosure.  Id. at 1026.                         ___                      The  McNeive  and  Rabbitt  cases  illustrate  that                           _______       _______            although  a public  official  might  engage in  reprehensible            misconduct related to an official position, the conviction of            that official for  honest-services fraud  cannot stand  where            the conduct does not actually deprive the public of its right            to her honest  services, and it is  not shown to intend  that            result.   Similarly,  if a non-public-official  is prosecuted            for scheming to  defraud the public  of an official's  honest            services,  the government must  prove that the  target of the            scheme is the deprivation  of the official's honest services.            If the  "scheme" does not, as its  necessary outcome, deprive            the public  of honest services, then  independent evidence of            the  intent to  deprive  another of  those  services must  be            presented.  See United States v. D'Amato, 39 F.3d, 1249, 1257                        ___ _____________    _______                                         -18-                                          18            (2d  Cir. 1994) ("Where the  scheme does not  cause injury to            the alleged  victim as  its necessary result,  the government            must produce  evidence independent  of the alleged  scheme to            show the defendant's  fraudulent intent."); United  States v.                                                        ______________            Von  Barta,  635 F.2d  999,  1005-1006  n.14 (2d  Cir.  1980)            __________            (noting  that "the  prosecution must  prove that  some actual            harm or injury was at least contemplated"), cert. denied, 450                                                        _____ ______            U.S. 998 (1981).  With this background, we consider the facts            of this case.                                         -19-                                          19            A.  Scheme to Defraud            _____________________                      Here,  the government did  not prosecute  Sawyer on            the theory  that he, as a  lobbyist, directly owed a  duty of            honest services to the Commonwealth or its citizens.  Rather,            the government sought to prove that Sawyer engaged in conduct            intended to cause state legislators to violate their  duty to            the  public.  The government  sought to establish this scheme            by  proving  that Sawyer  intentionally  violated,  or caused            members of  the  legislature to  violate,  two  Massachusetts            statutes.                      Briefly,   these    two   Massachusetts   statutes,            discussed  more fully infra, are: (1) Mass. Gen. L. ch. 268B,                                  _____              6 (the "gift" statute), which prohibits -- under threat  of            civil  penalties --  a "legislative  agent" from  offering or            giving to a public official (or an official's  acceptance of)            "gifts" aggregating $100 or more per year; and (2) Mass. Gen.            L. ch. 268A,   3 (the "gratuity" statute), which prohibits --            under threat of civil  and criminal penalties -- anyone  from            giving to a  legislator (or a  legislator from soliciting  or            accepting)  anything  of "substantial  value  .  .  . for  or            because  of any official act performed or to be performed" by            that  person.   Through  the  violation  of these  laws,  the            government contended, Sawyer stole the honest services of the            legislators.                                         -20-                                          20                      In general, proof of  a state law violation  is not            required  for  conviction  of  honest services  fraud.    See                                                                      ___            Silvano, 812 F.2d  at 759.   Indeed, the  incorporation of  a            _______            state  law   violation  in  such  a   prosecution  may  cause            complications.   See  United States  v. Washington,  688 F.2d                             ___  _____________     __________            953,  958 (5th  Cir. 1982)  (reversing mail  fraud conviction            where  jury should  have been  instructed that  the defendant            "should  not be found  guilty of  the federal  offense merely            because he  violated state law").  Here, however, the parties            agree  that the  indictment,  as structured,  required it  to            prove that Sawyer violated at least one state law.  Thus, the            state  laws  in question  had to  be  correctly charged  as a            matter of state law, and the violation of at least one had to            be proven.                      Sawyer appeals various aspects of  the court's jury            instructions  on the  state statutes  and their  role  in the            alleged scheme to defraud.  To determine  whether the court's            instructions adequately  explained the  law  or whether  they            "tended to confuse  or mislead  the jury,"  United States  v.                                                        _____________            Alzanki,  54  F.3d  994,   1001  (1st  Cir.  1995)  (internal            _______            quotations and  citation omitted),  cert. denied, 116  S. Ct.                                                _____ ______            909  (1996), we  review the entire  charge pertaining  to the            role  of the  state statutes  in this  honest services  fraud            prosecution:                      In this case  the government has  charged                      Mr.  Sawyer  with  devising a  scheme  or                                         -21-                                          21                      artifice; that is, a plan, to deprive the                      Commonwealth  of  Massachusetts  and  its                      citizens of  their  right to  the  honest                      services of members of  the Massachusetts                      Legislature  by  giving  or  offering  to                      those legislators gifts  of free  travel,                      lodging,    golf,   meals,    and   other                      entertainment.  I instruct you that under                      the  mail  and  wire  fraud  statutes,  a                      scheme  to  defraud  can  be  a  plan  to                      deprive the  public of  its right  to the                      honest   services   of  members   of  the                      Massachusetts Legislature.                           Elected  public  officials, such  as                      members of the Massachusetts Legislature,                      owe certain duties to the Commonwealth of                      Massachusetts and  to its citizens.   One                      of  those  duties  is  the  duty  to  act                      honestly.  The government charges that by                                 ______________________________                      violating  and   causing  legislators  to                      _________________________________________                      violate   certain  state   statutes,  Mr.                      _________________________________________                      Sawyer deprived the  public of its  right                      _________________________________________                      to the  honest services of members of the                      _________________________________________                      Massachusetts Legislature  and, therefore                      _________________________________________                      devised a scheme to defraud.                      ___________________________                           In   other  words,   the  government                      alleges   that  the   defendant  violated                                            ___________________                      federal  laws, mail fraud and wire fraud,                      _________________________________________                      by  intentionally  violating  or  causing                      _________________________________________                      Massachusetts   legislators  to   violate                      _________________________________________                      certain  state  laws.    Accordingly,  in                      ____________________                      order to  prove the first element  of the                      mail  fraud and/or  wire fraud,  that the                      defendant  devised  a scheme  to defraud,                      the  government  must   prove  beyond   a                      reasonable   doubt  that   the  defendant                      intentionally violated  or caused members                      of   the  Massachusetts   Legislature  to                      violate at least one of the following two                      state laws . . . . (emphasis added).            After describing the two statutes, the court continued:                      If  you find  beyond  a reasonable  doubt                      that  the defendant devised  or created a                      scheme   to   defraud    in   which    he                      intentionally   violated   or  caused   a                      violation  of at  least one  of the  laws                      that  I have just described, then you may                      find that  the government has  proved the                                         -22-                                          22                      first  element of  mail  fraud  and  wire                      fraud.                      These instructions  permitted the jury to  find the            requisite scheme to defraud  upon proof that Sawyer violated,            or  caused legislators  to violate,  either one of  the state                                                 ______            statutes.  In other words, the  jury was allowed to find that            a violation of either  statute, without more, constituted the            deprivation  of honest  services.8   At oral  argument before            this court,  the government affirmed that it  chose the state            law  violations as "the sole  vehicle to prove  the scheme or            artifice to defraud" in order to "narrow the issues of intent            and good faith."   Thus,  we analyze both  state statutes  in            light  of the  law of  honest services,  set forth  above, to            determine  whether  the   court's  instructions   erroneously            permitted a conviction  for conduct not  within the reach  of            the mail fraud statute.                      1.  The Gift Statute                      ____________________                                            ____________________            8.  After the  court instructed  the jury, Sawyer  lodged the            following objection:                      Your  Honor, I  believe that  the Court's                      instruction  failed to  properly instruct                      the jury that, even  if it finds that the                      defendant violated  one of the  two state                      statutes . . . the defendant would not be                      guilty of any federal offense, mail fraud                      and  wire  fraud  offense,   unless  [the                      violation] was  part of a plan to defraud                      the Commonwealth of Massachusetts  or its                      citizens of the duty of honest services.            The court declined any further charge.                                         -23-                                          23                      The   first  Massachusetts  statute  on  which  the            alleged scheme to  defraud was  based is ch.  268B,   6  (the            "gift statute"), which provides:                      No legislative agent shall  knowingly and                      wilfully  offer  or   give  to  a  public                      official  or public employee  or a member                      of such person's immediate family, and no                      public  official  or  public employee  or                      member of such person's  immediate family                      shall knowingly and  wilfully solicit  or                      accept from any legislative  agent, gifts                      with  an aggregate  value of  one hundred                      dollars or more in a calendar year.            Mass.  Gen. L. ch. 268B,   6.  We discuss Sawyer's challenges            to  the court's  instructions  on  the statutory  definitions            before turning  to the  statute's relation  to the scheme  to            defraud.                            a.  "Legislative Agent"                           _______________________                      The court  instructed  the  jury  that,  under  the            statute,  a  legislative agent  cannot  give  or offer  gifts            aggregating $100 or  more to  a legislator or  member of  the            legislator's   family.     It  further   instructed  that   a            "legislative agent"  is "any person who,  for compensation or            reward,  does  any  act   to  promote,  oppose  or  influence            legislation."  See Mass.  Gen. L. ch. 268B,   1(g).9   Sawyer                           ___                                            ____________________            9.  The   entire  definition  of   "legislative  agent,"  for            purposes of the gift statute, is:                      any person who for compensation or reward                      does   any  act  to  promote,  oppose  or                      influence legislation  . . . .   The term                      shall include persons who, as any part of                      their  regular  and usual  employment and                                         -24-                                          24            argues that this instruction  failed to reflect his assertion            that  a person  is a "legislative  agent" only when  he is so            registered  with the  Secretary of  State or  he is  actually            engaging in lobbying activity at the time he gave the alleged            gifts.                      The court  instructed that  a legislative  agent is            one   who  is   paid   to  "promote,   oppose  or   influence            legislation,"  i.e.,  to  lobby,  and that  such  agents  are                           ____            forbidden to give or offer certain "gifts."  The instruction,            as  a whole, adequately conveyed the idea that such gifts are            forbidden only  when given by those  who, at the time  of the            gifts, are  paid to actually  lobby.   While there  may be  a            person with the  job title "lobbyist"  who does not  actually            engage in lobbying, there was ample evidence here that Sawyer            lobbied at the time  he gave the alleged "gifts."   Moreover,            the  fact  that he  had an  obligation  to register  with the            Secretary of State, see Mass. Gen. L.  ch. 3,    40, 41, does                                ___            not  alter  the  definition.    No  further  instruction  was            required.                           b.  Shared Meals as "Gifts"                           ___________________________                                            ____________________                      not simply incidental thereto, attempt to                      promote, oppose  or influence legislation                      . . . whether  or not any compensation in                      addition   to   the   salary   for   such                      employment is received for such services.            Mass.  Gen. L. ch. 268B,    1(g); see also  3   39 (identical                                              ___ ____            definition in statutory section on disclosure obligations).                                         -25-                                          25                      The court instructed  the jury that "gifts,"  under            the    relevant   Massachusetts   law,    are   "a   payment,            entertainment, subscription, advance, services or anything of            value,  unless consideration  of  equal or  greater value  is            received."   See Mass. Gen. L. ch. 268B,   1(g).  Much of the                         ___            evidence  offered to  prove Sawyer's  violations of  the gift            statute was  his payment  for shared meals  and entertainment            with the legislators.  Sawyer  contends that his payment  for            "shared hospitality" does not  constitute a "gift" within the            meaning   of  the  statute.    The  issue  turns  out  to  be            potentially  complicated  and  involves  somewhat  convoluted            analysis of  the statutory  history of  a comparable  law set            forth at  Mass. Gen.  L.  ch. 3,    43.   We  have  carefully            reviewed the arguments on both sides, and for the reasons set            forth  in the  district  court's ruling,  see Sawyer,  878 F.                                                      ___ ______            Supp.  at  282-84, we  conclude  that  Sawyer's shared  meals            could, if the jury so found, fit within the gift definition's            term  "entertainment" and/or the very broad phrase, "anything            of value."                           c.  Relation to Scheme to Defraud                           _________________________________                      As   explained  above,   under  the   court's  jury            instructions   regarding  the  scheme  to  defraud,  Sawyer's            intentional  violations of  the gift  statute, by  their very            occurrence (or ipso facto), must deprive the public  of their                           ____ _____            legislators' honest services.   Sawyer challenges  this legal                                         -26-                                          26            premise,  arguing  that such  violations  do  not necessarily            deprive  the public  of those  services.10   For  the reasons            that follow, we agree.                      The gift statute, which forbids a legislative agent            from "knowingly and wilfully" giving a "public official . . .            gifts with an aggregated value of one hundred dollars or more            in  a calendar  year," Mass.  Gen. L.  ch. 268B,    6, simply            limits, by  a dollar-amount, the gift-giving  by lobbyists to            legislators.   It  is a  prophylactic civil  prohibition that            addresses  appearances of -- but not actual -- corruption.  A            violation  of  the   Massachusetts  gift  statute   does  not            necessarily  entail any  improper  motive  to  influence,  or            otherwise affect,  the official duties of the  recipient.  It                                            ______            is possible for a lobbyist to give a legislator items falling            within  the   statute's  definition  of  "gift,"   or  for  a                                            ____________________            10.  The  government claims that  Sawyer has  only challenged            the  evidentiary sufficiency  of his  fraudulent intent,  and            thus has waived  a jury instruction  challenge on the  issue.            We disagree.   While Sawyer ultimately  endeavors to persuade            us  that  the  evidence   was  insufficient  to  support  his            conviction, he squarely challenges the very legal theory upon            which  he  was convicted.    He  particularly challenges  the            government's theory (as accepted by the district court) that,            as a matter of law, the scheme to defraud could be predicated            upon  state  law  violations  alone, without  the  intent  to            deprive the  public  of honest  services.   Sawyer  not  only            lodged  an adequate  objection on this  issue with  the trial            court, see supra note  8, his brief to this  court thoroughly                   ___ _____            addresses the  precise legal issues surrounding the interplay            between  the  mail  statute,  the  state  statutes,  and  the            requirement of  fraudulent intent.   The legal  arguments are            sharply  presented and the record is adequate for our review.            Thus, we conclude that the issue is properly before us.                                         -27-                                          27            legislator  to  accept such  gifts,  without  an accompanying            intent to  cause the  legislator to deviate  from the  honest            performance  of  official duties.    While  such gifts  would            constitute   a   gift-statute  violation,   not   every  such            circumstance would necessarily amount to a deviation from the            official's performance  of honest  services to  the public.11            Thus, unlike the honest services fraud cases, noted above, in            which an official was bribed or took official action based on            a secret conflict of interest, a gift statute violation, even            if intentional, does not in itself  amount to honest services            fraud.                      While  the  Massachusetts' citizenry  expects their            legislators to comply with  laws pertaining to their official            capacity, the  presence of such illegal  conduct, even though            it relates to public office, does not by itself (or,  per se)                                                                  ___ __            establish honest services  fraud.  Cf.  See United States  v.                                               ___  ___ _____________            Dowling, 739  F.2d 1445,  1449-50 (9th Cir.  1984) (rejecting            _______            government's suggestion that "the presence of illegal conduct            alone  may constitute the basis  of the `fraud'  element of a            mail fraud prosecution" and stating that "to hold otherwise .            . . would have  the potential of bringing almost  any illegal            act within the province of the mail fraud statute"), rev'd on                                                                 ________            other grounds, 473 U.S. 207 (1985); United States v. Gallant,            _____________                       _____________    _______                                            ____________________            11.  We note  that under Massachusetts law,  violation of the            gift  statute is  punishable by  no more  than a  $2000 civil                                                                    _____            fine.                                         -28-                                          28            570  F. Supp. 303, 309  and n.7 (S.D.N.Y.  1983) (noting that            Congress  forbade the use of the mails in furtherance of "any            scheme or artifice to defraud" and not in furtherance of "any            crime").  To allow  every transgression of state governmental            obligations to  amount to  mail fraud would  effectively turn            every such  violation into a  federal felony; this  cannot be            countenanced.                      Because  the court's instructions  allowed the jury            to equate  a gift statute  violation with the  deprivation of            honest  services,  it  also permitted  the  jury  to find  an            "intent to defraud"  from the intent to violate  the statute,            without more.   To  establish the  scheme to  defraud through            these violations, however, it must also have been charged and            shown  that   the  intent  behind  the   violations  was  the                               ______            deprivation of honest services.  See D'Amato, 39 F.3d at 1257                                             ___ _______            (explaining that where  harm is not  the necessary result  of            the  scheme, independent  evidence  of fraudulent  intent  is            required).   Thus, this case required  a separate instruction            that, to prove  the intent to  commit honest services  fraud,            the jury had  to find  that Sawyer intended  to influence  or                                               __________________________            otherwise  improperly affect  the  official s performance  of            _____________________________________________________________            duties, not  merely that  he  intended to  violate the  state            ______            statute.12   Allowing the jury  to find that  Sawyer intended                                            ____________________            12.  This intent  is not  equivalent to, or  subsumed within,            the  intent  to deceive  the  public,  discussed  infra.   In                            _______                           _____            addition to deceit (the  gravamen of "fraud"), the government                        ______                                         -29-                                          29            to defraud the public  of its right to honest  services based            on  proof  of  gift  statute  violations   alone  constituted            reversible error.  See United States v. Doherty, 867 F.2d 47,                               ___ _____________    _______            57 (1st  Cir.), cert. denied, 492 U.S.  918 (1989) (observing                            _____ ______            that  reversal  of  convictions is  required  if instructions            "could have led the  jury to convict for conduct  outside the            proscription of the mail fraud statute").                        2.  The Gratuity Statute                      ________________________                      The  second Massachusetts  statute  upon which  the            convictions for honest-services mail fraud rely, is ch. 268A,              3 (the "gratuity statute"), which provides, in part:                      (a)  Whoever,  otherwise than as provided                      by  law  for  the  proper   discharge  of                      official  duty,  directly  or  indirectly                      gives,  offers  or  promises anything  of                      substantial  value  to  any   present  or                      former  state . . . employee . . . for or                      because of any  official act performed or                      to be performed by such an employee                      . . . .                      (d)  . . . shall be punished by a fine of                      not  more than three  thousand dollars or                      by  imprisonment  for not  more  than two                      years, or both.            Mass. Gen. L. ch. 268A,   3.                                            ____________________            must also show  the intent to harm (in  this case, to deprive                                          ____            of  honest  services).   See  McEvoy Travel  Bureau,  Inc. v.                                     ___  ____________________________            Heritage  Travel,  Inc.,  904  F.2d 786,  791-92  (1st  Cir.)            _______________________            (explaining  that  mail  fraud   requires  both  deceit   and            deprivation), cert. denied, 498  U.S. 992 (1990); D'Amato, 39                          _____ ______                        _______            F.3d at  1257 (explaining that  "the deceit  must be  coupled            with  a  contemplated harm  to  the  victim") (quotation  and            citation omitted).                                         -30-                                          30                      The  centerpiece  of the  gratuity  statute  is the            giving of an item of "substantial value" (the "gratuity"), to            an official, "for or because of any official act performed or            to be  performed" by  the  official.   Because this  language            entails some connection between  the gift and the performance            of official duties, a gratuity statute violation --  unlike a            gift  statute  violation  --  may  itself  be  sufficient  to            implicate the duty of  honest services in a  given case.   As            with the  gift statute, however,  not every violation  of the            gratuity  statute  automatically  encompasses  an  intent  to            induce the  public  official to  alter  or deviate  from  the            performance of honest and impartial services.  We explain.                      A Massachusetts gratuity offense does not require a            finding of corrupt intent, i.e., improper intent to influence                                       ____            official decision  making.   See Commonwealth v.  Dutney, 348                                         ___ ____________     ______            N.E.2d  812,  821 (Mass.  Ct.  App.  1976) (finding  gratuity            offense  to be  a  lesser included  offense of  Massachusetts            bribery  statute, Mass. Gen. L. ch. 268A,   2, which adds the            element  of "corrupt  intent" i.e.,  intent  to influence);13                                          ____                                            ____________________            13.  The Massachusetts bribery statute,  which did not form a            part of this case, provides, in part:                      Whoever,    directly    or    indirectly,                      corruptly   gives,  offers   or  promises                      _________                      anything  of value  to  any state  . .  .                      employee  . .  ., with  intent .  . .  to                                        ____________         __                      influence  any  official act  or  any act                      ____________________________                      within  the  official  responsibility  of                      such employee [shall be punished].                                         -31-                                          31            cf. United States v.  Mariano, 983 F.2d 1150, 1159  (1st Cir.            ___ _____________     _______            1993) (observing that gratuity offense, unlike  bribery, does            not involve a  "corrupt purpose").  Rather,  only some lesser            intent  need be  shown.  A  jury might  be charged  to find a            bribery or gratuity offense in the alternative, thus allowing            it to convict for a gratuity offense  if it is convinced that            the defendant gave  something to a public official because of            an  official act, but is not persuaded that the defendant had            a corrupt intent to  influence that act.  See,  e.g., Dutney,                                                      ___   ____  ______            348 N.E.2d at 821.                      As the  word "gratuity"  implies,  the intent  most            often associated with  the offense is the  intent to "reward"            an official for an  act taken in the past  or to be taken  in            the  future.   See Mariano,  983 F.2d  at 1159  (noting that,                           ___ _______            unlike one who bribes, the gratuity offender "gives  the gift            without  attaching any  strings,  intending it  instead as  a            reward for actions the public  official has already taken  or            is  already committed  to  take").   The  official act  might            otherwise  be properly  motivated; and  the  gratuity, though            unlawful, might  not be intended to  influence the official's            mindset  with regard  to  that particular  action.   In  some            cases, such as  a reward for  long-past official action,  the            intent to influence could  not possibly exist.  A  finding of            honest services fraud, however, requires, in connection  with                                            ____________________            Mass. Gen. L. ch. 268A,   2(a) (emphasis added).                                         -32-                                          32            the gratuity, the intent to cause an official to deviate from            the honest performance of services.                      Thus,  as  with  the   gift  statute,  proof  of  a            violation  of the  Massachusetts  gratuity  statute,  without            more, does not establish an  intent to commit honest services            fraud.   The  government  must  prove that  the  conduct  was            accompanied by the  requisite intent.   This intent could  be            shown  in a  number of  ways.   For example,  a bribery-like,            corrupt intent to influence official action necessarily is an            intent  to  deprive  the   public  of  an  official's  honest            services.   A  person might  not,  however, give  an unlawful            gratuity with the intent  to effect a specific quid  pro quo.                                                           ____  ___ ___            Rather,  as  the  government  contends here,  a  person  with            continuing and  long-term interests before an  official might            engage  in  a  pattern  of   repeated,  intentional  gratuity            offenses in  order to coax ongoing  favorable official action            in  derogation of  the public's  right to  impartial official            services.   Such  conduct would  be akin  to (although  not a            classic case of) the conflict of  interest cases noted above.            See,  e.g., Grandmaison, 77 F.3d at 567; Silvano, 812 F.2d at            ___   ____  ___________                  _______            759.  Here, for  example, while Sawyer may not  have provided            the legislators with direct kickbacks  or commissions arising            out of the specific official action, he may have intended the            legislators  generally  to  treat   preferentially  Hancock's            interests,  knowing that  the free meals,  entertainment, and                                         -33-                                          33            golf would continue so long as  favorable official acts were,            at some point, taken.                      In this case, the district  court did not, in fact,            instruct  the jury on a true "gratuity" offense.  Instead, it            instructed the  jury that,  to establish a  gratuity offense,            the  government must  prove  that Sawyer  "gave something  of            substantial  value  to  a   legislator  with  the  intent  to                                                    _____________________            influence  an official act  of that legislator."   While this            __________________________            instruction erroneously added an  intent-to-influence element            to the gratuity offense,  it also had the effect  of charging            the jury  to find  the requisite intent  for honest  services            fraud.14                        3.    Conclusion:  Scheme   to  Deprive  of  Honest                      ___________________________________________________            Services            ________                      The jury was permitted to find the first element of            mail and wire fraud,  the scheme to defraud, upon  proof that            either the gift statute or the gratuity statute was violated.            The  gift   statute  as  charged,  however,   was  a  legally                 ____            insufficient basis upon which to find  the scheme to defraud.                                            ____________________            14.  The  court also  instructed the  jury that  it is  not a            defense to a gratuity charge that the official act would have            occurred even if the gratuity had not been given.  See United                                                               ___ ______            States v. Previte,  648 F.2d 73, 82 (1st  Cir. 1981).  Sawyer            ______    _______            assigns error  to this instruction, contending  that the fact            that the  act would  have occurred  without  the gratuity  is            indicative of good faith.   Sawyer fails to explain, however,            how  the fact that an official act would have occurred anyway            could  have  affected  his  state  of  mind  when giving  the                                   ___            gratuities.  The court's  instruction was a correct statement            of the law, relevant to this case, and it was not in error.                                         -34-                                          34            Although  the  gratuity statute  was  properly  instructed in                           ________            terms  of honest services mail  fraud, we cannot  tell if the            convictions were based on  that statute or the insufficiently            charged  gift statute.  When  a jury has  been presented with            several  bases  for  conviction,  one  of  which  is  legally            erroneous, and it is impossible to tell which ground the jury            convicted upon,  the conviction cannot stand.   United States                                                            _____________            v. Nieves-Burgos, 62 F.3d 431, 435-36 (1st Cir. 1995).               _____________                      The government contends that  if we find error with            respect to the gift statute, we should affirm the convictions            because   the  jury  found  that  Sawyer  committed  gratuity            offenses within  the Travel Act convictions, discussed infra.                                                                   _____            We cannot  assume from  the Travel Act  convictions, however,            that  the jury based its  mail and wire  fraud convictions on            the gratuity statute.  The court charged the jury to consider            each  offense as separate bases  for the mail  and wire fraud            charges.   Accordingly,  the  possibility exists  that,  when            convicting  on the  mail  and wire  fraud  charges, the  jury            focused on violations of the gift statute, alone.  See Boots,                                                               ___ _____            80 F.3d at 589  (declining to affirm conviction where  it was            possible  that  the jury  focused  its  verdict on  erroneous            basis).   Thus, for the foregoing reasons,  Sawyer's mail and            wire fraud convictions must be reversed.                      Sawyer contends that  the evidence was insufficient            to  prove an  intent to  influence the  legislators' official                                         -35-                                          35            acts  and that  therefore his  conviction should  be reversed            without the possibility  of retrial.   We cannot  agree.   At            trial,  there  was  evidence  that  Sawyer  intentionally and            repeatedly   provided  legislators  with  valuable  gifts  of            entertainment for the purpose  of obtaining "greater  access"            to,15  and  of  developing  a  "certain  relationship  with,"            legislators.  A  jury could credit  Sawyer's defense that  he            thought his expenditures were lawful and that they were meant            only for goodwill entertaining.   Taking the evidence in  the            light most favorable to  the prosecution, however, see United                                                               ___ ______            States  v. Olbres, 61 F.3d 967, 970 (1st Cir.), cert. denied,            ______     ______                               _____ ______            116  S. Ct. 522 (1995),  a jury could  also rationally infer,            beyond  a  reasonable doubt  that  Sawyer  intended that  his            repeated  gifts and  gratuities would  induce legislators  to            perform   official  acts   to  benefit   Hancock's  interests            regardless of,  or at  the expense  of, the public  interest.                                            ____________________            15.  We  do  not think  that the  desire  to gain  access, by            itself,  amounts to  an  intent to  influence improperly  the            legislators'  exercise of  official duties.   The  government            points  to no legislative duty to provide equal access to all            members of the public;  and, from a practical  standpoint, we            doubt one exists.   See Sawyer, 878 F. Supp. at 294 (striking                                ___ ______            phrase  "free  from  favoritism"  from  indictment's list  of            legislators' duties).   True,  Sawyer's very  job description            required him to develop contacts  in the Legislature, and, as            with all lobbyists, his employment  goal was to persuade  and            influence legislators  to benefit  certain  interests.   Such            endeavors, however,  are protected by the  right "to petition            the Government for a redress  of grievance" guaranteed by the            First Amendment of the United States Constitution, see United                                                               ___ ______            States  v. Harriss,  347 U.S.  612, 625  (1954); it  would be            ______     _______            impermissible to rely upon the lobbying position  simpliciter            to establish a corrupt intent to influence.                                         -36-                                          36            Hence, retrial is not precluded.  See Boots, 80  F.3d at 589-                                              ___ _____            90  (reversing because  of  legal error  in instructions  but            remanding  for  possible  retrial  because  the  evidence was            sufficient for proper conviction); United States v. Ochs, 842                                               _____________    ____            F.2d 515, 529 (1st Cir. 1988) (same).                      In view of the  possibility that the government may            choose to retry  this case, we  think it is  useful to add  a            cautionary word concerning the relationship between state and            federal  law in cases  such as  this one.   Our  comments are            addressed primarily to  the mail fraud  statute but apply  in            some  measure to the  Travel Act charge,  discussed infra, as                                                                _____            well.  Two problems are of specific concern to us.                      First, concerning the theft of honest services jury            instruction, an  overemphasis on  what state law  forbids may            lead the jury to  believe that state rather than  federal law            defines the  crime, or more specifically,  that any violation            of a state law or  regulation concerning lobbying or  related            matters amounts  to honest  services fraud.    Wire and  mail            fraud are  federal offenses;  and while state  violations may                       _______            play a  role, the jury should not be allowed to slip into the            misunderstanding  that any  violation of  proliferating state            laws  and regulations  controlling  this  area  automatically            amounts to a federal crime.                      In  a similar vein, we think there exists a risk in            this case -- particularly in view of the prosecutor's closing                                         -37-                                          37            argument  with  its repeated  emphasis on  permissible dollar            limits in  lobbying --  that the jury  could wrongly  believe            that  any expenditure  in  excess of  that  allowed by  state            statute or  regulation  by  itself  constitutes  the  federal            offense.    The  district  court has  ample  authority  under            Federal  Rule of  Evidence 403  to limit  evidence concerning            state law  requirements where that evidence  is substantially            more  prejudicial than probative.   And, in  all events, jury            instructions need to make  clear that for the federal  honest            services  fraud  to be  proven, the  defendant must  have the            intent to  affect a  legislator's performance of  an official            act  and not merely to make  payments in excess of some state            specified limitations.            B.  Intent to Deceive            _____________________                      Whether or not  a new  trial on the  mail and  wire            fraud  counts  is allowable  requires  us  to reach  Sawyer's            additional contention  that the evidence  was insufficient to            establish his intent  to deceive  the public.   To this  end,            Sawyer contends that because the government did not establish            that  he had  a  duty  to  disclose  his  illegal  gifts  and            gratuities to  the public, his  intent to deceive  the public            had to be shown through affirmative acts of deception,  which            he claims are absent here.                      To  establish  mail  fraud  --  in  cases involving            honest  services fraud  and otherwise  -- the  alleged scheme                                         -38-                                          38            must involve deception in the deprivation of money, property,            or the right to  honest services.  See McEvoy  Travel Bureau,                                               ___ ______________________            Inc. v. Heritage Travel,  Inc., 904 F.2d 786, 791  (1st Cir.)            ____    ______________________            ("[N]ot every use of the mails or wires in furtherance  of an            unlawful scheme  to deprive  another of property  constitutes            mail or wire fraud. . . . Rather, the scheme must be intended            to  deceive   another,  by  means  of   false  or  fraudulent                _______            pretenses,  representations,  promises  or   other  deceptive            conduct.")  (citations omitted), cert.  denied, 498  U.S. 992                                             _____  ______            (1990); see also  Grandmaison, 77 F.3d  at 567 (finding  that                    ___ ____  ___________            public  official's conduct of  secretly delivering gratuities            to other  officials for favorable action, "without disclosing            his actions  to other  [officials]," falls within  purview of            honest services  mail fraud) (citing McEvoy  Travel, 904 F.2d                                                 ______________            at 791);  United States v. Bush, 522  F.2d 641, 648 (7th Cir.                      _____________    ____            1975),  cert.  denied,  424  U.S.  977  (1976).16    While  a                    _____  ______                                            ____________________            16.  Under 18 U.S.C.   1346, "the term 'scheme or artifice to            defraud' includes a scheme or artifice to deprive another  of                                                      _______            the intangible right of  honest services."  (emphasis added).            We do not think the word "deprive" in this section eliminates            the  requirement  of  deceit  in  an  honest  services  fraud                                  ______            prosecution.  Nor do  we find that a deprivation  of "honest"            services,  by  definition,  necessarily  includes  the deceit            factor  sufficient  for  mail  fraud.   By  enacting    1346,            Congress  meant to  overturn  McNally, 483  U.S. 350  (1987),                                          _______            which held that  the scheme  to defraud must  be intended  to            deprive another  of money or property.   Grandmaison, 77 F.3d                                                     ___________            at 566.  And  prior to McNally, courts endorsing  the honest-                                   _______            services mail fraud theory  invariably required some  showing            of  deceit  which  is inherent  in  the  term  "fraud."   See                                                                      ___            Silvano, 812 F.2d at 759-60; Mandel, 591 F.2d at 1361; United            _______                      ______                    ______            States  v. Barber,  668 F.2d  778,  784-85 (4th  Cir.), cert.            ______     ______                                       _____            denied,  459 U.S. 829 (1982).  We find nothing that indicates            ______                                         -39-                                          39            misrepresentation of  fact is not required  to establish mail            fraud,  McEvoy Travel, 904 F.2d at 791, a demonstrated intent                    _____________            to deceive is required.                      When  the  conduct  of  a  government  official  is            involved,   "the  affirmative   duty  to   disclose  material            information   arises  out   of  [the]   official's  fiduciary            relationship to [the public]."  Silvano, 812 F.2d at 758; see                                            _______                   ___            id. at 760 ("Although not  all dishonest or disloyal  conduct            ___            by an employee violates the mail fraud statute, an employee's            breach of a fiduciary duty falls within the strictures of the            statute  when it encompasses the breach of a duty to disclose            material information to the employer.").  Thus, an official's            intentional violation  of the  duty to disclose  provides the            requisite "deceit."  See  id. at 760 (noting that  failure to                                 ___  ___            disclose "under circumstances  where the non-disclosure could            or does result in harm to the employer is a  violation of the            mail  fraud  statute")  (citation  and   internal  quotations            omitted).                      Here,  although the  issue  has  not  been  clearly            presented  by  the parties,  it  appears  that the  requisite            intent  to  deceive  could  have been  shown  either  through            Sawyer's own acts of deception toward the public with respect                                            ____________________            a change in this requirement for establishing honest services            mail or  wire  fraud.   Thus, while  it may  be difficult  to            conceive  of  a scheme  to deprive  someone  of the  right to            honest services without intending to deceive that person, the            intent to deceive must nonetheless be established.                                         -40-                                          40            to  the  gift/gratuity  statute  violations, or  through  his            efforts to  ensure that  the legislators deceived  the public            with respect to the violations.  The latter requires evidence            only  that   Sawyer  intended   to   cause  the   legislators            intentionally to  fail to disclose material information about            the  violations,17 although  evidence  that  he intended  the            legislators  to affirmatively misrepresent themselves in this            regard would also suffice.   At bottom, the evidence  must be            sufficient to establish Sawyer's intent that, in the end, the            publicbedeceivedwith respecttohisunlawfulgifts andgratuities.                      Therefore,  we  must  determine  if  the admissible            evidence,  viewed  in  light  most favorable  to  the  jury's            verdict,  is  sufficient for  a  rational jury  to  find that            Sawyer  intended that  the public  be deceived.   See  United                                                              ___  ______            States  v. Kaplan, 832 F.2d  676, 679 (1st  Cir. 1987), cert.            ______     ______                                       _____            denied, 485 U.S. 907 (1988).  The evidence need not compel an            ______            intent-to-deceive finding; rather, it is only required that a            reasonable jury  could  be  persuaded,  beyond  a  reasonable            doubt, that Sawyer  had such  intent.  See  United States  v.                                                   ___  _____________            O'Brien,  14 F.3d 703,  706-707 (1st Cir. 1994).   And we are            _______            mindful  that   a  jury  may  choose   among  the  reasonable            alternatives posed by the evidence.  United States v. Olbres,                                                 _____________    ______                                            ____________________            17.  Although  allegations that Sawyer  caused legislators to            violate their statutory disclosure obligations were withdrawn            by  the  government  at  trial, the  obligation  to  disclose            material  information  inheres  in  the  legislator's general            fiduciary duty to the public.  Silvano, 812 F.2d at 758.                                           _______                                         -41-                                          41            61 F.3d  967, 973 (1st  Cir. 1995), cert. denied,  116 S. Ct.                                                _____ ______            522 (1995).  Finally,  the specific intent to deceive  may be            proven  (and  usually  is)  by  indirect  and  circumstantial            evidence.   See O'Brien, 14 F.3d at 706 (observing that fraud                        ___ _______            crimes "by their very  nature, often yield little in  the way            of direct proof"); Kaplan,  832 F.2d at 679; see  also United                               ______                    ___  ____ ______            States  v.  Nivica, 887  F.2d  1110,  1113  (1st  Cir.  1989)            ______      ______            (opining  that "factual  circumstances may  signal fraudulent            intent in  ways as  diverse as  the  manifestations of  fraud            itself"), cert. denied, 494 U.S. 1005 (1990).                      _____ ______                      At first  blush, it  may appear that  bribery of  a            public official necessarily incorporates  a finding that  the            offender  intended to  "trick" or  "deceive" the  public into            thinking that the official  was acting independently when, in            fact,  the  official was  actually  motivated  by the  bribe.            While we have little  doubt that bribes are usually  given in            secrecy, see  Holzer,  816 F.2d  at 309  (observing that  "no                     ___  ______            public official  in the United States  takes bribes openly"),            bribery  and gratuity  statutes  generally, as  here, do  not            require  a  separate element  of  deception.   Ostensibly,  a            _______            person  could offer an illegal bribe to a public official and            not  be concerned  with  its  secrecy.   Thus,  the  evidence            presented must permit a finding that Sawyer not only gave the            unlawful  gifts or gratuities with the  intent to deprive the            public  of  honest services,  but  that he  also  intended to                                         -42-                                          42            deceive the public about that conduct.  See Bush, 522 F.2d at                                                    ___ ____            648.                      Here, the government presented evidence that Sawyer            gave the unlawful gifts and gratuities during the seven years            of the indictment  period until the Boston  Globe exposed the            practice in May 1993.  Much of his entertainment of lobbyists            took   place  out-of-state   --  usually   at  industry   and            legislative conferences -- where members of the Massachusetts            citizenry  generally  would   not  observe  the  questionable            activities.   Unlike his acts  of "non-public" entertainment,            Sawyer ensured compliance with  state ethical standards for a            1993  Boston Marathon  brunch,  potentially  a  high  profile            event.    In  his  office,  Sawyer  kept  newspaper  articles            reporting  legislators'  activities  with  lobbyists,  and in            particular, the ethical  ramifications of such relationships.            In one article, Representative  Mara (a recipient of Sawyer's            unlawful gifts or gratuities)  is quoted as saying, "Everyone            picks up their own  tabs at [legislative] conferences. .  . .            These  conferences have  become almost  nonexistent."   These            articles  were   kept  in  notebooks  with   other  materials            regarding lobbying laws.                      A  jury  rationally  could  infer that  Sawyer  was            cognizant of his ethical obligations in lobbying, knew of the            public awareness  of lobbying activity,  and repeatedly  gave            hidden unlawful  gifts and  gratuities until he  was publicly                                         -43-                                          43            exposed.   While not  overwhelming, the combined  evidence is            sufficient  to permit  a reasonable  jury  to find,  beyond a            reasonable doubt, that Sawyer  intended to deceive the public            about his  unlawful expenditures on legislators.   See United                                                               ___ ______            States  v.  Ortiz,   966  F.2d  707,  711   (1st  Cir.  1992)            ______      _____            (explaining  that "juries  are  not required  to examine  the            evidence in  isolation, for  `individual pieces  of evidence,            insufficient  in   themselves  to  prove  a   point,  may  in            cumulation prove  it.  The sum of an evidentiary presentation            may well  be greater  than its constituent  parts.'" (quoting            Bourjaily  v. United  States, 483  U.S. 171,  179-80 (1987)),            _________     ______________            cert.  denied,  506  U.S.   1063  (1993);  United  States  v.            _____  ______                              ______________            Montminy, 936 F.2d 626, 627-28 (1st Cir. 1991).18            ________                                            ____________________            18.  The  government  also  presented  evidence  that  Sawyer            somehow concealed his  expenditures on  legislators from  his            Hancock superiors  other than Hathaway.   The government does            not  argue that  this evidence  can amount  to the  requisite            deceptive conduct, nor did  it rely on it to prove the intent            to deceive.  In any event, Sawyer's deceptive conduct  toward            Hancock, alone, cannot form the basis of this honest services            fraud conviction.   Rather, the  alleged victims of  the mail            fraud  -- here, the state and the  public -- must be the ones            deceived.  Thus,  in order  for any deception  of Hancock  to            form a part of the scheme to deprive the Commonwealth and her            citizens of  legislators' honest services, some  showing that            such  conduct  was connected  to  the  defrauding of  alleged            victims is required.   See McEvoy Travel,  904 F.2d at 794  &                                   ___ _____________            n.13  (rejecting  position  that   a  scheme  to  defraud  is            established if the deception  of one party causes deprivation            to another);  Lifschultz Fast  Freight, Inc. v.  Consolidated                          ______________________________     ____________            Freightways Corp., 805 F. Supp. 1277 (D.S.C. 1992) (requiring            _________________            convergence of  identity of  injured and deceived),  aff'd on                                                                 ________            other  grounds, 998  F.2d 1009  (4th  Cir.) (Table),  1993 WL            ______________            241742, cert. denied, 114 S. Ct. 553 (1993).                    _____ ______                                         -44-                                          44                      For the foregoing  reasons, Sawyer's mail and  wire            fraud convictions must be vacated and remanded for a possible            new trial.                                         III.                                         III.                                         ____                                  Travel Act Counts                                  Travel Act Counts                                  _________________                      The  government charged  Sawyer with  knowingly and            wilfully  travelling   and  causing   others  to   travel  in            interstate commerce with the intent to promote,  carry on and            facilitate   the  promotion  and   carrying  on  of  unlawful            activity, to  wit, illegal  gratuities in violation  of Mass.            Gen. L. ch. 268A,   3, in  violation of 18 U.S.C.   1952 (the            "Travel  Act").19     The  government  asserted  that  Sawyer            violated  the  Massachusetts gratuity  statute  subsequent to            interstate  travel  to  the  following  destinations:  Tulsa,            Oklahoma;  Orlando,  Florida; Savannah,  Georgia; Scottsdale,            Arizona;  Key Largo,  Florida;  Charleston,  South  Carolina;            Amelia Island, Florida; and Puerto Rico.                                            ____________________            19.  The Travel Act proscribes  travel in interstate commerce            "with intent to .  . . promote, manage, establish,  carry on,            or  facilitate the  promotion, management,  establishment, or            carrying on, of any unlawful activity."  18 U.S.C.   1952(a).            "Unlawful activity" is defined as, inter alia, "bribery . . .                                               _____ ____            in violation of the  laws of the State in which  committed or            of  the United  States."   18  U.S.C.    1952(b); see  United                                                              ___  ______            States  v. Arruda, 715  F.2d 671, 681  (1st Cir. 1983).   The            ______     ______            district court instructed  the jury that  a violation of  the            gratuity statute  constituted "unlawful" activity  within the            purview of  the Travel Act, a view with which we agree to the            extent that the court instructed that  something of value was            given in  order to influence  the performance of  an official            act.   Sawyer does not  dispute that a  gratuity violation of            this character is "bribery" for purposes of the Travel Act.                                         -45-                                          45                      Sawyer argues that his Travel  Act convictions must            be reversed because: (1) the court erroneously instructed the            jury  on   the  gratuity   statute;  (2)  the   evidence  was            insufficient  to  establish the  gratuity  offenses; (3)  the            court  barred him  from  presenting evidence  crucial to  his            defense;  and  (4)  the  court  improperly  admitted  summary            evidence introduced  by the government.   Although we discuss            and  reject each of  these arguments in  turn, we nonetheless            reverse his  conviction on these counts  because the district            court's  instructions on  the meaning  of "bribery,"  for the            purposes of the Travel Act, were fatally flawed.            A.  Gratuity Statute Jury Instructions            ______________________________________                      Because   the  Travel  Act  convictions  rely  upon            violations  of the  Massachusetts  gratuity  statute, we  now            address  an  additional  state-law  aspect  of  the  gratuity            statute about which the parties disagree.                      The  gratuity statute  requires  that the  item  of            "substantial value"  be given "for or because of any official            act  performed or to be performed."   Mass. Gen. L. ch. 268A,              3(a).   An "official act"  is defined as:  "any decision or            action  in  a  particular  matter  or  in  the  enactment  of            legislation."    Mass. Gen.  L.  ch. 268A,    1(h).20   Here,                                            ____________________            20.  A "particular matter" is further defined as:                      any   judicial   or   other   proceeding,                      application,  submission,  request for  a                      ruling or  other determination, contract,                                         -46-                                          46            Sawyer  allegedly  bestowed gratuities  upon  legislators who            were  members of the Insurance Committee.  Thus, for purposes            of  this  discussion,  we  proceed on  the  theory  that  the            government had to prove that Sawyer gave the gratuities  "for            or because of . .  . any decision or action in  the enactment            of legislation."  See Mass. Gen. L. ch. 268A,    3(a), 1(h).                              ___                      The  parties'  interpretations   of  the   gratuity            statute differ with respect to the scope and character of the            connection required  between  the gratuity  and the  official            act.  Sawyer contends  that the gratuity must be  linked to a            specific, identifiable official  act.  The  government argues            that  it is sufficient to  prove that the  gratuity would not            have been  given but  for  the legislator's  ability to  take            official action favorable to Sawyer.  In a pretrial ruling on            Sawyer's motions  to dismiss, the district  court agreed with            the government's interpretation, and instructed as such.21                                            ____________________                      claim,  controversy, charge,  accusation,                      arrest, decision, determination, finding,                      but   excluding   enactment  of   general                      legislation . . .            Mass. Gen. L. ch. 268A,   1(k).            21.  The  court's jury  instructions  on this  issue were  as            follows:                      I instruct you that the government has to                      prove beyond a  reasonable doubt that the                      defendant   intended  to   influence  the                      action  of the legislator on any official                      matter  which  was  pending   before  the                      legislator or  which  may, by  law,  have                      been  brought  before  the legislator  at                                         -47-                                          47                      No Massachusetts court decision has yet interpreted            the operative "for  or because of any official  act" language            in ch. 268A,   3(a).   To support their respective positions,            the  parties  present   differing  arguments  regarding   the            statutory language, legislative history, comparable statutes,            and  State  Ethics Commission  rulings.    We consider  these            sources separately.                      1.  Statutory Language                      ______________________                      The  gratuity  statute   prohibits  the  giving  of            gratuities "for or because  of any official act  performed or            to be  performed."  Mass. Gen. L. ch. 268A,   3.  The statute            does not  read "for or  because of the  official's position."                 ___            Rather, it forbids gratuities motivated by "any official act"                                            ____________________                      some later time.                           . . . .                           I  further  instruct  you  that  the                      government  need  not   prove  that   the                      alleged gratuity was linked to a specific                      identifiable  act.   In other  words, the                      government  need  not   prove  that   the                      gratuity  was given  as a  quid pro  quo;                      that is, in exchange for any one specific                      act performed or  to be performed by  the                      legislator.  The government does not have                      to  show  that  there  was  an  agreement                      between the defendant and  the legislator                      requiring   the  legislator   to  perform                      certain   acts   in   exchange  for   the                      gratuity.                           The government  must prove, however,                      that  the  defendant  gave   the  alleged                      gratuity   to   a  legislator   with  the                      expectation that the legislator would use                      his influence on official matters in ways                      favorable to the defendant.                                         -48-                                          48            and  further  defines, rather  meticulously,  "official act."            See Mass. Gen. L. ch. 268A,    1(h) & (k).  Thus, on the face            ___            of the statute, it  does not appear that the  unlawfulness of            the  gratuity could  be  established  by  proof that  it  was            motivated solely by the official's position.  In other words,            proof of  the offense requires  something more than  a simple            showing that "but for" the official's authority, the gratuity            would not have been given.22                      This observation,  however,  does not  lead to  the            conclusion that the gratuity must be shown to be motivated by            a  specifically identified official  act.  As  noted supra, a                                                                 _____            gratuity  offense is  essentially a  bribery  offense without            proof of  "corrupt intent."  The concern  behind the gratuity            statute,  like   the  bribery   statute,  is   the  potential            undermining  of  official integrity.    A  gratuity does  not            compromise this  integrity because of its  possible effect on            the  official's  "position"; rather,  the  danger  is in  its            ability to affect the official's performance of duties, i.e.,                                                                    ____            "official  acts."    It is  not  surprising,  then, that  the                                            ____________________            22.  For example, if the parent of a student gives the school            principal  a  gift  of  substantial value  at  the  student's            graduation,  that  alone  would  not  constitute  a  gratuity            offense, even though the parent would not have given the gift            "but for" the  principal's position.   If, however, the  gift            was given under circumstances in which the principal  had the            discretion  to  decide  whether  or  not  the  student  would            graduate, a gratuity offense might be found.                                         -49-                                          49            statute  proscribes gratuities  motivated by  "official acts"            rather than "official position."                      Thus, the use of the term "official act" appears to            ensure that  the gratuity would be deemed  unlawful only when            the giving of an item of "substantial value" is linked to the            official's performance of duties.  The connection between the            gratuity  and the  performance of  official duties,  however,            does not necessarily require the identification of a specific            official act, and we  find nothing in the statutory  language            to require such a demonstration.                      2.  Legislative History                      _______________________                      The  gratuity statute  was based,  in part,  upon a            bill drafted  by a  1962 Massachusetts Special  Commission on            Code of Ethics.  See Report of the Special Commission on Code                             ___            of Ethics, 1962  House Doc. No.  3650, p.8.   Nothing in  the            Commission's Report,  however,  assists us  in resolving  the            instant question.  It  states only: "It should be  noted that            to  constitute a criminal act, the giving or receiving of the            item  of such `substantial value' must be `for or because of'            an official act."  Id. at 11; see Commonwealth v. Famigletti,                               ___        ___ ____________    __________            354  N.E.2d  890, 893  (Mass.  Ct.  App. 1976)  (noting  same            language  in the report).  The Report neither parses out what            these terms  mean, nor gives  examples of what  was intended.            From  this we discern only that  the Commission was concerned                                         -50-                                          50            that "innocent" gifts to officials would  not fall within the            gratuity statute's purview.                      The Commission's  report does tell  us that "[m]uch            of the  language of  the  proposed legislation  is taken  and            adapted from  [a  proposed federal  bribery/gratuity  bill]."            Report of  Special Commission, supra  at 8;  see Dutney,  348                                           _____         ___ ______            N.E.2d  at  822 n.16.    As  discussed  below,  however,  the            comparable federal gratuity  statute, 18 U.S.C.   201(c),  is            also unhelpful in resolving the question before us.                      3.  Comparable Statutes                      _______________________                      In support of  its position, the  government relies            on the Massachusetts  Supreme Judicial Court's interpretation            of a  different statute in Commonwealth v.  Lapham, 156 Mass.                                       ____________     ______            480,  31  N.E.  638  (Mass.   1892),  and  on  federal  cases            interpreting   the  federal   gratuity  statute,   18  U.S.C.              201(c).                      Lapham  involved a  milk  dealer who  attempted  to                      ______            bribe a city milk inspector and was convicted under a statute            punishing anyone who:                      corruptly  gives,  offers or  promises to                      any  executive,  legislative  .  .  .  or                      judicial  officer   .  .  .any   gift  or                      gratuity   whatever,   with   intent   to                      influence   his   act,   vote,   opinion,                      decision,  or  judgment  on  any  matter,                      question, cause, or proceeding, which may                      be then pending, or may by law come or be                      brought  before  him   in  his   official                      capacity.                                         -51-                                          51            Mass.  Pub. St. ch. 205,   9  (Ch. 349 Revised May 21, 1891);            see Lapham, 31 N.E. at  638-39.  The milk dealer  argued that            ___ ______            the indictment  was insufficient  because it  did not  aver a            particular  matter  to  be  influenced.    Id.    The Supreme                                                       ___            Judicial Court disagreed, reasoning as follows:                      Nor  is  it  necessary in  an  indictment                      under  [ch. 205,    9]  to aver  that the                      corrupt intention to  influence the  act,                      opinion,  decision  or  judgment  of  the                      inspector was in relation to any specific                      and particular matter then pending before                      him,  or which was  then expected to come                      before  him.   It  is  enough  to aver  a                      corrupt  intention so to influence him in                      any matter which may  then be pending, or                      which may  by  law  come  or  be  brought                      before him.  If for example an executive,                      legislative or judicial officer is bribed                      corruptly to favor a particular person in                      any and all matters affecting that person                      which  may  come  before   such  officer,                      without specification or knowledge of the                      particular matters likely to come up, the                      statute is broad enough to include such a                      case.    A  narrower  construction  of  a                      similar  statute  has  been   adopted  in                      Alabama,   but   we  cannot   follow  it.                      Barefield v. State, 14 Ala. 603 [1848].                      _________    _____            Id. at 639.            ___                      The  difficulty with  the government's  reliance on            Lapham is, of course, the fact that it involved a differently            ______            worded statute.  The Lapham statute proscribes a corrupt gift                                 ______            to  influence an official act "on any  matter . . . which may                                                                      ___            be then pending or may  by law come or be brought  before him                               ___            in his  official capacity."  Mass. Pub. St. ch. 205,   9 (Ch.            349  Revised May 21, 1891) (emphasis added).  In holding that                                         -52-                                          52            an  averment  of a  specific  matter was  not  necessary, the            Lapham  court repeatedly used the word "may."  See, e.g., id.            ______                                         ___  ____  ___            ("It  is enough to aver  a corrupt intention  so to influence            him in any matter which may then be pending, or  which may by                                    ___                            ___            law come or be brought before him.") (emphasis added).                      The  question is  whether the  absence of  the word            "may"  in the present gratuity statute, see Mass. Gen. L. ch.                                                    ___            268A,    3,  1(h) & (k), signifies,  by negative implication,            the requirement of a specific official act.  The reasoning in            Lapham does  seem to  indicate some relationship  between the            ______            word  "may" and the absence of a specificity requirement.  We            think, however, that it  does not follow that the  word "may"            is  the  only manner  in  which to  indicate  that particular            official  acts need  not  be shown  to  establish a  gratuity            offense.                      The  present  statute  proscribes  a  gift "for  or            because   of   any   official   act  performed   or   to   be                           ___            performed,"23  and  further defines  "official  act" as  "any                                                                      ___                                            ____________________            23.  The  phrase  "performed  or  to  be  performed"  affords            temporal flexibility  between the gratuity and any motivating            official  act.   Mass. Gen.  L. ch  268A   3(a);  Dutney, 348                                                              ______            N.E.2d at  821  n.14.   This  temporal  flexibility  is  also            present  in the Lapham statute ("may then be pending or which                            ______            may by  law come  or be brought  before him"),  ch. 205,    9            (1891),  as well as the federal gratuity statute ("may at any            time be pending, or  which may by law  be brought before  [an            official]")  noted infra.   18  U.S.C.   201(a)(3).   In  our                               _____            view, and contrary to the district  court, while the language            affording temporal flexibility is consistent with the absence            of  an  official-act  specificity  requirement,  it  does not            compel that result.  See Sawyer, 878 F. Supp. at 287.                                 ___ ______                                         -53-                                          53            decision or action in a particular matter or in the enactment            of legislation."    Mass. Gen.  L.  ch. 268A,     3(a),  1(h)            (emphasis  added).  Use of the broad term "any" is consistent            with  a legislative  intent to  proscribe gifts  motivated by            unidentified  official  acts.   Most  importantly,  given the            reasoning  set  forth  in  Lapham,  we  think  that   if  the                                       ______            Massachusetts  Legislature had  wanted to  drastically narrow            the scope  of the gratuity offense  by requiring specifically            identified official  acts, it would have  spoken more clearly            than  it has.    In the  end,  the Lapham  case  supports the                                               ______            conclusion that a gratuity offense may be established without            proof that a specific official act was the motivation for the            gratuity.                      The  government also  relies on  cases interpreting            the  similarly  worded federal  gratuity  statute,  18 U.S.C.              201(c),24  that  indicate  that  a  conviction  under  that                                            ____________________            24.  The   federal  gratuity  statute,  18  U.S.C.    201(c),            provides, in pertinent part:                      Whoever  -- [] otherwise than as provided                      by  law  for   the  proper  discharge  of                      official   duty   --   []   directly   or                      indirectly  gives,  offers,  or  promises                      anything of value  to any public official                      . . . for or because of  any official act                      performed  or to  be  performed  by  such                      public   official   .   .  .   shall   be                      [punished].                      The term  "official act"  is further defined  in 18            U.S.C.   201 (a)(3) as:                                         -54-                                          54            statute  does  not require  a showing  that the  gratuity was            linked  to a specific official act.  See, e.g., United States                                                 ___  ____  _____________            v. Bustamante, 45 F.3d 933, 940 (5th Cir.) ("it is sufficient               __________            for the government to  show that the defendant was  given the            gratuity  simply  because  he  held  public  office"),  cert.                                                                    _____            denied, 116 S. Ct. 473 (1995); United States v. Niederberger,            ______                         _____________    ____________            580  F.2d 63,  68-69 (3d  Cir.), cert.  denied, 439  U.S. 980                                             _____  ______            (1978); United States v. Standefer,  610 F.2d 1076, 1080  (3d                    _____________    _________            Cir. 1979) (en  banc), aff'd  on other grounds,  447 U.S.  10                                   _______________________            (1980).    The government  reasons that  because much  of the            Massachusetts  gratuity statute's language was based upon the            federal statute, see  Dutney, 348  N.E. 2d at  822 n.16,  and                             ___  ______            because some  federal cases hold that specific  acts need not            be shown,  a similar interpretation  of the state  law should            obtain.                         Reliance  on those cases, however, is undermined            by  the fact that  the First  Circuit has  expressly reserved            ruling  on   the  question  of  whether  or  not  a  gratuity            prosecution  under the  federal statute  requires proof  of a            "causal  relation  to  any  `specific,   identifiable  act.'"                                            ____________________                      any  decision or action  on any question,                      matter,   cause,   suit,  proceeding   or                      controversy,  which may  at  any time  be                      pending, or which may  by law be  brought                      before  any  public  official,   in  such                      official's official capacity, or  in such                      official's place of trust or profit.                                         -55-                                          55            United States v. Previte, 648 F.2d 73, 82 n.8 (1st Cir. 1981)            _____________    _______            (quoting  Niederberger, 580 F.2d  at 68-69).   Sawyer, on the                      ____________            other  hand,  cites  no  federal  gratuity  cases  (or  state            gratuity  cases,  for  that  matter)  squarely  holding  that            specific  acts must be shown; although, he does cite cases in                           ____            which  specific official  acts were  shown, see  e.g., United                                           ____         ___  ____  ______            States v. Biaggi, 853  F.2d 89, 99-100 (2d Cir.  1988), cert.            ______    ______                                        _____            denied, 489 U.S. 1052 (1989); United States  v. Brewster, 506            ______                        _____________     ________            F.2d  62, 77-78 (D.C.  Cir. 1974)).   This is  not the proper            case for us to  decide the federal issue.   Thus, we conclude            that it would be inappropriate to take any guidance here from            cases interpreting the federal gratuity statute.                       4.  State Ethics Commission Pronouncements                      __________________________________________                      The  Massachusetts State  Ethics Commission  is the            primary  civil  enforcement  agency  for  violations  of  the            gratuity  statute.   Mass.  Gen. L.  ch.  268B,   3(i).   The            Ethics  Commission  has the  power  and  duty to  investigate            alleged gratuity offenses, initiate  appropriate adjudicatory            proceedings, and order civil penalties if it concludes that a            violation has occurred.  Id.    4.  Upon the petition of  any                                     ___            party,  a final action of the Ethics Commission is subject to            review  by  the  Massachusetts  superior   court,  which  may            enforce, modify or set aside the order.  Id.   4(k).                                                     ___                      The  Ethics  Commission has  repeatedly interpreted            the  gratuity statute as forbidding gifts motivated generally                                         -56-                                          56            by the official's authority  to act favorably for  the donor.            See In  Re  Charles F.  Flaherty,  1990 SEC  59  (Disposition            ___ ____________________________            Agreement)  ("`All that  is required  to bring  [the gratuity            statute]  into play is a nexus between the motivation for the            gift and the employee's public duties'" (quoting In Re George                                                             ____________            A.  Michael, 1981 SEC 59, 68)); SEC Commission Advisory No. 8            ___________            "Free Passes"  (May  14,  1985) (noting  that  "even  in  the            absence of any specifically  identifiable matter that was, is            or soon  will be pending  before the official,  [the gratuity            statute] may  apply" (citing United States  v. Standefer, 452                                         _____________     _________            F. Supp. 1178, 1183 (W.D. Pa. 1978)).                      We give the Ethics Commission's interpretation some            deference.   See Olszewski v.  Berube, 3 Mass.  L. Rptr. 297,                         ___ _________     ______            1995 WL 808889 (Mass.  Super. No. 922666) (Jan. 27,  1995) at            *2 (stating that  although the Ethics Commission's  "decision            on matters within its competence is to be given great weight,            the courts are the  final interpreter" (citing Finkelstein v.                                                           ___________            Board  of  Reg.  in Optometry,  349  N.E.2d  346,  348 (Mass.            _____________________________            1976)).  That deference, however, is tempered not only by the            fact that  no Massachusetts  court has passed  on the  Ethics            Commission's  interpretation,  but  also because  this  is  a            criminal case and the Ethics Commission is charged only  with            civil enforcement.   The Commission may very  well have valid            reasons for adopting a broad, prophylactic interpretation  of            the   statute  in   its  civil  dispositions   of  individual                                         -57-                                          57            transgressions; its interpretation is easier to prove and the            offender  is more likely to settle with the Commission if she            does not have to admit to more egregious wrongdoing.                      Nonetheless, we note  that the Ethics  Commission's            interpretation  of  the  gratuity   statute  has  been   left            undisturbed  by   the  Massachusetts  Legislature,   and  its            interpretation   is   not    "arbitrary,   unreasonable    or            inconsistent" with  the statute.  Finkelstein,  349 N.E.2d at                                              ___________            348.   Thus,  the Ethics  Commission's opinion on  the matter            further supports the conclusion  that a specific official act            need not be identified in a gratuity offense.                      5.  Conclusion: Jury Instructions                      _________________________________                      The absence  of a  Massachusetts court  decision on            this  issue  is troubling.    We  have carefully  considered,            however,  all  of the  authority  and  arguments on  Sawyer's            behalf,  and none of them is availing.   We also take note of            the  fact that Sawyer does  not cite a  single gratuity case,            either  federal or  state (and  we have found  none), holding            that a specific official  act must be linked to  the unlawful            gratuity.  Thus, we  conclude that the Massachusetts gratuity            statute does  not require  proof that  the offender  gave the            item  of  "substantial  value"  because   of  a  specifically            identified official  act.   Of course, the  identification of            certain official acts in relation to the gratuity  might make                                         -58-                                          58            a  gratuity offense easier to prove, and we suspect that most            cases will include such proof although it is unnecessary.            B.  Sufficiency of the Evidence            _______________________________                      In  cases such  as this one,  it becomes  clear why            particular  official acts need not be shown.  The evidence at            trial showed that Sawyer  gave items (that could be  found to            be of  "substantial value") to Massachusetts  legislators who            had the ability to take official action favorable to Hancock,            and that those gifts effectively ceased after the legislators            left  office.  While the government did not detail all of the            legislators'   acts  that  were  favorable  to  Hancock,  the            government  did show  that  Sawyer had  a long-term,  ongoing            interest in the official acts of the legislators, and that he            knew his gratuities  were unlawful.  From  this evidence, the            jury  could  rationally   infer  that  the  gratuities   were            motivated by the legislators' performance of official duties,            i.e.,  that they were given  "for or because  of any official            ____            act,"  within  the  meaning  of  the  Massachusetts  gratuity            statute, Mass. Gen. L. ch. 268A,   3.            C.  Evidentiary Issues            ______________________                      1.  Exclusion of Skrine Memorandum                      __________________________________                      Sawyer  contends that  the court  unduly restricted            the  presentation of evidence  that he  entertained lawmakers            solely out  of friendship and  goodwill and he  believed that                                         -59-                                          59            this did  not violate the gratuity  statute.25  Specifically,            he  appeals the court's  exclusion of a  document, written by            Bruce  Skrine, memorializing  Skrine's interview  with Sawyer            after the  Boston Globe's inquiry into the  Puerto Rico trip.            That  document   reflects   Sawyer's  assertion   that   such            entertainment, while  perhaps excessive in Puerto  Rico, "was            commonly done and that, [the] legislators were all friends of            his  and  that  they  were  not  in anyway  [sic]  discussing            legislation or lobbying."                      At  trial, Sawyer  did  not attempt  to offer  this            document  to  prove his  state of  mind  with respect  to his            expenditures.   In fact, he  indicated to the  court that its            admission was  not necessary because he  had already elicited            the  desired  testimony  from  Skrine.   Later  on,  however,            pointing out  that  the  document  did not  mention  that  he            entertained  to "gain access"  to legislators, Sawyer offered            it to impeach Skrine.  The court did not permit its admission            on  that basis,  but  it did  allow  Sawyer to  cross-examine            Skrine on that very  issue.  Because Sawyer did not offer the            document for the  purpose he  now asserts on  appeal, he  has                                            ____________________            25.  Sawyer  also  raises  arguments  as to  his  good  faith            conduct vis  a vis the gift statute, which is not relevant to                    ___  _ ___            the Travel Act counts.  Such contentions would be relevant to            the mail and  wire fraud counts, which we have  reversed.  We            leave  the good  faith  issues surrounding  the gift  statute            (which are  dependent on the  evidence adduced at  trial) for            the  district   court  to  resolve  on   remand,  should  the            government choose to retry those counts.                                         -60-                                          60            forfeited  this claim.  See United States v. Whiting, 28 F.3d                                    ___ _____________    _______            1296,  1302 (1st  Cir.) (explaining  that evidence  must have            been offered for  the purpose asserted on  appeal to preserve            issue) (citing Tate v. Robbins & Myers, Inc., 790 F.2d 10, 12                           ____    _____________________            (1st Cir. 1986)), cert. denied, 115 S. Ct. 378, 498, 499, 532                              _____ ______            (1994).  But because the issue may  again arise on remand, we            further  hold  that because  Sawyer  was able  to  obtain the            desired  testimony on the issue he now asserts, we would find            no abuse of discretion  in its exclusion.  See  United States                                                       ___  _____________            v.  Newman, 49 F.3d 1, 5-6 (1st Cir. 1995) (reviewing court's                ______            exclusion of evidence for abuse of discretion).26                      2.  Admission of Computer Summaries                      ___________________________________                      Sawyer  assigns  reversible error  to  the district            court's  admission of five charts, Exhibits 1, 1Q, 1R, 1S and            1T,  proffered by the government.  Exhibit 1 was a forty-nine            page   computer   printout   summarizing  612   expenditures,            occurring  between January 1,  1986 and March  31, 1993, that            were  recorded  in  Sawyer's appointment  calendars,  expense            records and other admitted documents.  Exhibits 1Q, 1R and 1S                                            ____________________            26.  Sawyer also argues that the court erroneously refused to            instruct  the  jury on  his  defense-theory that  it  was his            belief  that   if  expenditures  were   permitted  under  the            lobbying-disclosure obligations  set forth  in Mass.  Gen. L.            ch.  3,  then those  expenditures  (although they  had  to be            disclosed)  were  also allowed  under  the  gratuity statute.            Upon review of the  record, we agree with the  district court            that this instruction was  unwarranted because Sawyer did not            present any  evidence that, during the  indictment period, he            actually believed that his expenditures were permitted by the            lobbying-disclosure laws.                                         -61-                                          61            are extracts of Exhibit  1 that isolate the  expenditures for            Representatives Woodward,  Howarth  and Emilio.   Exhibit  1T            contrasts  the amount  spent  on those  three Representatives            while they were  members of the  Legislature with the  amount            spent on them after  they left that office.   Sawyer contends            that these charts were admitted on an insufficient foundation            and that they were misleading, argumentative and prejudicial.                      Federal   Rule  of   Evidence  1006   provides,  in            pertinent part:                      The contents of voluminous writings . . .                      which cannot conveniently be  examined in                      court may  be presented in the  form of a                      chart,  summary,  or  calculation.    The                      originals  or  duplicates  shall be  made                      available for examination or  copying, or                      both, by [the other party].            Before  admitting such  evidentiary presentations,  the court            must first  ensure that each  is grounded upon  a "sufficient            factual basis," i.e., upon independently established evidence                            ____            in the record, and that "possible prejudice or confusion does            not  outweigh their  usefulness in clarifying  the evidence."            United  States v.  Drougas, 748  F.2d 8,  25 (1st  Cir. 1984)            ______________     _______            (citing J. Weinstein & M. Berger, Weinstein's Evidence   1006                                              ____________________            (1983)); see  United States  v. Nivica,  887 F.2d  1110, 1125                     ___  _____________     ______            (1st Cir.  1989), cert. denied, 494 U.S.  1005 (1990); United                              _____ ______                         ______            States  v. Sorrentino,  726 F.2d  876, 884  (1st Cir.  1984).            ______     __________            When a court admits such summaries,                      [c]are  must  be  taken  to  insure  that                      summaries accurately reflect the contents                                         -62-                                          62                      of  the underlying  documents and  do not                      function  as   pedagogical  devices  that                      unfairly    emphasize    part   of    the                      proponent's    proof   or    create   the                      impression that disputed facts  have been                      conclusively    established    or    that                      inferences have been directly proved.            Drougas, 748  F.2d at 25 (citing  Weinstein's Evidence, supra            _______                           ____________________  _____              1006).  We review  the admission of summaries  for abuse of            discretion.  Nivica, 887 F.2d at 1126.                          ______                      Sawyer contends that the district  court improperly            admitted the summaries because  they did not include evidence            of his expenditures on legislators before  and after the time            period  covered  in the  summaries,  or  his expenditures  of            personal funds.   He argues  that this was  unduly misleading            because  it created a "false  impression" as to  the date the            alleged  conspiracy  began,  and  falsely  implied  that  the            expenditures ended after the three named representatives left            office.  We disagree.                      The  summaries  were  based  on  evidence  that was            already independently  admitted  and  that  was  relevant  to            Sawyer's  questionable  expenditures  during  the  indictment            period.  Sawyer had the opportunity, on cross-examination, to            place  the  summaries in  context  with  his total  financial            activity.   See Nivica,  887  F.2d at  1125 (concluding  that                        ___ ______            argument that summaries failed to, inter alia, reflect "total                                               _____ ____            financial  activity"   "affect[s]  weight  rather   than  the            admissibility").   On  the  matters to  which Sawyer  assigns                                         -63-                                          63            undue prejudice, he had ample opportunity  to explore them on            cross-examination,  which he did.  He also could have offered            his own  contrary evidence, including his  own summary (which            he did not do).  As we stated in Nivica, 887 F.2d at 1126:                                             ______                      So long as the government, exercising due                      diligence, collects  whatever records are                      reasonably  available   and  succeeds  in                      introducing  them,  it  may be  permitted                      (subject,  of  course,  to relevancy  and                      perscrutation under Fed. R. Evid. 403) to                      summarize  the  data  it  has  managed to                      obtain.       If   defendants   possessed                      exculpatory    records    not   in    the                      government's   files,  they   could  have                      offered them at  trial or prepared  their                      own summary.  By the same token, if there                      were gaps in the  charts, the defense . .                      .  had every opportunity to exploit them.                      In the last analysis, completeness of the                      underlying records was for the jury.            We  conclude that  the summaries  were based on  a sufficient            foundation and that the court did not abuse its discretion in            admitting them.            D.  Protective Instruction            __________________________                      Having rejected all of Sawyer's arguments, we think            there  is one  flaw in the  proceedings that does  have to be            addressed in the interests of justice and especially in light            of  the possibility of future prosecutions of this kind.  Our            concern arises from  the close relationship  between lobbying            activities  that are  lawful from  the standpoint  of federal            law,  even if  deplorable,  and associated  or slightly  more            extreme versions of such  conduct that can constitute federal            violations.   The problem  is, in  some respects,  novel; the                                         -64-                                          64            reason for its novelty  is that it appears  that prosecutions            on facts like these have not generally been brought.                      A review  of pre-McNally theft  of honest  services                                       _______            cases and of bribery and gratuity cases under the counterpart            federal  statute,  18 U.S.C.    201,  indicates,  as we  have            already noted, that  most involved straightforward corruption            --  most often, quid pro  quo bribery or  blatant conflict of                            ____ ___  ___            interest.   While  the issue  in  those cases  was  typically            whether or not the conduct actually occurred, in most of them            the  alleged  conduct was  blatantly illegal.   This  case is            distinct   in  that  the  conduct  itself  may  not  be  very            different,  except  possibly  in  degree, from  the  kind  of            routine cultivation of friendship in a lobbying context that,            while arguably very unattractive, is not "bribery" within the            meaning of the Travel Act.                      The practice of using hospitality, including lavish            hospitality, to cultivate business or political relationships            is  longstanding  and pervasive.    The  government does  not            argue,   and   we  do   not   believe,   that  payments   for            entertainment,  lodging, golf,  sports events,  and the  like            would constitute  violations of the  Travel Act (or  the mail            and  wire fraud  statutes) if  the aim  of the  lobbyist were            simply to cultivate a business or political "friendship" with            the legislator.   It may  well be that  all such  hospitality            should  be flatly prohibited by  law, but if  Sawyer had this                                         -65-                                          65            limited  intent --  to  cultivate friendship  rather than  to            influence an  official  act   --  the federal  statutes  here            involved would not be violated.27                      The charge to  the jury in  this case followed  the            conventional  formula  for  prosecutions involving  political            corruption.   But  where  the difference  between lawful  and            unlawful turns primarily on intent, and the lawful conduct is            itself  most unattractive, we think the jury needs to be told            specifically that the defendant  has not violated the bribery            component  of the  Travel Act  (or committed  honest services            fraud)  if  his intent  was  limited  to  the cultivation  of            business  or political  friendship.   Only if  instead or  in            addition,  there is an intent to cause the recipient to alter            her  official  acts  may the  jury  find  a  theft of  honest            services  or the bribery predicate of the Travel Act.  Absent            some explicit  explanation  of this  kind,  the  conventional            charge will be slanted in favor of conviction.28                                            ____________________            27.  See, e.g.,  United States v.  Arthur, 544 F.2d  730 (4th                 ___  ____   _____________     ______            Cir. 1976); United States v. Brewster, 506 F.2d 62 (D.C. Cir.                        _____________    ________            1974); cf. Dukehart-Hughes Tractor  & Equipment co. v. United                   ___ ________________________________________    ______            States, 341 F.2d 613 (Ct. Cl. 1965).            ______            28.  It  is not  clear whether  the government  would contend            that  a gratuity  violation involving  only a  reward for  an            official act (even without any intent to influence any future            official act) could constitute  "bribery" for purposes of the            Travel  Act.   We are  extremely doubtful whether  this would            constitute bribery  for these  purposes and  do not  read the            Second  Circuit as ruling on  this point in  United States v.                                                         _____________            Biaggi, 853 F.2d 89, 100-02 (2d Cir. 1988), cert. denied, 489            ______                                      _____ ______            U.S. 1052  (1989).    The  fact  that  a  gratuity  violation            involving an intent to  influence is essentially bribery, see                                                                      ___                                         -66-                                          66                      In reaching this conclusion, we intend no criticism            of the able  district judge  who was coping  with a  somewhat            novel foray by the government.   But where, as here, the line            between the merely unattractive and actually criminal conduct            is  blurred,  the  court  must  take  pains  to  explain  the            difference  to the jury.   The Second Circuit  took this same            view  in a closely related  context, saying: "When an elected            official who has  received campaign contributions is  charged            with  extortion and  with receiving  bribes, the  charge must            carefully  focus  the  jury's  attention  on  the  difference            between   lawful   political   contributions   and   unlawful            extortionate payments and bribes."   United States v. Biaggi,                                                 _____________    ______            909 F.2d 662, 695-96  (2d Cir. 1990), cert. denied,  499 U.S.                                                  _____ ______            904 (1991).                      Having concluded that the jury charge was mistaken,            we must consider whether Sawyer should get the benefit of the            error.   This is a  close call.  On the  one hand, Sawyer did            not  explicitly  ask  for  the  sort  of  language  we  think            appropriate.   Ordinarily,  the failure  to make  an explicit            objection requires  the defendant to satisfy  the plain error            test of United States v. Olano, 113 S. Ct. 1770, 1777 (1993).                    _____________    _____            On  the  other hand,  a  number of  Sawyer's  objections were                                            ____________________            853  F.2d  at   101,  does  not  mean   that  every  possible            application  of a gratuity statute  fits the rubric.   In all            events, if the government  intends to rely upon an  intent to            influence   theory,  our  protective   instruction  would  be            required here.                                         -67-                                          67            closely related in that they sought in several different ways            -- which we do not  accept -- to protect one engaged  in good            faith lobbying from prosecution.                      On balance, we think that the Travel Act counts, as            well  as the  mail and  wire fraud  convictions, ought  to be            reversed and retried under proper instructions.  Although the            evidence here would be adequate to infer improper intent, the            issue  is close  and  an explanatory  instruction could  well            affect  the outcome.  Also, the fact that the prosecution was            novel makes us  look more tolerantly  on Sawyer's failure  to            articulate  precisely the  shape of the  necessary protective            instruction.                      Apart from  the expense of retrial,  the government            has very  little to complain about  in this result.   We have            agreed  that  the  Massachusetts  gratuity statute  does  not            require the  government to  link the  gratuity to a  specific            official act.  We  have also found that the evidence  here is            sufficient to  convict (although  we  can imagine  reasonable            people  thinking  otherwise).    And while  we  are  somewhat            concerned about  the lack  of fair warning  of a  prosecution            such  as this one, we  see no legal  basis for precluding the            government from embarking  on what is  in practical terms  an            expansive  reading of  the  federal statutes.   Against  this            backdrop, we think it even more important that Sawyer get the            benefit of the few protections that remain.                                         -68-                                          68                                         IV.                                         IV.                                         ___                                   Conspiracy Count                                   Conspiracy Count                                   ________________                      Sawyer was  also convicted, under  18 U.S.C.   371,            of one count of conspiracy to commit mail and wire fraud, and            to violate the  Travel Act.   The court  instructed the  jury            that it could find  Sawyer guilty of conspiracy if  it found,            beyond  a  reasonable  doubt,  that  he  conspired  with  his            supervisor, Hathaway, to commit any one of the three objects,            i.e., the  substantive offenses as  charged.  Because  all of            ____            the  objects  --  mail and  wire  fraud  and  the Travel  Act            violations  -- were  erroneously charged and  instructed, the            conspiracy convictions must be reversed as well.                      Retrial  is  not  precluded   if  the  evidence  is            sufficient to  prove the existence of  a conspiracy, Sawyer's            knowledge of and voluntary participation in it, and  an overt            act in furtherance of it.   See United States v. Yefsky,  994                                        ___ _____________    ______            F.2d 885, 890 (1st Cir.  1993); see generally, United  States                                            ___ _________  ______________            v.  Frankhauser, 80  F.3d 641,  653   (1st  Cir. 1996).   The                ___________            agreement  need  not  be  explicit; a  tacit  agreement  will            suffice.   Direct Sales Co.  v. United States,  319 U.S. 703,                       ________________     _____________            712-13 (1943).  To establish Sawyer's voluntary participation            in  the  conspiracy, the  evidence  must  establish both  his            intent  to agree and his  intent to effectuate  the object of            the conspiracy.   Yefsky, 994  F.2d at 890;  see also  United                              ______                     ___ ____  ______            States  v. Piper,  35 F.3d  611, 615  (1st Cir.  1994), cert.            ______     _____                                        _____                                         -69-                                          69            denied,  115 S. Ct. 1118  (1995).  Neither  the agreement nor            ______            Sawyer's  participation  in it  need  be  proven with  direct            evidence.   Glasser v. United States, 315 U.S. 60, 80 (1942);                        _______    _____________            see Frankhauser, 80 F.3d at 653.            ___ ___________                        Sawyer   contends   that    the   evidence    was            insufficient  to prove  that: (1)  he and  Hathaway knowingly            agreed   to  commit   the   offenses;   (2)  he   voluntarily            participated  in such an  agreement; and  (3) either  of them            performed any overt act in furtherance of the conspiracy.  We            disagree.   The government presented  evidence that  Hathaway            supervised   Sawyer  in   his  lobbying  activities.     From            Hathaway's receipt  of many of  the same legal  memoranda and            Massachusetts Ethics Commission rulings that Sawyer received,            a  jury could  rationally infer  that Hathaway  (an attorney,            like Sawyer)  knew and understood the  ethical obligations in            lobbying.   Some  of these  documents had  both  Sawyer's and            Hathaway's  names  on  them;  thus, a  jury  could  find that            Hathaway  and Sawyer  knew of  each other's knowledge  of the            lobbying   laws.29     Sawyer   turned   to   Hathaway,   his                                            ____________________            29.  For  example, one  trial exhibit  was a  memorandum from            Sawyer to Hathaway, enclosing  a 1990 State Ethics Commission            Disposition  Agreement  with  House Majority  Leader  Charles            Flaherty.   That  agreement concerned  the giving  of Celtics            basketball game  tickets  to  Representative  Flaherty  by  a            person with  interests before him, and how that might violate            the Massachusetts  gratuity statute, Mass. Gen.  L. ch. 268A,              3.  Sawyer and  Hathaway discussed the Flaherty Disposition            during a  meeting with Bruce Skrine  (vice president, counsel            and  secretary  for Hancock)  in  which  Sawyer and  Hathaway            expressed concern  about compliance with state  ethics law in                                         -70-                                          70            supervisor, for  approval of his expense  vouchers.  Hathaway            performed  this  responsibility  throughout   the  indictment            period,  and  in so  doing was  the  only person  (other than            Sawyer)  to   have  detailed   knowledge   of  the   specific            legislators, often  members of  the Insurance Committee,  who            received the gifts and gratuities.                      Thus, the jury could reasonably infer that Hathaway            and Sawyer both knew that the expenditures were unlawful, and            from this, that the reason for the repeated illegal gifts and            gratuities  to  key  legislators  was  to  secretly influence            legislative  action.   Given  the  evidence  of the  repeated            submission and approval of the expense vouchers, a jury could            rationally  find that  Hathaway and  Sawyer agreed,  at least            tacitly, to  the pattern of  unlawful conduct.   Finally, the            jury  could also infer that Sawyer and Hathaway knew that the            mails and wires would be used to facilitate the entertainment            and/or reimbursement (e.g., the  mailing of bills related to,                                  ____            and   the  making   of  telephone   calls  to   arrange,  the            entertainment), and that interstate travel in connection with            the entertainment (e.g., reimbursement of  out-of-state golf)                               ____            would or  had  to  occur.   The  overt acts  charged  in  the            indictment included Sawyer's giving of illegal gratuities and            Hathaway's  approval and authorization  of reimbursement, and            the evidence was sufficient to establish those acts.                                            ____________________            planning for the 1993 Boston Marathon brunch.                                         -71-                                          71                      Thus,  despite  the  underlying  legal  error,  the            evidence  was sufficient to  establish the conspiracy offense            and  a  new  trial on  this  count  is  allowable should  the            government so choose.                                          V.                                          V.                                          __                                      Conclusion                                      Conclusion                                      __________                      Sawyer raises a number of other issues that we have            reviewed, find  to  be without  merit,  and that  warrant  no            further discussion.                      For  the  foregoing  reasons,  we  vacate  the mail                                                         ______            fraud, wire fraud, Travel Act and conspiracy convictions, and            remand for proceedings consistent with this opinion.            ______                                         -72-                                          72
