United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994

United States Court of Appeals for the Third Circuit · 1994-07-12

18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed

Original case on neochart.com

Case and law context

18 U.S.C. § 1341

Role: background; posture: criminal; government appeal from dismissal of a 21-count indictment (18 U.S.C. 371 conspiracy to commit mail, wire and bank fraud; ten 1344 counts; ten 1343 counts) arising from rigged bidding for a bridge commission's deposits; no substantive 1341 count; the McNally money-or-property requirement is decided once for all three fraud statutes; divided panel; result: claimant-lost; claim:

Uncertainty

None recorded

Misfit

Sibling statutes / role: the indictment has no substantive 1341 count (371 conspiracy to commit mail, wire and bank fraud; 1343; 1344). The court decides the shared "money or property" requirement once for "the federal fraud statutes"; the file is therefore `role background` and no block is a 1341 instance. The majority property block keeps `not-satisfied [pleaded]` (a real ruling on the indictment, but under the conspiracy, wire and bank fraud counts); the notation cannot say "construed via identical language of sibling statutes" or point to the statutes actually charged. `result claimant-lost` is the dismissal of that indictment, not of a 1341 count.

`honest-services-boundary` is a boundary node, not a conjunct. The ruling recorded is non-retroactivity of the honest-services amendment, which has no holding value of its own; recorded as not-reached / scope procedural with the ruling named in the gloss. The block has no `rule` line for the temporal point (the effective-date sentence is a fact line).

The reserved question (does loss of the right to control money satisfy McNally?) is a not-reached block with held quotes but no rule; "expressly reserved" has no holding value (known item 2/5). Third Circuit precedent pointing both ways (Zauber, Martinez) is cited in the footnote.

Known: `party` holds the alleged victim rather than a defendant; here the identity of the victim (losing bidders vs. the Commission) is the whole case, and a victim qualifier is missing.

Known (good-law flag): right-to-control was later rejected in Ciminelli and bid-rigging victims analysed differently elsewhere; nothing dates this 1994 ruling.

The dissent's key facts are legal characterisations (a civil remedy would lie) rather than events; tagged [supports] as the nearest fit. Footnotes are appended to the IR text mid-paragraph (footnote 2 is spliced into the paragraph at offset 6370), so one sentence of the majority is split across two paragraphs and could not be quoted whole.

B · Case × element grid

Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.

Elements 1–6 of 7

18 U.S.C. § 1341
CaseScheme or artifice to defraudTraditional money or property as an objectMaterial deceptionKnowing participation with intent to defraudStatutory mailing or carrier actMailing for execution of the scheme
United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)
○ not reached · basis not recordedNot counted: background/merits
✓ satisfied · pleadedNot counted: background/dissent
○ not reached · basis not recordedNot counted: background/procedural
✗ not · pleadedNot counted: background/merits
○ not reached · basis not recordedNot counted: background/merits
○ not reached · basis not recordedNot counted: background/merits
○ not reached · basis not recordedNot counted: background/merits
○ not reached · basis not recordedNot counted: background/merits

Elements 7–7 of 7

18 U.S.C. § 1341
CaseSeparate section 1346 theory; outside property-fraud claim
United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)
○ not reached · basis not recordedNot counted: background/procedural

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopePatternExact source quotations
United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not reached (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Mailing for execution of the schemenot_reached
Excluded from merits counts
background / merits

Unspecified routeNo source quotation recorded for this block.
United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not reached (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Separate section 1346 theory; outside property-fraud claimnot_reached
Excluded from merits counts
background / procedural

party: Henry (Commission comptroller) and Mike (state official); theory: breach of a public official's duties to the public and the Commission; opinion: majority; subject: party=Henry (Commission comptroller) and Mike (state official); theory=breach of a public official's duties to the public and the Commission; opinion=majority

Real ruling: NON-RETROACTIVITY of the honest-services amendment (printed "18 U.S.C. § 1364" in the source; § 1346 is meant) - it took effect on 18 November 1988, after the 1986-88 conduct, so the indictment must meet McNally and the fiduciary-breach allegations cannot carry it. A temporal-reach ruling, not a decision on whether the conduct would be honest-services fraud (bribery or kickbacks are never examined); hence not-reached, scope procedural. The fact polarities only mark which way each line cuts on the availability of the 1346 route.
temporal-reach/conduct-before-section-1346-effective-date
The indictment asserted that in rigging the bids, “Henry violatefd] his fiduciary duty and Commission custom, practices and policies”
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

It did not become effective until November 18, 1988, well after the bid-rigging alleged in the indictment ceased, and it is not retroactive.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Under McNally and Carpenter, a government official’s breach of his or her obligations to the public or an employee’s breach of his or her obligations to an employer cannot violate the fraud statutes.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Therefore, to state an offense under the federal fraud statutes, the indictment against Henry and Mike must allege a scheme that meets McNally’s standards.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not reached (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Knowing participation with intent to defraudnot_reached
Excluded from merits counts
background / merits

Unspecified routeNo source quotation recorded for this block.
United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not reached (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Statutory mailing or carrier actnot_reached
Excluded from merits counts
background / merits

No substantive mail fraud count; mail fraud appears only as an object of the 371 conspiracy, and no mailing is described.
Unspecified routeNo source quotation recorded for this block.
United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not reached (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Material deceptionnot_reached
Excluded from merits counts
background / merits

Unspecified routeNo source quotation recorded for this block.
United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — satisfied · pleaded (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Traditional money or property as an objectsatisfied
Excluded from merits counts
background / dissent

basis: pleaded; party: competing bidding banks (alleged victims); theory: reasonable expectancy of a prospective contract (tortious-interference analogy); opinion: Weis, J., dissenting; subject: party=competing bidding banks (alleged victims); theory=reasonable expectancy of a prospective contract (tortious-interference analogy); opinion=Weis, J., dissenting

fair-opportunity-to-bid-for-contract-not-yet-awarded
The allegations in the indictment make it clear that in each instance the bank that submitted the highest legitimate bid would have received the Commission’s money, but for the defendants’ fraud.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

This is demonstrated by the fact that the unsuccessful bidder would have had a civil remedy against these defendants and Bank A for the tortious interference with prospective contractual relationships.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The fraudulent deprivation of a reasonable expectation to secure an economic advantage falls within the proscriptions of the federal fraud statutes.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Unlike the majority, I believe that the unsuccessful banks had a sufficient property interest in a legitimate bidding process to support the fraud charges here.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not reached (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Traditional money or property as an objectnot_reached
Excluded from merits counts
background / procedural

party: the Commission (alternative victim urged on appeal); theory: Commission's confidential business information; Commission's right to control how its money is invested; opinion: majority; subject: party=the Commission (alternative victim urged on appeal); theory=Commission's confidential business information; Commission's right to control how its money is invested; opinion=majority

Not decided: property theories absent from the indictment cannot be raised on appeal. The court expressly reserves whether loss of the right to control money satisfies McNally.
theory-not-charged-in-indictment
Bid-rigging by public officials typically results in a government entity paying more than it otherwise would have for goods or services, see, e.g., United States v. Osser, 864 F.2d 1056, 1062-63 (3d Cir.1988), United States v. Asher, 854 F.2d 1483, 1495-96 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989), but the Commission allegedly made money here, receiving a higher interest rate on its deposits as a result of the scheme.
Source: docroot/ir/caselaw/f3d_29.jsonl#/f3d/29/0112-01; Unicode character offsets [16659:17120] (end exclusive); SHA-256 48585ad0417a32453271cc5776b9db324b357461b0bf6490d7a01c321bf3cda2.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The government now argues that Henry’s and Mike’s scheme also defrauded the Commission of.its confidential business information and the right to control how its money was invested, but these theories were not advanced in the indictment and cannot save it on appeal.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

.Because the loss of control theory was not alleged, we need not decide whether such a deprivation satisfies McNally.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not · pleaded (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Traditional money or property as an objectnot
Excluded from merits counts
background / merits

basis: pleaded; party: competing bidding banks (alleged victims); count: all counts (conspiracy with mail fraud as an object; wire fraud; bank fraud); theory: losing bidders' interest in a fair and honest opportunity to bid; opinion: majority; subject: party=competing bidding banks (alleged victims); count=all counts (conspiracy with mail fraud as an object; wire fraud; bank fraud); theory=losing bidders' interest in a fair and honest opportunity to bid; opinion=majority

CHARGED: 18 U.S.C. 371 (conspiracy whose objects were mail, wire and bank fraud), ten 1344 bank fraud counts and ten 1343 wire fraud counts; there is NO substantive 1341 count. The court construes the money-or-property requirement common to "the federal fraud statutes" and applies it to those counts, so this block is a cross-statute construction (case-level role background), not a 1341 instance; the holding is kept as the court's ruling on the indictment actually before it. A fair bidding process is a valuable condition but not a traditionally recognized, enforceable property right (no right of exclusion). Tangible gains to the schemers (deposits, a car loan, campaign contributions) are irrelevant because they did not come from the alleged victims. Ashman's open-outcry ruling is treated as indistinguishable.
fair-opportunity-to-bid-for-contract-not-yet-awarded
According to the indictment, on ten occasions Henry disclosed bid information to Mike and another individual in the Auditor General’s office, who in turn disclosed it to a representative of one bank, Bank A.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Bank A was thus allegedly able to narrowly outbid the other banks by offering a slightly higher rate of interest and, as a result, received deposits of $34,278,000 in Commission funds.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Here, however, the money had not yet been deposited, and there is no way of knowing to which, if any, of the bidding banks it would have gone. Even in a fair process, Bank A might still have won the deposits.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Just as the insurance commissions in McNally were not from the Commonwealth, the benefits Bank A and Mike received were not from the competing banks, and therefore those benefits cannot save the indictment here.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Thus, to determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Violation of this condition may have affected each bidding bank’s possible future receipt of property, but that does not make the condition property.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The issue, therefore, is whether the competing banks’ interest in having a fair opportunity to bid for something that would become their property if and when it were received is in itself property. We conclude that it is not.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

In sum, we conclude that the indictment against Henry and Mike does not allege a scheme to defraud its victims of a property right and therefore does not state offenses under the federal fraud statutes.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

United States v. Henry — 29 F.3d 112 (1994) · United States Court of Appeals for the Third Circuit · 1994 — not reached (18usc1341: author: Fable · historical QA: FIX (QA2, neov2/qa/wave2-cases-QA2.md) · changed after review; current content not independently reviewed)Scheme or artifice to defraudnot_reached
Excluded from merits counts
background / merits

The bid-rigging plan is taken as alleged ("although unethical"); only its object was in issue.
Unspecified routeNo source quotation recorded for this block.

Court interpretations recorded from this case