Bruce Bereano Memo To Overtun Convictions

Case 1:11-cv-00961-WMN Document 1-2 Filed 04/12/11 Page 1 of 39
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA *

vs. * Criminal No. WN-94-0208
BRUCE C. BEREANO *
Defendant *
MEMORANDUM OF LAW IN SUPPORT
OF PETITION FOR WRIT OF ERROR CORAM NOBIS
Petitioner is entitled to coram nobis relief because he was convicted of 18 U.S.c. S 1346
(mail fraud) under the "honest services" theory later rejected by the Supreme Court in Skilling v.
United States, 130 S. Ct. 2896,177 L. Ed. 2d 619 (2010) and Black v. United States, 130 S. Ct.
2963, 177 L. Ed. 2d 695 (2010).
In Skilling and Black, the Government utilized the same theory under which it obtained
Petitioners' conviction here. The Supreme Court held that the language in the mail fraud statute
criminalizing the deprivation of "honest services" was so vague as to be unconstitutional except
in cases involving bribery or kickback schemes. Neither are present here. Because Skilling
decriminalized conduct that previously constituted a violation of 18 U .S.c. S 1346, it may be
applied retroactively to attack Petitioner's conviction. Accordingly, Petitioner requests that this
Court issue a petition for writ of error coram nobis to vacate his convictions under 18 U.S.C.
S 1346.
1. INTRODUCTION
On November 20, 1994, Petitioner was convicted of eight violations of 18 U.S.C. S 1346,
1
the federal mail fraud statute. The Government's Indictment alleged inter alia that Bereano
deprived lobbying clients of their right to "honest services," allegedly by defrauding "his
lobbying clients of their right to the loyal, faithful, honest, and unbiased service and performance
of the duties of the defendant in his capacity as agent of said lobbying clients, free from willful
omission, deceit, dishonesty, misconduct, fraud, self-dealing and conflict of interest, in violation
of Title 18, United States Code, Sections 1341 and 1346." (App., Tab 5, at 3).2 At the time that
the Government charged Bereano, 18 U .S.C. S 1346 provided that "the term, scheme or artifice to
defraud includes a scheme or artifice to deprive another of the intangible right of honest
services. ,,3
On June 24,2010 the Supreme Court of the United States ruled unanimously that "honest
services" fraud under 18 U.S.c. S 1346 was too vague to constitute a crime unless it involved
bribery or kickbacks. Skilling v. United States, 130 S. Ct. 2896 (2010); Black v. United States,
130 S. Ct. 2963 (2010).
Bereano consistently, yet unsuccessfully, raised similar objections to the vagueness of the
"honest services" indictment against him in his trial defense and subsequent appeals. United
States v. Bereano, 1998 U.S. App. LEXIS 21131, reported in table form, 161 F.3d 3 (4th Cir.
1998), cert. denied 526 U.S. 1130 (1999). Although the Supreme Court recently issued Skilling,
trial courts have already concluded that Skilling applies retroactively. See Rodrigues v. United
) A jury convicted Bereano of eight violations of 18 U.S.C. S 1346. The Court subsequently granted Bereano's post
trial motion for judgment of acquittal with respect to count eight, but denied the motion for the remaining seven
counts. (App.,Tab 34, at 46).
2 18 U .S.C. S 1341 prohibits, among other things, using the mail to perpetrate "any scheme or artifice to defraud." 18
U.S.c. S 1346 provides that "the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another
of the intangible right of honest services."
3 The history of this statute is discussed infra.
2
States, 2011 U.S. Dist. LEXIS 9280, at *28, CV 10-00406 DAE-KSC (D. Haw. 2011) ("Skilling
is applicable retroactively to challenge Petitioner's conviction related to honest services fraud.");
Robbins v. United States, 2011 U.S. Dist. LEXIS 9526, at *2, CR-II-0014, 2011 WL 1317280
(N.D. Ind. 2011) ("The Skilling decision applies retroactively."). Moreover, the Government has
conceded that Skilling applies retroactively to collateral challenges in at least one case. See
United States v. Vickie Lopez-Lukis, 2:95-cr-4-FtM-29DNF, at 1 (M.D. FL. 2011) ("The
Government concedes that these decisions [Skilling, Black, and Weyhrauch v. United States, 130
S. Ct. 2971 (2010)] apply retroactively to defendant" in a coram nobis proceeding). In light of
Skilling and Black, Bereano now petitions this Court for a Writ of Error Coram Nobis to vacate
his convictions, or, at the very least, to order a new trial.
2. ARGUMENT
A. In Skilling And Black, The United States Supreme Court Held That 18
U.S.c. ~ 1346 Criminalizes Only Bribery And Kickback Schemes.
In 1909, Congress amended the federal mail fraud statute to prohibit "any scheme or
artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises." Beginning in 1941, Federal courts began to recognize a more
expansive view of the statute, which included deprivation of not only money or property, but
also "intangible rights." Shushan v. United States, 117 F.2d 110 (5th Cir. 1941). The right to
these loosely defined intangible services was expanded to cases where the alleged victims
suffered no monetary losses, or even if they gained, but were deprived of their rights to "honest
services." See, e.g., United States v. Dixon, 536 F. 2d 1388, 1400 (2d Cir. 1976) (cited in
Skilling, 130 S. Ct. at 2926).
3
Ultimately, the concept of "honest services" became so elastic that Federal courts
extended it to private sector relationships, including employer-employee relationships such as
Bereano's here with his own clients. The Supreme Court explained that:
When one tampers with [the employer-employee] relationship for the purpose of
causing the employee to breach his duty [to his employer,] he in effect is
defrauding the employer of a lawful right. The actual deception that is practiced is
in the continued representation of the employee to the employer that he is honest
and loyal to the employer's interests.
Skilling, 130 S. Ct. at 2926-27 (quoting United States v. Procter & Gamble Co. 47 F. Supp. 676,
678 (D. Mass. 1942)).
In 1988, the Supreme Court held that the "honest services" theory was so vague and
ambiguous that it essentially delegated to prosecutors the ability to decide what constituted good
government or "honest services." McNally v. United States, 483 U.S. 350, 360 (1987). The
McNally Court invalidated the "honest services" provisions of S 1346, limiting mail fraud
prosecutions to those cases involving deprivation of tangible property rights:
Rather than construe the statute in a manner that leaves its outer boundaries
ambiguous and involves the Federal Government in setting standards of
disclosure and good government for local and state officials, we read S 1341 as
limited in scope to the protection of property rights. If Congress desires to go
further, it must speak more clearly than it has.
Id.
In response to McNally, Congress acted almost immediately to amend S 1346 to define
mail fraud to include a "scheme or artifice to deprive another of the intangible right of honest
services." P.L. 100-690, Title VII, Subtitle 0, S 7603(a), 102 Stat. 4181, 4508 (Nov. 18, 1988).
Bereano was convicted under the 1988 version of S 1346.
Skilling, echoing arguments Bereano made unsuccessfully, challenged the post-McNally
version of S 1346 as unconstitutionally vague, noting that to satisfy due process, "a penal statute
4
[must] define the criminal offense [1] with sufficient definiteness that ordinary people can
understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and
discriminatory enforcement." Skilling, 130 S. Ct. at 2927-28 (quoting Kolender v. Lawson, 461
U.S. 352, 357 (1983)).
The Court recognized that "[r]eading [~1346] to proscribe a wider range of offensive
conduct ... would raise the due process concerns underlying the vagueness doctrine." Id. at
2931. The Court rejected the Government's attempt to broaden ~1346 to prosecutions, such as
Bereano's here, where the Government alleges undisclosed self-dealing by a private employee.
To avoid arbitrariness and vagueness, the Skilling Court expressly held that "~ 1346 criminalizes
only the bribe-and-kickback core of the pre-McNally case law." Id. at 2905.
B. The United States Supreme Court's Holdings In Skilling And Black

Apply Retroactively Because These Decisions Constituted A "New Rule"
That Narrowed The Scope Of 18 U.S.c. ~ 1346.
New substantive rules, including "decisions that narrow the scope of a criminal statute by
interpreting its terms," apply retroactively "because [such rules] necessarily carry a significant
risk that a defendant stands convicted of an act that the law does not make criminal .... " United
States v. Thomas, 627 F.3d 534, 537 (4th Cir. 2010) (citations and quotations omitted). The
Supreme Court has explained:
When a decision of this Court results in a 'new rule,' that rule applies to all
criminal cases still pending on direct review. As to convictions that are already
final, however, the rule applies only in limited circumstances. New substantive
rules generally apply retroactively. This includes decisions that narrow the scope
of a criminal statute by interpreting its terms as well as constitutional
determinations that place particular conduct or persons covered by the statute
beyond the State's power to punish. Such rules apply retroactively because they
"necessarily carry a significant risk that a defendant stands convicted of 'an act
that the law does not make criminal '" or faces a punishment that the law cannot
impose upon him.
5
Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (citations omitted) (footnote omitted). In
Rodrigues v. United States, 2011 U.S. Dist. LEXIS 9280, at *27, CV 10-00406 DAE-KSC, 2011
WL 529158 (D. Haw. 2011), the United States District Court for the District of Hawaii explained
that "18 U.S.C. S 1346 is a substantive criminal statute and Skilling 'narrow[s] the scope of a
criminal statute by interpreting its terms.'" Moreover, "[b ]ecause the decision in Skilling
'[explains] its understanding of what the statute has meant continuously since the date when it
became law,' Skilling must apply retroactively to criminal convictions under 18 U.S.c. S 1346."
Id. at *27-28 (citations omitted). Accord Robbins v. United States, 2011 U.S. Dist. LEXIS 9526
(N.D. Ind. 2011) ("The Skilling decision applies retroactively."); United States v. Vickie Lopez-
Lukis, 2:95-cr-4-FtM-29DNF, at 1 (M.D. FL. 2011) ("The government concedes that these
decisions [Skilling, Black, and Weyhrauch v. United States, 130 S. Ct. 2971 (2010)] apply
retroactively to defendant. ").
C. A Writ Of Error Coram Nobis Is The Proper Remedy To Vacate

Petitioner's Improper Convictions.
In United States v. Morgan, 346 U.S. 502, 98 L. Ed. 248, 74 S. Ct. 247 (1954), the
Supreme Court established the authority of federal courts to grant a writ of error coram nobis to
vacate a conviction after the sentence was served. (App., Tab 21-22). This authority was
premised in the All-Writs Act, 28 U.S.C. sI651(a). The Morgan Court held the writ should be
issued "only under circumstances compelling such action to achieve justice." 346 U.S. at 511.
The Fourth Circuit has specifically held that a retroactive dispositive change in the law of
mail fraud warrants granting the writ of error coram nobis. See United States v. Mandel, 862
F.2d 1067, 1075 (4th Cir. 1988) (citing United States v. Travers, 514 F.2d 1171 (2d Cir. 1974)).
Petitioner is in the nearly identical posture of those defendants convicted of "honest services"
6
mail fraud prior to McNally. See United States v. Mandel, supra; United States v. Keane, 852
F.2d 199 (7th Cir. 1988).
D. A Jury Convicted Petitioner For Violating 18 U.S.c. ~ 1346 Based On

Conduct That Does Not Involve Either A Bribery Or Kickback Scheme.
Bereano was indicted on May 26, 1994 and charged with eight counts of mail fraud and
aiding and abetting. Each count was premised on alleged violations of 18 U.S.C. ~~ 1341 and
1346, ~2. Each of the counts in the indictment alleged that Bereano defrauded his clients of
money and property and defrauded his clients of "their right to the loyal, faithful, honest, and
unbiased service and performance of the duties .... "
On November 20, 1994, after a three week trial, Bereano was convicted of eight counts of
mail fraud in violation ofU.S.C. ~~1341 and 1346. Bereano filed a timely motion for judgment
of acquittal under FED. R. CRIM.P. 29(c) and an alternative motion for new trial under FED. R.
CRIM.P. 33. On January 24,1995, the Court granted Bereano's motion for judgment of acquittal
as to count eight, but denied for the remaining seven counts and denied his motion for new trial.
(App., Tab 34, at 42-46).
On April 21, 1995, Bereano was sentenced to a five-month term of probation
concurrently for each conviction and a six-month term of community confinement, fined $30,000
and ordered to perform 500 hours of community service. (App., Tab 2, at 199-201).4 The Court
granted Bereano a stay of sentence pending appeal, noting that this "is a close case. It was not an
easy decision with regard to whether to send it to the jury or not send it to the jury, whether fraud
4 On December 4, 1998, Bereano was resentenced after the Government appealed his sentence and the Fourth
Circuit remanded for resentencing in accordance with the Federal sentencing guidelines. The Court sentenced
Bereano to five months incarceration, recommended community confinement, five months home detention, and a
$30,000.00 fine. (App., Tab 3, at 4-5). Mr. Bereano has served his sentence and paid his fine, a prerequisite to
coram nobis relief. See App., Tab 2 I-22.
7
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truly sufficiently defined in the context of a case like this is arguable" with a "number of
appellate issues" which warranted a stay. (App., Tab 2, at 204-05).
The United States Court of Appeals for the Fourth Circuit affirmed Bereano's conviction,
but remanded the case for resentencing. United States v. Bereano, 161 F.3d 3 (4th Cir. 1998).5
Bereano filed a petition for rehearing and request for en bane hearing, which was denied. In
May 1999, the Supreme Court denied Bereano's petition for writ of certiorari. Bereano v. United
States, 526 U.S. 1130, 119 S.Ct. 1802, 143 L.Ed. 2d 1007 (1999). Critically, apparently
recognizing the absence of a financial loss to his clients, the Court did not order Bereano to pay
any restitution, the ordinary remedy where there is an actual financial loss. At Bereano' s first
sentencing proceeding, the Court stated that it was not "requiring any restitution" because "any
losses with respect to this matter are in fact unquantifiable." (App., Tab 2, at 200). At Bereano's
second sentencing, the Court reiterated its earlier position, stating that "I'm not imposing any
restitution for the same reasons that were expressed in 1995." (App., Tab 3, at 5).
E. This Court Should Grant Petitioner's Coram Nobis Petition Because The
Government's Theory At Trial Was Subsequently Found To Be An
Unconstitutional Ground For A Conviction.
To the extent that the Government argues that relief should not be granted because it also
argued deprivation of property, that argument should not be sustained. If the jury considered two
alternate theories of liability and one is discredited, the reviewing court "must reverse the
convictions if either theory is an improper basis for punishment." United States v. Mandel, 862
F.2d 1067, 1073 (4th Cir. 1988) (citing United States v. Mallas, 762 F.2d 361, 363, n. 3 (4th Cir.
3 The Fourth Circuit held that the sentencing court abused its discretion by departing downward from the sentencing
guidelines. United States v. Bereano, 1998 U.S. App. LEXIS 21131, at *60-61 (4th Cir. 1998). Upon remand,
Bereano was sentenced to five months of community confinement, followed by five months of home confinement
and a $30,000 fine. (App., Tab 3). This reversal of the trial court sentence occurred seven years prior to the
Supreme Court's decisions affording greater judicial discretion in applying the Federal sentencing guidelines.
United States v. Booker and United States VS. Fan/an, 543 U.S. 220, 125 S. Ct. 738, 160 L.Ed. 2d 621 (2005). The
trial court's lesser sentence would doubtless be affirmed under today's post-Booker jurisprudence.
8
1985); Mills v. Maryland, 486 U.S. 367 (1988)). This rule mandating reversal is inapplicable
only where there is a "high probability" that the jury did not rely on the incorrect theory. Id.
(citing United States v. Alexander, 748 F.2d 185, 189 (4th Cir. 1985)). Here, the Court used a
general verdict sheet, which failed to reveal what theory the jury relied upon in reaching its
guilty verdicts. See (App., Tab 18). If the Court cannot conclude which basis the jury relied
upon, it must reverse the convictions. Mandel, 682 F.2d at 1074.
Cases where coram nobis relief has been denied are quite telling as well. In Boatwright
v. United States, 779 F. Supp. 383 (D. Md. 1991), the Court distinguished Mandel because in
Boatwright there was "overwhelming" evidence that the defendants received kickbacks. Id. at
384. Moreover, the Court stated that
"[u]nlike the situation in Mandel, it is possible, in this case, to say '''with a high
degree of probability' that the jury did not rely upon the legally incorrect
theory." Id. Indeed, the facts of this case almost compel the conclusion that the
jury found the Boatwrights guilty of depriving the Church of its money,
regardless of whether the jury also found that the Boatwrights violated their
duty of loyalty to the Church.
Id.
Here, the opposite was true. There is more than a high degree of probability that Bereano
was convicted on the "honest services" theory. Indeed, it approaches near certainty. The now-
invalid "honest services" theory was the premise of each count of Bereano's indictment and
dominated the Government's entire case. The Government's reliance upon the "honest services"
theory was pervasive through every aspect of the trial. Even in post-trial motions, the
Government characterized its case as follows:
The scheme involved defrauding a number of these lobbing clients of money and
their right to Bereano's "honest and faithful services" by fraudulently billing these
clients for illegal campaign contributions by Bereano through his employees,
family members and the Bereano PAC.
9
(Government's Opposition to Defendant's Post- Trial Motion, December 15, 1994, at 2)
(emphasis added).
The indictment alleged that "[i]n his capacity as a lobbyist, Bruce C. Bereano owed a
fiduciary duty to each of his lobbying clients to act honestly and faithfully for and on behalf of
his clients." (App., Tab 5, at 2) (Emphasis added). The indictment further alleged that by
issuing bills which included reimbursements for campaign contributions, Bereano's clients were
deprived of "their right to loyal, faithful, honest and unbiased services and performance of the
duties of the defendant in his capacity as agent of said lobbying clients, free from willful
omission, deceit, dishonesty, fraud, self-dealing and conflict of interest, in violation of Title 18,
United State Code, Sections 1341 and 1346." (App., Tab 5, at 3).
Specifically, Count One of the indictment alleged the following:
"On or about September 1, 1990, in the State and District of Maryland and
elsewhere, the defendant . . . for the purpose of executing and attempting to
execute the scheme and artifice to defraud, did knowingly and willfully cause to
be delivered by mail according to the direction thereon mail matter, that is a bill,
addressed to Stephen D. Peck, Phillips Publishing Inc., 7811 Montrose Road,
Potomac, Maryland 20854"
(App., Tab 5, at 6).
Count Two of the indictment alleged the following:
"On or about October 5, 1990, in the State and District of Maryland and
be delivered by mail according to the direction thereon mail matter, that is a check
for the payment of services and necessary and reasonable expenses addressed to
Bereano & Resnick, 195 Duke of Gloucester Street, Annapolis, Maryland 21401
from Phillips Publishing, Inc."
Count Three of the indictment alleged the following:
10
r---------------------------------------~ --~--
addressed to Edward Murphy, Dental Benefits Providers, 7200 Wisconsin
Avenue, Suite 800, Bethesda, Maryland 20814."
Court Four ofthe indictment alleged the following:
from Dental Benefits Providers."
Count Five of the indictment alleged the following:
addressed to Steve Carney, Medical Mutual Liability Insurance Society of
Maryland, 225 International Circle, Hunt Valley, Maryland 21031 "
(App., Tab 5, at 10).
Count Six of the indictment alleged the following:
"On or about September, 1990, in the State and District of Maryland and
from Medical Mutual Liability Insurance Society of Maryland."
(App., Tab 5, at 11).
Count Seven of the indictment alleged the following:
11
addressed to Maryland Saltwater Sportfisherman's Association, 711 2nd Street,
N.W. Washington, D.C. 20002."
(App., Tab 5, at 12).
Count Eight of the indictment alleged the following:
from Maryland Saltwater Sportfisherman's Association."
(App., Tab 5, at 13).
Bereano moved to dismiss the indictment, alleging, as Skilling did, that the "honest
services" charges were unconstitutionally vague and that he was deprived of notice as to the true
nature of the charges. As Bereano stated in his motion, "Defendant is left to guess at his peril
about the true nature of the charges and what the Government has presented and will attempt to
prove." (App., Tab 35, 2).
In response to Bereano's motion to dismiss, the Government argued that the defense was
not entitled to greater notice of the charges against him because of the existence of now
invalidated case law explaining the intangible rights theory of mail fraud:
because the intangible rights theory of the mail fraud statute has been given
sufficient judicial explication and statutory definition, it provides fair notice to
defeat any challenges of vagueness. [6]
6 The Government, in a footnote to this comment, remarked that it was the "height of irony" for Bereano to complain
about the vagueness of the mail fraud statute because he had "represented Marvin Mandel in a case in which the
intangible rights doctrine was hotly debated." CApp., Tab 6, at 10 n.9). There is irony here, but not for the reason
stated by the Government. First of all, Bereano had never represented former Governor Mandel in that case, but
only assisted him in his pardon efforts. Secondly, former Governor Mandel's conviction was subsequently vacated
as a result of a petition coram nobis following the Supreme Court's decision in McNally, supra, the precursor to
12
(App., Tab 6, at 10).
In denying Bereano's motion, the Court's opinion noted the legislative history behind the
amendments to the honest services statute, stating that:
[t]he enactment of S 1346 was a response to the Supreme Court's decision in

McNally v. US., 483 U.S. 350 (1987) which limited the application of the mail
fraud statutes to cases involving actual loss of money or property. [Citations
omitted]' Prior to the McNally decision, the Fourth Circuit, as well as other
Circuits, applied S 1341 to include schemes designed to defraud others of
intangible rights. Us. v. Mandel, 491 F.2d 1347 (4th Cir. 1979), affd in relevant
part, 602 F.2d 653 (4th Cir. 1979) (en banc) cert. denied, 445 U.S. 961.
[Citations omitted]' By enacting S 1346, Congress made it a criminal violation to
defraud intangible right to honest services by utilizing the mails. See us. v.
D'Alessio, 822 F.Supp. 1134, 1148 (D. N.J. 1993) ("Congress passed 18 U.S.C.
S 1346 which overruled McNally to the extent that it re-allowed prosecutions
based on violations of another's right to 'honest services. "').
(App., Tab 7, at 5-6).
The "honest services" theory pervaded the prosecution's case from start to finish.
Recognizing that none of Bereano's clients believed they were defrauded, the Government's
opening statement instead emphasized the "honest services" deprivation theory:
Now the law recognizes that something of value that one can obtain through a
scheme to defraud can be two things, and they are as I said: The first, money or
could be property, something tangible, something you can touch, the money in
our pocketbook, something of value. The second is the intangible right to honest
and faithful services. And, again, there is really nothing magical about that
phrase. It's something that probably to you in your own lives. If you hired a
professional, an accountant or a lawyer or a doctor, and you paid him fees, you
have a right under the law to expect him or her to provide you with his honest and
faithful services, and his failure to do so, to deprive you of that by some type of
trick or deceit, is considered to be mail fraud under the law.
(App., Tab 39, at 308-09).
At trial, the Government called as government witnesses the four alleged violations
identified in the indictment to establish that Mr. Bereano violated 18 U .S.C. S 1346. All four of
Skilling and Black. United States v. Mandel, 862 F.2d 1067 (4th Cir. 1988), cert. denied, 109 S. Ct. 3190 (1989).
The same should be done here.
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the alleged "victims" testified as Government witnesses and wrote letters to the Court stating
they had not been defrauded, cheated, or victimized by Mr. Bereano.
First, Stephen Peck, Senior Vice President and Chief Financial Officer of Phillips
Publishing, testified that his company hired Mr. Bereano as a lobbyist. (App., Tab 44, at 1234-
35). Mr. Peck reviewed Mr. Bereano's bills and he ordinarily did not question the bills. (App.,
Tab 44, at 1241). On one occasion, Mr. Bereano billed his company for $150 of "legislative
entertainment," which the company paid. (App., Tab 44, at 1254-55). Mr. Peck was not aware
how the $150 was spent and he just assumed that it was spent on legislative entertainment.
(App., Tab 44, at 1255). Mr. Peck was not aware that any wrongful political contributions were
made to any candidates. (App., Tab 44, at 1256). Mr. Peck would rehire Mr. Bereano if the
company needed a lobbyist again. (App., Tab 44, at 1274-75). Mr. Peck and Phillips Publishing
did not believe that Mr. Bereano stole or cheated the company out of any money. (App., Tab 44,
at 1276). Mr. Peck indicated that he had not observed Mr. Bereano engage in dishonest
behavior. (App., Tab 44, at 1277). At both of Mr. Bereano's sentencings in April 1995 and
December 1998, Mr. Peck submitted letters to the Court stating that Bereano "did not cheat, trick
or steal from the company." (App., Tab 30).
Second, Stephen Carney, Vice President and General Counsel of Medical Mutual
Liability Insurance Society of Maryland, testified that his company hired Mr. Bereano as a
lobbyist and provided him with a $10,000 retainer. (App., Tab 44, at 1291). Mr. Carney was
satisfied with the services Mr. Bereano provided to the company. (App., Tab 44, at 1294). Mr.
Carney approved a bill submitted by Mr. Bereano for $680.10, $150 of which was itemized as
"legislative entertainment." (App., Tab 44, at 1298-99). Mr. Carney did not authorize Mr.
Bereano to reimburse employees at his firm for contributions billed as legislative entertainment,
14
and he did not have any knowledge how that $150 was actually spent. (App., Tab 44, at 1305).
Mr. Carney was satisfied with Mr. Bereano's services, and the expenses charged to the company
were modest. (App., Tab 44, at 1311-12, 1319). Mr. Carney did not have any reason to believe
his company was billed improperly or fraudulently by Mr. Bereano. (App., Tab 44, at 1322).
The Government told Mr. Carney that Mr. Bereano improperly billed his company $150, but Mr.
Carney had no basis believe that there were any improper bills. (App., Tab 44, at 1325). Mr.
Carney again under oath repeated such testimony on September 21, 1999 at the disbarment
hearing of Mr. Bereano. At both of Mr. Bereano's sentencings in April 1995 and December
1998, Mr. Carney submitted letters to the Court denying that Bereano defrauded Medical Mutual.
(App., Tab 29).
Third, Dale Dirks and Richard Novotny testified on behalf of the Maryland Saltwater
Sports Fisherman's Association. Mr. Dirks, President of that organization, testified that the
Maryland Saltwater Sports Fisherman's Association hired Mr. Bereano as a lobbyist. (App., Tab
45, at 1372, 1374). Mr. Dirks stated that he received a bill dated September 1, 1990 for $206
from Mr. Bereano for legislative entertainment. (App., Tab 45, at 1387). Mr. Dirks assumed the
bill was for legislative entertainment. (App., Tab 45, at 1388). Mr. Dirks never complained
about Mr. Bereano's billing, and he indicated that Mr. Bereano was truthful and honest. (App.,
Tab 45, at 1399-1400).
Mr. Novotny, Executive Director of the Maryland Saltwater Sports Fisherman's
Association, testified that Mr. Bereano is an "up front" and a "very truthful and very honest
man." (App., Tab 45, at 1416). He stated that he signed off on a bill submitted by Mr. Bereano.
(App., Tab 45, at 1408-09). Mr. Novotny paid the bills submitted by Mr. Bereano, and he never
questioned any item for legislative entertainment. (App., Tab 45, at 1414). He did not believe
15
that Mr. Bereano ever misused any funds or billed the organization for anything that was not due.
(App., Tab 45, at 1414). He also did not believe that Mr. Bereano ever took or stole any money
from the organization. (App., Tab 45, at 1415). At both ofMr. Bereano's sentencings in April
1995 and December 1998, Mr. Novotny submitted letters to the Court denying that Bereano
cheated or committed fraud against the Maryland Saltwater Sportfishermen's Association.
(App., Tab 32).
Fourth, Edward Murphy, Chief Executive Officer of Dental Benefit Providers, testified
that his company hired Mr. Bereano. Mr. Murphy was absolutely satisfied with Mr. Bereano's
services. (App., Tab 45, at 1421, 1424). Mr. Murphy believed that Mr. Bereano provided his
company with honest and faithful services while Mr. Bereano worked for the company. (App.,
Tab 45, at 1454). Mr. Murphy reviewed Mr. Bereano's bills. (App., Tab 45, at 1424). Mr.
Murphy received a bill for $145 from Mr. Bereano for legislative entertainment on September 1,
1990, and he subsequently issued a check to Mr. Bereano. (App., Tab 45, at 1442, 1444). Mr.
Murphy indicated that Mr. Berano did not display any dishonesty or deceit in their dealings.
(App., Tab 45, at 1449). At both of Mr. Bereano's sentencings in April 1995 and December
1998, Mr. Murphy submitted letters to the Court denying that Bereano cheated Dental Benefit
Providers. (App., Tab 31).7
The prosecution placed almost no emphasis on a property deprivation theory of mail
fraud for the obvious reason that all of the alleged victims testified that they did not believe they
had been defrauded of property. The trial judge in his ruling on Defendant's Motion for
7 The Government's four witnesses repeated their testimony that they were not defrauded or cheated by Bereano
during his disbarment proceedings. Mr. Peck again under oath repeated that Bereano did not defraud or cheat his
company at the disbarment hearing of Mr. Bereano. (App., Tab 27, at 159-60). Mr. Carney again under oath
repeated that his company was not fraudulently billed by Bereano. (App., Tab 28, at 46). Mr. Novotny again under
oath repeated that Bereano did not steal from his organization. (App., Tab 25, at 133-34). Mr. Murphy again under
oath repeated that Bereano did not defraud Dental Benefit Providers. (App., Tab 26, at 97-98).
16
.•
Judgment Acquittal, after he held the motion overnight after argument by all counsel the
previous day, accurately summarized the overwhelming weakness of the Government's property
deprivation case characterizing it as "rather thin or obscure":
We have four clients, all called by the government, representatives that were
allegedly defrauded, each of whom says they perceive no fraud, did not then, do
not now. One of them is a lawyer, Mr. Carney, who put in some seven years at
one of the most prestigious firms in the city, is now general counsel to Medical
Mutual, and says that to this day, he has no reason to believe that his client was
defrauded or billed improperly, and who has hired the defendant to represent his
principal at the upcoming legislative session. And every client representative has
to the defendant's honesty and hard work . . . with respect to Section 1341, the
fraud basis is more difficult in my view to evaluate because of a more tenuous
evidence of a financial loss to the alleged victims.
(App., Tab 46, at 1513-16).
All four of the alleged "victims" testified and later wrote letters indicating that they had
not been defrauded or victimized by Bereano. (App., Tab 29-32). In considering the defense
motion for acquittal, the Court observed that "with respect to Section 1341, the fraud basis is
more difficult in my view to evaluate because of a more tenuous evidence of a financial loss to
the alleged victims, or at least a scheme to defraud included a goal which would recognize a loss
to the allege victim as the Government requires." (App., Tab 46, at 1515).
Ultimately, the Court relied on the combination of honest services and the tenuous
property deprivation charge in denying the defense acquittal. It stated:
There are two statutory considerations here. With respect to Section 1346, the
Government's argument seems to be that there was a scheme or artifice to deprive
the clients of their intangible right of honest services as the statute indicates, and
that this has been met by inferences that can be gathered by the evidence that bills
that were for legislative entertainment were falsely represented as legislative
entertainment; and in fact, included political contributions which were detrimental
to the client because they put the client, or there is some evidence by which a jury
could conclude put the client beyond its maximum allowable contribution status,
and thus deprived them of the right to honest services that would not have put
them in whatever jeopardy that might attach to them.
17
•
(App., Tab 46, at 1514-15).
The Court concluded that "from that cloud of smoke that constitutes evidence" a
reasonable jury could conclude a violation of the "honest services" prong of ~1346:
In my conclusion, with respect to that, is that a reasonable jury could conclude,

from that cloud of smoke that constitutes the evidence in this case, determine guilt
beyond a reasonable doubt as to a Section 1346 charge.
(App., Tab 46, at 1515).
The Court reiterated these concerns in denying Bereano' s renewed motion for acquittal
at the end of the evidence:
I will say that I am concerned about the fact that so much of the evidence in this
case deals with the Maryland election law and that is why I have invited an
appropriate instruction that will expand on this concern, so that the jury will
understand that notwithstanding all that they have heard, and all of the exhibits
purpose. Notwithstanding, and considering all of the arguments that the defense
raised in their motion at the end of the Government's case, and looking at them
again, albeit in a different light and not in the light most favorable to the
government, but even so, and again reiterating there is a lot of smoke out there, I
am satisfied that a reasonable juror could, although they have to do a lot of
shifting through the smoke to find it nonetheless, could make a determination on
the basis of inference from the circumstantial evidence, and that accordingly I am
going to deny the defendant's motion.
(App., Tab 46, at 1538-39).
In closing argument, the Government argued that Bereano deprived his clients of honest
services by using the proceeds of their billings to circumvent campaign contribution limits in
state election laws:
As the judge has told you, and you will see the indictment and you will be
instructed about, the defendant schemed to defraud, and also designed to defraud
his clients of his honest and faithful services. Now, what do we mean by that?
The Judge is going to give you an instruction that this part of the indictment refers
to efforts by Mr. Bereano, who was a fiduciary for his clients, depriving them of
information, stealing from them with the intent to defraud them, coupled with the
use of the mails. A fiduciary comes from the Latin, fidu, meaning faithful, that's
all. Mr. Bereano owed his clients as a lawyer and lobbyist an obligation of his
faithful representation to act on their behalf.
18
•
Now this is not a case, this is not a case about negligence. We are not saying that
Mr. Bereano didn't work or didn't work hard. That is not what we mean by honest
and faithful services. Instead, what we are talking about is making honorable
contributions in violation of the state election laws without the client's knowledge
and direct contravention of the very advice he gave them.
(App., Tab 48, at 1620-21).
The prosecution elaborated on its theory of Bereano seeking to circumvent state election
laws:
The 2500 total limitation applied to candidates for all state and local offices per
election. That's what he told his clients. While he was telling them this, he
himself was violating it. He sent along with this one to his clients and several of
the others, a copy of the law he understood applied. [quotation of state election
law omitted]. He was violating that law while he was sending this to his clients.
His clients didn't know it. That's what we mean by honest and faithful services.
We also mean that he used his clients' money to advance his own interests ahead
of his clients. By making these contributions, even though, even though his
clients had either rejected those candidates when he recommended them, or his
clients had contributed to their opponents.
(App., Tab 48, at 1621-22).
The Government then proceeded to walk the jury through a number of transactions in
which it contended Bereano violated a fiduciary duty to provide honest and faithful services to
his clients involving state election laws. The prosecutor finished each description with the
rhetorical refrain of "is that honest and faithful services?" This included:
I.) Phillips Publishing. A description of how Bereano billed legislative entertainment
but made campaign contributions through an employee which would cause Phillips to exceed
state campaign contribution limits. The government concluded this description with the question
"Is that honest and faithful services?" (App., Tab 48, at 1622).
2.) Kirchenbauer Campaign Contribution. The prosecution cited for the jury Bereano's
use of funds from Phillips Publishing to donate to Diane Kirchenbauer while Philips president
19
•
had made a contribution to her opponent, Sheila Hixson.s The prosecutor concluded by asking
the jury "[i]s that honest and faithful services?" (App., Tab 48, at 1623).
3.) Maryland Saltwater Sportsfishermen Association. The prosecution cited for the jury
Bereano's "secret contribution" to then-delegate Chris Van Hollen "in spite of the client's direct
wishes" and a campaign report that showed employees had given the contributions when the
source of funds was not the employees. "Is that honest and faithful services?" the prosecution
asked the jury. (App., Tab 48, at 1623).
4.) Candidate Reports. The prosecution also complained that election law reports
inaccurately showed Bereano employees Pam Young, Chris Satterfield, and Sandra Steed as
donors when they were not the source of the donations, adding "yet, he sought to gamer credit
for it, with the candidates. Frequently, they were accompanied with a cover letter from Mr.
Bereano or a notation on the check, Bruce Bereano asked me to send this. He was buying
insurance with his clients' money and that they didn't know about, and the insurance was not for
the clients, the insurance was for him. He was the beneficiary of that insurance. You see, Mr.
Bereano put one cause above and ahead of all of us, and that was his own self-interest. In so
doing, he defrauded his clients of his honest and faithful services." (App., Tab 48, at 1623-24).
The defense objected to the Government's "honest and faithful services" argument to the
jury. Citing D'Amato, the defense argued that the fiduciary concept in United States v.
Margeatta had been "eviscerated." (App., Tab 48, at 1629-30). The defense also objected to
the Government's argument to the jury that the public had been victimized by campaign finance
reports that did not contain the accurate identity of donors. (App., Tab 48, at 1661-62).
8 In fact, Kirchenabuer and Hixson were two of four candidates seeking three seats in the House of Delegates from
Legislative District 20 in Montgomery County. Support for one candidate was not necessarily inconsistent with
support for another because voters had the right to vote for both Kirchenbauer and Hixson as well as a third
candidate.
20
••
The Court rejected Bereano's argument and provided the jury with instructions premises
on the Government's honest services theory:
So a scheme to defraud is merely a plan to obtain something of value by trick,

deceived deception, or swindle. The honest and faithful services concept
embodied in the statute cover circumstances where an agent defrauds his principal
by breaching his fiduciary duty in stealing from the principal. In addition, an
agent also defrauds his principal of his honest and faithful services when he
breaches his fiduciary duty and conceals material information from his principal,
coupled with the necessary intent and use of the mails. A fiduciary duty arises in
any relationship where one party owes another his loyalty and faithfulness, such
as an employee owes to his employer and an agent owes to his principal.
(App., Tab 48, at 1696-97).
The Court's instructions made it clear that the jury had to find either harm to honest
services or property in order to convict Bereano: "The Government must prove the defendant
contemplated depriving another of the intangible right of honest services or harm to the property
of another in order to establish a scheme to defraud." (App., Tab 48, at 1698). The Court also
instructed the jury that while Bereano was not on trial for a violation of Maryland election laws,
"if you should conclude that the defendant did engage in conduct which he knew or believed to
be a violation of the state election laws, you may, but are not required to consider that evidence
in determining whether the defendant acted with require knowledge and criminal intent to
deceive, or in good faith, as I have explained those terms to you." (App., Tab 48, at 1704-05).9
9 The Skilling court acknowledged that courts have split over another hotly disputed aspect of the Bereano case,
whether or not ~1346 prosecutions must be based upon violations of state law: "Courts have disagreed about
whether ~1346 prosecutions must be based on a violation of state law, compare, e.g., United States v. Brumley, 116
F. 3d 728, 734-735 (CA5 1997) (en bane), with, e.g., United States v. Weyhrauch, 548 F. 3d 1237, 1245-1246 (CA9
2008), ... ; whether a defendant must contemplate that the victim suffer economic harm, compare, e.g., United
States v. Sun-Diamond Growers o/Cal., 138 F. 3d 961, 973 (CADC 1998), with, e.g., United States v. Black, 530
F. 3d 596, 600-602 (CA 7 2008) ... ; and whether the defendant must act in pursuit of private gain, compare, e.g.,
United States v. Bloom, 149 F. 3d 649, 655 (CA 7 1998), with, e.g., United States v. Panarella, 277 F. 3d 678, 692
(CA32002)." Skilling, 130 S. Ct. at 2928 n.36.
21
The verdict sheet made no distinction between deprivation of "honest services" and
"deprivation of property" and simply asked the jury to check a box to indicate whether it found
Petitioner "Guilty" or "Not Guilty" for each count of the indictment. (App., Tab 18).
Bereano's appeal included a challenge to the reach of "honest services" prosecutions to
private fiduciary relationships. The Fourth Circuit rejected Bereano's argument in a holding
clearly no longer viable under Skilling:
The plain language of the statute does not restrict its application to public
officials. Further, S 1346 was a response by Congress to the Supreme Court's
decision in McNally v. United States, 483 U.S. 350 (1987). Prior to McNally,
numerous circuit courts, including this Circuit, held that the mail fraud statute
covered not only schemes to defraud others of property, but also schemes
designed to defraud others of 'intangible rights," including the public's right to
honest government. See McNally, 483 U.S. at 356. In addition to the right to
honest Government, pre-McNally cases held that the intangible rights covered
included an employer's or other principal's right to honest faithful and
disinterested services of its employees or agents, usually involving a breach of
fiduciary duty. Specific examples include cases where courts found a violation of
"honest and faithful services" right where an employee took kickbacks from third
parties, embezzled company funds, owned a hidden interest in a firm with which
did business, or traded in the securities market with inside information. [citations
omitted]' McNally attempted to limit the definition of "honest and faithful
services," but this Circuit has held that Congress meant to return the definition to
its pre-McNally scope through enacting S 1346. Thus, the "honest and faithful
services" concept embodied in the statute covers not only circumstances where an
agent defrauds his principal by stealing money from the principal, but also where
an agent defrauds his principal of his "honest and faithful services" when he
breaches his fiduciary duty and conceals material information from his principal,
coupled with the necessary intent and use of the mails and wires.
United States v. Bereano, 1998 U.S. App. LEXIS 21131, at * 17-19 (4th Cir. 1998), cert. denied,
526 U.S. 1130 (1999).
Bereano filed a timely petition for writ of certiorari with the United States Supreme
Court on January 20, 1999, raising three questions, including the application of 18 U.S.C. S 1346
"honest services" to private fiduciary relationships. (App., Tab 20). Although not successful,
Bereano's petition reads as a precursor to the holdings in Skilling and Black:
22
Application of Section 1346 to private sector relationships would raise serious

constitutional concerns. First, such an interpretation would violate the
fundamental due process principle of fair notice--that "(n]o man shall be held
responsible for conduct which he could not reasonably understand to be
proscribed." United States v. Lanier, 117 S. Ct. 1219, 1225 (1997); see also
McBoyle v. United States, 283 U.S. 25, 27 (1931 (Holmes, J.) ("A fair warning
should be given to the world in language that the common world will understand,
of what the law intends to do if a certain line is passed. ").
(App., Tab 20, at 21).
F. The Government Has The Burden To Prove That It Obtained Bereano's

Conviction Based On A Property Deprivation Theory.
The Government has the burden of proving that it obtained Bereano's conviction based
upon a property deprivation theory alone. As indicated supra, "in a case in which the jury
considers alternate theories of liability, we must reverse the convictions if either theory is an
improper basis for punishment." Mandel, 862 F.2d at 1073. The Government is unable to prove
that the jury relied, alone, on a property deprivation theory. For example, at the April 21, 1995
sentencing hearing, the Court indicated this was a "close case";
Well obviously, I am already on record with regard to what Mr. Figinski has
indicated, indicating it is a close case. It was not an easy decision with regard to
whether to send it to the jury or not send it to the jury, whether fraud truly
sufficiently defined in the context of a case like this is arguable. I had denied post-
trial motions, because I believe that the case was properly submitted to the jury,
that the conviction was appropriate given the facts in this case. At the same time, I
am satisfied that there is a close question. There were issues raised about
procedures at the outset having to do with voir dire, and there may be a number of
appellate issues. I certainly cannot second guess counsel with respect to all of
them, but I think that this is a case that warrants a stay in view of at least one
close question that I perceive, and I will stay it.
(App., Tab 2, at 203-04).
At that same sentencing hearing, the Court explained the mitigating circumstances in this
case and that the "victim entities" did not "recognize any fraud or any loss":
In this case, I find that the atypical or the mitigating circumstance is this: And that
is as has already been alluded to, the unique context in which this fraud occurred.
23
And I believe that the fraud is grossly overborn by the evidence of the acts that
were focused on maneuvering around either real or imagined state election law
limitations. Election law violations were not charged here. Election law
violations could not be charged here. The fraud here was not perpetrated for direct
monetary gain to the detriment of the clients involved. The intent was clearly a
mutual enhancement of the lobbying position of both the clients and the
defendant. But for the defendant's concerns over the application of the Maryland
election laws and their limitations, I am convinced by a preponderance of the
evidence that the defendant would have openly solicited the so-called victim
clients for contributions to political fundraisers, and if appropriate would have
labeled expenses in that category as such on his bills. There is, I think, clearly an
arguable gain to the clients from the fraudulent expenditures as part and parcel of
the total efforts that were put forth by Mr. Bereano in their behalf. The
beneficiaries of the money were clearly the legislative candidates and not the
defendant. And thus, as I have indicated earlier, there is no quantifiable loss to the
victims, as is customary in a fraud case. And in fact, it is more likely given the
small amounts of money involved, that there was a net gain to the so-called
victims, and that explains I believe the testimony of the representatives of the
victim entities that they didn't recognize any fraud or any loss, and I think it
explains the letters that have been received and referred to earlier which are less
than two weeks old. So in summary, we have a fraud with little or no evidence of
any true loss, and that the loss factor is a primary factor indicated by the
Sentencing Commission in their background definition with regard to frauds and
the severity of a sentence in a fraud case. So we have a fraud without evidence of
apparent intent to obtain ill-gotten gain in the typical context, and in short, a
clearly atypical fraud case that is linguistically enhanced by some six levels by
guideline adjustments, which, in my view, make it all the more a candidate for a
downward departure. And I am going to grant a downward departure. With
respect to the extent of that departure, I think it is arguable that a departure should
be substantial for a case that is such an atypical fraud case.
(App., Tab 50, 163-65).
At the 1995 sentencing hearing, the Court further explained that, in its view, the fraud
here did not involve property deprivation in the form of theft from clients:
As I indicated earlier, the purpose, the motive, the true 'intent for the fraud of
which Mr. Bereano stands convicted was not to steal money from unsuspecting
clients but rather to enhance his effectiveness and influence as a lobbyist by
providing what the evidence and the testimony from legislative candidates who
testified in this case said was expected of all lobbyists, namely, the purchasing of
tickets to fund raising events and the contributions to their campaigns. Candidates
simply expected lobbyists to provide contributions. How the relatively new
Maryland election laws have impacted on this practice and whether those laws
can be or could be bypassed, I think is at the core of this case, because it provided
24
the motive, I believe, for Mr. Bereano to disguise contributions and label them as
entertainment. This was the fraud, and the jury convicted him on that, but it is
very different from the classic fraud that has been indicated where you have an
intent to steal money from a victim at the heart of the scheme. The victims here
were essentially getting what they bargained for, a close working relationship
with legislators that could help them in their legislative concerns. They were
getting it in a different fonn than as contributions to campaigns, rather than
entertainment.
It is true that there was evidence that some contributions probably went to
particular legislators particular clients did not favor, and that perhaps some clients
were unknowingly put in positions of being in violation of the state election laws.
But the overall idea was that Mr. Bereano was their agent in Annapolis, and he
had a relationship with legislators that allowed him to be effective. I think it is
easy to understand why the clients do not perceive themselves as victims in this
case.
(App., Tab 50, at 197-98).
In denying Bereano's post-trial motions, the Court again commented on the "de minimis"
nature of the harm:
The issues that have been raised by the Defendant in the motions that are
before the Court are not new. Essentially we are plowing the same ground,
although, I guess we are plowing it a bit deeper and perhaps straighter, and we
have the hindsight that more often is 20/20.
With regard to the election laws issue, I do not know whether counsel
found themselves on the horns of a dilemma as to whether they should argue that
not enough was allowed in with regard to that, which was the argument, as
opposed to arguing that too much was let in, and that the jurors' attention was
perhaps so diverted by the testimony, the evidence with regard to election law
violations, that their findings of mail fraud was unduly influenced by that. That
was not the argument and I do not mean to indicate that if it was, I would have
agreed and granted the motion on that basis.
I am satisfied on the basis of all of the legal precedent that has been
presented to me, that all the legal requirements were met with regard to that issue
were properly dealt with during the course of the trial and the jury was properly
instructed with regard to how they were to view that evidence.
As fraud cases go, I certainly agree that this case is unique in many
respects, perhaps particularly including the element of harm to the respective
clients or victims as the government I guess refers to them. And the harm in my
view was rather de minimis. I used the term back when we argued the motions
2S
during the trial it was thin and obscure, and I still feel that that is the situation,
particularly in view of the relative quantity of the evidence of harm and fraud with
the overall quantity of the evidence presented in the case. The fact of the matter is
and the reason that I did submit it to the jury and overruled the Defendant's
motion at the end of the Government's case at the end of evidence, was because I
felt then and continue to believe that the evidence was there, even if de minimis.
As the Government has pointed out, knowledge by the victim that he or

she has been defrauded is not the ultimate test whether fraud occurred. And we
had the element here of harm in the sense of a deprivation of the right to honest
and faithful services. I think there was evidence that the jury could have
determined from this case of an impact on the respective clients' status under the
election laws regarding whatever the limitations were concerning contributions,
perhaps more importantly a usurping of the client's prerogative to contribute to
whom they wanted. But as Mr. Kelberman has pointed out, there was testimony.
Clients, victims that they did not understand that legislative entertainment as was
noted on the bills was to include campaign contributions and had they been asked
about it, would not have approved it. And on that basis, I am satisfied that
however slight the ultimate harm might have been, that there was evidence to
allow the jury to conclude that it did in fact occur.
With respect to the intent to defraud, certainly arguable that the intent was
far from any insidiously evil type of intent, but there was evidence of intent to
disguise expenditures in the clients' behalf, the legislative entertainment when in
reality those monies were diverted to campaign contributions, people that the
defendant selected.
The cases that the Defendant has submitted in this area have been referred
to each of them in my view as distinguishable from the evidence that was
presented in this case including the one Mr. Figinski submitted to me yesterday,
was a District Court decision from Kentucky, it is here somewhere among the
papers, but in any event, my reading of the opinion which was a transcript of a
bench opinion in that case indicated that there were distinguishing characteristics
with regard to that. At page 21 of that transcript, the Court pointed out that the
government had failed to prove that the company had been cheated in some
meaningful way and that there was absolutely no harm, either tangible or
intangible way.
As I have indicated the harm here appears to have been relatively slight,
but still there was in my view sufficient evidence of harm and the jury so found. I
don't find any basis in the Defendant's submissions with regard to the other legal
issues that have been raised in the memoranda and accordingly, I am constrained
to DENY the Defendant's motions.
(App., Tab 1, at 42-45) (Emphasis supplied).
26
It is beyond dispute that the Court viewed the case presented by the Government as not
being a property deprivation case, but one premised solely upon honest services, and weakly
upon that theory at best.
i. Petitioner Continues to Suffer from a Continuing Civil Disability.
Several federal circuits have required Petitioner to show, in addition to completing his
sentence, a continuing civil disability in the form of present and future impairment of some civil
right, such as to maintain an occupational license. See United States v. Keane, 852 F.2 199, 203
(7th Cir. 1988), cert. denied, 109 S. Ct. 2109 (1989). Bereano plainly continues to suffer
extraordinary civil disabilities because of his wrongful conviction here. He was disbarred from
the practice of law exclusively because of the instant conviction. He also continues to suffer
significant civil disabilities under Maryland law as a result of the felony convictions.
ii. Petitioner was Disbarred as a Result of His Conviction.
Following the affirmance of his conviction in the Fourth Circuit, Bereano was disbarred
from the District of Columbia Bar on the ground that mail fraud is a "crime involving moral
turpitude per se." In re Bereano, 719 A.2d 98,99 (D.C. 1998) (per curiam). Becausemail fraud
is a crime of moral turpitude per se, the Court held that Bereano should be subject to summary
disbarment without need for reciprocal disciplinary proceedings:
It is well-established that mail fraud, a felony offense, is a crime of moral

turpitude per se. See In re Juron, 649 A.2d 836 (D.C. 1994); In re Fox, 627 A.2d
511 (D.C. 1993); In re Simon, 626 A.2d 333 (D.C. 1993) In re Bond, 519 A.2d
165 (D.C. 1986); In re Kerr, 424 A.2d 94 (D.C. 1980). Respondent was
convicted of seven counts of mail fraud, and he has presented no reasons why he
should not be disbarred for committing a felony involving moral related foreign
order of discipline are simultaneously referred to the Board for a
recommendation, that the issue of whether the criminal conviction involves moral
turpitude per se should be decided first. In re Saul, D.N. 220-93, et al. (BPR July
31, 1995); In re Mason, D.N. 113-93 (BPR Feb. 28, 1994). Where the Board
concludes that the offense involves moral turpitude per se, that ends the matter,
and the reciprocal discipline proceeding should be dismissed as moot. In re
27
Sharpe, D.N. 238-92 (BPR Dec. 1, 1994); see In re Slater, 627 A.2d 508, 509
(D.C. 1993).
Because the Board [of Professional Responsibility} has concluded that

Respondent's conviction, on its face, involves moral turpitude and requires
Respondent's disbarment under D.C. Code 811-2503(a it recommends that the
reciprocal discipline proceeding against Respondent be dismissed
719 A.2d 98, 99 (emphasis added).
The United States Supreme Court disbarred Bereano on January 25, 1999. In re Bereano,
525 U.S. 1119, 119 S.Ct. 921,142 L.Ed.2d 917 (1999). After Bereano's conviction became
final, the Maryland Attorney Grievance Commission petitioned the Maryland Court of Appeals
for disciplinary action, which referred the petition to the Circuit Court for Anne Arundel County.
At the trial court, the allegedly defrauded clients testified that they did not believe they were
defrauded, and a wide array of character witnesses testified as well. As the Court of Appeals later
noted:
Bereano again elicited testimony from representatives of the defrauded clients that
they did not believe that he had billed them fraudulently. At that hearing Bereano
called almost forty witnesses who testified to his good character, including a
United States Congressman, a former governor, judges, and individual clients.
Judge Lerner summarized this testimony as presenting "the common theme that
(Bereano] is trustworthy, honest, ethical, charitable, has done nothing prejudicial
to the administration of justice, is an excellent attorney, tenacious, conscientious,
hard working, with long hours, has great energy, zeal, and enthusiasm, helps
people, has built an excellent reputation as a person and a lawyer."
Atty. Griev. Comm'n of Md v. Bereano, 357 Md. 321, 329, 744 A.2d 35, 39 (2000).
Despite the felony conviction, the trial court recommended "a sanction less than
disbarment." Id In rejecting the recommendation and disbarring Bereano, the Court of Appeals
noted that it was bound to accept the mail fraud conviction as conclusive proof of Bereano's
guilt:
In our review to determine an appropriate sanction, we accept as facts the

allegations of the counts of the federal indictment on which Bereano was
28
convicted, as well as the evidence set forth in the Fourth Circuit's opinion to
demonstrate that there was sufficient evidence to support the convictions. See
Maryland Rule 16-71 O(e)(1) (" [A] final judgment by a judicial tribunal in another
proceeding convicting an attorney of a crime shall be conclusive proof of the guilt
of the attorney of that crime. ").
Id. at 323.
In an effort to avoid disbarment, Bereano raised challenged the broad scope of the
"honest services" statute--now limited by Skilling and Black. Relying upon the state of Federal
jurisprudence which existed when Bereano was convicted, the Court of Appeals rejected
Bereano's argument:
Bereano also attempts to cast doubt on this Court's previous cases on mail fraud
by arguing that they never involved convictions of a private individual under 18
U.S.C. S1346, which provides that "the term 'scheme or artifice to defraud'
includes a scheme or artifice to deprive another of the intangible right of honest
services." The respondent submits that the United States Supreme Court has never
considered whether this section applies to private individuals, as distinct from
governmental officials, and that some United States Courts of Appeals have
required a violation of a state law or of an independent federal law as a predicate
for a conviction under S1346. From this Bereano seems to draw the conclusion
that one of the theories underlying the indictment, i.e., 18 U.S.C. S1346, which is
a questionable basis for the imposition of disbarment.
As a matter of federal criminal law and procedure, Bereano's argument was

rejected by the Fourth Circuit. The argument is similar to one advanced in
Attorney Grievance Commission v. Pine, 291 Md. 319,435 A,2d 419. In that case
an attorney who had been convicted of mail fraud argued that he "could [not]
have been convicted of false pretenses in a Maryland Court under the facts proven
in his federal prosecution" because he had withdrawn from the fraudulent scheme.
435 A,2d at 431. (internal quotation marks omitted). We rejected that argument
by citing former Rule BVI0(e)(1), the identical terms of which are now found in
Maryland Rule 16-71 O(e)( 1). (" [A] final judgment by a judicial tribunal in another
convicting an attorney of a crime shall be conclusive proof of the guilt of the
attorney of that crime. "). Similarly, the absence of a violation of a state law or of a
federal law, other than mail fraud, is irrelevant because Bereano's conviction is
conclusive proof that he engaged in a scheme to defraud and that he possessed
the intent to defraud.
Id. at 335-36 (emphasis added).
29
The loss of the privilege to practice law is a particular burden upon Bereano, who
actively practiced law without any discipline for nearly thirty years prior to his disbarments. See
Resume Bruce C. Bereano (App., Tab 33). Bereano graduated from George Washington
University in 1966 with a B.A. in public affairs and received his J.D. from George Washington
University Law School in 1969. While in undergraduate school from September 1965 to May
1966, Bereano served as an assistant to United States Senator Robert F. Kennedy (D-N.Y.), the
former U.S. Attorney General, and later, while in law school from October 1966 to September
1968, as an assistant to United States Senator Joseph D. Tydings (D-Md.), a former United States
Attorney in this district. From September 1968 to May 1969 he served as law clerk to the United
States Senate Subcommittee on the Improvements in Judicial Machinery of the United States
Senate Judiciary Committee. From September 1969 to September 1970 he served as law clerk to
the Hon. Oren R. Lewis of the United States District Court for the Eastern District of Virginia.
Bereano was admitted to practice in the State of Maryland in December 1969 and in the District
of Columbia in 1970.
Following his federal judicial clerkship, Bereano began the active practice of law in the
District of Columbia, for three years as a solo practitioner, and then for three years as a partner in
the firm of Bereano, Levie and Schreiber. He also served as Associate Revisor with the
Governor's Commission to Revise the Annotated Code of Maryland. In 1974, Bereano became
administrative assistant to President of the Maryland Senate and legal counsel to the Senate of
Maryland, first for William S. James from 1973 to 1974, and then for Steny H. Hoyer from 1975
to 1979. In that capacity, he drafted landmark legislative initiatives including reforms to
Maryland's sexual assault laws, which became a national model.
30
-- -------------------,
Following his employment by the Maryland Senate, Bereano began the active practice of
law in Annapolis Maryland. First, he practiced as a solo practitioner, and then he practiced for
eight years with the firm of Bereano & Resnick. Finally, Bereano worked again as a solo
practitioner for nine years until his Maryland disbarment in 2000. He also taught for 19 years as
a member of the adjunct faculty of the University of Maryland Law School, a teaching
appointment which he resigned from immediately following his conviction on November 30,
1994.
As a practicing lawyer, Bereano maintained extensive law practice, appearing regularly
in Federal and state trial and appellate courts throughout the region. He is counsel of record in
ten reported Maryland appellate decisions and seven reported Federal appellate decisions, as well
as three Federal trial court opinions .
. Court of Appeals for the Fourth Circuit

- Anderson v. Warden, Maryland Penitentiary, 670 F.2d 1339,696
F.2d 296 (1982) En banc
- United States v. Lawson, 682 F.2d 480 (1982)
- United States v. Henderson, 717 F.2d 135 (1983)
- United States v. Berry, 808 F.2d 836 (1986)
- United States v. Kibler, 667 F.2d 452 (1982)
- United States v. Price, 783 F.2d 1132 (1986)
- United States v. Gomez, 457 F.2d 593 (1972)
U.S. District Court of Maryland

- Five Platters, Inc. v. Purdie, 419 F.Supp. 372 (1976)
- United States v. Holland, 494 F.Supp. 918 (1980)
State of Maryland
Maryland Court of Appeals
- Ferro v. Lewis, 348 Md. 593 (1998)
- Goldstein v. State, 339 Md. 563 (1995)
- Allied vending v. City of Bowie, 332 Md. 279 (1993)
- Mitchell v. Mitchell, 302 Md. 479 (1985)
- Simmons v. Simmons, 282 Md. 352 (1978)
- Yasuna v. National Capital Corp., 273 Md. 617 (1975)
31
•
- Yasuna v. National Capital Corp. of Washington, 273 Md. 617
(1975)
Maryland Court of Special Appeals

- Citrano v. North, 123 Md. App. 234 (1998)
- Lentz v. Dypsky, 49 Md. App. 97 (1981)
- Simmons v. Simmons, 37 Md. App. 202 (1977)
Many of these cases involved significant complexity and novel areas of the law. For
instance, the Court of Appeals' decision in Allied Vending invalidated on preemption grounds
municipal regulation of tobacco vending machines in the State.
Bereano is a lifetime member of the Maryland Bar Foundation, a nonprofit group devoted
to improvement of the law. Bereano continues to hold this membership even after disbarment
because of his deep commitment to the practice oflaw.
iii. Petitioner Continues to Suffer Other Civil Disabilities Such as Holding

Various Licenses and Limitations on Constitutional Rights.
Petitioner continues to suffer from other significant civil disabilities arising out of his
conviction.1O It is well-recited that '" [c]onviction of a felony imposes a status upon a person
which not only makes him vulnerable to future sanctions through new civil disability statutes,
but which also seriously affects his reputation and economic opportunities. '" United States v.
Interstate Gen. Co., 152 F. Supp. 2d 843, 847 (2001) (quoting Parker v. Ellis, 362 U.S. 574, 593-
94 (1960) (Warren, C.l., dissenting)). There are "substantial civil penalties" resulting from
criminal convictions that are relevant upon collateral attack. See, e.g., Lane v. Williams, 455
U.S. 624,631-32 (1982).
Petitioner, however, is severely limited in his ability to purchase, possess, keep and bear
arms. See Handgun Control Act of 1968, 18 U.S.C. ~ 921, et seq. The Handgun Control Act
IOConvicted felons are precluded from registering as lobbyists in Maryland. However, because Bereano's conviction
predated the ban on felon lobbying, his registration is not precluded. See State Ethics Comm'n v. Evans, 382 Md.
370 (2004).
32
makes it "unlawful for any person to sell or otherwise dispose of any firearm or ammunition to
any person knowing or having reasonable cause to believe that such person--(l) is under
indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year." 18 U.S.c. S 922(d).

Moreover, the Court of Appeals of Maryland has held that the Handgun Control Act's
restrictions are generally applicable to Md. Code Ann., Pub. Safety SS 5-101, 5-303, & 5-306.
Dep't of Pub. Safety & Correctional Servs. v. Berg, 342 Md. 126, 674 A.2d 513 (1996).
Although under Maryland law Petitioner would be permitted to purchase and bear arms, because
of his conviction, Petitioner cannot even apply to any Maryland agency for any exceptions in the
Handgun Control Act. Berg held that Maryland agencies are without authority or discretion to
even consider any exceptions. II Berg, 342 Md. at 140-41,674 A.2d 513.
Petitioner is precluded from numerous economic occupations, such as endeavors in real
estate brokerage (Md. Code Ann., Bus. Occ. & Prof. SS 16-701, 16-701.01, 17-322, & 17-328),
tax preparation services (Md. Code, Ann., Bus. Occ. & Prof. S 21-311), certain business
opportunities (Md. Code Ann., Bus. Reg. SS 14-114 & 14-216), and mortgage origination (Md.
Code Ann., Fin. Inst. S 11-615).12
G. Petitioner's Improper Conviction Continues To Unfairly Impugn His

Reputation.
Because loss of reputation IS a substantial harm, a petitioner convicted under an
indictment that fails to state a crime has a valid interest in having his conviction expunged by a
writ of coram nobis. Chief Justice Warren addressed the impact of felony conviction in Parker
v. Ellis, stating that the "(c]onviction of a felony imposes a status upon a person which not only
11 Petitioner would have to apply outside the State of Maryland to the United States Treasury Department for some
type of exception. Department of Pub. Safety & Correctional Servs. v. Berg, 342 Md. 126, 140-41 (1996).
12 There are dozens of other career restrictions less immediately applicable to Petitioner noted throughout the
Business Occupations Article of the Maryland Code.
33
makes him vulnerable to future sanctions through new civil disability statutes, but which also
seriously affects his reputation and economic opportunities." Parker v. Ellis, 362 U.S. 574, 593-
94 (1960) overruled on other grounds by Cara/as v. LaVallee, 391 U.S. 234 (1968). The Court
expressed a similar concern in Fiswick v. United States, noting that "[the Petitioner] would,
unless pardoned, carry through life the disability of a felon." 329 U.S. 211, 222 (1946).
An invalid conviction, with its attendant stigma and inevitable consequence of thereafter
labeling the Petitioner a felon, is an "error[] of the most fundamental character, ... render[ing]
the proceeding itself irregular and invalid." United States v. Mayer, 235 U.S. 55, 69 (1914).
Such fundamental error justifies the issuance of a writ of coram nobis.
At the time of his conviction, he represented over 60 clients, among the top Maryland
corporations. As a result of the conviction, many Maryland corporations would no longer retain
a convicted felon.
The conviction was highlighted in local and national news media numerous times
throughout the years. There have been 121 articles in major media which reference Bereano's
felony conviction, including 69 articles in the Baltimore Sun and 52 articles in the Washington
Post. To be sure, some publications recognized the fundamental unfairness of the Bereano
conviction well before the Skilling decision. For instance, on April 19, 1995, the Annapolis
Capital editorialized about Bereano's case calling it "a truly vicious and outrageous miscarriage
of justice" noting that Mr. Bereano was convicted of "eight counts of mail fraud because [he]
misused a grand total of $600--that's right, $600--from clients, all of whom wrote for the record
that they did not feel misused, cheated or abused in anyway." (App., Tab 24).
Most articles, however, created a highly negative portrayal of Bereano as a result of his
felony conviction and were generally accompanied by negative editorial treatment. For example,
34
r--------------------------- -------- -_ ...
_--
•
immediately following his conviction in 1994, the Baltimore Sun published an editorial that both
personally attacked Mr. Bereano and unfairly cast aspersions on him while simultaneously
noting that the trial judge himself believed the Government's case was "thin":
What was on display in the Bereano trial was the underside of Annapolis politics
and government. In that arena, lobbyists are the hidden powers. Their influence
over elected officials and their growing arrogance pose real dangers. Lobbyists
such as Bereano befriend legislators, treat them like royalty, tend to their every
need and fill their campaign coffers at election time. In return, indebted legislators
vote the lobbyist's way more often than not.
It was this look at lobbyists at work that helped persuade the federal jury to
convict Bereano in a case that the trial judge admitted was "thin." What they saw
repulsed them: A lobbyist who used his parents, ex-wife, children and employees
in schemes to funnel campaign contributions to candidates in excess of the limit
allowed by law. A lobbyist who made three-quarters of a million dollars by
gaining influence with legislators who could help kill or pass favored legislation.
A lobbyist who billed clients for campaign donations to candidates the clients
opposed.
Editorial, Time for Lobbying Reforms, THEBALTIMORESUN, December 2, 1994, at 30A.
The public attacks continued in the form of a new editorial when Mr. Bereano' s attorney
grievance case was heard:
ANOTHER tour de force of lobbying by the masterful Bruce Bereano cannot be

allowed to obscure his felony conviction -- and the necessity of removing him
from the practice of law.
He should be disbarred or, at least, suspended from practice for a substantial

length of time.
Mr. Bereano's breathtaking success at enlisting the mighty to his defense (a

retinue that included the presiding judge in his case!) demonstrates only that Mr.
Bereano's skill in developing relationships is second to none.
Lawyers of lesser networking skills would certainly meet a loss of license.
It doesn't matter that Mr. Bereano's clients do not feel defrauded. Many continue
to retain him in Annapolis, and several testified on his behalf at trial and again
during his disbarment hearing.
35
1 -
.------------------------------- ------------
•
That so many feel so comfortable with his finagling goes to the heart of the
ethical miasma as we know it: The law and the process of lawmaking has lost
respect among its most skilled practitioners, men and women who have embraced
expediency so fully they hardly remember the honorable way.
If no lash of condemnation is felt -- if hosannas are raised in their honor -- why

shouldn't they continue on this course?
Mr. Bereano used money paid to him by clients for expenses to make campaign
contributions. Having reached his contribution limits, Mr. Bereano funneled the
cash through "nominee" contributors -- then reimbursed them to keep his name
off the public record.
In his defense, he asserts that the government proved only fraudulent activities
amounting to $600, so he should receive little more than a reprimand. That is not
the point, of course. The law is the law -- to be honored and obeyed for a reason.
***
If it is true that he was convicted of being a lobbyist -- who is expected to bend
the rules and break the laws -- all the more reason for making his punishment
severe.
Those public officials who testified on his behalf are to be commended for their
loyalty -- but they should be excoriated for their willingness to intercede on behalf
of an insider friend.
The judges who rallied to defend this criminal should be especially ashamed.
The sad part of this matter is that Mr. Bereano probably does respect the law in
the abstract.
A little more discipline when his bankroller's image was on the line would have
served him better. With at least two other lobbyists under scrutiny by law
enforcement officials, the importance of a clear sanction here cannot be
overstated.
Editorial, Bereano Should Pay the Price for Abuses, THE BALTIMORESUN, October 4, 1999, at
8A.
The editorials were deeply painful for Bereano, who enjoyed strong and deep admiration
among most state and local elected officials and community leaders. Indeed, at his sentencing
and disbarment proceedings, at least 15 prominent Marylanders testified, and over 460 attorneys,
36
former and then law and legislative clients, former employers, family members, friends and
public officials wrote letters on Bereano's behalf. See (App., Tab 2, at 195).
The felony conviction and its portrayal in the media have impacted Bereano's ability to
lobby some public officials in Maryland. For instance, in the 2006 General Election, then-Mayor
Martin O'Malley pledged that neither he nor his running mate, Anthony Brown, would meet with
any Maryland lobbyist with a felony conviction:
Baltimore Mayor Martin O'Malley promised yesterday that if he is elected

governor, neither he nor his running mate will meet with lobbyists who have been
convicted of felonies, a stab at two prominent Annapolis paid advocates who are
close to Gov. Robert L. Ehrlich Jr.
Ehrlich, O'Malley's Republican opponent in the governor's race, campaigned in

2002 on a pledge to end the "culture of corruption" in Annapolis, but the mayor is
accusing him of doing anything but.
"When Governor Ehrlich took office he continued business as usual, convicted

lobbyists," the pledge says. "Rather than keeping his campaign pledge to end what
U.S. District Court Judge Frederick Motz called a 'culture of corruption,' that
culture's two most notorious examples are among the Governor's most visible and
vocal supporters."
The pledge doesn't name names, but O'Malley was referring to Bruce C. Bereano,
one of Annapolis' top lobbyists who was convicted in 1995 of mail fraud, and
Gerard E. Evans, another top advocate who was convicted of fraud in 2000.
"O'Malley Pledges No Contact With Felon Lobbyists; Without Using Names, Remarks Point to
Ehrlich Associates Evans, Bereano," THEBALTIMORESUN,November 1,2006, at B5.
O'Malley was elected governor six days later. As a result of O'Malley's public pledge,
Bereano lost significant lobbying clients who had read about the O'Malley pledge not to meet
with convicted felons. In summary, the conviction's disabling effects continue to haunt Bereano
personally and professionally.
37
••
3. CONCLUSION
In accordance with the United States Supreme Court's decision in United States v.
Skilling, S1346 encompasses only pre-McNally bribe and kickback violations. One may not be
convicted of S1346 based on an alleged violation of one's "honest services." It is impossible
under a firm reading of the record in this case to conclude that there was harmless error. The
intangible request to honor services was the core of the Government's case from beginning to
end. In circumstances such as these, coram nobis relief may only be denied if there is a "high
probability" that the jury did not rely on the incorrect theory - the honest services theory. Here,
there is no such high probability, and, indeed, it appears that there is, at least, a high probability
that the jury relied on the incorrect theory. Mr. Bereano continues to suffer from continuing
civil disabilities such as disbarment, harm to his reputation, harm to his business, and other
continuing harms.
Mr. Bereano respectfully requests that this Honorable Court issue a writ of error coram
nobis and vacate his seven convictions. Alternatively, Mr. Bereano requests a new trial in this
matter so a jury can consider only the correct legal theory. Additionally, Mr. Bereano requests
that the Government be ordered to refund the $30,000 in fines he paid because of the
convictions, plus interest.
Respectfully submitted,
JOSEPH, GREENWALD, & LAAKE, P.A.

~~ \./'-
Timothy F. Maloney, Bar No. 03381
Matthew M. Bryant, Bar No. 18014
6404 Ivy Lane, Suite 400
Greenbelt, MD 20770
301/220-2200 (tel.)
240/553-1784 (fax)
Counsel for Petitioner
38
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of April, 2011, a copy of the foregoing
Memorandum of Law in Support of Petition for Writ of Error Coram Nobis and Volume I-VIII
of the appendix were served by courier to the following:
Rod J. Rosenstein
United States Attorney
Office of the U.S. Attorney for the District of Maryland
36 S. Charles Street 4th FI.
Baltimore, MD 21201
Matthew M. Bryant
39

Bruce Bereano Memo To Overtun Convictions

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Case 1:11-cv-00961-WMN Document 1-2 Filed 04/12/11 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA *

2963, 177 L. Ed. 2d 695 (2010).

criminalizing the deprivation of "honest services" was so vague as to be unconstitutional except

decriminalized conduct that previously constituted a violation of 18 U .S.c. S 1346, it may be

130 S. Ct. 2963 (2010).

is applicable retroactively to challenge Petitioner's conviction related to honest services fraud.");

United States v. Vickie Lopez-Lukis, 2:95-cr-4-FtM-29DNF, at 1 (M.D. FL. 2011) ("The

his convictions, or, at the very least, to order a new trial.

representations, or promises." Beginning in 1941, Federal courts began to recognize a more

Skilling, 130 S. Ct. at 2926).

extended it to private sector relationships, including employer-employee relationships such as

678 (D. Mass. 1942)).

prosecutions to those cases involving deprivation of tangible property rights:

In response to McNally, Congress acted almost immediately to amend S 1346 to define

Bereano was convicted under the 1988 version of S 1346.

Skilling, echoing arguments Bereano made unsuccessfully, challenged the post-McNally

U.S. 352, 357 (1983)).

B. The United States Supreme Court's Holdings In Skilling And Black

Supreme Court has explained:

retroactively to defendant. ").

C. A Writ Of Error Coram Nobis Is The Proper Remedy To Vacate

F.2d 199 (7th Cir. 1988).

D. A Jury Convicted Petitioner For Violating 18 U.S.c. ~ 1346 Based On

unbiased service and performance of the duties .... "

(App., Tab 34, at 42-46).

On April 21, 1995, Bereano was sentenced to a five-month term of probation

Case 1:11-cv-00961-WMN Document 1-2 Filed 04/12/11 Page 8 of 39

appellate issues" which warranted a stay. (App., Tab 2, at 204-05).

upon, it must reverse the convictions. Mandel, 682 F.2d at 1074.

384. Moreover, the Court stated that

Government characterized its case as follows:

(Government's Opposition to Defendant's Post- Trial Motion, December 15, 1994, at 2)

Specifically, Count One of the indictment alleged the following:

(App., Tab 5, at 6).

Count Two of the indictment alleged the following:

(App., Tab 5, at 7).

Count Three of the indictment alleged the following:

(App., Tab 5, at 8).

Court Four ofthe indictment alleged the following:

(App., Tab 5, at 9).

Count Five of the indictment alleged the following:

(App., Tab 5, at 10).

Count Six of the indictment alleged the following:

(App., Tab 5, at 11).

Count Seven of the indictment alleged the following:

(App., Tab 5, at 12).

Count Eight of the indictment alleged the following:

(App., Tab 5, at 13).

prove." (App., Tab 35, 2).

(App., Tab 6, at 10).

amendments to the honest services statute, stating that:

[t]he enactment of S 1346 was a response to the Supreme Court's decision in

(App., Tab 7, at 5-6).

opening statement instead emphasized the "honest services" deprivation theory:

(App., Tab 39, at 308-09).

they had not been defrauded, cheated, or victimized by Mr. Bereano.

or steal from the company." (App., Tab 30).

(App., Tab 29).

Tab 45, at 1399-1400).

Mr. Novotny, Executive Director of the Maryland Saltwater Sports Fisherman's