Appeal and cross-appeal from a judgment entered in the United States District Court for the Southern District of New York (Brieant, Ch. J.) vacating in part, on motion made pursuant to 28 U.S.C. § 2255, appellant-cross-appellee's convictions for mail fraud. Affirmed.
Pierce, Miner and Davis,*fn* Circuit Judges.
The United States District Court for the Southern District of New York (Brieant, Ch. J.) granted in part and denied in part Brian Ingber's motion for relief pursuant to 28 U.S.C. § 2255 and vacated one of his convictions for mail fraud in light of the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987). Ingber appeals from so much of the judgment as denied his request for relief, and the government cross-appeals from the district court's decision to vacate one of Ingber's convictions. We conclude that McNally applies retroactively to Ingber's convictions under 18 U.S.C. § 1341 and affirm the judgment of the district court.
Ingber was convicted for mail fraud in connection with his election and tenure as Supervisor for the Town of Fallsburg, New York. The indictment charged that Ingber, by falsifying voting documents including absentee ballots cast in the election, had defrauded the citizens of Fallsburg "of their ballots and their right to a fair and impartial electoral process," and that he had obtained through fraud "the salary, powers and privileges of the Office of Supervisor" ("count nine" or the "election fraud scheme"). In addition, Ingber was charged, inter alia, with using the mails as part of a scheme to conceal his interest in co-defendant Scaffold Services, Inc. ("Scaffold") in order to steer a $540,000 town sewer project to Scaffold, thereby depriving Fallsburg of his honest services while reaping a pecuniary benefit for Scaffold ("count five" or the "sewer fraud scheme").
Count nine was severed by Chief Judge Brieant from the other charges and tried separately before a jury in the Southern District of New York. At the close of evidence, the court instructed the jury that they could find the defendant guilty of mail fraud if they determined that Ingber
devised a scheme or artifice for the purpose of defrauding the citizens of the Town of Fallsburg of an intangible right, namely, the right to a fair and impartial electoral process, free from the casting of false, forged or fraudulent ballots, or that he devised a scheme for the purpose of obtaining money or property,--specifically, the salary--powers and privileges of the Office of Supervisor of the Town of Fallsburg, by false and fraudulent pretenses, representations or promises as alleged in the indictment.
The jury was instructed to reach a general verdict.
When Judge Brieant took the verdict, the foreperson of the jury first replied "undecided," then "not guilty," and finally "guilty." He polled the jury, which unanimously affirmed the guilty verdict, whereupon, with the consent of counsel, he initiated the following exchange with the foreperson:
THE COURT: . . . I would like to be sure there is no confusion.
JUROR NUMBER 1: Yes, we started to break it down by issues. And as you recall, the first part you said there were two parts to it. And we either had to have the first or the second. So the first one, we did not agree on, but the second we did agree on.
THE COURT: And the second one was that the purpose of the scheme was to acquire the office? Is ...