CHARLES J. MCNALLY, PETITIONER V. UNITED STATES OF AMERICA JAMES E. GRAY, PETITIONER V. UNITED STATES OF AMERICA No. 86-234 and 86-286 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the United States TABLE OF CONTENTS Questions presented Opinion below Jurisdiction Statutes involved Statement Summary of argument Argument: I. Petitioners were properly convicted of violating the mail fraud statute A. The intangible rights issue upon which certiorari was granted need not be reached, since the mail fraud conviction must be affirmed however that issue is resolved B. Even if the mail fraud conviction depends upon proof of a scheme to defraud the state and its citizens of their right to the honest performance of public business, it must be affirmed 1. The mail fraud statute reaches schemes to defraud, whether the legal rights invaded by the scheme concern identifiable property or are intangible in nature 2. Petitioners' conduct here was properly punishable under the mail fraud statute on the ground that they devised a scheme to defraud the state and its citizens of their right to have the public's business conducted in an honest manner II. Petitioners Were Properly Convicted Of Conspiracy Conclusion The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 790 F.2d 1290. /1/ JURISDICTION The judgment of the court of appeals (Pet. App. 19a) was entered on May 12, 1986, and a petition for rehearing was denied on June 27, 1986 (Pet. App. 20a). The petition for a writ of certiorari in No. 86-234 was filed on August 13, 1986, and the petition for a writ of certiorari in No. 86-286 was filed on August 22, 1986. The petitions for a writ of certiorari were granted on December 8, 1986, limited to two questions, and the cases were consolidated. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 18 U.S.C. 371 provides, in pertinent part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. * * * * * 18 U.S.C. 1341 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated, or held out to be such counterfeit or spurious article, for the purposes of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to 0e delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. QUESTIONS PRESENTED 1. Whether petitioners were properly convicted of violating the federal mail fraud statute, 18 U.S.C. 1341, where the jury was instructed that it could only convict if it found that petitioners had devised a scheme for the dual purposes of (1) defrauding the state and citizens of Kentucky of their right to have the government's business conducted honestly, and (2) obtaining money and property by means of false representations, and the evidence was sufficient to sustain convictions with regard to each purpose independently. 2. Whether the court of appeals properly affirmed petitioners' convictions for violating the federal conspiracy statute, 18 U.S.C. 371, after finding that the evidence showed that petitioners conspired to attain at least one of the two objectives of the conspiracy alleged in the indictment. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Kentucky, petitioners Gray and McNally were each convicted on one count of mail fraud, in violation of 18 U.S.C. 1341, and on one count of conspiracy to commit mail fraud and to defraud the United States by impeding the Internal Revenue Service's collection of taxes, in violation of 18 U.S.C. 371. Petitioners were sentenced under 18 U.S.C. 4205(c) for a study prescribed in Section 4205(d). The Section 4205(d) studies were postponed pending appeal, and petitioners are currently free on bond. 1. After Democrat Julian Carroll was elected Governor of Kentucky in 1974, Howard P. "Sonny" Hunt was chosen to be chairman of the state Democratic Party (Pet. App. 2a). Among the duties that the Governor assigned to Hunt was the selection of insurance agents from whom the state's insurance contracts would be purchased, a matter normally the responsibility of the state insurance commissioner. Governor Carroll told the insurance commissioner that Hunt would make those decisions, and the commissioner followed Hunt's instructions. 2 C.A. App. 323-330. /2/ In the Spring of 1975, Hunt agreed with representatives of the Wombwell Insurance Agency that, in return for $50,000 per year, Wombwell would continue to be the general agent for the state's workmen's compensation insurance policy. Hunt thus decided that Wombwell would serve as general agent for the fiscal year starting July 1, 1975, and subsequently for each of the next three years as well. 1 C.A. App. 222-223; 2 C.A. App. 529-532; 3 C.A. App. 563-565. Wombwell contracted each year with either the United States Fire Insurance Company or the Hartford Insurance Company to write the state's workmen's compensation insurance policy, and initially received a commission of approximately five percent of the premiums that the state paid for workmen's compensation insurance. 3 C.A. App. 563-565. Pursuant to its agreement with Hunt, however, after it received the commissions Wombwell paid to insurance agencies designated by Hunt the commissions in excess of $50,000 per year. During the four-year period, Wombwell distributed $851,000 in excess commissions in this manner. Pet. App. 3a. Petitioner James E. Gray served as Kentucky's Secretary of Public Protection and Regulation from January 1976 to May 1978, and also was Secretary of the Governor's Cabinet from January 1977 to August 1979 (Pet. App. 4a). Hunt and Gray devised a scheme utilizing a shell corporation posing as an insurance agency to obtain for their own use some of the excess commissions distributed by Wombwell at Hunt's direction. In 1975, they arranged for the incorporation of Seton Investments, Inc., which had no office, no telephone, and no employees, and engaged in no business activity (4 C.A. App. 934-935). Between 1975 and 1979, Hunt directed Wombwell to distribute $200,000 to Seton, which was used: (1) to purchase a condominium in Lexington, Kentucky, that was used primarily by Gray and his girlfriend; (2) to purchase a condominium in Juno Beach, Florida, that was used primarily by Hunt and his girlfriend; (3) to purchase a station wagon that was used primarily by Hunt and his girlfriend; and (4) to provide $38,500 to Hunt's son. Pet. App. 3a-4a. As part of the scheme, Hunt and Gray kept secret and took steps to conceal their ownership of Seton and the fact that it was not a bona fide insurance agency. Had Wombwell known that it was splitting commissions with Gray and Hunt, it would have been violating the state's bribery and kickback statutes. Ky. Rev. Stat. Ann. Sections 521.020(b) and 45.990(5) (Michie/Bobbs-Merrill 1985 & 1986). Moreover, Kentucky law authorizes the splitting of commissions only among bona fide insurance agencies. Ky. Rev. Stat. Ann. Sections 304.9-100, 304.9-420 (Michie/Bobbs Merrill 1981). Petitioner Charles J. McNally, a businessman and a supporter of Governor Carroll, aided Hunt and Gray in their scheme by serving as the nominal owner of Seton. Hunt directed Wombwell to distribute $77,500 in excess commissions to the Snodgrass Insurance Agency, which in turn passed the money on to McNally. Pet. App. 3a-4a. /3/ Hunt pleaded guilty to one count of mail fraud and one count of tax fraud for his part in the scheme, and was sentenced to three years' imprisonment. United States v. Hunt, Cr. No. 81-8-S (E.D. Ky.). /4/ Petitioners were charged with one count of conspiracy and seven counts of mail fraud, six of which were dismissed before trial. /5/ The single remaining mail fraud count involved an excess commission check mailed by Hartford to Wombwell (1 C.A. App. 64-65), and alleged that the defendants had devised a scheme (1) to defraud the citizens of Kentucky of their right to honest government and (2) to obtain money and property by fraud. /6/ The conspiracy count alleged that the defendants had conspired to violate the mail fraud statute by the scheme set forth in the substantive mail fraud count, and that they had also conspired to defraud the United States by impeding the Internal Revenue Service in the collection of taxes (id. at 33-35). 2. The primary issue at trial was whether Gray and Hunt had devised a scheme in order to obtain money and property for themselves. In connection with that issue, much attention was focused on whether McNally was the real owner of Seton, as the defendants contended, or whether he was a front man for the real owners, Gray and Hunt, as the government contended. The government also presented evidence that Seton was not a fuctioning corporation. 4 C.A. App. 934-935. While the government agreed that McNally became president of Seton in 1978, there was extensive testimony that Gray and Hunt, and not McNally, arranged for the purchase of both of the condominiums Seton purchased (see, e.g., 3 C.A. App. 674-679; 5 C.A. App. 1113-1114) and that Gray and Hunt, and not McNally, used those condominiums (see, e.g., 2 C.A. App. 373; 5 C.A. App. 1116, 1173-1174). Also, the ink used by McNally to sign a number of Seton's corporate documents, which were purportedly signed in 1975 and 1976, was not commercially available until 1978 (4 C.A. App. 1025-1030). The government also contended that Seton was unlawfully used by Gray and Hunt to avoid taxes. Seton paid taxes on the $200,000 in "commissions" at corporate rates of between 20 and 22 percent, while Gray and Hunt would have paid taxes on the money paid to Seton at rates of between 40 and 55 percent. An Internal Revenue Service agent also testified that Seton improperly deducted the $38,500 payment to Hunt's son as a business expense. 4 C.A. App. 934-941. 3. The court instructed the jury that the government had alleged that the defendants had conspired with each other and with Hunt to violate the mail fraud statute and to defraud the United States of tax revenues. The court told the jurors that "you must all agree unanimously on which of the object or objects charged was an agreed purpose of the conspiracy. You may find that the conspirators agreed to achieve both objects, only one of the objects, or neither of the objects, but you must agree unanimously on this finding in order to return a verdict" (5 C.A. App. 1336). The court further instructed that, in order to convict, it had to conclude that the government proved the existence of the alleged conspiracy, that the defendants willfully joined the conspiracy, that they committed at least one overt act charged in the indictment, and that the overt act was committed to conceal some objective of the conspiracy (id. at 1338). /7/ As to the mail fraud count, the court instructed the jury that, in order to convict, it had to conclude that the defendants devised the scheme, as alleged in the indictment, to defraud the citizens of Kentucky of their right to have the Commonwealth's business and affairs conducted honestly and to obtain money and other things of value by false and fraudulent pretenses, and that they caused the mails to be used for the purpose of executing the scheme (5 C.A. App. 1341-1342). /8/ At no time did the court instruct, nor did the government argue (see 5 C.A. App. 1241-1313), that the government could prove its case by establishing only one of the two alleged purposes of the scheme to violate the mail fraud statute -- i.e., to defraud the citizens of their right to honest government or to obtain money or property by false pretenses. /9/ The jury convicted on both counts. 4. The court of appeals affirmed on both counts (Pet. App. 1a-16a). Dealing first with the mail fraud charge, the court did not focus on the fact that the jury had been instructed to convict on that count only if it found that petitioners had devised a scheme both to defraud the citizens of their right to honest government and to obtain money or property by fraudulent means. It instead analyzed the case as though the fraudulent denial of intangible rights was the only theory upon which the mail fraud convictions could be upheld. Noting the long line of authority upholding mail fraud convictions involving "schemes to defraud the citizens of the intangible rights to honest and impartial government" (Pet. App. 7a), the court of appeals stated that "the 'intangible rights' theory is anchored upon the defendant's misuse of his public office for personal profit" (Pet. App. 8a). It found it established beyond a reasonable doubt that the awarding of the state's workmen's compensation insurance policy was within Gray's supervisory authority as Secretary of Public Protection and Regulation or as Secretary to the Governor's Cabinet, and that McNally aided and abetted Gray in perpetrating this fraud (Pet. App. 9a). It also found that the evidence clearly showed that Hunt, in his position as Democratic Party Chairman, "exercised significant, if not exclusive, control over awarding the workmen's compensation insurance contract to Wombwell and the payment of monetary kickbacks to Seton" and, accordingly, that he was "a de facto public official who assumed a fiduciary duty to the citizens of Kentucky" (id. at 10a-11a). Having found the evidence sufficient to establish that the defendants had violated the mail fraud statute and had conspired to violate the mail fraud statute, the court of appeals declined to consider whether the evidence was also sufficient to establish that petitioners had conspired to impair the government's ability to collect taxes. The court reasoned that it did not have to do so because the evidence relating to the mail fraud aspect of the conspiracy was sufficient standing alone to support the conspiracy conviction. Pet. App. 11a n.2. SUMMARY OF ARGUMENT Petitioners were convicted on one count of violating the federal mail fraud statute, 18 U.S.C. 1341, and on one count of conspiracy to commit mail fraud and tax fraud in violation of 18 U.S.C. 371. The evidence at trial established a scheme utilizing the mails and a complex subterfuge involving a shell corporation, to convert public money to petitioners' use. It also demonstrated that petitioner Gray was a state governmental official and that co-conspirator Hunt, as state party chairman, had been delegated by the Governor control over the awarding of the state's insurance business and over the disposition of excess commissions which that business generated. Upon instructions from Hunt, the insurance agency handling the state's workmen's compensation business sent money derived from premium payments by the state to Seton Investments, which conducted no business, 0ut received and disseminated money for the benefit of the co-conspirators. I. The jury was instructed that in order to convict on the mail fraud count the government had to prove a scheme with the dual purpose (1) to defraud the state and citizens of Kentucky of their right to the honest performance of the public's business, and (2) to obtain money and property by means of false pretenses. In convicting, the jury therefore necessarily found, and the evidence amply supported, a mail fraud scheme with both objectives. Petitioners' convictions would have plainly been proper had the government charged and the jury returned a guilty verdict on a scheme directed only at the obtaining of money and property by false pretenses. Because the jury necessarily found such a scheme, the mail fraud conviction must be upheld whether or not petitioners could properly have been convicted solely on the theory that they conspired to deprive the state and its citizens of their right to the honest conduct of public business. Given that posture of the case, the Court need not reach the intangible rights issue upon which certiorari was granted. In any event, the government could also properly have charged and proven its case solely on the theory of a scheme to defraud the public of its intangible right to honest government. Nothing in the ordinary or historical meaning of the statute's language, or in its legislative history, suggests that the deprivation of rights toward which a prohibited scheme is directed must involve money or tangible property. While the statute is plainly limited to schemes involving fraud -- meaning deception or trickery -- the narrowing construction suggested by petitioners is wholly inconsistent with Congress's intended broad prohibition. That is demonstrated by this Court's constructions of the mail fraud statute, its consistent reading of the words "to defraud the United States" as they appear in the conspiracy statute, 18 U.S.C. 371, and by the consistent and repeated decisions of the courts of appeals upholding mail fraud convictions based on schemes to deny intangible rights. While there may be uncertainty about the nature of the intangible rights that are sufficient to support a mail fraud conviction, the public's right to be free from criminal self-dealing in the exercise of governmental power is clearly in that category. Here, the evidence showed a criminal mail fraud by petitioners in obtaining property by false pretenses. The utilization of governmental power to facilitate the commission of such a crime amounts to a second wrong beyond the fraudulent misappropriation of property, and can be described as the fraudulent misappropriation of governmental authority to pursue illegal, personal ends. Petitioners' arguments that the government has failed to prove a breach of duty by a public official are demonstrably wrong on the facts of the case. For reasons apparent from the trial court's jury instructions, the jury necessarily found that petitioner Gray, an actual state official, participated in a fraud against the state, so that the state was denied its right to his honest services. Even assuming that the jury's verdict necessarily rested on Hunt's utilization of governmental power to control the state's insurance business, which authority was given him by the Governor on account of his position as party chairman, his abuse of that authority likewise offended the right of the citizenry to honest public administration. There is no reason to suppose that the duty not to criminally misuse governmental authority is any less for one who derives that power by an informal delegation and without pay, than for one who also draws a salary check. Petitioners' assertion that federalism concerns militate against federal prosecution based on the intangible right to be free from criminal self-dealing by persons exercising state governmental powers is without merit. Such prosecutions have contributed substantially to the honest and effective functioning of government and have not invaded areas of state policy where reasonable people can differ. II. Petitioners' convictions on the conspiracy charge should also be affirmed. The jury was instructed that it could convict on that charge if it found a conspiracy either to commit mail fraud or to commit tax fraud. For two reasons, the court of appeals did not err in affirming based only on its finding of sufficient evidence of a conspiracy to commit mail fraud, without considering the evidence of tax fraud. First, it is clear from the facts of the case -- most obviously from the jury's conviction on the substantive mail fraud charge -- that it must have found a conspiracy to commit mail fraud. Given the nature of the evidence and the charges, it is impossible to imagine a way in which both petitioners could be guilty of the substantive mail fraud without also conspiring to commit that offense. This case differs from decisions of this Court which have reversed convictions due to a legal defect in one of multiple alternative theories on which a criminal charge was based. Yates v. United States, 354 U.S. 298 (1957); Stromberg v. California, 283 U.S. 359 (1931). Here, there is no legal defect in either the mail fraud or the tax fraud theory of the conspiracy, and, unlike those cases, it is plain that the jury must have found a conspiracy on the theory the court of appeals found sufficient. Second, even if it were not apparent that the jury in fact found a conspiracy to commit mail fraud, the conviction could be upheld solely on the sufficiency of the evidence to support that theory. The issue for a reviewing court is whether a reasonable jury could have convicted on the evidence before it, and the general rule is that sufficient evidence on one of several alternative means of violating a statute justifies affirmance of the conviction. ARGUMENT I. PETITIONERS WERE PROPERLY CONVICTED OF VIOLATING THE MAIL FRAUD STATUTE The evidence at trial clearly showed a scheme to convert public funds to the benefit of Hunt, Gray, and McNally, by a complex subterfuge involving a shell corporation and misfeasance by Gray, performing in an undisputedly governmental position, and by Hunt, who, as party chairman, had the power to determine who would receive the state's insurance business. The indictment charged, the government undertook to prove, and the court instructed that in order to convict the jury must find that petitioners devised a scheme to defraud aimed both at depriving the state and citizens of their intangible right to honest service by those carrying governmental responsibilities and at obtaining money or other things of value. The jury's guilty verdict on the mail fraud chage indicates its unequivocal conclusion that a scheme pursuing both of these objectives was in fact proven. Since the government need only have alleged and proven a single legally sufficient objective of the scheme, the mail fraud conviction must be upheld if either the denial of intangible rights or the obtaining of money or property objective offers a sound predicate for a mail fraud violation and was proven by sufficient evidence. /10/ A. The Intangible Rights Issue Upon Which Certiorari Was Granted Need Not Be Reached, Since The Mail Fraud Conviction Must Be Affirmed However That Issue Is Resolved The primary elements of the mail fraud statute, as presently constituted, were enacted by separate acts of Congress. The first clause, which prohibits "any scheme or artifice to defraud," derives from the original mail fraud statute enacted in 1872. Act of June 8, 1872, ch. 335, Section 301, 17 Stat. 323. The third clause, which prohibits schemes to use the mails to distribute counterfeit money, was added in 1889. Act of Mar. 2, 1889, ch. 393, Section 1, 25 Stat. 873. The second clause, which prohibits "any scheme * * * for obtaining money or property by means of false or fraudulent pretenses, representations, or promises," was added in 1909. Act of Mar. 4, 1909, ch. 321, Section 215, 35 Stat. 1130. See Rakoff, The Federal Mail Fraud Statute (Part I), 18 Duq. L. Rev. 771, 779-821 (1980). /11/ In addition to the fact that each clause was added to the statute at a different time, they are separated by the disinjuntive "or." This Court has stated, reflecting common English usage, that "(c)anons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings." Reiter v. Sonotone, 442 U.S. 330, 339 (1979). This Court concluded under a predecessor statute that an indictment that charged a scheme to sell counterfeit money, a violation of what is now the third clause, did not have to include a charge that the defendant devised a scheme "to defraud," a violation of the first clause, because the statutory prohibitions were listed separately and applied to different conduct. Streep v. United States, 160 U.S. 128, 132-133 (1895). It is thus plainly sufficient to allege and prove acts falling under any one of the three clauses, and it is not necessary to show that particular conduct comes within all three clauses. /12/ No court has held otherwise. Notwithstanding that it need not have done so in order to convict, the government alleged and proved that the defendants violated both the first and the second clauses of the statute -- that they devised a scheme (1) to defraud the citizens of Kentucky of their intangible right to honest government, in violation of the first clause, and (2) to obtain money and property by fraud, in violation of the second clause. Pet. App. 5a. More importantly, the jury was instructed that, to find the defendants guilty, it had to find beyond a reasonable doubt that a scheme was devised to pursue both objectives. Note 8, supra. Petitioners do not acknowledge that they were charged and convicted under two separate clauses of the mail fraud statute. They instead attack only the allegation that they violated the intangible rights of the citizens of Kentucky. /13/ In fact, however, the jury was also instructed that it must find a scheme for obtaining money by false or fraudulent pretenses in order to convict and the evidence of a scheme for that purpose -- quite apart from the fraudulent denial of intangible rights -- is overwhelming. The mail fraud conviction must therefore be affirmed, whether or not it could be sustained if the only allegation were a denial of intangible rights. Indeed, it is clear that the primary objective of the scheme was to obtain money and other property for petitioners and Hunt by deceit and trickery. McNally received $77,500 which was channelled to him through the Snodgrass Insurance Agency. Pet. App. 4a. While Gray disputed at trial that he obtained any property through the scheme, contending that it was McNally who owned Seton, the evidence clearly showed that it was Hunt and Gray, not McNally, who controlled Seton and received the beneficial use of the condominiums in Lexington, Kentucky, and Juno Beach, Florida, and the 1976 Ford Country Squire station wagon, all purchased with excess commissions received by Seton from Wombwell. Ibid. /14/ This money and property was received "by means of false or fraudulent pretenses, representations, or promises." The creation of Seton by Hunt and Gray in 1975, its use as a shell corporation posing as a bona fide insurance agency, solely for the purpose of receiving excess commissions directed to it by Hunt, and the involvement of McNally as a front man to direct attention away from Gray and Hunt, makes this clear. /15/ Kentucky law provided at that time that "(n)o agent or solicitor shall directly or indirectly share his commission * * * with any person not also licensed as agent or solicitor" (Ky. Rev. Stat. Ann. Section 304.9-420 ((Michie/Bobbs-Merrill 1981) (repealed 1984)), /16/ and further that licenses are not properly issued solely for the purpose of receiving "a rebate or premium in the form of 'commission'" (id. Section 304.9-100). Neither Gray nor Hunt were licensed insurance agents, and Seton transacted no insurance business. /17/ It is no objection to the affirmance of the mail fraud convictions as a scheme for obtaining money or property by false pretenses that there must be a corresponding proof of loss to a victim of the scheme (see 86-286 Br. 15-17). Presumably such a loss necessarily is realized by someone when, as here, money is redirected by deception to persons who are not entitled to it. More importantly, however, Gray's contention, which is offered as an objection to the conviction based on deprivation of intangible rights, rests on his view that Congress intended that the phrase "scheme * * * to defraud" be interpreted in light of the common law meaning of the word "fraud" and that at common law proof of loss was required to establish fraud. While we contend that Gray's construction is wrong and that the first clause of Section 1341 prohibits the deprivation of intangible as well as tangible rights (pages 22-28, infra), it is even more clearly inapplicable in the context of the second clause of the statute. That clause requires proof that the defendants devised a scheme to obtain money or property by false pretenses, but it does not require proof of loss. If Congress had intended to require proof of a loss, it could have so stated. There is no other legal objection to affirmance of petitioners' mail fraud convictions on the ground that the jury necessarily and, on the face of the record, properly found a scheme for obtaining money or property by false pretenses. Since the convictions must, in any event, be affirmed on that basis, the question whether they could independently be affirmed solely on a theory of a scheme to defraud involving intangible rights is not presented in a way that can possibly control the outcome of the case. B. Even If The Mail Fraud Conviction Depends Upon Proof Of A Scheme To Defraud The State And Its Citizens Of Their Right To The Honest Performance Of Public Business, It Must Be Affirmed Should the Court find it appropriate to reach the intangible rights issue, it should find that the mail fraud conviction could properly have been based on that theory alone. As relevant to the issue of intangible rights, the indictment alleged that petitioners devised a scheme or artifice to "defraud the citizens of the Commonwealth of Kentucky and its governmental departments, agencies, officials and employees of their right to have the Commonwealth's business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud." It further set forth at length specific allegations as to defendants' conduct in this case. 1 C.A. App. 33-56. This allegation invokes the first clause of Section 1341, which prohibits the use of the mails in furtherance of "any scheme or artifice to defraud." The issue posed is thus whether the mail fraud statute prohibits schemes to defraud persons of intangible rights or rather prohibits only schemes to obtain money or other concrete items of value. If the mail fraud statute reaches fraudulent schemes to deprive persons of intangible rights, then it must be determined whether sufficient proof of such a scheme was presented here. 1. The mail fraud statute reaches schemes to defraud, whether the legal rights invaded by the scheme concern identifiable property or are intangible in nature In enacting the mail fraud statute, Congress expressed itself through the most inclusive language. It prohibited "any scheme or artifice to defraud." By outlawing any scheme to defraud, Congress demonstrated its intent to broadly prohibit fraud in connection with the mails. See Russello v. United States, 464 U.S. 16, 23 (1983); Affiliated Ute Citizens v. United States, 406 U.S. 128, 151 (1972). While it did impose a requirement of fraudulent conduct, meaning deceit or trickery, and thus did not intend to reach takings by threat or force (Fasulo v. United States, 272 U.S. 620, 629 (1926); Hammerschmidt v. United States, 265 U.S. 182, 188 (1924)), there is no reason to suppose that the statute was intended only to reach schemes affecting property and other tangible rights. On its face and in light of common usage, it appears to prohibit use of the mails in connection with any scheme "to cheat or trick" or "(t)o deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice." Black's Law Dictionary 381 (5th ed. 1979). This conclusion is consonant with our best understanding of common language usage closer to the time that the first clause of the statute was enacted. Law dictionaries of the times defined broadly the types of interests subject to deprivation by fraudulent action. One dictionary explained that "(t)o defraud is to withhold from another that which is justly due to him, or to deprive him of a right by deception or artifice." 1 Bouvier's Law Dictionary 530 (1897). The same dictionary defined fraud as involving deceitful practices "endeavoring to defraud another of his known right, * * * contrary to the plain rules of common honesty" (id. at 845). Another dictionary agreed, defining "defraud" as "(t)o cheat; to deceive; to deprive of a right by an act of fraud(;) (t)o withhold from another what is justly due him, or to deprive him of a right, by deception or artifice." W. Anderson, A Dictionary Of Law 474 (1893). /18/ Nothing in the legislative history of the mail fraud statute suggests that it was somehow intended to be limited to schemes affecting tangible interests in money or property. The only legislative history concerning the 1872 enactment of Section 1341's predecessor consists of an 1870 Post Office report suggesting the need to prevent "lottery swindlers" from using the mails (Report of the Postal Committee, Mar. 30, 1870) and a statement by a congressman, also made in 1870, that the statute was aimed at "rapscallions" engaged in "deceiving and fleecing the innocent people in the country" (Cong. Globe, 41st Cong., 3d Sess. 35 (1870) (remarks of Rep. Farnsworth)). In enacting the statute two years later, however, Congress did not enact a narrowly phrased statute, but instead enacted the sweeping prohibition that is presently the statute's first clause. (Rakoff, supra, 18 Duq. L. Rev. at 780). The question quickly arose as to what types of schemes the statute covered. While some courts gave it a narrow construction, limiting its scope to "common schemes" dependent upon the use of the mails (see United States v. Owens, 17 F. 72, 74 (E.D. Mo. 1883)), others read it broadly. For example, in United States v. Jones, 10 F. 469 (C.C. S.D.N.Y. 1882), the court held that the "green article" scheme -- the use of the mails to send counterfeit money -- violated the statute, even though neither the receiver nor the sender of the "green article" was deceived in any way. Congress amended the statute in 1889, adding what is now the third clause of the statute, to make clear that it was to be construed to cover all sorts of schemes involving counterfeit money. Gray contends that "(t)his amendment on its face suggests that the original prohibition against 'any scheme or artifice to defraud' was not expansive in scope" (86-286 Br. 19). We submit that this action by Congress is better understood as evidencing an intention to assure that the statute be construed broadly. It amended the statute to make clear that the courts that had construed the statute broadly had interpreted it correctly. Rakoff, supra, 18 Duq. L. Rev. at 809-810. The 1909 amendment of the statute further confirms Congress's intent that the mail fraud statute be read as effecting a broad prohibition on fraudulent conduct relying on the mails. The defendants in Durland v. United States, 161 U.S. 306 (1896), had argued that the meaning of "defraud" must be limited to misrepresentations of "existing fact," excluding those as to future facts or events. The Court rejected that contention (id. at 313-314), holding that "(i)t was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this statute was passed; and it would strip it of value to confine it to such cases as disclose an actual misrepresentation as to some existing fact" (id. at 314). Congress codified that result in 1909, as Gray States (86-286 Br. 21) and McNally agrees (86-234 Br. 11-12), and also deleted much of the language requiring a connection between the scheme in question and the use of the mails, evidencing its intent that the statute should be construed to prohibit frauds of all kinds that involve the mails. Rakoff, supra, 18 Duq. L. Rev. at 816-817. Moreover, interpretation of the federal conspiracy statute -- which since 1867 has criminalized conspiracies to "defraud the United States" -- reflect a concern for intangible interests, apart from any identifiable actual financial or property gain or deprivation. See generally Goldstein, Conspiracy to Defraud the United States, 68 Yale L.J. 405, 417-420 (1959). In Haas v. Henkel, 216 U.S. 462, 479-480 (1910), the Court found that "any conspiracy which is calculated to obstruct and impair (the Department of Agriculture's) efficiency and destroy the value of its operations and reports as fair, impartial and reasonably accurate, would be to defraud the United States * * *. (I)tis not essential to charge or prove an actual financial or property loss to make a case under the statute." In Hammerschmidt v. United States, 265 U.S. 182, 188 (1924), the Court noted that while "(t)o conspire to defraud the United States means primarily to cheat the Government out of property or money, * * * it also means to interfere with or obstruct one of its lawful government functions by deceit." See also United States v. Keitel, 211 U.S. 370, 393-394 (1908); Hyde v. Shine, 199 U.S. 62, 82 (1905); Curley v. United States, 130 F. 1, 3 (1st Cir. 1904) (concluding that the prohibition of conspiracies to defraud the United States was broadly designed "for the protection of intangible rights, privileges, and functions of government"). While this interpretation -- which was carried forward under 18 U.S.C. 371 (see United States v. Johnson, 383 U.S. 169, 172 (1966) (citation omitted) (statute encompasses "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government")) -- is not dispositive of what Congress meant when it enacted the relevant section of the mail fraud statute in 1872, it does suggest that Congress might have at some time entertained an amendment had it been dissatisfied with the broad reading that its words could be expected to receive. While this Court has yet to confront the issue of intangible rights under the mail fraud statute, it is hardly surprising that no court of appeals has limited Section 1341 to fraudulent schemes having as their object the deprivation of tangible rights. In general, the courts of appeals have given the phrase "scheme * * * to defraud" a broad but common-sense meaning consistent with Congress's intention in enacting the statute. As the court noted in United States v. States, 488 F.2d 761, 764 (8th Cir. 1973), cert. denied, 417 U.S. 909 (1974), it was long ago decided that "any kind or species of scheme or artifice to defraud is punishable in the national courts, if and whenever for the purpose of executing that scheme the postal establishment is used" (quoting Gouled v. United States, 273 F. 506, 508 (2d Cir. 1921)). The courts have necessarily given "defraud" a broad meaning in construing the first clause of Section 1341 since fraud "is as old as falsehood and as versable as human ingenuity" (Weiss v. United States, 122 F.2d 675, 681 (5th Cir.), cert. denied, 314 U.S. 687 (1941)). Defining the term too strictly would permit schemers to devise methods of depriving others of their rights by methods calculated to comply with letter of the law. It follows that at least where a scheme to defraud is directed to the deprivation of an established legal right, the mail fraud statute may properly be invoked. The question of what does, in fact, constitute a legal right is in some instances a difficult one, and poses a limit on the applicability of the statute. But no such marginal case is presented where the rights of the state government and its citizens to be free from venal self-dealing in the performance of the state's business is concerned. As other courts of appeals have found, some in less clear cases than this one, the right of the state and its citizens to the honest performance of the government's business may, in proper cases, be protected by the sanction of the mail fraud statute. See, e.g., United States v. Silvano, No. 86-1460 (1st Cir. Mar. 4, 1987), slip op. 9-12; United States v. Lovett, No. 85-2967 (7th Cir. Jan. 26, 1987), slip op. 8-13; United States v. Mandel, 591 F.2d 1347, 1357-1364, aff'd in relevant part, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961 (1980); United States v. Isaacs, 493 F.2d 1124, 1149 (7th Cir.), cert. denied, 417 U.S. 976 (1974); United States v. States, 488 F.2d 761, 763-767 (8th Cir. 1973), cert. denied, 417 U.S. 909 (1974); United States v. Edwards, 458 F.2d 875, 880-881 (5th Cir.), cert. denied, 409 U.S. 891 (1972); Bradford v. United States, 129 F.2d 274, 276 (5th Cir.), cert. denied, 317 U.S. 683 (1942); Shusan v. United States, 117 F.2d 110 (5th Cir.), cert. denied, 313 U.S. 574 (1941). /19/ In Shusan, the Fifth Circuit held that "(a) scheme to get a public contract on more favorable terms than would likely be got otherwise by bribing a public official would not only be a plan to commit the crime of bribery, but would also be a scheme to defraud the public. * * * No trustee has more sacred duties than a public official and any scheme to obtain an (unfair) advantage by corrupting such an one must in the federal law be considered a scheme to defraud" (117 F.2d at 115). Indeed, the Fourth Circuit stated eight years ago that "(a)t this late date, there can be no real contention that many schemes to defraud a state and its citizens of intangible rights, e.g., honest and faithful government, may not fall within the purview of the mail fraud statute." Mandel, supra, 591 F.2d at 1362. 2. Petitioners' conduct here was properly punishable under the mail fraud statute on the ground that they devised a scheme to defraud the State and its citizens of their right to have the public's business conducted in an honest manner There can be no serious argument that the scheme devised and carried out by petitioners in this case was calculated to and did in fact utilize trickery and deception to deny the Commonwealth of Kentucky and its citizens of a basic legal right to have its business conducted in an honest manner. While it may not always be obvious whether the object to be denied by a scheme is fairly termed a legal right, /20/ surely a state and its citizens have such a right to demand that those carrying out public responsibilities not use the power entrusted to them to line their pockets with public funds. As demonstrated in Part A, leaving aside the issues of precisely what was charged in this case, the government clearly proved that petitioners engaged in a scheme to obtain money by false pretenses. When coupled with a mailing in furtherance of the scheme, such conduct is plainly a federal crime, quite apart from any reliance on an intangible right to honest government. The utilization of governmental authority and power to facilitate the commission of such a crime amounts to a second wrong beyond the fradulent misappropriation of property and may be described as the fraudulent misappropriation of governmental authority to pursue illegal ends. Petitioners offer several arguments contesting this conclusion in categorical terms. Petitioner Gray first asserts (86-286 Br. 15-17) that the term "defraud" must be construed to require proof of financial loss to a victim, on the ground that such a loss is required under the common law meaning of the term. Gray is quite vague about the supposed common law basis for this claimed interpretation, and we submit that the best authority points in a distinctly different direction. See pages 23-24, supra. Moreover, this Court has indicated that it is doubtful whether "defraud" conveys "a common-law meaning, and that that meaning would be impelled if the word stood alone in the statute." Keitel, 211 U.S. at 393. In any event, since the Court in Durland rejected a narrowing construction of the mail fraud statute based on an asserted common law meaning of the term "fraud" (161 U.S. at 313-314; Mandel, 591 F.2d at 1361; Rakoff, supra, 18 Duq. L. Rev. at 811-812), arguments of this sort have carried little weight in the context of this statute. /21/ Gray also argues (86-286 Br. 25-28) that the rule of lenity requires that the statute not be interpreted to prohibit violations of intangible rights. However, while "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity" (United States v. Culbert, 435 U.S. 371, 379 (1978) (citation omitted); Rewis v. United States, 401 U.S. 808, 812 (1971)), that rule "comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callahan v. United States, 364 U.S. 587, 596 (1961). Where no ambiguity exists, lenity is not relevant. Culbert, 435 U.S. at 379. The rule of lenity has no operation here. Congress has spoken in broad terms which the courts of appeals have uniformly and reasonably found to prosecribe schemes to defraud having as their objective the deprivation of both tangible and intangible rights. Nor is there any merit to petitioners' contentions that they were not properly convicted because Hunt did not hold public office but was instead a de facto public official as defined in United States v. Margiotta, 688 F.2d 108, 121-126 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983). First, on the record from the trial court, the question whether a person who does not hold public office can be convicted under the mail fraud statute as a de facto public official without proof that he schemed with an actual public official is not presented here. No one disputes that "(o)nly one member of the conspiracy need be a public fiduciary to support an intangible rights mail fraud indictment against all members of the conspiracy" (Pet. App. 8a). It is also settled that Gray was a public official with fiduciary duties to the citizens of Kentucky and that the awarding of the state's "workmen's compensation insurance policy was within Gray's supervisory authority as Secretary of Public Protection and Regulation or as Secretary to the Governor's Cabinet" (id. at 9a). And the jury was instructed that it could convict the defendants on the mail fraud count if it found that Gray had violated the intangible rights of the citizens of Kentucky by concealing his interest in Seton and the elements of the offense were otherwise established. Gray argues (86-286 Br. 13 n.8), however, that the jury was alternatively instructed that it could also convict the defendants if, instead, it found that Hunt "had such power over the responsible officials of the Commonwealth of Kentucky that he was able to control the awarding of the Commonwealth of Kentucky's Workmen's Compensation Contract to Wombwell Insurance Company for the years 1975 through 1979" and "directed commissions from the Commonwealth of Kentucky's Workmen's Compensation Contract to Seton Investments, Inc." (5 C.A. App. 1343). Because the jury may have based its verdict on that alternative basis looking to Hunt's role as a de facto public official (which was amply supported by the facts), Gray argues that both theories must be legally sufficient in order for the conviction to be upheld and that the fact that he was a public official is irrelevant (86-286 Br. 13 & n.8). The flaw in this argument is that the alternative instruction looking to Hunt's role as a de facto state official also provided that, in order to convict either defendant, the jury must conclude that he aided and abetted Hunt in that scheme (5 C.A. App. 1343). /22/ Gray, of course, was convicted, and if one supposes that it was under this alternative instruction, it necessarily follows that the jury found that Gray, a public official, aided and abetted Hunt in carrying out the scheme. /23/ In doing so Gray clearly breached his fiduciary duty to the state and its citizens, owed on account of his public office. Thus, under either alternative of the intangible rights theory presented to the jury, it necessarily found a breach of duty by Gray, an actual public official. There is therefore no occasion to reach the question whether the convictions could have been based on an intangible rights theory looking to Hunt's status as a de facto public official. Second, even if the jury had not necessarily found that Gray breached a duty arising from his status as an actual public official, the convictions should nevertheless be affirmed based on the actions of Hunt. There are plainly instances where persons not on the public payroll are entrusted with governmental authority and given power to carry on the state's business. In such a situation, it is at least clear that those individuals have a duty not to use that governmental power to criminally profit themselves or their friends. /24/ While close cases no doubt can be hypothesized, this is not one of them. As the Second Circuit recognized in Margiotta, courts in mail fraud prosecutions must not threaten to criminalize lobbying or political party activities (688 F.2d at 122), but instead must be sensitive to First Amendment considerations (id. at 128-129). However, as that court also concluded, courts ought not be deterred in cases where "(t)he First Amendment concerns raised * * * are a chimera" (id. at 129). McNally's argument that "Hunt was not a de facto public official" (86-234 Br. 19) is totally without merit. He repeatedly misstates the facts to support that contention, stating that Hunt merely "exercised some influence over some decisions of a state official" (id. at 16) and "suggest(ed) that Insurance Commissioner McGuffey award the workmen's compensation policy to Wombwell" (id. at 20). However, the jury was not instructed that it could convict if it concluded that Hunt had "some influence" over the awarding of the state's insurance policies and made "suggestions" on that matter to McGuffey. It was instructed that it had to conclude that Hunt "was able to control" the award of the state's workmen's compensation policy and that he "directed commissions" from Wombwell to Seton (5 C.A. App. 1343). The evidence clearly showed that he did. /25/ The governor gave Hunt the authority to decide to whom the state's insurance contracts should be awarded and Hunt exercised that authority in place of the insurance commissioner. (Pet. App. 11a; 2 C.A. App. 323-330). There is no reason why his misuse of that delegated public trust should be viewed differently under the mail fraud statute than would similar conduct engaged in by the Insurance Commissioner. /26/ Finally, Gray's contention (86-286 Br. 28-29, 34-37) that federalism concerns weigh against continued recognition of the intangible rights theory under the mail fraud statute is also unpersuasive. At least where, as here, the intangible right asserted concerns freedom from unlawful self-dealing by persons in the exercise of governmental powers, federal prosecution of schemes to defraud does not conflict with state interests but instead advances those interests. Concurrent criminal jurisdiction over schemes to deprive citizens of the states of their intangible rights sometimes provides a process with which to address frauds that otherwise might not be prosecuted locally. Where the unlawful conduct constitutes or is intimately tied to local corruption, federal authority may be the most effective -- or even the only -- means by which the illegality will be investigated and prosecuted. Indeed, federal law enforcement has at times played a signal role in identifying and rooting out entrenched patterns of local corruption. See, e.g., United States v. Silvano, No. 86-1460 (1st Cir. Mar. 4, 1987) (acting Boston budget director); United States v. LeFevour, 798 F.2d 977 (7th Cir. 1986) (chief judge of Cook County traffic court); United States v. Matthews, 773 F.2d 48 (3d Cir. 1985) (Atlantic City Mayor, City Commissioner, and Director of Revenue and Finance); United States v. Gorny, 732 F.2d 597 (7th Cir. 1984) (Deputy Commissioner of Cook County Board of (Tax) Appeals); United States v. Blanton, 719 F.2d 815 (6th Cir. 1983), cert. denied, 465 U.S. 1099 (1984) (state governor, special consultant, and special assistant). Moreover, most states, like Kentucky, prohibit bribery and kickback schemes and most other acts that are prosecuted under the intangible rights theory. /27/ A reading of Section 1341 that authorizes federal prosecutions of public officials for scheming to defraud the public of its right to the honest performance of governmental functions neither intrudes into an area of conduct which a state might wish to legalize, nor denies a state's jurisdiction to define and prosecute intangible frauds, any more than the statute intrudes on a state's ability to prosecute frauds against tangible interests. II. PETITIONERS WERE PROPERLY CONVICTED OF CONSPIRACY Petitioners and Hunt were charged with conspiracy, in violation of 18 U.S.C. 371, (1) to violate the mail fraud statute by defrauding the citizens of Kentucky of their intangible rights and by obtaining money and property through false representations, and (2) to defraud the United States of tax revenues. Note 7, supra. The district court instructed the jury that to convict on the conspiracy count it must unanimously find that petitioners agreed to achieve at least one of the two objectives of the conspiracy. 5 C.A. App. 1336. Therefore, in convicting petitioners on the conspiracy count, the jury necessarily unanimously concluded that petitioners conspired to violate the mail fraud statute, or to defraud the United States of tax revenues, or both. The court of appeals affirmed the conspiracy convictions on the basis that the evidence clearly showed a conspiracy to violate the mail fraud statute, but did not consider whether it was also sufficient to support the conclusion that they conspired to defraud the United States of tax revenues. Pet. App. 11a n.2. Gray contends (86-286 Br. 37-43) that the court of appeals erred by not considering the sufficiency of the evidence of conspiracy to defraud the United States of tax revenues, and seeks a remand to the court of appeals for determination of that issue. If the court of appeals determines that the evidence does not support the tax fraud conspiracy, Gray contends that petitioners' conviction on the conspiracy count must be vacated, because under the instructions as given the jury may conceivably have based its verdict on that theory. /28/ A. Although unlikely, it is theoretically possible that the jury concluded that petitioners conspired to defraud the government of tax revenues and also concluded that they did not conspire to violate the mail fraud statute (or did not reach the issue), even though it convicted them on the substantive mail fraud count. There is, however, no reason to waste judicial resources as Gray proposes, since it is clear that the jury found a conspiracy to commit mail fraud because the substantive mail fraud count on which it convicted petitioners was substantially identical to the mail fraud aspect of the conspiracy count. The only differences between the counts are that the government had to establish that the mails were actually used under the substantive count, while under the conspiracy count it had to prove that the defendants entered into an agreement (compare note 7, supra, with note 8, supra). There is no serious issue as to whether petitioners and Hunt acted in concert and pursuant to a common understanding in their dealings concerning Seton and the payment of excess commissions, and they do not argue that question before this Court. Indeed, it is impossible to imagine how, on the evidence, the jury could logically have found both petitioners guilty of mail fraud without also concluding that they engaged in a conspiracy to commit that offense. /29/ The jury may also have concluded that petitioners conspired to commit tax fraud. /30/ However, it makes no difference whether the jury concluded that petitioners conspired to commit both mail fraud and tax fraud since petitioners were convicted on only one conspiracy count. In United States v. Dixon, 536 F.2d 1388 (2d Cir. 1976), the defendant was charged with conspiring (1) to violate the securities laws, and (2) to violate the mail fraud statute. The defendant was also charged with committing a number of substantive offenses in violation of the securities laws and the mail fraud statute. The jury convicted on all counts. The court of appeals affirmed the convictions on the securities law counts, reversed on the mail fraud counts, but nonetheless affirmed on the conspiracy charge. The court referred to the opinion of Judge Learned Hand in United States v. Mack, 112 F.2d 290 (2d Cir. 1940), which let stand a conspiracy conviction where a conspiracy to engage in three offenses was alleged but only one was proved (536 F.2d at 1401). Noting that some courts had questioned the applicability of such reasoning where "a reviewing court cannot tell what offense or offenses alleged in a conspiracy indictment were found by the jury," the Dixon court found those cases distinguishable because "here we know from the conviction on (a substantive securities fraud count) that the jury found that Dixon had committed the offense validly charged in the conspiracy count" (id. at 1402). The court thus found "no basis for questioning the conviction on the conspiracy count" (ibid.). The same precise reasoning governs here, given the jury's conviction on the substantive mail fraud count. No decision of this Court holds that an appellate court must determine whether the evidence was sufficient to support the conclusion that defendants conspired to achieve each objective of a conspiracy with multiple objectives, where it is clear that the jury concluded that the defendants conspired to achieve a particular objective that was supported by the evidence. In arguing that the court of appeals erred by not reviewing the sufficiency of the evidence relating to the tax conspiracy, Gray relies primarily on this Court's decision in Yates v. United States, 354 U.S. 298 (1957). In Yates the defendants were charged with conspiring (1) to advocate the overthrow of the government of the United States by force and violence, and (2) to organize the Communist Party. As in this case, the jury returned a general verdict of guilty. The Court concluded that the conviction could not stand on the basis that the defendants had conspired to organize the Communist Party. /31/ The Court then reversed the conspiracy conviction, concluding that a verdict must "be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected" (354 U.S. at 312 (emphasis added)). Yates is clearly inapplicable because, as we have shown, it is readily apparent that the jury found at least a conspiracy to commit mail fraud. /32/ Gray also relies on United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977), in support of his contention that in these circumstances it is necessary to remand for further proceedings in the court of appeals. In Dansker, the jury convicted the defendants on two counts of bribery -- of a mayor and a minor official -- and on a conspiracy count that charged an agreement to bribe either or both of them. The court of appeals upheld the conviction for bribery of the mayor, but reversed the conviction for bribery of the minor official because it concluded that the minor official had not been given money in exchange for any official act. It then reversed the conspiracy conviction, stating that "the possibility * * * remains, albeit slim, that the jury found that the defendants engaged in a conspiracy to bribe (the minor official) alone in spite of its guilty verdict (on the count alleging bribery of the mayor)" (537 F.2d at 51 (emphasis added)). We believe that Dansker was wrongly decided. When there is but a "slim" chance that the jury based its verdict on one theory, and the evidence unquestionably supports its verdict on the other theory, it is reasonable to assume, as the Second Circuit did in Dixon, that the verdict was in fact based on the theory that is clearly supported by the evidence. To do otherwise is to mandate a presumption that juries behave irrationally. /33/ B. Even if it were not clear that the jury concluded that petitioners conspired to violate the mail fraud statute, the conspiracy conviction should be upheld solely on the basis of the substantial evidence indicating a conspiracy to commit mail fraud. /34/ This Court has held that a guilty verdit must be reversed where the jury was instructed that it could convict on alternative theories, one of the theories is legally defective, and it is not clear on which theory the jury convicted. Yates, 354 U.S. at 312; Stromberg v. California, 283 U.S. 359, 367-368 (1931). /35/ But where none of the alternative theories is legally defective, and the defendant merely claims that the evidence was insufficient to support one of the alternative theories, it is reasonable to assume that the jury convicted on the alternative theory (if there is one) that was supported by the evidence and not on the alternative theory that was not supported by the evidence. To do otherwise requires an assumption that the jury acted irrationally. In that respect, the case is far different than one like Stromberg, where the jury could quite rationally have relied on the impermissible theory, not knowing of its legal defect. This conclusion follows from this Court's reasoning in Turner v. United States, 396 U.S. 398 (1970), where a conviction on a charge of purchasing, possessing, dispensing, and distributing heroin without revenue stamps attached, in violation of 26 U.S.C. (1964 ed.) 4704(a), was affirmed on evidence showing only possession. "Since the only evidence of a violation involving heroin was Turner's possession of the drug, the jury to convict must have believed this evidence. * * * The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in conjunctive, * * * the verdict stands if the evidence is sufficient with respect to any one of the acts charged" (396 U.S. at 420). Nor does it offend due process to assume that a jury based its verdict on an alternative that was supported by the evidence rather than on an alternative that was not supported by the evidence. Due process requires that criminal convictions be supported by proof beyond a reasonable doubt of every fact necessary to establish the offense charged. In re Winship, 397 U.S. 358, 364 (1970). Thus, a reviewing court must satisfy itself that the defendant was not convicted of an offense for which inadequate evidence was adduced. In order not to impinge unduly on the jury's role, however, it must view the evidence in the light most favorable to the government and draw all reasonable inferences in favor of the jury's verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Glass v. United States, 315 U.S. 60, 80 (1942). Following that approach, this Court has stated that "(s)ufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. * * * The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilt beyond a reasonable doubt." United States v. Powell, 469 U.S. 57, 67 (1984) (emphasis added). Translating these principles to the situation presented here, a defendant is entitled to a determination whether the evidence supports his conspiracy conviction. If the evidence supports the conclusion that the defendant conspired to achieve one objective of the conspiracy, then the evidence supports the conviction. The defendant is not entitled, however, to a determination that rules out all possibility of mistake by the jury. Accordingly, once an appellate court determines that the jury could rationally have concluded that the defendants conspired unlawfully as charged, it need not further determine whether the jury could have also reached that conclusion by taking a route not supported by the evidence. The court of appeals thus acted properly in affirming without considering the sufficiency of the evidence of a conspiracy to commit tax fraud. /36/ CONCLUSION The decision of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General DONALD B. AYER Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General SARA CRISCITELLI Attorney MARCH 1987 /1/ "Pet. App." references are to the appendix to the petition for a writ of certiorari in No. 86-286. /2/ "C.A. App." references are to the joint appendix in the court of appeals. /3/ It appears that Hunt initially gave McNally a share of the excess commissions simply to reward him for his support of Governor Carroll. It was unlawful for McNally to share the commissions because he was not a bona fide insurance agent. Ky. Rev. Stat. Ann. Sections 304.9-100, 304.9-420 (Michie/Bobbs-Merrill 1981). After the Federal Bureau of Investigation began an inquiry into Hunt's activities in April 1978, however, Hunt and Gray had McNally sign back-dated documents to make it appear that he had always been Seton's owner. /4/ Hunt also served 12 months' imprisonment for civil contempt when he refused to testify before a grand jury after a grant of immunity. /5/ The six counts dismissed alleged Seton's tax returns as mailings in furtherance of the scheme (Pet. App. 6a). The court of appeals affirmed on the ground that mailings required by law to be made can only be viewed as in furtherance of a scheme prohibited by 18 U.S.C. 1341 where the mailed documents are themselves false or fraudulent, and no such allegation was made in the indictment concerning the tax returns (Pet. App. 15a-16a). The government did not file a cross-petition challenging that decision. /6/ The indictment as returned by the grand jury alleged an additional purpose of the mail fraud scheme to defraud the citizens and government of Kentucky of their right to pertinent information in connection with the state's arrangement of workmen's compensation insurance coverage. The district court did not instruct on this purpose, on the ground that it was subsumed within the purpose to deny the right to honest government. /7/ The conspiracy instruction provided (5 C.A. App. 1332-1335): Count 1 of the Indictment charges the defendants with conspiring to violate the Mail Fraud Act and to defraud the United States Treasury by impeding and impairing the Internal Revenue Service in its lawful functions. In order to convict either defendant on this Count, the United States must prove beyond a reasonable doubt, that the defendants willfully and knowingly devised and intended to devise a scheme or artifice to defraud. If you do not find that the defendants devised and intended to devise a scheme to defraud, then you must find the defendants not guilty on Count 1. Count 1 of the Indictment charges in part that the defendants devised a scheme and artifice to: (a)(1) defraud the citizens of the Commonwealth of Kentucky and its governmental departments, agencies, officials, and employees of their right to have the Commonwealth's business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud; and, (2) obtain (directly and indirectly) money and other things of value, by means of false and fraudulent pretenses, representations, and promises, and the concealment of facts. And for the purpose of executing the aforesaid conspiracy, the defendants, James E. Gray and Charles J. McNally, and Howard P. "Sonny" Hunt, Jr., and others, did place and cause to be placed in a post office or authorized depository for mail matter, matters and things to be sent and delivered by the Postal Service, and did take and receive therefrom such matters and things and did knowingly cause to be delivered by mail according to the direction thereon and at the place at which it was directed to be delivered by the person to whom it was addressed, matters and things. (b) Defraud the United States by impeding, impairing, and obstructing and defeating the lawful governmental functions of the Internal Revenue Service of the Treasury Department of the United States of America in the ascertainment, computation, assessment, and collection of federal taxes. The essence of this claimed scheme is alleged to be that Howard P. "Sonny" Hunt, Jr., as Chairman of the Central Executive Committee of the Kentucky Democratic Party, though not a state official, had such power over the responsible state officers of the Commonwealth of Kentucky that he was able to control the selection of the insurance agent to write the workmen's compensation policy for the Commonwealth of Kentucky for the years 1975-1979. It is further claimed that because of such power, Mr. Hunt owed a duty to the citizens of the Commonwealth of Kentucky to disclose his agreement with Wombwell Insurance Agency to share its agent's commissions with persons designated by Mr. Hunt to the extent those commissions exceeded $50,000.00 per year, and that this agreement was not disclosed to or known by appropriate state officials. The defendants herein, Gray and McNally, are further charged with entering into a secret agreement with Mr. Hunt and others to generate, control, and distribute to themselves and others a portion of those commissions, and to accomplish this, in part, by setting up the corporation, Seton Investments, Inc., for the purpose of concealing and disguising the receipt of those commissions by Hunt and Gray. /8/ The mail fraud instruction provided (5 C.A. App. 1341-1344); Count 4 of the Indictment states that the defendants and each of them acted in violation of the Mail Fraud statute. In order to convict either defendant on this count, the United States must prove by the evidence, beyond a reasonable doubt, that the defendants devised and intended to devise a scheme or artifice to defraud. If you do not find that the defendants devised and intended to devise a scheme to defraud then you must find the defendants not guilty on Count 4. Count 4 of the Indictment charges in part that the defendants devised a scheme or artifice to: (a)(1) defraud the citizens of the Commonwealth of Kentucky and its governmental departments, agencies, officials and employees of their right to have the Commonwealth's business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud; and, (2) obtain (directly and indirectly) money and other things of value, by means of false and fraudulent pretenses, representations, and promises, and the concealment of facts. And for the purpose of executing the aforesaid scheme, the defendants, James E. Gray and Charles J. McNally, and Howard P. "Sonny" Hunt, Jr., and others, did place and cause to be placed in a post office or authorized deposit for mail matter, matters and things to be sent and delivered by the Postal Service, and did take and receive and cause to be taken and received therefrom such matters and things and did knowingly cause to be delivered thereon and at the place at which it was directed to be delivered by the person wo whom it was addressed, matters and things. (b) Defraud the United States by impeding, impairing, and obstructing and defeating the lawful governmental functions of the Internal Revenue Service of the Treasury Department of the United States of America in the ascertainment, computation, assessment and collection of federal taxes. To find that the defendants or either of them devised such a scheme you must find beyond a reasonable doubt one of the following: (1) That Howard P. "Sonny" Hunt, Jr., as Chairman of the Central Executive Committee of the Kentucky Democratic Party, though not a state official, had such power over the responsible officials of the Commonwealth of Kentucky that he was able to control the awarding of the Commonwealth of Kentucky's Workmen's Compensation Contract to the Wombwell Insurance Company for the years 1975 through 1979 and that Howard P. Hunt, Jr., directed commissions from the Commonwealth of Kentucky's Workmen's Compensation Contract to Seton Investments, Inc., an entity in which he had an ownership interest without disclosing that interest to persons in State government whose actions or deliberations could have been affected by the disclosure. You must further find, beyond a reasonable doubt, that the defendants or either of them aided and abetted Mr. Hunt in that scheme; or (2) That the Commonwealth of Kentucky's Workmen's Compensation Insurance was a matter under the supervisory authority of the defendant Gray as Secretary of Public Protection and Regulation or Secretary of the Governor's Cabinet at the time that Seton Investments, Inc., received commissions from that insurance policy. You must further find beyond a reasonable doubt that defendant Gray had an ownership interest in Seton Investments and that he failed to disclose that interest to persons in State Government whose actions or deliberations could have been affected by such disclosure. To find the defendant McNally guilty under this instruction, you must find that he aided and abetted the defendant Gray. What must be proved, beyond a reasonable doubt, is that the defendants knowingly and willfully devised or intended to devise a scheme to defraud as described in Instruction No. 11; and that the use of the United States mails was closely related to the scheme and an integral part of the scheme in that the defendants either mailed something or caused it to be mailed in an attempt to execute or carry out the scheme. To "cause" the mails to be used is to do an act with knowledge either that the use of the mails will follow in the ordinary course of business or to reasonably foresee that the use of the mails will follow in the ordinary course of business. In this case, unless you find that the defendants caused the mailing of an envelope containing a commission check No. 1089512, from The Hartford to Wombwell Insurance Agency on or about May 8, 1979, beyond a reasonable doubt, you shall find the defendants not guilty on Count 4. /9/ The court also erroneously instructed the jury that, in order to convict the defendants on the mail fraud count, it had to conclude that they had defrauded the United States by impeding the Internal Revenue Service in the collection of federal taxes, as Gray notes (86-286 Br. 7 n.7). The court of appeals rejected petitioners' contention that they were somehow prejudiced by this instruction, which added to the government's burden, stating that the inclusion of an extra requirement in the instructions to the jury did not impermissibly amend the indictment (Pet. App. 14a). /10/ No question is presented concerning whether the government established the requisite connection with the use of the mails here, an issue that the Court considered in United States v. Maze, 414 U.S. 395 (1974), and Parr v. United States, 363 U.S. 370 (1960). /11/ The language of the statute as it existed in 1872 is reprinted in Rakoff's article at 783; the language of the statute following the 1889 amendment is reprinted in the article at 809; and the language of the statute following the 1909 amendment is reprinted in the article at 816 n.206. /12/ See United States v. Margiotta, 688 F.2d 108, 121 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983); United States v. States, 488 F.2d 761, 764 (8th Cir. 1973), cert. denied, 417 U.S. 909 (1974). /13/ Citing the jury instructions, Gray states that "(t)he sole basis for petitioners' prosecution under the mail fraud statute is the mere allegation that the petitioners 'defrauded' the citizens of Kentucky of 'their right to have the Commonwealth's business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, official misconduct, and fraud * * * C.A. App. 1341.'" (86-286 Br. 30). /14/ Notwithstanding Gray's repeated contention before this Court that he "received nothing of value as a result of the splitting of insurance commissions" (86-286 Br. 16 n.13), the evidence clearly showed that Gray's girlfriend lived in the condominium in Kentucky at a rent far below its market value and that Gray had a key to that condominium and visited her there two or three times a week. It also showed that Gray and his girlfriend visited the Florida condominium on occasion. 2 C.A. App. 373; 5 C.A. App. 1116, 1173-1174. /15/ Even if petitioners' conduct is characterized as concealment of Seton's true nature rather than false representations as to Seton's purposes and ownership, petitioners are equally liable under the second clause of the mail fraud statute, since the courts have concluded without exception that concealment of relevant facts violates the statute. See, e.g., United States v. O'Malley, 707 F.2d 1240, 1247 (11th Cir. 1983); United States v. Allen, 554 F.2d 398, 410-411 (10th Cir.), cert. denied, 434 U.S. 836 (1977); United States v. Bush, 522 F.2d 641, 651 (7th Cir. 1975), cert. denied, 424 U.S. 977 (1976). /16/ Although Section 304.9-420 was repealed in 1984, it was replaced by Ky. Rev. Stat. Ann. Section 304.9-421 Michie/Bobbs-Merrill Supp. 1986, entitled "(s)haring of commissions prohibited," which, as its title suggests, continues the prohibition against the sharing of commissions with persons who are not bona fide insurance agents. Gray states (86-286 Br. 14 n.9) that Insurance Commissioner McGuffey advised Wombwell that "it was legal to share insurance commissions with a licensed officer of an unlicensed agency." That misstates the facts. McGuffey's one-sentence letter stated in full: "It is legal to share commissions with an insurance corporation in which the officers are licensed insurance agents." 6 C.A. App. 1393. Nothing in that sentence supports any contention that it is permissible to establish a sham insurance agency to share commissions. Nor does the letter's reference to "licensed insurance agents" mean, as Gray suggests, contrary to Ky. Rev. Stat. Ann. Section 304.9-100 Michie/Bobbs-Merrill 1981, that the officers of a corporation may obtain insurance licenses in order to share commissions even though they are not actually involved in the insurance business. /17/ Hunt testified that Wombell's vice-president repeatedly asked for assurance that Hunt was directing it to split commissions only with other insurance agencies. 1 C.A. App. 232. Hunt never informed him that Seton was not a bona fide agency, notwithstanding that it did no business. Instead, he provided Wombwell with the number of an insurance license issued to McNally (7 Tr. 43-46), a license McNally obtained solely for the purpose of receiving excess commissions (2 C.A. App. 298). Hunt and Gray also concealed their ownership of Seton. Wombwell would have violated the state's bribery and kickback statutes had it directed excess commissions to Seton knowing that it was a front for Hunt and Gray. Ky. Rev. Stat. Ann. Sections 521.010(1)(b), 521.020(a), 521.020(b) (Michie/Bobbs-Merrill 1985). /18/ Those dictionaries also defined "right" broadly. Anderson defined it (at 904) as "an enforceable claim or title to any subject matter whatever: either to possess and enjoy a tangible thing, or to do some act, pursue a course, enjoy a means of happiness, or to be exempt from any cause of annoyance," and acknowledged the existence of "political rights" as well (at 905). Bouvier defined "right" (at 927) simply as "a well-founded claim." /19/ See also United States v. Bruno, 809 F.2d 1097, 1104-1105 (5th Cir. 1987), in which the court held that the federal wire fraud statute, 18 U.S.C. 1343, prohibits schemes to deprive citizens of the intangible right to honest government. ("Of course, no one contests that the citizens of Orleans Parish possess the right to honest services of its public officials." (id. at 1105).) The courts of appeals have also held that non-governmental employees may defraud their employers of intangible rights to honest and loyal service in violation of Section 1341 by failing to disclose material information to the employer in breach of fiduciary duties owed the employer. See, e.g., United States v. Alexander, 741 F.2d 962 (7th Cir. 1984); United States v. von Barta, 635 F.2d 999, 1005-1006 (2d Cir. 1980), cert. denied, 450 U.S. 998 (1981). /20/ It appears reasonable, however, that a scheme formed with the specific intent to deny the proper performance of an enforceable fiduciary duty would meet such a test. See United States v. Barta, 635 F.2d 999, 1005-1006 (2d Cir. 1980). /21/ Gray also contends (86-286 Br. 16) that the first clause of the statute should be construed to require proof of financial loss to a victim because the second clause of the statute makes reference to "obtaining money or property." We submit that the clauses should be read separately (see pages 17-18, supra), and, in any event, the second clause plainly does not itself require a proof of loss to a victim. /22/ See note 8, supra. /23/ Furthermore, any doubt that Gray was part of the conspiracy is laid to rest by the fact that the jury convicted him on a conspiracy count as well as on a mail fraud count. /24/ Kentucky law contemplates such a conclusion. The state bribery statute defines "(p)ublic servant" to include not only "(a)ny public officer or employee of the state" (Ky. Rev. Stat. Ann. Section 521.010(1)(a) (Michie/Bobbs-Merrill 1985)), but also "(a)ny person exercising the functions of any such public officer or employee" (id. Section 521.010(1)(b)). /25/ McNally contends (86-234 Br. 22) that McGuffey "did not always follow Hunt's suggestions," citing 2 Tr. 15, 16. McNally thus refers to McGuffey's answer, concerning policies other than the workmen's compensation insurance policy (as to which he testified that he always followed Hunt's instructions), to the question whether he had ever not followed Hunt's instructions. He replied: "On one situation he did not want to renew a certain policy with an agency and I did not, but later on I gave him some" (2 Tr. 16, reprinted at 2 C.A. App. 330). That inconclusive comment hardly undercuts the jury's conclusion, which the court of appeals found was supported by the evidence (Pet. App. 10a-11a), that Hunt controlled the awarding of the state's insurance policies. /26/ Contrary to petitioner's claims, if Hunt had merely exercised that authority to reward insurance agents who had supported the governor, they never would have been indicted, since the government has never claimed that directing Wombwell to split excess commmissions with valid insurance agencies not controlled by Hunt and Gray violated any law. Gray was indicted and convicted only because he and Hunt abused their authority by devising a scheme to divert excess commissions into their own pockets. McNally was indicted and convicted only because he aided and abetted that scheme in return for payments. /27/ Of course, the fact that a fraudulent scheme violates state laws does not exclude it from the proscriptions of the federal mail fraud statute. Badders v. United States, 240 U.S. 391, 393 (1916). The federal interest in protecting the postal system from misuse justifies Congress in prohibiting the use of the mails to defraud persons of legal rights, whether tangible or intangible in nature. For that reason, Gray's reliance on United States v. Bass, 404 U.S. 336 (1971) (86-286 Br. 28-29), is particularly misplaced. The Court in Bass held that "(a)bsent proof of some interstate commerce nexus in each case, (18 U.S.C.) Section 1202(a) (App.) dramatically intrudes upon traditional state criminal jurisdiction" (id. at 350). Here, in contrast, the basis for federal jurisdiction is spelled out in the statute's requirement of the use of federal mails in furtherance of the scheme, and that is clearly a sufficient basis for federal jurisdiction. In general, Gray's argument is contradictory. He (incorrectly) argues, on the one hand, that it is inappropriate "to extend the application of the mail fraud statute where there was not even arguably a violation of state criminal or civil law" (86-286 Br. 33), while, on the other hand, contending that it is inappropriate to extend the mail fraud statute to apply to cases also involving breaches of state law (id. at 28-29). Both of Gray's arguments are wrong. The federal mail fraud statute prohibits all acts within the meaning of the words of the statute, fairly construed, whether or not state law also prohibits such acts. /28/ In making this argument, Gray assumes arguendo that petitioners were properly convicted on the mail fraud count. Gray notes (86-286 Br. 39 n.47) that, if the Court reverses petitioners' convictions on the mail fraud count, it follows that the Court should reverse the conspiracy convictions as well. That is correct. Since the jury almost certainly concluded that petitioners conspired to violate the mail fraud statute, petitioners' conspiracy convictions cannot stand if the allegation that their acts violated the mail fraud statute is legally defective. Stromberg v. California, 283 U.S. 359, 367-368 (1931). /29/ Petitioners argued at trial that they did not violate the mail fraud statute because McNally, rather than Hunt and Gray, owned Seton. But the jury rejected that argument and the court of appeals affirmed its conclusion that Hunt and Gray controlled Seton (Pet. App. 4a). Accordingly, there is no question that, contrary to petitioners' arguments, Hunt and Gray established Seton, purchased and used the two condominiums, and concealed their ownership by persuading McNally to serve as Seton's front man. In addition, the jury necessarily found either that petitioners aided and abetted Hunt or that McNally aided and abetted Gray (see pages 30-32, supra), and the court of appeals concluded that both findings were supported by the evidence (Pet. App. 9a-11a). Given those conclusions, it is clear beyond question that petitioners entered into an agreement, even though Gray describes our contention that the jury obviously concluded that petitioners conspired to violate the mail fraud statute as "conjecture" (86-286 Br. 38 n.46). /30/ The evidence showed that Seton did no business at all, but that it paid taxes at lower rates than Hunt and Gray (4 C.A. App. 934-941). That supported petitioners' convictions for tax fraud conspiracy under United States v. Klein, 247 F.2d 908 (2d Cir. 1957), since it showed that taxes were paid by a shell corporation at a rate lower than the persons who should have paid the taxes. Seton also took a business deduction for the payment of $38,500 to Hunt's son that was improper because it did no business. McNally could of course conspire to commit tax fraud, even though fraud in connection with his own taxes was not an object of the conspiracy. /31/ The government contended that "organize" as used in 18 U.S.C. 2385 referred to a continuing process of running an organization. The Court rejected that contention, holding that "the word refers only to acts entering into the creation of a new organization" (354 U.S. at 310). Since it was undisputed that the defendants had not been involved in the creation of the Communist Party, it followed that they had not conspired to "organize" it within the meaning of the statute. /32/ Gray also relies on Cramer v. United States, 325 U.S. 1 (1945). The defendant in Cramer was charged with treason, and the Treason Clause of the Constitution (Art. III, Section 3) requires, in the absence of a confession, that two witnesses testify to the same overt act committed as part of the offense to establish treason. Three overt acts were submitted to the jury, but the Court concluded that two of the overt acts did not support a guilty verdict because they did not show that the defendant intended to give aid and comfort to the enemy (325 U.S. at 48). It accordingly reversed the conviction. The Court noted, before concluding that two of the overt acts were defective, that "(s)ince it is not possible to identify the grounds on which Cramer was convicted, the verdict must be set aside if any of the separable acts submitted was insufficient" (id. at 36 n.45 (emphasis added)). That dictum is not relevant here because it is possible to identify the ground on which petitioners were convicted. This Court's decision in Stromberg v. California, 283 U.S. 359 (1931), is not relevant for the same reason. The defendant there was charged with violating three alternative clauses of a state statute. The Court concluded that the first clause of the statute was unconstitutional, and reversed the conviction, stating: "(I)t cannot be determined upon this record that the appellant was not convicted under that clause. It may be added that this is far from being a merely academic proposition, as it appears, upon an examination of the original record filed with this Court, that the State's attorney upon the trial emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses." 283 U.S. at 368 (emphasis added). The Third Circuit's decision in United States v. Tarnopol, 561 F.2d 466 (1977), is also not relevant for the same reason. The court there stated that "it is impossible to determine whether or not the jury based its verdict upon less than all three of (the alleged objectives of the conspiracy) and, if so, upon which ones the verdict was founded" (id. at 474 (emphasis added)). /33/ Moreover, this case is distinguishable from Dansker since the jury here did not return any guilty verdict relating to a substantive tax fraud violation, while the jury in Dansker returned a guilty verdict on the count alleging that the defendants had conspired to bribe the minor official. /34/ It would be possible to tell what route the jury took if conspiracy charges were made in separate counts or the jury returned a special verdict. However, it follows from this Court's decision in Braverman v. United States, 317 U.S. 49, 54 (1942), that a single conspiracy to achieve multiple objectives is properly charged in one count. Special verdicts are not always a possible alternative, since defendants in criminal cases sometimes oppose their use and obtain reversal on the ground that special verdicts tend to lead juries to convict. See United States v. Spock, 416 F.2d 165, 180-183 (1st Cir. 1969). /35/ There is also disagreement in the lower courts as to whether a conspiracy conviction should be upheld where the jury could properly have concluded that the defendants conspired to achieve one objective of the conspiracy but could not properly have concluded that the defendants conspired to achieve another objective, and it is not clear what route the jury took in reaching its verdict. See Dixon, 536 F.2d at 1401. /36/ Gray is way off the mark in arguing (86-286 Br. 43 n.51) that the rule we propose will permit the government to "charge a defendant with multiple objects of a conspiracy, deliberately decline to present any evidence concerning any object except for one and nevertheless insist that the jury be instructed concerning all objects listed in the indictment." If the government fails to introduce evidence supporting the conclusion that the defendants conspired to achieve an objective charged in the indictment, the court should not instruct the jury on that objective, but should instead strike the part of the indictment not supported by any proof. See United States v. Miller, 471 U.S. 130, 132-134 (1985); Fed. R. Crim. P. 29(a).