Justice Dept. opposes appeal by Md. lobbyist

Supreme Court urged to reject Bereano

case tests `honest services' law

April 20, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Justice Department urged the Supreme Court yesterday to reject an appeal by prominent Maryland lobbyist Bruce C. Bereano, arguing that his conviction for mail fraud raised no significant legal issues worth the court's time.

Asked by the court to spell out its views on the case, the department said that a series of challenges by Bereano "lack merit and do not warrant this court's review."

Bereano's appeal of his 1994 conviction offers the justices their first chance to analyze a broad 1988 federal law that made it a crime to use the postal system to deprive anyone of "a right to honest services."

Some federal courts have voiced concern about the breadth of that law. The National Association of Criminal Defense Lawyers has told the justices that federal prosecutors have used the law to "wreak havoc in individuals' lives" by sweeping interpretations of the kinds of "honest services" covered by the law.

Bereano, an Annapolis lawyer and a leading lobbyist at the General Assembly, was convicted of seven counts of fraud under the 1988 law. He was found guilty of making campaign donations to state politicians under the names of family members and of law firm associates, then passing on the cost of those contributions to his clients through fees to cover the costs of "lobbying entertainment."

He was sentenced to serve five months in a Baltimore halfway house, a term that began in February. After he finishes, he is to be on supervised release for three years.

Though the clients who paid those fees testified that they did not feel wronged, prosecutors convinced the jury that it was illegal for Bereano to charge for something the clients had not agreed to pay for when they hired him.

The Supreme Court is expected to act on his appeal within weeks. The Justice Department had earlier passed up a chance to comment on his challenges, but the court then asked for the government's views before deciding whether to hear the appeal.

The department disputed Bereano's argument that the law should not apply to private individuals but rather should cover only the denial of "honest services" by a government official or employee.

No lower-court ruling, the department argued, has limited the mail fraud law "to schemes involving the services of public officials." The department also disputed Bereano's claim that he could not be convicted under the law because prosecutors had not proved that he violated any Maryland state law. No such proof is necessary, the department contended.

In an unrelated action yesterday, the Supreme Court ruled, without issuing an opinion, that a federal law against sexually explicit pictures or words on the Internet can be applied only to outright obscenity, not to merely indecent expression.

ApolloMedia Corp., a San Francisco company that operates a Web site where people can express opinions anonymously in indecent terms, contended that the law was unconstitutional because it could be applied to indecent expression, which is protected by the Constitution.

A lower court, agreeing with the Justice Department, said the law was intended to apply only to messages or pictures that meet the legal definition of obscenity, which the Constitution does not protect. The justices voted 9-0 simply to uphold that result.

Two other actions by the court affect animal rights advocates. The justices allowed a New York man to sue the Agriculture Department for the emotional injury he said he suffered from viewing caged zoo animals being treated inhumanely. And the court permitted two women to continue their lawsuit against a Florida county for taking inadequate steps to protect two types of sea turtles that are considered an endangered species.

The court agreed to decide next year whether someone who has been convicted of a crime has a constitutional right, during an appeal, to act as his or her own lawyer. In the past, the court has ruled that there is a right to act as one's own lawyer during a trial. The issue involving the rights of appeal arises in a California embezzlement case.

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