Milovanovic

Opinion by Judge TALLMAN; Concurrence by Judge CLIFTON.

OPINION

The State of Washington outsources the testing of applicants for commercial truck drivers’ licenses to entities and individuals who administer the test and certify the results. The government alleges that a scheme to solicit bribes corrupted the process and caused the State to issue licenses to unqualified non-residents. A federal grand jury returned an indictment for mail and wire fraud on a theory that the State was deprived of the delivery of honest services by those involved. The district court held that the existence of a formal fiduciary duty to the State and resulting economic harm were required, and the court dismissed all charges. The United States brought an appeal to reinstate the case. 18 U.S.C. § 3731 .

We address: (1) whether breach of a fiduciary duty is an element of honest services mail fraud under 18 U.S.C. §§ 1341 and 1346; (2) whether the superseding indictment, charging the defendants with a bribery-based scheme to defraud that breached a material relationship of trust, states an offense for honest services fraud in violation of 18 U.S.C. §§ 2 , 1341, 1346, and 1349; and (3) whether, as the…

James A. McDevitt, United States Attorney, Joseph H. Harrington, Assistant United States Attorney, Timothy M. Durkin, Assistant United States Attorney, United States Attorney's Office, Spokane, WA; Scott A.C. Meisler, Criminal Div., Appellate Section, U.S. Dept. of Justice, Washington, DC, for the plaintiff-appellant.

Robert Fischer, Spokane, WA, for defendant-appellee Brano Milovanovic.

Joseph Nappi, Jr., Spokane, WA, for defendant-appellee Tony Gene Lamb.

Frank L. Cikutovich, Spokane, WA, for defendant-appellee Ismail Hot.

Curran C. Dempsey, Spokane, WA, for defendant-appellee Elvedin Bilanovic.

Dan B. Johnson, Spokane, WA, for defendant-appellee Muhamed Kovacic.

Gerald R. Smith, Spokane, WA, for defendant-appellee Aleksandar Djordjevic.

Before: ALEX KOZINSKI, Chief Judge, SUSAN P. GRABER, KIM McLANE WARDLAW, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CARLOS T. BEA, MILAN D. SMITH, JR., and MARY H. MURGUIA, Circuit Judges.

Opinion by Judge TALLMAN; Concurrence by Judge CLIFTON.

TALLMAN, Circuit Judge:

The State of Washington outsources the testing of applicants for commercial truck drivers' licenses to entities and…

concurring in the judgment:

The most recent edition of Black’s Law Dictionary, after providing a definition for the term “fiduciary,” repeats an observation made nearly 50 years ago:

Black’s Law Dictionary 702 (9th ed.2009).

“Fiduciary” has not gotten any clearer in the half-century since then, and our decision here does not help. We accede to the agreement of the parties that the Supreme Court defined a breach of fiduciary duty as an essential element required for honest services mail fraud in Skilling v. United States, — U.S. -, 130 S.Ct. 2896, 2930-31 , 177 L.Ed.2d 619 (2010). But we conclude that “fiduciary” here does not mean a “formal, or classic, fiduciary duty.” Majority op. at 728. Rather, we hold that a fiduciary duty as an element of mail fraud “is not limited to a formal ‘fiduciary’ relationship well-known in the law, but also extends to a trusting relationship in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance which it would ordinarily exercise.” Id. at 724.

I agree completely with the result reached by the majority, and I agree that Skilling did not limit honest services mail fraud to a formal…