Milovanovic

Opinion by Judge KLEINFELD; Dissent by Judge FERNANDEZ.

*407 OPINION

We address “honest services” mail fraud.

I. Facts

The district court dismissed the indictment before trial, so we describe the facts as though the indictment had been proved, which of course is not the case. The question is whether the charges, if proved, would amount to the crime charged.

According to the indictment, defendants Milovanovic and Lamb corrupted issuance of commercial drivers’ licenses in the State of Washington. The other four defendants, Hot, Kovacic, Bilanovic, and Djordjevic, took advantage of the corrupt scheme to defraud the State of Washington into issuing them the undeserved licenses. A person has to be a Washington resident and pass a written test and a driving test to lawfully obtain a Washington commercial drivers’ license. 1 Milovanovic and Lamb and their clients allegedly arranged to get commercial drivers’ licenses by cheating on the tests and falsifying residency, in exchange for bribes.

Milovanovic worked as a certified Bosnian translator for a firm that the state government used. He contacted Bosnian speakers in other states, and told them that if they came to Spokane and paid…

dissenting:

Like the majority, I must start with the mail fraud statute itself, which imposes criminal penalties upon those who use the mails in the execution of “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1341 .

Before the Supreme Court’s decision in McNally v. United States, 483 U.S. 350 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987), we held that § 1341 proscribed schemes to defraud another not only of money and property, but also of “intangible rights,” including the right to loyal or honest services. See United States v. Bohonus, 628 F.2d 1167, 1171-72 (9th Cir.1980); see also United States v. Williams, 441 F.3d 716, 723-24 (9th Cir.2006). In McNally, 483 U.S. at 360 , 107 S.Ct. at 2881-82 , the Court held that the mail fraud statute did not extend to honest services fraud. The following year, Congress enacted 18 U.S.C. § 1346 , which specifies that for purposes of the mail fraud statute, “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” In so doing, “Congress restored the pre McNally…