These five criminal defendants raise numerous issues attacking their convictions and sentences for committing mail fraud against the federal government and the University of Tennessee. One defendant also appeals his conviction for knowingly making a false material declaration before a grand jury. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion.

During the time period at issue, defendant Dr. Walter Frost was a full-time professor and Chairman of the Department of Engineering Science and Mechanics at the University of Tennessee Space Institute ("UTSI") in Tullahoma, Tennessee. UTSI is a graduate school within the Tennessee school system which offers master's and Ph.D degrees in science and engineering disciplines. Its students are primarily military and other government personnel.

Frost also is the owner and President of FWG Associates, Inc. ("FWG"), a private atmospheric science research firm based in Tullahoma. As it grew, FWG opened another office in Huntsville, Alabama. FWG relies primarily upon contracts with government agencies such as the National Aeronautics and Space Administration ("NASA") and the United States Department of Defense.

Defendant Dr. Robert Turner, who obtained his Ph.D in 1976 under Frost, was a part-time professor at UTSI. Turner is a former NASA engineer, and his role at UTSI included the recruitment of NASA employees for the school. In 1989, he became a vice-president of FWG and ran the FWG office in Huntsville. Turner also is the uncle of defendants Faulkner's and Congo's wives, who are sisters.

Defendants Dr. Richard Congo, Dr. Dennis Faulkner, and Peggy Potter all were students at UTSI between 1987 and 1990, pursuing either a master's or Ph.D degree. The primary component of the degree was the completion of either a thesis (for a master's degree) or a dissertation (for a doctoral degree). Frost served as the major professor and advisor for each student; he also selected the professors who would sit on the committee before which each student defended orally his or her thesis or dissertation. Frost and Turner served on the committee for each student defendant.

During his studies at UTSI, Faulkner worked for the Department of the Army. Congo and Potter worked for NASA while at UTSI.

For reasons explained in detail infra, a grand jury issued a thirty-one count Superseding Indictment on March 10, 1995 against defendants. Counts One through Sixteen charged defendants with scheming to defraud the United States of money or property, in violation of the Mail Fraud Act, 18 U.S.C. § 1341. Counts Seventeen through Twenty charged a scheme to defraud the University of Tennessee of its intangible right to the honest services of its employees, Frost and Turner. See 18 U.S.C. §§ 1341, 1346. The indictment charged Frost and Turner as principals under each of these counts, and the student defendants as aiders and abettors. See 18 U.S.C. § 2. The Superseding Indictment did not charge each student with every count: it charged Congo with Counts One through Seven and Nineteen; Potter with Counts Eight through Twelve and Seventeen; and Faulkner with Counts Thirteen through Sixteen and Twenty. It also charged Charles Hill, a NASA employee who similarly pursued a doctoral degree at UTSI, of Counts Eight through Twelve and Eighteen. Hill, however, died before trial.

Counts Twenty-One through Twenty-Nine charged a scheme to defraud the federal government, in violation of the mail fraud statute, through the submission of false billing claims. Counts Twenty-One and Twenty-Two applied only to Frost and Turner; Counts Twenty-Three through Twenty-Nine applied only to Frost.

Count Thirty charged Frost with attempted obstruction of justice during the investigation resulting in these prosecutions, in violation of 18 U.S.C. § 1503. Finally, Count Thirty-One charged Congo with making a false material declaration to the grand jury during these proceedings, in violation of 18 U.S.C. § 1623.

After unsuccessfully moving to dismiss the indictment, defendants were tried before a jury beginning on March 28, 1995. On April 28, 1995, the jury convicted each defendant of each count with which he or she had been charged, except that it acquitted Frost and Turner of Count Eighteen, and acquitted Frost of Count Thirty, the obstruction of justice count.

Defendants filed motions for acquittals and new trials, which the District Court denied. Defendants thereafter filed these appeals, and we turn now to the arguments which they have raised.

A. Scheme to Defraud Federal Government of Contracts

The main theory of the prosecution is that the professor defendants provided each student defendant with written materials and help from FWG employees so that the student could complete his or her thesis or dissertation, and therefore receive an advanced degree, through significant plagiarism and with a minimum of effort. In return for this benefit, the student defendant would abuse his or her position with the government in order to secure for FWG, and through it the professor defendants, lucrative government research contracts, or modifications of contracts. By pursuing this scheme, the professor defendants obtained property from the federal government which they otherwise would not have received, and the student defendants obtained advanced degrees from the University of Tennessee without having done the necessary work.

The government argues that defendants repeatedly violated 18 U.S.C. § 1341, the mail fraud statute, by pursuing this "degrees-for-contracts" scheme. Section 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, ... for the purpose of executing such scheme or artifice or attempting to do so, 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 be delivered by mail or such carrier 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 under this title or imprisoned not more than five years, or both.

18 U.S.C. § 1341.

Counts Two through Seven, Nine through Twelve, Thirteen, Fourteen, and Sixteen in the Superseding Indictment rested on the degrees-for-contracts scheme. Although the indictment charged Frost and Turner with all of these counts, it charged Congo only with Counts Two through Seven, Potter with Counts Nine through Twelve, and Faulkner with Counts Thirteen, Fourteen, and Sixteen.

Ultimately, the prosecution relies upon the following general evidentiary theory. In 1985, Dan Berlinrut, an engineer for the Air Force and a Ph.D candidate under Frost from 1983 to 1986, discussed with Frost his proposed dissertation topic. Frost, copying verbatim large portions of Berlinrut's dissertation, turned the topic into a proposal for a contract with the Air Force. The Air Force rejected the proposal. Frost thereafter instructed Berlinrut to call Turner, who told Berlinrut that he should award FWG a contract on his dissertation topic when he got to his next duty station. Turner also told Berlinrut that "Frost would then write [his] dissertation guaranteeing it would be accepted," and that "this was done all the time at NASA, and it is OK." Rather than accepting this invitation, Berlinrut instead reported this incident to the authorities. He eventually failed to graduate.

The government contends that, several years later, the student defendants, who were both students at UTSI and government employees, cheated with the help of Frost and Turner on their thesis or dissertation. Further, each student defendant had an alleged role in the award or modification of a government contract to FWG. Accordingly, the government argues, we may infer that defendants entered into the same kind of agreement which Turner unsuccessfully proposed to Berlinrut, acting with the intent to defraud the government of its property.

Every defendant attacks the sufficiency of the evidence supporting these convictions. When determining whether sufficient evidence supports a conviction, we decide "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Ellerbee, 73 F.3d 105, 107 (6th Cir.1996)(quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). Further, "circumstantial evidence alone can sustain a guilty verdict," id. at n. 2 (quoting United States v. Stone, 748 F.2d 361, 362 (6th Cir.1984)), and we will draw all reasonable inferences in favor of the prosecution. See, e.g., United States v. Oldfield, 859 F.2d 392, 399 (6th Cir.1988).

A conviction for mail fraud requires proof of the following three elements:

(1) devising or intending to devise a scheme to defraud (or to perform specified fraudulent acts);

(2) involving a use of the mails; and

(3) for the purpose of executing the scheme or attempting to do so.

Id. at 400. A defendant does not commit mail fraud unless he possesses the specific intent to deceive or defraud, see, e.g., United States v. Smith, 39 F.3d 119, 121-22 (6th Cir.1994); "a scheme to defraud must involve '[i]ntentional fraud, consisting in deception intentionally practiced to induce another to part with property or to surrender some legal right, and which accomplishes the end designed.' " American Eagle Credit Corp. v. Gaskins, 920 F.2d 352, 353 (6th Cir.1990)(quoting Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir.1984)(quoting Epstein v. United States, 174 F.2d 754, 765 (6th Cir.1949)))(emphasis deleted).

A defendant may commit mail fraud even if he personally has not used the mails. See United States v. Griffith, 17 F.3d 865, 874 (6th Cir.1994). A mail fraud conviction requires only a showing that the defendant acted with knowledge that use of the mails would follow in the ordinary course of business, or that a reasonable person would have foreseen use of the mails. See Oldfield, 859 F.2d at 400. Accordingly, the government does not have to show that the defendant actually intended to cause the mails to be used. See id. Further, "[t]he mailings may be innocent or even legally necessary." Id. (quoting United States v. DeCastris, 798 F.2d 261, 263 (7th Cir.1986)). "In sum, the 'mailing need only be closely related to the scheme and reasonably foreseeable as a result of the defendant's actions.' " Id. (quoting United States v. Silvano, 812 F.2d 754, 760 (1st Cir.1987)).

We agree with defendants that there is insufficient evidence to uphold the counts that rest upon an alleged scheme to defraud the federal government of property in the form of contract awards. These convictions therefore differ from other mail fraud convictions in this case which, although also relating to allegations of academic impropriety, instead charge that defendants defrauded either the University of Tennessee of the honest services of its employees Frost and Turner, or the federal government of tuition money provided to the student defendants. Further, these convictions do not rest upon an allegation that defendants deprived either the public of its intangible right to the honest services of its public servants, or the government of its intangible right to the honest services of its employees. See infra Section II.C (discussing 18 U.S.C. § 1346). Although each defendant happened to be a state or federal government employee, these convictions depend upon a showing that defendants intended to defraud the government, as a business entity, of a property right.

In 1986, Faulkner began to work as a civilian electronics engineer at CROSSBOW, an office within the Department of the Army and located at Redstone Arsenal, Alabama. His responsibilities included acting as a Contracting Officer's Technical Representative ("COTR") for various government contracts. As a COTR, Faulkner helped to identify the need for contractor assistance, select a qualified contractor, review estimates, monitor performance quality and timeliness, and review progress in relation to expenditures. As a COTR with the Army, he did not control contract money.

Faulkner enrolled in UTSI in the spring of 1987 and selected Frost as his major professor. In the middle of 1987, he began the process of writing a dissertation of the topic of "False Targeting Effects of Turbulent Eddies in Millimeter Frequencies." After almost two years of effort, Faulkner completed an initial draft of the dissertation. In August or September of 1989, however, he discovered that his dissertation was relying upon classified data. After consultations with Frost and a government official, Faulkner later learned that, because the University of Tennessee had a policy prohibiting classified projects for advanced degrees, he had to select a new topic and begin working on another dissertation.

On November 30, 1987, Joe Durham, the immediate supervisor of Faulkner at CROSSBOW, responded to a proposal from FWG by issuing a letter indicating that CROSSBOW intended to "contract with FWG to analyze classified threat simulator radar systems." This proposed contract eventually would become the Miscellaneous Defense Activities ("MDA") contract. Although Faulkner did not select FWG for the contract or participate in the negotiations process, he did prepare sometime in 1988 a memorandum which justified the granting of a sole-source, as opposed to a bid or competitive, contract to FWG. Within the memorandum, Faulkner referred to an informal market survey which he had conducted earlier that year. Faulkner stated in the memorandum that defense contractors other than FWG were unsuitable to perform the MDA contract because they would not sign a hardware waiver. It is undisputed that formal or written market surveys were not required for government contracts worth under a million dollars, such as the MDA contract. Further, Durham testified that competitive defense contracts may pose security risks because they involve the exposure of classified information, and that CROSSBOW did not maintain a single competitive contract during his tenure as a supervisor from 1985 to 1993.

On January 31, 1989, CROSSBOW issued a sole-source letter contract providing that FWG would perform the MDA contract from the date of the letter until July, 1990 in return for $937,248. Faulkner acted as the COTR for the MDA contract during this time.

In the fall of 1989, and shortly after Faulkner learned that he could not complete his first dissertation topic, Frost gave Faulkner three unpublished reports completed by FWG in the mid-1980s and instructed him to produce a new dissertation by combining them. Faulkner completed a rough draft of his new dissertation in early 1990, and a final draft in mid-March of 1990. Faulkner sent copies of the final draft to Frost and the other four members of the academic committee before which Faulkner would defend his dissertation. During his oral defense in late March of 1990, Faulkner told the committee that his topic was substantially related to his previous topic and was based upon three FWG studies in which Frost had participated. After Faulkner made the changes suggested by committee members, the committee approved his dissertation and he graduated with a doctor in philosophy degree.

The government introduced evidence that at least ninety-two percent of Faulkner's second dissertation was plagiarized from the three FWG reports given to him by Frost, and from a conference paper presented by Frost. Although many pages, including the conclusion, represented verbatim excerpts from the FWG reports, they did not contain quotation marks or any citations to the reports.

Frost gave the dissertation to his secretary at FWG, Martha Craddock, to type. Craddock, who spent about three months working occasionally on the project, testified that "part of [typing the dissertation] was cut and paste and pages from other documents that were cut and rearranged and reworded," and that she recognized some of the dissertation as reports she previously had typed.

As noted, the prosecution alleges that Faulkner committed mail fraud by participating in a scheme to defraud the government by helping to procure the MDA contract for FWG in return for a "free" dissertation. The mailings upon which the degree-for-contract convictions of Faulkner are based are vouchers for the MDA contract mailed from FWG to the government on January 15, February 12, and March 15, 1990. The prosecution cites the testimony of David Baker, an Army policeman, who stated that Faulkner told him during the investigation of these matters that Faulkner never had contacted any companies when conducting his market survey in 1988, but instead had concluded on the basis of his personal knowledge of the industry that contractors other than FWG would be unwilling to sign a hardware waiver. Baker therefore concluded that the 1988 memorandum compiled by Faulkner was false, because "when you say a company will not sign [a waiver], that means that you have ... talked to somebody that can speak for that company. You can't just, you know, make that decision for the company." Contrary to the opinion of Baker, however, significant evidence indicates that CROSSBOW frequently did not contact other companies directly when conducting informal market surveys for contracts worth less than one million dollars if the contracts involved classified material.

Regardless of whether it was improper not to contact other companies directly, or whether Faulkner falsely suggested that he had done otherwise, these convictions lack an evidentiary basis simply because Faulkner performed and memorialized the market survey in 1988. From 1987 until 1989, however, he was working on his first dissertation, and there is no dispute that he was the only person to work on that dissertation, or that the scheme to concoct a second plagiarized dissertation did not arise until the fall of 1989. The record therefore fails to contain sufficient proof that Faulkner, with the intent to defraud the government, performed and relied upon an improper market survey in order to reward Frost and Turner for bestowing an illegitimate dissertation.

The prosecution presents an alternative argument. The MDA contract was extended twice: it received an initial extension from July, 1990 to September, 1990, and then again was extended until September, 1991. These extensions raised the total value of the contract to $1,896,501.29. The prosecution asserts that documents entitled "program identification documents" submitted by CROSSBOW employees on March 16 and April 3, 1990 led to these extensions. The prosecution attempts to link Faulkner with the first of these documents, arguing that "even as Faulkner was cutting and pasting Frost's reports together for his dissertation, he was recommending in March 1990 that FWG get an extension on the contract."1

Although the evidence does indicate that Faulkner was passing off a plagiarized dissertation with the help of Frost in March, 1990, it does not suggest that Faulkner was responsible for extending the MDA contract. Lawrence Duncan, who works for a support organization for the Department of Defense and who served as a contracting officer for the MDA contract until mid-1990, testified for the prosecution. His direct testimony established only that "somebody" asked to extend the MDA contract in March, 1990, and that Faulkner was the COTR for the MDA contract at that time. The prosecution argues that this testimony during redirect examination shows that Faulkner "instigated" the extension:

Q. Okay. But when that extension was requested in March of 1990, the COTR at that time getting the ball rolling to get that extension started was Dennis Faulkner, wasn't it?

A. Yes, sir.

Examination of this exchange and the testimony preceding it reveals that Duncan reaffirmed that Faulkner was the COTR for the MDA contract when an extension was requested. The only material in the record suggesting that Faulkner "got the ball rolling" on the extension was the question posed by the prosecution. The fact that the prosecution attempts to rely solely upon "evidence" created through the phrasing of its own question is highlighted by the fact that Duncan testified during cross-examination that three specific individuals other than Faulkner prepared and signed the March, 1990 program identification document. Duncan further testified that another COTR, Ken McCormick, performed the technical evaluation for the proposed extension, and that the contracting officer who replaced Duncan on the MDA contract, Michael Corbis, "proceeded to do the work on the major contract extension, which was issued by him on the 28th of September of 1990." The record does not support the assertion that the status of Faulkner as a COTR, standing alone, allows for the inference that he recommended an extension.

Because the record provides insufficient evidence for Faulkner's convictions for Counts Thirteen, Fourteen, and Sixteen, we do not address the claim by Faulkner that we must reverse these convictions because the prosecution failed to disclose that a government officer who oversaw the MDA contract informed the prosecution that Faulkner had no role in extending the contract. See infra Section IV.A, discussing Brady claim raised by Frost. Because the prosecution's case against Frost and Turner on these counts is based solely upon the acts of Faulkner, there is insufficient evidence to support their convictions of Counts Thirteen, Fourteen, and Sixteen.

Potter worked at the Marshall Space Flight Center ("MSFC") of NASA in Huntsville, Alabama for more than twenty-five years. In 1987, she became a manager in the MSFC Small Business Innovative Research ("SBIR") program, which sought to identify opportunities in NASA in which small companies and minority firms could participate. Although her bachelor's degree was in business management, she entered a master's degree program at UTSI in engineering science under Frost in 1988.

After Potter had informed Frost that she was having difficulty deciding upon a topic for her thesis, he had Turner deliver to Potter a FWG report on a cancelled project concerning a tower and wind study. Either Frost or Turner then gave a diskette containing a copy of the report to Craddock, Frost's secretary at FWG, who then spent about two days retyping it into a more presentable format. Evidence at trial indicated that Potter's thesis and the tower and wind study report were ninety-five percent identical.

Before orally defending her thesis before a committee, Potter studied the document which she was submitting in order to be able to express a degree of understanding during her defense. The committee consisted of Frost, Turner, and a Dr. Kenneth Kimble. Although Potter told the committee that she had used material from a report given to her, she presented the thesis as her own work. After the University approved her thesis, Potter graduated in December, 1989. Although Potter admitted at trial that she neither wrote her thesis nor did any research, she claimed that Frost had led her to believe that she could satisfy her degree requirements merely by studying, checking, and finalizing the report.

In early 1990, Potter retained control over about $55,000 of an original grant of $110,000 in government funds for an SBIR workshop project. Potter claims that she had difficulty finding individuals or firms willing to perform any workshops for only $55,000, and that, under NASA rules, any funds which had not been committed by September, 1990 would expire and no longer be available to NASA. Accordingly, Potter asserts that she was interested when Frost approached her after she had graduated and informed her that FWG was interested in submitting a proposal to perform such workshops for as little as $50,000. Due to procedural difficulties with obtaining or accessing government funds, however, Potter decided to accept a suggestion made by either Frost or Turner: merely attempt to transfer the $55,000 in remaining funds to the "winds measurement" contract, an existing contract between FWG and NASA, in order to avoid the unwanted process of lengthy negotiations over a new contract, as well as termination of the funds before approval of the workshop proposal submitted by FWG. Kelly Hill, who had been a defendant in these prosecutions but who died before trial, was the COTR for the winds measurement contract.

On April 18, 1990, Potter submitted a procurement request designed to transfer the $55,000 in SBIR funds to the winds measurement contract. On May 9, 1990, Hill submitted a technical evaluation which approved of the proposed addition of funds. The evaluation indicated that the funds were targeted for workshops, and that the initial date of the procurement process had been January 2, 1990. Potter's superiors in the SBIR program never approved the proposal by FWG to perform the workshops, and the added $55,000 was withdrawn from the winds measurement contract.

The prosecution alleges that Potter committed mail fraud by helping to increase the value of the winds measurement contract by $55,000 in return for her thesis. The prosecution apparently claims that the effort to transfer the funds was a fraudulent scheme because the documentation submitted by Hill in May, 1990 deceptively implied that the additional funding was related specifically to the research being performed under the contract (which would have been a proper contract modification), rather than to a business program (which was an improper modification).

The mailings upon which these convictions are based are vouchers for the winds measurement contract mailed from FWG to the government on January 15, February 13, March 15, and April 12, 1990 for work done on the original contract. Potter claims that these vouchers cannot support her convictions because they were unrelated to, and therefore did not further, the fraudulent scheme charged. Even assuming that the jury could infer that Potter intended to defraud the government on the basis of the documentation submitted by Hill, we agree with her that these vouchers were unrelated to the scheme at issue.

The prosecution argues that the vouchers may support the convictions of Potter because 1) the object of the scheme at issue was to enrich Frost and Turner through government contract money; 2) money received as a result of the vouchers at issue did enrich Frost and Turner; 3) therefore, these vouchers furthered the scheme. This argument, however, cannot withstand scrutiny.

"The federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud...." United States v. Altman, 48 F.3d 96, 102 (2d Cir.1995)(quoting Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944)). The mails therefore must serve the purpose of executing or furthering the accomplishment of the scheme. See United States v. Koen, 982 F.2d 1101, 1107 (7th Cir.1992); see also United States v. Downs, 870 F.2d 613, 615 (11th Cir.1989)(completion of scheme must depend in some way upon mailing); United States v. Wellman, 830 F.2d 1453, 1461 n. 11 (7th Cir.1987)(success of scheme must be linked causally to mailings). Although the use of the mails does not have to be an essential part of the scheme, it does have to be incident to an essential part of the scheme. See Altman, 48 F.3d at 102; see also Oldfield, 859 F.2d at 400 (mailing must be "closely related to the scheme").

In this case, the vouchers relied upon by the prosecution charged only for work performed by FWG up until March, 1990 on the unmodified winds measurement contract. The jury, however, did not convict Potter of fraudulently procuring the unmodified winds measurement contract; Potter had no role in procuring the original winds measurement contract. Regardless of whether Hill or Potter initiated the attempted modification of the contract in January or April, 1990, the vouchers have no relationship to the $55,000 associated with the SBIR program or to the modification, and therefore no relationship to the specific scheme of which Potter was convicted. Although the prosecution argues that because defendants "selected [the winds measurement] contract as the vehicle to get Frost the $55,000, mailings furthering this contract were necessary to the scheme," the winds measurement contract would continue to exist, and therefore remain a viable vehicle for future fraud, regardless of whether FWG had sent the vouchers. Although the vouchers did allow FWG to receive payments for work already done under the original contract, the payments had nothing to do with extending the contract. They simply did not advance the accomplishment of any scheme to increase the value of the contract. Accordingly, there is insufficient evidence for the convictions of Potter of Counts Nine through Twelve. Because Frost's and Turner's convictions of these counts depend upon the same mailings, they also must be vacated.

In the spring of 1987, Turner convinced Congo, a NASA chemist and Ph.D student, to transfer from Auburn to UTSI. During his diagnostic exam, at which UTSI faculty assessed his competency for the doctoral program, Congo explained that his work at NASA involved the assessment of risks posed by incompatible chemicals on the space station project of NASA. That summer, Frost requested Congo to review an informal research project proposal regarding a computer modeling program designed to assess the hazards posed by incompatible chemicals on the space station project of NASA. Shortly thereafter, Frost, on behalf of FWG, submitted to Congo a formal unsolicited proposal for such a research project with NASA. In November of 1987, Congo initiated the procurement process for the proposed project, documented the justification for awarding FWG a sole-source contract, and submitted a favorable technical evaluation summary of the proposal. On March 10, 1988, Congo submitted a formal procurement request for the project, and submitted a procurement request for additional funding on June 23, 1988. By August, 1988, NASA had approved the proposal and awarded FWG a $300,000 contract, for which Congo served as the COTR.

Congo claims that he began to work on his dissertation in August, 1988. Frost was his major professor. The topic of his dissertation was extremely similar to the topic of the chemical hazards contract between NASA and FWG. The government introduced evidence that Turner told Karen Seiser, an FWG employee, to help Congo with his dissertation. Seiser testified that she spent over two eighty-hour weeks in February, 1990 writing about two-thirds of the dissertation, and that Congo treated her like an employee. After she worked on the dissertation, Seiser prepared a report for FWG on the progress of the chemical hazards contract, using many of the sections which she had written for the dissertation. Congo admitted that, as COTR for the contract, he rejected the report because it looked too much like his dissertation. Two other FWG employees also worked on the dissertation, one of whom implemented changes during a period of several days at the direction of Congo.

Congo submitted his dissertation on February 26, 1990. Frost, Turner, and three other professors sat on the committee before which Congo orally defended his dissertation. Neither Congo nor Frost nor Turner disclosed the work done by Seiser on the paper. The committee approved the dissertation and Congo graduated.

The prosecution argues that Congo committed mail fraud by participating in a scheme to defraud the government by helping to procure the chemical hazards contract for FWG in return for his dissertation. The mailings upon which the degree-for-contract convictions of Congo are based are vouchers for the chemical hazards contract mailed from FWG to NASA on April 2, May 8, June 11, July 11, August 10, and September 11, 1990.

Viewing the evidence in the light most favorable to the prosecution, the similarities between the circumstances of Congo and Berlinrut, the student whom Turner unsuccessfully requested to provide a contract in exchange for a dissertation, would allow a rational jury to find that Frost, Turner, and Congo agreed in 1987 that Congo would help procure a contract for FWG in exchange for Frost and Turner eventually providing him with a dissertation. Like Berlinrut, Congo informed Frost and Turner of his specific area of interest. As with Berlinrut, Frost and Turner sought to submit through the student a contract proposal on that very topic to the government agency for which the student worked. Congo also took the same action requested of Berlinrut: helping to provide FWG with a contract involving the topic of his future dissertation. Finally, just as they had offered to do for Berlinrut, Frost and Turner took the very unusual step of having much of Congo's dissertation written for him. Although there is no direct evidence that Frost and Turner propositioned Congo as they had Berlinrut, the jury still could have inferred from these facts that defendants entered into an arrangement similar to that which Berlinrut had refused.

Nonetheless, the evidence cannot support the convictions for Counts Two through Seven. A mail fraud conviction must rest upon proof of some fraudulent scheme or act. The only deception with which Congo is charged in relation to the government, however, is a failure to disclose his relationship with FWG to his superiors and colleagues at NASA.2 The circumstances relating to Congo therefore differ from those of Potter and Faulkner because the record does not suggest that he committed any deception when helping to secure the chemical hazards contract, other than not disclosing a conflict of interest. Although Congo deceived the University by submitting a dissertation written primarily by other people, the prosecution cannot rely upon this deception in order to convict Congo of a scheme to defraud the government of property. We note that the federal circuits are split as to whether a defendant may be convicted of mail fraud for deceiving only persons other than the intended victims of a scheme. Compare United States v. Blumeyer, 114 F.3d 758, 767-68 (8th Cir.1997)(noting split and following United States v. Cosentino, 869 F.2d 301, 307 (7th Cir.1989), to hold that defendant commits mail fraud by deceiving regulatory agency in order to forestall regulatory action which would impede scheme to obtain property from others) with United States v. Sawyer, 85 F.3d 713, 734 n. 18 (1st Cir.1996)(intended victims of scheme must be the ones defrauded); McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 794 (1st Cir.1990)(scheme to defraud cannot rest upon deception of one party which causes deprivation to another); United States v. Utz, 886 F.2d 1148, 1151 (9th Cir.1989)(defendant must intend to obtain money or property from victim of deceit). We do not have to resolve this split, however, because even the cases which have held that convictions may rest upon the deceit of a person other than the ultimate victim contemplated that the deception was causally related to the scheme to obtain property from the victim. See Blumeyer, 114 F.3d at 767-68; Cosentino, 869 F.2d at 307. In this case, the fact that the benefit received by Congo from Frost and Turner involved academic deception is a fortuity. The acts of plagiarism were irrelevant to the success of the scheme to obtain a government contract; whether Congo received from FWG a bogus dissertation or something as mundane as money did not affect, and was not intended to affect, his ability to help FWG obtain the chemical hazards contract.

Accordingly, the convictions can rest only upon a failure by Congo to disclose his conflict of interest. Many opinions repeat the maxim that "a breach of fiduciary duty alone, without the 'something more' of fraudulent intent, cannot constitute mail fraud." E.g., Morda v. Klein, 865 F.2d 782, 785 (6th Cir.1989). In United States v. Mittelstaedt, 31 F.3d 1208 (2d Cir.1994), the Second Circuit helped to define what this "something more" is. Rejecting the claim of the prosecution that the defendant had violated § 1341 merely because his failure to disclose a conflict of interest had prevented the victim from making a fully informed economic decision,3 the Mittelstaedt court explained:

Where an individual standing in a fiduciary relation to another conceals material information that the fiduciary is legally obliged to disclose, that non-disclosure does not give rise to mail fraud liability unless the omission can or does result in some tangible harm. However, lack of information that might have an impact on the decision regarding where [the victim's] money is spent, without more, is not a tangible harm and therefore does not constitute a deprivation of section 1341 "property."

To be material, the information withheld either must be of some independent value or must bear on the ultimate value of the transaction. To convict, the government had to establish that the omission caused (or was intended to cause) actual harm to the [victim] of a pecuniary nature or that the [victim] could have negotiated a better deal for itself if it had not been deceived.

Id. at 1217 (citations and emphasis omitted); see also Emery v. American Gen. Fin., Inc., 71 F.3d 1343, 1348 (7th Cir.1995)(fiduciary commits mail fraud through misleading omission intended to induce action to disadvantage of misled); United States v. Starr, 816 F.2d 94, 98 (2d Cir.1987)(deceit must be accompanied by contemplation of harm to victim which affects very nature of alleged bargain between defendant and victim). The Mittelstaedt court further indicated that proof that a victim, acting solely on the basis of general principles, would have refused to contract if the defendant had disclosed his conflict does not demonstrate a mail fraud violation under § 1341. See Mittelstaedt, 31 F.3d at 1218. We agree with this analysis and note that it accords with old precedent existing in this circuit. See Epstein v. United States, 174 F.2d 754 (6th Cir.1949). The Epstein court, although recognizing that actual loss to the victim is unnecessary, held that fiduciaries who had not disclosed a conflict of interest did not have the intent to defraud when the evidence showed only that the contracts induced by the defendants were entirely beneficial and fair to the entity denied the disclosures. See id. at 764-69.

In order for the jury to convict Congo, the evidence at trial therefore must have permitted a reasonable jury to conclude that Congo intended to inflict a tangible injury upon NASA. We hold that it did not. The sole witness relied upon by the prosecution, Salvadore Caruso, the direct supervisor of Congo at NASA, testified that FWG performed necessary and needed work under the chemical hazards contract, and that NASA was very concerned about the issue of incompatible materials on the space station project. Caruso also testified that he had no reason to believe that FWG had not performed the terms of the contract, or that there had been any complaints regarding the ability of FWG to fulfill the project requirements. There is no evidence in this case that NASA would have had to pay less money or would have received more services if Congo had disclosed his conflict of interest. Cf. United States v. Dandy, 998 F.2d 1344, 1358 (6th Cir.1993)(upholding mail fraud conviction because, although defendant did not commit mail fraud simply by profiting from breach of fiduciary duty to victim, evidence showed that victim had to pay higher prices for goods received under contract because provider of goods was paying kickbacks to defendant). Finally, Caruso testified that nothing about the documentation submitted by Congo was misleading. The record contains no evidence to the contrary of the above.

We therefore hold that, even though the evidence allows a finding that Congo agreed to trade a contract for a dissertation, there was insufficient evidence that he intended to defraud NASA by not disclosing his conflict of interest. Although Congo intended the government to transfer money to FWG, there is no evidence that he intended that the government would not receive in return a necessary service, performed adequately and for a fair price. Because the evidence showed that FWG, and therefore Frost and Turner, fairly and adequately performed a necessary contract not secured through any misrepresentations, we likewise vacate the convictions of Frost and Turner of Counts Two through Seven.

The holding in United States v. Fischl, 797 F.2d 306 (6th Cir.1986), does not compel a different result. The defendant in Fischl, who contracted with the State of Michigan to procure a tug boat, received a kickback from the manufacturer of the engine of the boat. See id. at 308. Although the kickback did not injure the State monetarily because the defendant was performing the contract for a fixed price, the State would have cancelled the contract if it had known about the scheme. See id. at 309-11. Further, the defendant submitted deceptive accounting documents to the State and lied when a State senator asked him about a possible kickback scheme, which, if true, would have jeopardized continued funding of the tug boat project by the State. See id.

The Fischl court rejected the claim of the defendant that he had not committed mail fraud because the lack of an injury to the victim revealed that he never had intended to harm the State. See id. at 311. Unlike this case, however, the evidence in Fischl was not that the defendant merely had failed to disclose a conflict of interest, but that he had made several false statements to further his scheme. See id. Further, the Fischl court often invoked the intangible rights of the public when justifying its holding. See id. at 311-12; see also United States v. Murphy, 836 F.2d 248, 252-53 (6th Cir.1988)(distinguishing Fischl by describing the right of the State of Michigan to complete information as an intangible right). As previously explained, however, the convictions now at issue rest upon the specific claim that defendants intended to deprive the government, acting as a business, of its property.

B. Scheme to Defraud Federal Government of Tuition

The government helped to pay for the advanced degrees of its employees, the student defendants, by paying to UTSI their fees. No student, however, wrote his or her own thesis or dissertation, the primary component of the advanced degree program. Counts One, Eight, and Fifteen in the Superseding Indictment therefore charge defendants with violating § 1341 by defrauding the government of the tuition money. Count One rests upon a September 20, 1989 invoice from UTSI to NASA for the fees of Congo; Count Eight rests upon a July 21, 1989 invoice from UTSI to NASA for the fees of Potter; and Count Fifteen rests upon a February 15, 1990 invoice from UTSI to the Department of the Army for the fees of Faulkner. The indictment charged Frost and Turner with all of these counts, and each student with the count relating to his or her own fees. The jury convicted each defendant of each charged count.

The student defendants urge that the invoices cannot support their convictions because they did not cause or intend the mailings to be sent. This claim is without merit. As explained, a mailing may support a mail fraud conviction as long as the defendant knew that use of the mails would follow in the ordinary course of business, or that a reasonable person would have foreseen use of the mails. See, e.g., Oldfield, 859 F.2d at 400. A reasonable jury certainly could have found that defendants reasonably should have foreseen that use of the mails would occur when UTSI obtained their tuition money from the government. Although defendants also claim that the vouchers did not further execution of the scheme, the success of the scheme to obtain the tuition money obviously was causally linked to, if not completely dependent upon, the vouchers. See Downs, 870 F.2d at 615; Wellman, 830 F.2d at 1461 n. 11.

The conviction of Potter rests upon an invoice dated July 21, 1989. She argues that this mailing cannot support her conviction because the mailing preceded any plan to plagiarize her thesis. The record, however, reveals that Frost told Potter in December, 1989 or January, 1990 that she should begin working on her thesis, and that Potter received from Frost or Turner only several months later the FWG report which would be her thesis. Accordingly, a reasonable jury could have concluded that defendants had agreed before the mailing of the invoice that Potter would obtain her degree through plagiarism, and that the invoice therefore furthered the scheme to defraud the government of its payment for her degree.

Potter also argues that the government was not defrauded of any tuition money because, even though she did not write her thesis, she underwent a "legitimate learning experience" by studying the FWG report which she passed off as her thesis. She also insists that NASA frequently pays for its employees merely to take classes, and that she could have taken a non-thesis option when pursuing her master's degree. Potter, however, ignores the fact that the record easily yields the conclusion that NASA was relieving Potter of her obligation to pay UTSI because it was expecting her to obtain a master's degree by writing a legitimate thesis. Further, there was evidence that the non-thesis option was not available to Potter, who lacked significant professional engineering experience. NASA did not get what it was paying for simply because Potter attended classes and examined the FWG report.

C. Scheme to Defraud University of Tennessee of Intangible

Right to Honest Services of Frost and Turner

Counts Seventeen through Twenty of the Superseding Indictment charged defendants with violating the mail fraud statute by scheming to defraud the University of Tennessee of the "honest services" of Frost and Turner. Specifically, these counts charged that Frost and Turner abused their positions with the University in order to aid the other defendants, who could benefit FWG through their government positions. Essentially, the scheme alleged is that Turner and Frost defrauded the University by allowing each student defendant to pass off material written by others as their own thesis or dissertation, and likewise concealed from the other members of the oral examination committees that the thesis or dissertation under review was not the student's own work.

The mailings upon which Counts Seventeen through Twenty were based were four memoranda of certification, mailed from UTSI to the University of Tennessee at Knoxville, that the student defendants had passed their oral examinations and were eligible to receive their degrees. The Superseding Indictment charged Frost and Turner as principals under all of these counts and charged each student defendant as an aider and abettor under the count pertaining to the particular memorandum of certification for that student.4 Although the jury acquitted Frost and Turner of Count Eighteen, the count pertaining to Hill, they convicted Frost and Turner of the other counts, and convicted Potter, Faulkner and Congo of the count relating to his or her respective certification mailing.

In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court reversed a substantial body of precedent previously developed by the federal circuits by holding that the mail fraud statute protected only property rights and did not criminalize schemes "designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly." Id. at 358, 107 S.Ct. at 2881; see also Carpenter v. United States, 484 U.S. 19, 25, 108 S.Ct. 316, 320, 98 L.Ed.2d 275 (1987)(although, under McNally, mail fraud statute does not protect intangible right to honest and faithful service, statute does protect intangible property rights). The McNally Court based its holding upon the wording of the mail fraud statute, explaining that the phrase "any scheme or artifice to defraud" was insufficiently clear and definite to justify construing the act so broadly that it would protect an intangible right to honest services. See McNally, 483 U.S. at 358-60, 107 S.Ct. at 2880-82. Emphasizing that it merely was applying principles of statutory interpretation, the McNally Court declared, "If Congress desires to go further, it must speak more clearly than it has." Id. at 360, 107 S.Ct. at 2882.

In 1988, the year following the decision in McNally, Congress enacted 18 U.S.C. § 1346. That section provides the following:

§ 1346. Definition of "scheme or artifice to defraud."

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

Id.

Defendants argue that § 1346 failed to express any clear intent to override the holding in McNally and protect intangible rights to honest services under the mail fraud statute. Defendants have relied upon United States v. Brumley, 79 F.3d 1430 (5th Cir.1996), which held that the term "another" in § 1346 does not include citizens who have been deprived of the honest services of their public officials. Regardless of the fact that defendants were charged with defrauding the University, not the public, of honest services, the Fifth Circuit, sitting en banc, has reversed this holding and ruled that the term "another" includes government entities, and that the right to "honest services" includes the right to "honest and impartial government." See United States v. Brumley, 116 F.3d 728, 731 (5th Cir.1997)(en banc).

The timing and the explicit terms of § 1346 make clear that Congress intended the provision to reinstate the doctrine of intangible rights to honest services. Every court to address the effect of § 1346 has held that it has overruled the holding in McNally. See United States v. Czubinski, 106 F.3d 1069, 1076 (1st Cir.1997); United States v. Waymer, 55 F.3d 564, 568 n. 3 (11th Cir.1995), cert. denied 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 784 (1996); see also United States v. Frega, 933 F.Supp. 1536, 1546-47 (S.D.Cal.1996). Further, other circuits, including our own, have observed in dicta that § 1346 has overridden McNally. See United States v. Bryan, 58 F.3d 933, 940-41 n. 1 (4th Cir.1995); United States v. Catalfo, 64 F.3d 1070, 1077 n. 5 (7th Cir.1995), cert. denied, 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 784 (1996); United States v. DeFries, 43 F.3d 707, 709 n. 1 (D.C.Cir.1995); United States v. Holley, 23 F.3d 902, 910 (5th Cir.1994); United States v. Dischner, 974 F.2d 1502, 1518 n. 16 (9th Cir.1992); United States v. Ames Sintering Co., 927 F.2d 232, 235 (6th Cir.1990); United States v. Granberry, 908 F.2d 278, 281 n. 1 (8th Cir.1990); United States v. Martinez, 905 F.2d 709, 715 (3d Cir.1990); see also West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 114-15, 111 S.Ct. 1138, 1155-56, 113 L.Ed.2d 68 (1991)(Stevens, J., dissenting)(noting that Congress "quickly corrected" the holding in McNally ). We therefore hold that § 1346 has restored the mail fraud statute to its pre-McNally scope, according to previous opinions interpreting the intangible right to honest services. See, e.g., Czubinski, 106 F.3d at 1076; see also 134 Cong. Rec. H11,108-01 (daily ed. Oct. 21, 1988)(statement of Rep. Conyers)(commenting that § 1346 "is intended merely to overturn the McNally decision. No other change in the law is intended"); 134 Cong. Rec. S17,360-02 (daily ed. Nov. 10, 1988)(statement of Sen. Biden)(declaring that the "intent [of § 1346] is to reinstate all of the pre-McNally case law pertaining to the mail and wire fraud statutes without change").2. Application of Doctrine to Non-Public Officials

Frost and Turner next argue that § 1346 does not apply to them because they are not public servants. We reject this argument.

The classic application of the intangible right to honest services doctrine has been to a corrupt public servant who has deprived the public of his honest services. Cf. United States v. Paradies, 98 F.3d 1266, 1283 n. 30 (11th Cir.1996)(collecting cases for support of declaration that courts uniformly have construed mail fraud statute as protecting intangible right of citizenry to good and honest government), cert. denied, --- U.S. ----, 117 S.Ct. 2483, 138 L.Ed.2d 992 (1997). The prosecution, however, has charged defendants with depriving the University of Tennessee of its intangible right to the honest services of its employees. Although the University of Tennessee is a public institution, the indictment did not allege that Frost and Turner, acting as public or quasi-public officials, deprived the public of any intangible rights. Likewise, the jury instructions did not refer to Frost or Turner as public officials, but only as employees of the University.5 The liability of defendants therefore depends upon whether § 1346 may apply when a private person breaches a fiduciary duty to his employer.

The wording of § 1346 is very broad: it defines "scheme or artifice to defraud" as including "a scheme or artifice to deprive another of the intangible right of honest services." 18 U.S.C. § 1346 (italics added). Commenting upon this breadth, the Eighth Circuit has stated that "[i]t is certainly true that the literal language of § 1346 extends to private sector schemes to defraud another of the right to 'honest services.' " United States v. Jain, 93 F.3d 436, 441 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2452, 138 L.Ed.2d 210 (1997). However, the Jain court also noted that application of the "right to honest services" doctrine to the private sector is problematic. The right of the public to the honest services of its officials derives at least in part from the concept that corruption and denigration of the common good violates "the essence of the political contract." See id. at 442. Enforcement of an intangible right to honest services in the private sector, however, has a much weaker justification because relationships in the private sector generally rest upon concerns and expectations less ethereal and more economic than the abstract satisfaction of receiving "honest services" for their own sake. See id.

The Jain court declined to answer the questions which it had raised regarding the scope of the intangible right to honest services and instead reversed the mail fraud convictions at issue on other grounds. See id. The Sixth Circuit does not appear to have defined the scope of the intangible right to honest services since the passage of § 1346. Accordingly, we must review Sixth Circuit precedent issued before McNally in order to discover the precise contours of the right in this circuit.

In United States v. Gray, 790 F.2d 1290 (6th Cir.1986), rev'd, McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Sixth Circuit suggested a limited interpretation of the intangible right to honest services doctrine. The Gray court explained:

[T]he "intangible rights" theory is anchored upon the defendant's misuse of his public office for personal profit. "This doctrine of the deprivation of honest and faithful service has developed to fit the situation in which a public official avails himself of his public position to enhance his private advantage...." United States v. Dixon, 536 F.2d 1388, 1400 (2d Cir.1976). Conversely, misconduct of a fiduciary in the administration of exclusively private matters in his capacity as a private individual which does not involve the misuse of public office or public trust, is not actionable as a violation of the mail fraud statute under an intangible rights theory. United States v. Rabbitt, 583 F.2d 1014, 1024 (8th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979).

Id. at 1295. The Gray court then adopted the flexible test enunciated in United States v. Margiotta, 688 F.2d 108 (2d Cir.1982), for whether a defendant is capable of violating the mail fraud act by breaching a fiduciary duty to the public. Gray, 790 F.2d at 1296. Applying this test, the Gray court held that the Kentucky Democratic Party Chairman was a public fiduciary because he "substantially participated in governmental affairs" and exercised significant control over the annual awarding by Kentucky of its workmen's compensation insurance contract. See id.

Subsequent to Gray and the decision by the Supreme Court in McNally, however, a three-judge panel of the Sixth Circuit decided United States v. Runnels, 833 F.2d 1183 (6th Cir.1987)("Runnels I "). The government prosecuted the defendant in Runnels I in part for having deprived the members of the local union of which he was president of his fair and honest services. See id. at 1184. The Runnels I court described the intangible right to honest services doctrine before explaining that the recent ruling in McNally had invalidated that doctrine. See id. at 1185-86. When describing the doctrine, the Runnels I court stated that the doctrine not only referred to the intangible right of citizens to fair and honest government, see id. at 1185, but also that "[c]ourts have ... applied the intangible rights doctrine in corporate and labor cases." Id. at 1186. The Runnels I court then provided a string of citations to cases from other circuits in support. See id. This dicta suggests that the Runnels I court believed that the right to honest services doctrine existing before McNally was broader than the language in Gray had suggested and generally included deprivations of honest services by private fiduciaries.

The Sixth Circuit later vacated the opinion in Runnels I for a rehearing en banc and eventually reversed. See United States v. Runnels, 877 F.2d 481 (6th Cir.1989)(en banc)("Runnels II "). Although the precise issue before the Runnels II court was whether the government had indicted and prosecuted the defendant on a theory other than the intangible right to honest services doctrine, the majority in Runnels II first discussed the claim asserted by the defendant at trial that the right to honest services theory was "not applicable to this kind of case." See id. at 483. Reciting some of the language from Gray quoted supra, the Runnels II majority acknowledged that the language used in Gray "appeared to give support to Runnels' theory of defense." Id. Nonetheless, the Runnels II majority commented upon the denial of the defendant's motions for new trial and judgment of acquittal by stating that "[t]he trial judge, correctly in our opinion, read Gray to have no effect on the doctrine that the intangible rights theory was 'applicable to non-public officials where a fiduciary duty is involved.' " See id. at 483-84. Given the fact that Runnels was merely the president of a local union, this statement by the en banc court, although dicta, strongly indicates that a private person may violate the mail fraud act by defrauding private parties of their right to his honest services if he owes them a fiduciary duty. Likewise, Runnels II indicates that the standard recited in Gray is not exclusive, but rather operates only as a test for determining whether an individual owes a fiduciary duty to the public.

We therefore hold that private individuals, such as Frost and Turner, may commit mail fraud by breaching a fiduciary duty and thereby depriving the person or entity to which the duty is owed of the intangible right to the honest services of that individual.

3. Whether Frost and Turner were Fiduciaries of the University

Federal law governs the existence of fiduciary duty under the mail fraud statute. See Morda v. Klein, 865 F.2d 782, 785 (6th Cir.1989). It is axiomatic that an employee has a fiduciary duty to protect the property of his employer. See, e.g., Carpenter, 484 U.S. at 27, 108 S.Ct. at 321 (employee has fiduciary duty to protect and not exploit confidential business information of employer); see generally RESTATEMENT (SECOND) OF AGENCY § 1 (1958)(defining "agency" as "the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act"). A professor therefore owes a fiduciary duty to protect the property of his employer university, just like any other employee. See Cahn v. Antioch Univ., 482 A.2d 120, 131-32 (D.C.1984)(deans owed fiduciary duty to university when managing university funds).

Frost and Turner had considerable influence, although not complete control, over whether one of their students received an advanced degree from UTSI. The department of engineering, of which Frost was the Chairman, has only a limited number of graduate students. Further, the major professor of a student has tremendous influence over the direction and ultimate success of that student's dissertation or thesis, the completion of which is integral to the attainment of an advanced degree. Indeed, Berlinrut testified that he did not graduate from UTSI because Frost gave him a "no progress" for his dissertation research during his last quarter, and because he failed his comprehensive final examination, which Frost prepared by taking the unusual step of not telling Berlinrut beforehand that the exam would include an additional math problem.

Accordingly, Frost and Turner owed a fiduciary duty to the University when determining whether a student would graduate if the University has a property right in a degree which it has not issued yet. In general, the concept of "property" refers to a "bundle of rights" which includes the rights to possess, use, exclude, profit, and dispose. See Brotherton v. Cleveland, 923 F.2d 477, 481 (6th Cir.1991). Although we have recognized that a degree is a property interest of the graduate, see Crook v. Baker, 813 F.2d 88, 98-99 (6th Cir.1987), we also have held that the government does not have a property right in a license which it has not issued yet for the purposes of the mail fraud statute. See Murphy, 836 F.2d at 253-54; see also United States v. Kato, 878 F.2d 267, 269 (9th Cir.1989)(under mail fraud statute, unissued pilot license is not property of government); but see United States v. Salvatore, 110 F.3d 1131, 1139-43 (5th Cir.1997)(unissued video poker license is property of government for purposes of mail fraud). We believe that an unissued university degree differs from an unissued regulatory license. Ultimately, a university is a business: in return for tuition money and scholarly effort, it agrees to provide an education and a degree. The number of degrees which a university may award is finite, and the decision to award a degree is in part a business decision. Awarding degrees to inept students, or to students who have not earned them, will decrease the value of degrees in general. More specifically, it will hurt the reputation of the school and thereby impair its ability to attract other students willing to pay tuition, as well as its ability to raise money. The University of Tennessee therefore has a property right in its unissued degrees, and Frost and Turner had a fiduciary duty to the University when exerting their considerable influence over whether the school would give a degree to a student.

4. When Breach by Private Fiduciary Violates Mail Fraud Act

The District Court instructed the jury that they could find that Frost and Turner deprived the University of the intangible right to their honest services under the following circumstances:

What the government must prove is that there was a failure by Walter Frost and Robert Turner to disclose something which in their knowledge or contemplation posed a business risk of harm or loss to their employer, the University of Tennessee. If you find that the nondisclosure of a conflict of interest by Walter Frost and Robert Turner furthered a scheme by them to abuse the trust of their employer in a manner that made an identifiable harm to the University of Tennessee reasonably foreseeable, then you may find that Walter Frost and Robert Turner had the intent to defraud under Section 1341. The key determination is whether you can find from the evidence presented in this case that Walter Frost and Robert Turner might reasonably have contemplated or understood that the University of Tennessee would suffer some harm to its business arising out of or resulting from their failure to disclose their alleged conduct and conflict of interest to the University of Tennessee. However, the government is not required to prove that the intended victim, the University of Tennessee, actually suffered a loss of money or property.

We believe that the above instructions captured the proper standard for determining whether an employee has committed mail fraud by depriving his employer of honest services. The prosecution must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw or reasonably should have foreseen that his employer might suffer an economic harm as a result of the breach. We therefore adopt the standard employed by the District of Columbia Circuit, which holds that an employee deprives his employer of honest services when "the defendant might reasonably have contemplated some concrete business harm to his employer stemming from his failure to disclose the conflict along with any other information relevant to the transaction." United States v. Lemire, 720 F.2d 1327, 1337 (D.C.Cir.1983). Proof that the employer simply suffered only the loss of the loyalty and fidelity of the defendant is insufficient to convict. See id.

We recognize that the literal terms of the "intangible right to honest services" doctrine do not indicate that the prosecution must prove that a fiduciary breach has created a risk of economic harm to the employer. Rather, the literal terms suggest that dishonesty by an employee, standing alone, is a crime. Courts, however, have refused to interpret the doctrine so broadly. For example, the Tenth Circuit has commented that, "[a]ssuming without deciding that § 1346 has application where a private actor or quasi-private actor is deprived of honest services in the context of a commercial transaction, it would give us great pause if a right to honest services is violated by every breach of contract or every misstatement made in the course of dealing." United States v. Cochran, 109 F.3d 660, 667 (10th Cir.1997); see also Czubinski, 106 F.3d at 1077 (when holding that IRS employee who performed unauthorized searches of confidential files did not commit wire fraud, explaining that Congress did not enact § 1346 "to create what amounts to a draconian personnel regulation," and cautioning against interpreting § 1346 so as to "transform[ ] governmental workplace violations into felonies"); Jain, 93 F.3d at 442 (stating that "prior intangible rights convictions involving private sector relationships have almost invariably included proof of actual harm to the victims' tangible interests"). This refusal to carry the intangible rights doctrine to its logical extreme stems from a need to avoid the over-criminalization of private relationships: "[I]f merely depriving the victim of the loyalty and faithful service of his fiduciary constitutes mail fraud, the ends/means distinction is lost. Once the ends/means distinction is abolished and disloyalty alone becomes the crime, little remains before every civil wrong is potentially indictable." Lemire, 720 F.2d at 1336 n. 11 (quoting John C. Coffee, Jr., From Tort to Crime: Some Reflections on the Criminalization of Fiduciary Breaches and the Problematic Line Between Law and Ethics, 19 AM.CRIM.L.REV. 117, 167 (1981)).

Some courts have attempted to define the reach of the intangible right to honest services doctrine by stating that the misrepresentation or omission at issue must be "material." See, e.g., Cochran, 109 F.3d at 667; United States v. Gray, 96 F.3d 769, 775 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1275, 137 L.Ed.2d 351 (1997); Jain, 93 F.3d at 442; Waymer, 55 F.3d at 571-72; United States v. Von Barta, 635 F.2d 999, 1006-07 (2d Cir.1980). These courts generally define "materiality" in the context of private activity as existing "whenever 'an employee has reason to believe the information would lead a reasonable employer to change its business conduct.' " Gray, 96 F.3d at 775 (quoting United States v. Ballard, 663 F.2d 534, 540 (5th Cir.1981), modified on other grounds, 680 F.2d 352 (5th Cir.1982 Unit B)). Although the difference between the two standards may be slight, we believe that the "reasonable foreseeability by the employee of potential economic harm to his employer" standard is superior to the "materiality" standard. The standard we adopt for this circuit properly focuses on the intent of the employee, and explicitly acknowledges the implicit assumption of the "materiality" standard: "an employer presumably would 'change its business conduct' [under the "materiality" standard] only if, upon disclosure of the conflict and any other relevant information, it saw new opportunities for profit or savings, or danger of economic harm...." Lemire, 720 F.2d at 1338;6 see generally John E. Gagliardi, Comment, Back to the Future: Federal Mail and Wire Fraud Under 18 U.S.C. § 1346, 68 WASH. L.REV. 901, 919-20 (1993)(advocating adoption of reasonable foreseeability of economic harm test). Further, if a "change in business conduct" occurs under the materiality standard when a business alters its behavior merely to avoid the appearance of impropriety, rather than a potential economic loss, the intangible right to honest services doctrine may lack substantive limits in the private sector.

Despite the literal terms of § 1346, we therefore have construed the intangible right to honest services in the private sector as ultimately dependent upon the property rights of the victim. Nonetheless, the right to honest services doctrine still applies to a broad range of private conduct. Unlike a defendant accused of scheming to defraud another of money or property, see infra Section II.A, a defendant accused of scheming to deprive another of honest services does not have to intend to inflict an economic harm upon the victim. Rather, the prosecution must prove only that the defendant intended to breach his fiduciary duty, and reasonably should have foreseen that the breach would create an identifiable economic risk to the victim. We do not believe that this standard imposes an especially rigorous evidentiary burden upon the prosecution. Further, we stress that we are not reviewing the standard applicable to defendants accused of depriving the public of the honest services of public officials. See Lemire, 720 F.2d at 1337 n. 13 (noting that court was addressing only private fiduciaries, and suggesting that "[p]ublic officials may be held to a higher standard of public trust; and conflicts of interest may harm the public merely by giving the illusion of unfairness").

Potter and Congo declare that, even if they plagiarized, they never intended to deprive the University of the honest services of Frost and Turner. As previously explained, however, the record contains considerable evidence that Frost and Turner entered into an intentional scheme with each student defendant in which the professors enabled the student to submit a thesis or dissertation secretly based on plagiarism. Further, the scheme required its participants to deceive the members of the academic committee during the oral defense of the illegitimate paper. The inescapable conclusion is that defendants intended for Frost and Turner to breach the trust which the University had placed in them. Further, the evidence indicates that all defendants intended, much less reasonably contemplated, that the University would suffer a concrete business harm by unwittingly conferring an undeserved advanced degree on each student defendant. Although defendants may not have known that the legal description of their activity would be "scheming to deprive the University of its intangible right to the honest services of its employees," there is sufficient evidence that all defendants committed or aided and abetted in that crime.

We therefore affirm the convictions of each defendant convicted of Counts Seventeen, Nineteen, and Twenty.

Congo has mounted a facial challenge to the constitutionality of both § 1341 and § 1346 on the ground of vagueness. In contrast to a claim that a statute is unconstitutional "as applied," in which a party asserts that application of the statute to his particular circumstances would be unconstitutional, a facial challenge seeks to secure a declaration that a statute is utterly inoperative. See Ada v. Guam Soc'y of Obstetricians and Gynecologists, 506 U.S. 1011, 1012, 113 S.Ct. 633, 634, 121 L.Ed.2d 564 (1992)(Scalia, J., dissenting), denying cert. to 962 F.2d 1366 (9th Cir.1992); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 497, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982)(assuming that statute does not reach constitutionally protected conduct, facial vagueness challenge will fail unless statute "is impermissibly vague in all of its applications").

Congo asserts that the phrase "scheme to defraud" in § 1341 is meaningless and renders the Mail Fraud Act impossible to apply intelligently under any circumstances. Although several opinions have addressed and rejected claims that Act was impermissibly vague as applied,7 only a few courts have decided facial challenges, and none have invalidated the Act. We agree with the Second Circuit, which, in rejecting a facial challenge to § 1341, explained:

Section 1341 has withstood repeated challenges which have raised the claim that it does not provide fair notice and warning of the conduct proscribed by the statute. The broad language of the statute, intended by Congress to be sufficiently flexible to cover the wide range of fraudulent schemes mankind is capable of devising, is not unconstitutionally vague because § 1341 contains the requirement that the defendant must have acted willfully and with a specific intent to defraud.

Margiotta, 688 F.2d at 129 (citation omitted). Indeed, the law traditionally has conceived of "fraud" in general as a necessarily fluid concept; as one court has observed, fraud "is as old as falsehood and as versable as human ingenuity." Weiss v. United States, 122 F.2d 675, 681 (5th Cir.1941). "That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense." United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1946). Moreover, the case law provides innumerable illustrations of how an individual clearly may perpetrate a "scheme to defraud," see, e.g., Carpenter, 484 U.S. at 28, 108 S.Ct. at 321-22 (unanimous Court found "little trouble" in finding that scheme to trade on confidential business information constituted mail fraud); United States v. Jackson, 72 F.3d 1370, 1386 (9th Cir.1995)(acts of mail fraud and other violations provided a "clear and extreme case of corruption"), cert. denied, 517 U.S. 1157, 116 S.Ct. 1546, 134 L.Ed.2d 649 (1996), thereby belying the claim that § 1341 has no valid application.

Congo also argues that § 1346 is facially unconstitutional due to vagueness. He stresses that, in Carpenter, 484 U.S. at 25, 108 S.Ct. at 320, the Supreme Court described the previous opinion in McNally as holding that the right to honest and faithful services was too "ethereal" to fall within the scope of the mail fraud statute. Both the Carpenter and the McNally Courts, however, found the intangible right to honest services too "ethereal" only when compared to the perceived intent of Congress--"the desire to protect individual property rights." Carpenter, 484 U.S. at 25, 108 S.Ct. at 320 (quoting McNally, 483 U.S. at 359 n. 8, 107 S.Ct. at 2881 n. 8). Likewise, and as we already have explained, see supra Section II.C, the holding in McNally represents a decision regarding statutory interpretation, not constitutional law.

We already have explained that the enactment of § 1346 intended to restore opinions predating McNally and interpreting the intangible right to honest services. These opinions explain that this right is the right to the honest services of a public or private fiduciary, and that private fiduciaries deprive another of honest services when they, during a scheme of intentional deception, breach their fiduciary duties and reasonably do or should foresee that this breach will inflict an identifiable economic harm upon the person or entity to whom they owe their duty. The contours of § 1346 therefore are sufficiently clear for us to conclude that the statute is not unconstitutionally vague on its face. See United States v. Sawyer, 878 F.Supp. 279, 290-91 (D.Mass.1995)(§ 1346 not "impermissibly vague 'in all of its applications' "), rev'd on other grounds, 85 F.3d 713 (1st Cir.1996); see also Paradies, 98 F.3d at 1282-83 (§ 1346 not vague as applied to defendants at issue); Bryan, 58 F.3d at 941-42 (holding the same); Waymer, 55 F.3d at 568-69 (rejecting as-applied vagueness and facial overbreadth challenges to § 1346); United States v. Frega, 933 F.Supp. 1536, 1547 (S.D.Cal.1996)(§ 1346 valid as applied).

Congo, joined by his codefendants, also argues that an instruction delivered in this case allowed the jury to convict on the basis of an unconstitutionally vague definition of mail fraud.8

We reject this claim. The jury instructions provided in part:

Section 1341 makes it a crime to knowingly devise both a scheme to defraud and a scheme to obtain money or property by false or fraudulent pretenses, representations, or promises.... These are two separate ways that a person can commit mail fraud.

"Fraud" is an intentional or deliberate misrepresentation of the truth for the purpose of inducing another to part with a thing of value or to surrender a legal right. Fraud, then, is a deceit which, whether perpetrated, by words, conduct, or silence, is designed to cause another to act upon it to its legal injury. A statement, claim or document is "fraudulent" if it was falsely made, or made with reckless indifference as to its truth or falsity, and made or caused to be made with an intent to deceive.

The phrases "any scheme or artifice to defraud" and "any scheme or artifice for obtaining money or property" mean any deliberate plan of action or course of conduct by which someone intends to deceive or cheat another or by which someone intends to deprive another of something of value. A scheme or artifice to defraud may describe a departure from fundamental honesty, moral uprightness, or fair play and candid business dealings in the general life of the community. There must be proof of either a misrepresentation, false statement, or omission calculated to deceive a person of ordinary prudence and comprehension.

A scheme to defraud may occur in violation of Section 1341 even absent a false statement or false representation, and may be based on fraudulent omissions. A scheme to defraud includes the knowing concealment of facts and information done with the intent to defraud.

....