Full opinion text
Opinion WOLFSON, District Judge: Presently before the Court are the motions of Defendants, Wayne Bryant (“Bryant”) and Michael Gallagher (“Gallagher”) (collectively “Defendants”), to dismiss all counts of the Indictment against them, pursuant to Fed. R. Crim P. 12(b)(3), and to sever various sets of counts in the Indictment, as well as for separate trials on Counts 1-8. At all times relevant to the allegations in the Indictment, Bryant was a State Senator of New Jersey and Gallagher was the Dean of the School of Osteopathic Medicine (“SOM”), which operated within the University of Medicine and Dentistry of New Jersey (“UMDNJ”). Counts 1-6 allege that Bryant and Gallagher engaged in a scheme to defraud the New Jersey public of Bryant’s honest services in violation of 18 U.S.C. §§ 1341, 1343, and 1346. Count 7 charges Bryant with solicitation and acceptance of a corrupt thing of value involving an organization receiving federal funds in violation of 18 U.S.C. § 666. Count 8 charges Gallagher with offering and giving a corrupt thing of value involving an organization receiving federal funds in violation of 18 U.S.C. § 666. Counts 9-14 allege that Bryant engaged in a scheme to defraud the New Jersey Division of Pensions and Benefits of money and property in violation of 18 U.S.C. § 1341. Counts 15-17 allege that Gallagher engaged in a scheme to defraud SOM and UMDNJ of his honest services and money and property in violation of 18 U.S.C. §§ 1341, 1343, and 1346. Finally, Counts 18-20 charge Gallagher with fraud involving an organization receiving federal funds in violation of 18 U.S.C. § 666. Defendants have filed separate briefs, but have also joined in each other’s motions and briefing. The Government has opposed the motions and oral argument was heard on March 11, 2008. For the reasons that follow, Defendants’ motions to dismiss are denied, with the exception of Bryant’s motion to dismiss Count 9, and Defendants’ motion to dismiss the failure to disclose theory of honest services fraud plead in paragraph 18 of Counts 1-6. As to Defendants’ severance motions, the Court finds that Counts 1-14 are appropriately tried in a single trial, Defendants are properly joined in Counts 1-6, and that Counts 15-20 require a separate trial. For clarity of presentation, the Court will summarize the pertinent factual background relating to each set of Counts within the separate sections analyzing those Counts. I. Standard of Review Defendants move to dismiss all Counts of the Indictment pursuant to Rule 12(b)(3). “Rule 7(c)(1) requires that an indictment contain only a ‘plain, concise, and written statement of the essential facts constituting the offense charged’ and include the statute(s) that the defendant(s) are alleged to have violated.” United States v. Delle Donna, 552 F.Supp. 475, 482, 2008 WL 1961485, *5 (D.N.J. Mar. 14, 2008) (citation omitted). As succinctly stated by the Third Circuit, the standard for evaluating the sufficiency of an indictment is as follows: We deem an indictment sufficient so long as it “(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.” Moreover, “no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.” United States v. Kemp, 500 F.3d 257, 280 (3d Cir.2007) (citations omitted). Dismissal under Rule 12(b)(3) “may not be predicated upon the insufficiency of the evidence to prove the indictment’s charges,” United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir.2000), and thus the Court must assume that the allegations in the Indictment are true. United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir.1990). The Court will review the Indictment “using a common sense construction,” United States v. Hodge, 211 F.3d 74, 76 (3d Cir.2000), “examine the [statutes at issue] as applied to the facts as alleged in the Indictment, and determine whether Defendants’ conduct, as charged, ‘reflects] a proper interpretation of criminal activity under the relevant criminal statute[s].’” Delle Donna, 2008 WL 1961485 at *5 (quoting United States v. Weckt, No. 06-0026, 2007 WL 3125096, *5 (W.D.Pa. Oct. 24, 2007)). II. Counts 1-8 A. Factual Background Counts 1-6 allege that Bryant and Gallagher engaged in a scheme to defraud the New Jersey public of Bryant’s honest services as a State Senator. Counts 7-8 allege that Bryant solicited and accepted, and Gallagher offered and gave, a corrupt thing of value involving an organization receiving federal funds. The following facts are based on the allegations relevant to these Counts of the Indictment. From 2002 through 2006, Bryant was a State Senator representing New Jersey’s Fifth Legislative District. Indictment, Counts 1-6, ¶ 2. In or about 2002 and 2003, Bryant was Assistant Democratic Leader and co-Chairman of the Senate Budget and Appropriation Committee. In or about 2004, 2005 and 2006, Bryant was the Deputy Majority Leader and sole Chairman of the Senate Budget and Appropriations Committee. Id. From in or about May 13, 2002 until April 30, 2006, Gallagher was Dean of SOM and the Chairperson of the Headache Center, a department within SOM. Id. at ¶¶ 8-9. The honest services fraud scheme, Counts 1-6, centered around UMDNJ, the State of New Jersey’s school of health sciences, which was a recipient of several hundred million dollars of annual funding from the State of New Jersey. One of UMDNJ’s eight schools was SOM. Id. at ¶ 1. In early 2002, Gallagher was the Vice Dean of SOM. It is alleged that, in or about February 2002, Bryant and others assisted Gallagher in his effort to become the Dean of SOM, including arranging meetings between Gallagher and members of the state legislature, and drafting a letter, which was signed by Bryant and four other members of the legislature, and sent to the Governor of New Jersey and to the President of UMDNJ in support of Gallagher’s bid to become Dean. Id. at ¶ 7. In or about May 2002, Gallagher was selected as interim Dean, and in November 2002, Gallagher became the permanent Dean of SOM. In or about March 2002, the Governor created a Commission of Health Science, Education and Training, chaired by P. Roy Valegos (“the Vagelos Commission”), to evaluate the medical education offered by New Jersey’s state funded universities, including UMNDJ and SOM. In or about October 2002, the Vagelos Commission submitted findings to the Governor, which identified numerous problems, found that UMDNJ failed to “achieve excellence,” and recommended that Rutgers University, UMDNJ, and the New Jersey Institute of Technology merge into a single university system. This recommendation, if adopted, directly threatened the independence of SOM, as well as future funding for SOM. Id. at ¶¶ 10-12. Additionally, in or about April 2003, Gallagher reported to SOM staff that since in or about July 2002, SOM had “been in the midst of unprecedented ‘financial strain’ ... caused in large part by significant reductions in State funding.” Id. at ¶ 13. As Dean, Gallagher was responsible for oversight of the budget and fiscal management of SOM, Id., and, in or about April 2003, he imposed budget cuts and other cost-cutting measures at SOM. Id. at ¶ 15. During this time, based upon his performance evaluation, including “administrative competency, leadership, and organizational/business development,” Gallagher was eligible for annual incentive bonuses. Id. at ¶ 14. It is alleged that Bryant and Gallagher devised and engaged in a scheme to defraud the New Jersey public of Bryant’s honest services by agreeing to a quid pro quo bribery arrangement: It was an object of [the] scheme and artifice to defraud that defendant R. MICHAEL GALLAGHER used his position as Dean of SOM to put defendant WAYNE R. BRYANT on the SOM payroll, and thereafter, with others, caused defendant BRYANT to receive a stream of corrupt payments and other financial benefits from SOM, in exchange for defendant BRYANT using his position as a State Senator to take official action to advocate on behalf of SOM, including (a) to protect the interests of SOM against the recommendations of the Vagelos Commission and (b) to obtain and attempt to obtain additional funding and other benefits from the State of New Jersey for SOM and its programs. It was a further object of this scheme and artifice to defraud that defendants BRYANT and GALLAGHER did not disclose and attempted to conceal material information regarding the nature of defendant BRYANT’s corrupt arrangement at SOM. Id. at ¶ 18. Allegedly, in furtherance of the scheme, Gallagher created a paid position at SOM for Bryant entitled “Program Support Coordinator,” which included “planning, directing, organizing and implementing” efforts “to improve University communications, image, receptivity and relationships with local governments, community and civic organizations, and local residents,” and Bryant assumed that position in March 2003. Id. at ¶ 19.d., g. In addition, Gallagher took steps “to make it falsely appear that ... Bryant was assuming a legitimate and bona fide position and that there had been a competitive process leading to defendant BRYANT’s selection.” Id. at ¶ 19.f. Further, Bryant falsely stated to SOM staff that his position at SOM had been approved by the Office of Legislative Services (“OLS”), when Bryant never received any opinion from OLS regarding the propriety of his employment with SOM. Id. at ¶ 19.e. As a result of his position at SOM, Bryant received a stream of payments for the years 2003 through 2006. Id. at ¶ 19.g. In exchange for his position at SOM, and the resulting payments he received, Bryant allegedly used his office as a State Senator in various ways to aid SOM. In or about 2003, Bryant used his State Senate staff to arrange meetings between Gallagher and members of the Senate Budget and Appropriations Committee, at which Gallagher presented a “white paper” regarding SOM’s need for funding. Id. at ¶ 20.a. In or about March 2003, Bryant directed changes in the New Jersey state budget to benefit UMDNJ and SOM. Id. at ¶ 20.b. From in or about March 2003 to June 2006, Bryant “represented, appeared for, and negotiated on behalf of SOM with state agencies, and used his official position to influence those agencies to take action favorable to SOM.” Id. at ¶ 21.a.-d. These actions by Bryant redounded to the benefit of Gallagher, as Dean of SOM: Bryant’s “actions on behalf of SOM directly and indirectly helped defendant R. MICHAEL GALLAGHER meet or exceed his performance goals as Dean, and defendant GALLAGHER received favorable performance appraisals and incentive bonuses of approximately $42,000 in the fall of 2003 and $56,875 in the fall of 2004.” Id. at ¶ 23. Also in furtherance of their scheme, it is alleged that both Defendants took actions to conceal the nature of their corrupt agreement. Even though Bryant’s “primary role at SOM was to use his official position to advocate on behalf of SOM ... and to provide official assistance in obtaining state funds for SOM,” Gallagher caused Bryant’s publicly-disclosed job description to misleadingly state that his job was to “improve University communications, image, receptivity, and relationships with local governments, community and civic organizations and local residents.” Id. at ¶ 22.a. Bryant, in violation of the New Jersey Legislative Code of Ethics, “intentionally failed to disclose his payments from SOM on his 2003 Legislator’s Financial Disclosure Statement,” which he filed in April 2004. Id. at ¶ 22.b. Further, “[a]t meetings with state officials regarding UMDNJ and SOM business, and in his dealings with staff and members of the New Jersey State Legislature with whom he worked on state budget issues related to UMDNJ and SOM, defendant WAYNE R. BRYANT did not disclose that he was being paid by SOM.” Id. at ¶ 22.d. B. Analysis of Counts 1-6 Counts 1-6 allege that Bryant and Gallagher engaged in a scheme to defraud the public of Bryant’s honest services in violation of 18 U.S.C. §§ 1341, 1343, 1346 and 2. The Third Circuit has recently laid out the elements of honest services fraud, which is a species of mail and wire fraud: To prove mail fraud, the government must establish “(1) the defendant’s knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails ... in furtherance of the scheme.” United States v. Antico, 275 F.3d 245, 261 (3d Cir.2001). Congress has clarified that “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. § 1346. Honest services fraud, in turn, typically occurs in either of two situations: “(1) bribery, where a [public official] was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain.” Antico, 275 F.3d at 262-63. Kemp, 500 F.3d at 279. “Identical standards apply to the ‘scheme to defraud’ under both the mail and the wire fraud statutes.” Antico, 275 F.3d at 262. The Indictment in the case at bar charges both theories of honest services fraud set forth in Kemp, i.e., bribery and failure to disclose a conflict of interest, and Defendants challenge the sufficiency of the allegations with respect to both theories. The Court will consider each theory in turn. First, however, the Court must consider Defendants’ contention that the Indictment fails to adequately allege either theory of honest services fraud, but instead, charges a plainly inadequate “structural fraud.” Gallagher’s Brief, 20-23. 1. The Indictment Does Not Allege a “Structural Fraud” Defendants argue that the Indictment merely alleges a “structural fraud” — that is, they are charged with honest services fraud because Bryant received and held a paid position at SOM, an institution which happened to benefit from official actions he took as a state legislator. Gallagher’s Brief, 20-23. However, it is plain that the Indictment does not charge the Defendants with honest services fraud merely because Bryant was a dual office holder. The Indictment alleges that Bryant and Gallagher had a quid pro quo bribery arrangement, whereby Bryant exercised discretion in his official capacity as a state legislator favorably towards SOM in exchange for a salary from SOM. Indictment, Counts 1-6, ¶ 18. Thus, Defendants’ “scheme and artifice to defraud the State of New Jersey and its citizens of the right to defendant WAYNE R. BRYANT’s honest services” was a classic bribery scheme. And, Gallagher does not suggest that “a classic bribery scheme would not violate Section 1346.” Gallagher’s Brief, 13. As charged, a bargain was struck: Gallagher caused Bryant to receive a salary from SOM in exchange for Bryant using his office as a state legislator to benefit SOM, and in turn, to benefit Gallagher. 2. The Quid Pro Quo Bribery Theory a. The Legal Standard The Third Circuit has repeatedly stated that, in the honest services fraud context, bribery occurs when “a public official [is] paid for a particular decision or action.” Kemp, 500 F.3d at 279 (citing Antico, 275 F.3d at 262-63); United States v. Panarel-la, 277 F.3d 678, 690 (3d Cir.2002). In Kemp, the court elaborated: “bribery requires a specific intent to give or receive something of value in exchange for an official act.” Kemp, 500 F.3d at 281 (citation and internal quotations omitted) (emphasis in original). In sustaining the trial court’s jury instructions for honest services fraud under a bribery theory, the court stated that “the District Court repeatedly emphasized the critical quid quo pro, explaining that ‘[t]o establish such a bribery the government must prove beyond a reasonable doubt that there was a quid quo pro, ... that the benefit was offered in exchange for the official act.’” Id. at 281 (citation omitted). Again, the court explained that “[t]he key to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made in exchange for some official action.” Id. at 282. Moreover, the court specifically addressed the sufficiency of the allegations in the indictment with respect to the bribery theory of honest services fraud against bankers who allegedly bribed a public official with loans. The court stated: The indictment refers to “the benefits that HOLCK and UMBRELL extended to Kemp with the intent to influence KEMP’s official actions,” and charges that “defendants GLENN K. HOLCK and STEPHEN M. UMBRELL, on behalf of their employer, Commerce Bank, provided benefits to Kemp in the form of otherwise unavailable loans in exchange for favorable decisions by KEMP as Treasurer of Philadelphia.” These allegations were sufficient to charge Hoick and Umbrell with honest services fraud under a bribery theory. Id. at 280-81 (citations omitted) (emphasis added). The Indictment here tracks the language that the Third Circuit found sufficient in Kemp for a quid pro quo bribery arrangement. The Indictment specifically alleges that “defendant R. MICHAEL GALLAGHER used his position as Dean of SOM to put defendant WAYNE R. BRYANT on the SOM payroll, and thereafter ... caused defendant BRYANT to receive a stream of corrupt payments and other financial benefits from SOM, in exchange for defendant BRYANT using his position as a State Senator to take official action to advocate on behalf of SOM.” Indictment, Counts 1-6, ¶ 18 (emphasis added). The quid was Bryant’s pensionable salary from SOM, i.e., the “corrupt payments and other financial benefits from SOM.” The quo was Bryant taking official action as a state legislator to benefit SOM, i.e., “Bryant using his position as a State Senator to take official action to advocate on behalf of SOM.” Finally, there was a pro, a linkage between the quid and the quo, i.e., Bryant’s SOM salary was given “in exchange” for taking official action favorable to SOM. Nonetheless, Defendants argue that the Indictment fails to adequately allege a quid pro quo bribery; it fails to allege either a sufficient quid or a sufficient quo. I disagree. b. The Quid — Bryant’s SOM Salary Defendants argue that Kemp stands for the proposition that in order for a payment to a public official in exchange for official action to constitute a quid, the payment must be given solely because of the official action at issue. In Kemp, bankers were convicted of bribing a public official by granting him loans that were otherwise unavailable to the official. Kemp, 500 F.3d at 281, 284. Finding that there was sufficient evidence for the jury to conclude that the loans were the quid in a. quid pro quo bribery arrangement, the court held, “[a]s a factual matter, a reasonable jury certainly could have found that these loans were not advanced in the usual course of business and were instead extended to Kemp and his friends solely because of Kemp’s position.” Id. at 284 (emphasis added). In other words, a reasonable jury could find that the loan was not a normal commercial transaction between the bankers and the public official, but rather the equivalent of a cash-stuffed envelope given “solely because of Kemp’s position.” Id. Seizing on this quotation from Kemp— that the loans were otherwise unavailable and given to Kemp “solely because of Kemp’s position” — Defendants argue that the Indictment here is deficient because it fails to allege that Bryant’s salary payments were given “solely” because of his official actions. The portion of the Indictment dealing with honest services fraud does not deny that Bryant did any legitimate work for SOM; it simply does not address the matter. Defendants’ argument is based on a misreading of Kemp and reflects an improbably narrow conception of the quid required for a quid pro quo bribery. For example, suppose the Government had alleged that Bryant and Gallagher specifically agreed to the following: SOM would pay Bryant a pensionable salary, and in exchange, Bryant would take both official action benefiting SOM and perform some legitimate work for SOM. According to Defendants, that salary is not a sufficient quid because it was not given “solely” on account of Bryant’s official action; it was also given for another reason, i.e., that Bryant agreed to perform legitimate work for SOM. But these factual allegations clearly satisfy the standard that Kemp articulates for a quid pro quo bribery in the context of an honest services fraud: “a reasonable jury could conclude beyond a reasonable doubt that Kemp ‘was paid for a particular decision or action.’ ” Id. at 279 (citation omitted). “[Bjribery requires ‘a specific intent to give or receive something of value in exchange for an official act.’ ” Id. at 281 (citation omitted). In the foregoing hypothetical, there is no question that, even though the salary payments are not given “solely” in exchange for official action, they are made with “a specific intent to give ... [salary payments] in exchange for official action.” Id. Similarly, the exchange alleged in the Indictment, which differs from the hypothetical only insofar as it is alleged that Bryant’s “primary role” at SOM was to use his official position as a state legislator to advocate on behalf of SOM and assist SOM in obtaining state funds, includes a sufficient quid, i.e., payment of Bryant’s SOM salary. Cf. United States v. Coyne, 4 F.3d 100, 113 (2d Cir.1993) (“we noted that there could be dual purposes for payments, stating that a ‘valid purpose that partially motivates a transaction does not insulate participants in an unlawful transaction from criminal liability’ ”) (citation omitted); United States v. Urciuoli, 513 F.3d 290, 292, 297 (1st Cir.2008) (“Celona’s actions in promoting or blocking legislation to favor RWMC” were “properly considered as potentially criminal” even though the “disguised bribe” was “in the form of a sham or largely sham job”) (emphasis added). Thus, even if Bryant’s salary may have been paid in exchange for legitimate work at SOM, in addition to his taking official action on behalf of SOM, that does not mean that the salary cannot constitute payment for official action, and hence a sufficient quid. c. The Quo Defendants also challenge the sufficiency of the quo, i.e., Bryant’s taking official action to benefit SOM, for a different reason. They acknowledge that an allegation of a quid, pro quo exchange is the essential element of the bribery theory of honest services. Defendant’s Reply Brief, 8; Kemp, 500 F.3d at 281 (“bribery requires a specific intent to give or receive something of value in exchange for an official act”) (citation and internal quotations omitted) (emphasis in original). However, they argue that even though the’ Indictment explicitly states that there was an “exchange,” the “exchange” as plead is inadequate without a further allegation: that Bryant took official action he would not have taken absent the bribery arrangement with Gallagher. Hence, Defendants assert that “the government has alleged no facts on which any reasonable jury could find that Bryant deviated from his usual position of supporting South Jersey institutions. Thus, the government has not alleged that Bryant ... engaged in an ‘exchange.’ ” Defendants’ Reply Brief, 9. For a public official to give a thing of value, i.e., a quo, to the payor of the bribe, the official must accept the bribe with the intent to be influenced by the bribe. Thus, according to Defendants, without a specific allegation that Bryant took actions he otherwise would not have taken, the Indictment does not allege that Bryant was influenced by the bargain he struck with Gallagher, and despite the Indictment’s use of the word “exchange,” Bryant “exchanged” nothing. Hence, there was no quid pro quo bribery arrangement. See Defendants’ Reply Brief, 10 (“[OJnly when the government charges ‘influence’— and the ‘exchange’ that it denotes — does the government state a quid pro quo bribe” and “[a]s a matter of pure logic, a person who intends to do exactly what he would have done all along, payment or no, does not ‘intend to be influenced’ by the payment”) (emphasis in original). This argument fails because the Indictment’s allegation of an “exchange” necessarily signifies that Bryant accepted the bribe, his SOM salary, with the intent to be influenced in the official actions listed in the Indictment. The Supreme Court has made clear that an allegation that an official “exchanged” official acts for a bribe, as plead in paragraph 18 of the Indictment, is just another way of stating that the official intended to be influenced: Bribery requires intent ... “to be influenced” in an official act ... In other words, for bribery there must be a quid pro quo-& specific intent to give or receive something of value in exchange for an official act. United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05, 119 S.Ct. 1402, 143 L.Ed.2d 576. Thus, the “specific intent to ... receive something of value in exchange for an official act” is another way of stating that the official had an intent “ ‘to be influenced’ in an official act.” Id. at 404-05, 119 S.Ct. 1402. The Indictment does allege — through the allegation of an “exchange” — that Bryant was influenced in his official acts. Of course, as Defendants’ argument suggests, another way of alleging that a public official accepted a payment with the intent to be influenced is to state that, as a result of the bribe, the official took actions he otherwise would not have taken. Indeed, a fair reading of the Indictment suggests that, as a result of an agreement to exchange official actions for an SOM salary, Bryant did take at least some actions that he otherwise would not have taken, as the following paragraphs will illustrate. See Hodge, 211 F.3d at 76 (“In evaluating whether Hodge’s indictment sufficiently sets forth the essential facts of the offense charged, we review the indictment using a common sense construction”). The Indictment alleges that the scheme to defraud ran from “in or about the fall of 2002 to in or about February, 2006,” Indictment, Counts 1-6, ¶ 17. The scheme began in late 2002 through early 2003, when Bryant first started receiving his salary from SOM, and involved Bryant using his Senate office to further the interests of SOM through as late as 2006. The Indictment alleges that in the fall of 2002, in the same meeting where Bryant informed the President of UMDNJ that he wanted UMDNJ to pay property taxes on a proposed building in Camden County, Bryant solicited the President to give him a paid position at UMDNJ. Id. at ¶ 19.a. Between then and March 2003, Gallagher and Bryant took steps to secure a position for Bryant at SOM, including meeting with the UMDNJ Vice President and Gallagher’s creation of new position at SOM for Bryant. Id. at ¶ 19.b., d., f.-g. The Indictment further alleges that contemporaneous with, and subsequent to, Bryant’s efforts to secure a position at SOM, over more than a three year period, Bryant took an assortment of official actions that favored SOM. In December 9, 2002, at a meeting of the Senate Education Committee, Bryant strongly criticized the findings of the Vagelos Commission to protect the interests of SOM. Id. at ¶ 19c. In or about 2003, Bryant “used his State Senate staff to arrange meetings for defendant R. MICHAEL GALLAGHER with members of the Senate Budget and Appropriations Committee, at which defendant Gallagher presented a ‘white paper’ regarding capital projects at SOM that needed funding.” Id. at ¶ 20.a. From in or about March 2003 through June 2006, Bryant directed changes in the budget of the State of New Jersey that allocated large sums of money to SOM. Id. at ¶ 19.b. For fiscal year 2004, Bryant inserted “specific language provided by defendant Gallagher into the state budget which described the merits of SOM’s Center for Children’s Support, and supported an $800,000 allocation for SOM,” which he ensured was included in the state budget in fiscal years 2004, 2005 and 2006. Id. at ¶ 20.b.ii.-iii. (emphasis added). Further, from in or about August 2003 through late 2005, Bryant “represented, appeared for, and negotiated on behalf of SOM with state agencies, and used his official position to influence those agencies to take action favorable to SOM.” Id. at ¶ 21. These included setting up a meeting between himself, Gallagher, and the Commissioner of the New Jersey Department of Health and Senior Services where Bryant and Gallagher sought to influence the Commissioner to allocate to SOM a portion of funds appropriated to the Cancer Institute of South Jersey, Id. at ¶ 21.a.; setting up a meeting between himself, Gallagher, and the Treasurer of the State of New Jersey at Bryant’s legislative office in Camden, New Jersey, “in an effort to influence the Treasurer to disburse ‘special’ targeted tax relief payments to the Borough of Stratford, New Jersey, to compensate the borough for the land that SOM was planning to acquire,” Id. at ¶ 21.-c.; and two other instances where Bryant persuaded state agencies to provide funding to SOM. Id. at ¶ 21.b., d. Given these allegations, it is implausible to read the Indictment to suggest that Bryant could have already intended, in advance of the quid pro quo arrangement, to take all the official actions he would take on behalf of SOM throughout the approximately three year duration of the scheme. For example, by alleging that Bryant wrote specific language crafted by Gallagher into the state budget, the Indictment clearly implies that Bryant’s course of conduct was affected by the bargain he had struck with Gallagher. Even if Bryant had a strong proclivity to take favorable action in favor of SOM prior to the commencement of the alleged scheme, the Indictment’s allegation of an “exchange” indicates that any pre-existing inclination on Bryant’s part was affected by the agreement, resulting in a change of conduct. In sum, only a strained reading of the Indictment could suggest that (1) Bryant agreed to exchange official actions for his SOM salary and (2) Bryant would have taken every single official act enumerated in the Indictment even absent that agreement. Thus, Defendants’ argument that “the government has alleged no facts” to support the proposition that Bryant “deviated from his usual position of supporting South Jersey institutions,” Defendants’ Reply Brief, 9, fails on its own terms. More importantly, the Indictment need not allege that Bryant ultimately took some official actions that he would not have otherwise taken. That is not the legal standard for quid pro quo bribery under § 1346. To prove quid pro quo bribery under Kemp, the Government does not need to allege and prove that Bryant took actions that he otherwise would not have taken. Instead, the Indictment must allege, and the Government must prove, that Bryant engaged in a quid pro quo exchange with Gallagher, whereby Bryant exercised his official discretion with “a specific intent to ... receive something of value in exchange for ... official act[s].” Kemp, 500 F.3d at 281 (citation omitted). Defendants’ argument that a further allegation is required proceeds on an incorrect premise: that unless, as a result of a bribe, an official takes actions that he otherwise would not have taken, the official was not influenced by the bribe. But an official can have the intent to be influenced by a bribe, i.e., the “intent to make good on the bargain,” United States v. Ford, 435 F.3d 204, 213 (2nd Cir.2006), even if, ultimately, the official ends up taking the same action he would likely have taken if he were not bribed. See United States v. Quinn, 359 F.3d 666, 675 (4th Cir.2004) (with respect to a conviction for bribery under 18 U.S.C. § 201(b), “it does not matter whether the government official would have to change his or her conduct to satisfy the payor’s expectations”); American Criminal Law Review, 834 (Spring 2008) (“Significantly, a payment or promise need not alter a public official’s actual course of conduct, as long as the parties to the transaction possessed corrupt intent”) (citing Quinn, F.3d at 675); cf. 4 Wharton’s Criminal Law, § 646 (2007) (“To constitute bribery, there must be a corrupt intent, i.e... from the standpoint of the bribee, an intent to use his public office as a means of acquiring an unlawful benefit”). When an official makes a quid pro quo bribery agreement, explicitly or implicitly, he ceases making decisions according to his best judgment as a legislator on behalf of all the citizens he serves, and allows the payor to place a thumb on the scale of his decision-making process. When a legislator has a “specific intent to ... receive something of value in exchange for ... official act[s],” Kemp, 500 F.3d at 281 (citation omitted), in addition to whatever considerations he would have brought to bear regarding the merits of such official acts, he also has a corrupt consideration, the bribe. Thus, even if the official actions he ultimately takes in favor of the payor are unchanged, the legislator’s decision-making process is still influenced. The exercise of a legislator’s discretion in unremitting favor of a constituent in the future, even if likely, cannot be certain in light of the competing concerns of the general citizenry and changing, as well as unforeseen, circumstances. Thus, an allegation that a legislator “exchanged” official actions for a bribe necessarily means that the bribe had some influence on that discretion — even if, as things turned out, the official’s actions were the same as they would have been absent the bribe. This is because the “exchange” removes discretion from the legislator — which he is obligated to exercise in the best interests of the public — and instead locks him into a position favoring one constituent, as dictated by the quid pro quo arrangement. Moreover, a legislator who makes an implicit or explicit agreement to exchange official acts for a payment or benefit clearly has a corrupt intent. The existence of an agreement to exchange official actions for a payment or benefit means that the legislator is aware that the payor intends to influence his official action through the bribe and, by agreeing to the “exchange,” confirms to the payor that he will be influenced. Thus, even if his course of conduct remains the same as it would have absent the agreement, the legislator has the corrupt intent to deliver on his end of the bargain, and confirm the payor’s expectations. See Ford, 435 F.3d at 213 (“The recipient’s ‘awareness’ that the donor gave something of value for the purpose of influencing the recipient might well constitute strong circumstantial evidence that the recipient acted with the requisite culpable state of mind in accepting the item, but a jury should be clearly instructed that it is the recipient’s intent to make good on the bargain, not simply her awareness of the donor’s intent that is essential to establishing guilt under [the bribery prong of] Section 666”) (emphasis added). Defendants support their interpretation of the “exchange” required by Kemp — that a quo must be action that an official would not have otherwise taken — with two further arguments. First, Defendants point out that the loans that constituted the quid in Kemp were not otherwise available. The court stated that a jury could have found that the “loans were made available to Kemp only because he was the treasurer.” Kemp, 500 F.3d at 285. Second, Defendants argue that, unless their interpretation of an “exchange” is adopted, the distinction between a gratuity and a bribe collapses. For the reasons explained above, see supra at II.B.2.b., the Third Circuit’s description of the loans in Kemp was not meant to impose a requirement that an official must take actions that he otherwise would not have taken to be convicted under the quid pro quo bribery theory. First, the court simply did not say that. To the contrary, when discussing the sufficiency of the evidence of the quo, the court found that “accepting money in exchange for an official action is a form of honest services fraud.” Kemp, 500 F.3d at 280. In describing Kemp’s official actions, which the court found sufficient for honest services fraud, the court stated: The government presented evidence that Kemp and Anderson had an arrangement where Anderson would locate owners of unredeemed city bonds and attempt to help them cash their bonds. This project required Kemp to exercise his authority as treasurer: he provided Anderson with a list of holders of outstanding bonds and a form letter for her to use; also, the treasurer’s office was responsible for contacting the banks to facilitate the ultimate repayment. When Anderson was asked at trial what Kemp would contribute to the business to earn his share of its proceeds, she identified only these first two official actions. A reasonable jury certainly could have concluded that Kemp was paid for the reasons that Anderson pinpointed-taking official action that aided the business. Id. at 279 (emphasis added). Thus, when assessing the sufficiency of the evidence of quid pro quo bribery in the context of honest services fraud, the court found it sufficient that the there was an “arrangement” whereby “Kemp was paid for ... taking official action” that aided the pay- or’s business. The Third Circuit did not require evidence that Kemp would not have taken the official actions at issue if not for the payment. Second, the relevance of the court’s finding that a jury could find that the loans were otherwise unavailable was that, as a legal matter, “a loan to a public official ... that would have otherwise been unavailable to that official or available at a higher interest rate may constitute a bribe.” Id. at 285. The issue was whether the loan was a thing of value sufficient to constitute a bribe: Our conclusion that a loan may constitute the quid in a bribery prosecution is also supported by the relevant caselaw. Most notably, in United States v. Gor-man, 807 F.2d 1299 (6th Cir.1986), the defendant argued that a loan was not a “thing of value” under § 201 because he fully repaid the loan with interest. Id. at 1304. The Sixth Circuit rejected that argument, because at the time that the defendant received the loan he was having “severe financial difficulties” and it was unclear whether such a loan would have been available to him in the ordinary course of business. Id. at 1305. The court focused on the value that the recipient “subjectively attaehe[d] to the items received.” Id. A loan was also recognized as a potential quid in United States v. Williams, 705 F.2d 603 (2d Cir.1983). There, a United States Senator was convicted under the federal bribery statute for “seeking funds for the financing and purchase of a mining venture in which he had an interest in exchange for his assistance in obtaining government contracts for the venture.” Id. at 612. One of the two sorts of funds that the senator sought was a $100 million loan that was to be repaid with interest. Id. at 620. The court never questioned that the loan could serve as a bribe, and termed the evidence against the senator “overwhelming.” Id. at 612; see also United States v. Crozier, 987 F.2d 893, 901 (2d Cir.1993) (“[A]s we have held in connection with § 201, any payment that the defendant subjectively believes has value, including a loan, constitutes a thing ‘of value’ within the meaning of § 666(c)”). Thus, we conclude that loans, so long as they are granted in exchange for an official act, may drive a bribery prosecution. Id. Thus, the court did not address the nature of the causal connection between a quid and a quo, much less hold that quid pro quo bribery requires that the quo (Kemp’s official actions; Bryant’s official actions) would not have occurred without the quid (the loans extended to Kemp; Bryant’s SOM salary). Defendants’ second argument is that an allegation that Bryant would not have taken the official actions at issue were it not for his agreement with Gallagher is required in order for the Indictment to charge that the salary was a bribe rather than a mere illegal gratuity. According to Defendants, “[cjontrasting ‘influence’ with ‘reward’ (that is, bribe with gratuity) underscores the need for an impact on the official’s actions.” Defendants’ Reply Brief, 10. But as was just explained, an allegation that Bryant’s course of conduct changed from what it otherwise would have been absent the bribery arrangement is not needed to allege that Bryant’s official discretion was influenced by the agreement. Thus, such an allegation is not needed to preserve the distinction between a bribe, which involves a quid pro quo exchange, and a mere gratuity, which is a reward that does not influence the judgement of the official. As Justice Scalia stated in Sun-Diamond Growers of California, the crucial distinction between a bribe and gratuity is the required element of intent, and the allegation of an “exchange” is another way of stating that the an official intended to be influenced. Sun-Diamond Growers of California, 526 U.S. at 404-5 (holding that bribery requires an “intent to be influenced,” and then stating that “[i]n other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act”). Thus, the Court finds that the Indictment adequately alleges a sufficient quid and a sufficient quo under § 1346. 3. Must the Government Prove the Violation of a State Law Under the Quid Pro Quo Bribery Theory? The role that state law plays in the context of honest services fraud with respect to (1) the sufficiency of the Indictment and (2) what the Government must ultimately prove at trial is heavily disputed by the Government and the defense. The sufficiency of the Indictment and what the Government must prove at trial, are, of course, different issues. But in the context of the arguments made by the parties regarding the Indictment, they are interrelated. Following the assertion that “the State of New Jersey and its citizens had an intangible right to the honest services of their State Senators,” Indictment, Counts 1-6, ¶ 16, the Indictment cites obligations imposed by two New Jersey state laws and an uncited obligation to disclose, which may or may not be derived from state law, as duties that Bryant “owed the State of New Jersey and its citizens.” Id. There is a substantial dispute between the parties as to why those citations to state law are included in the Indictment, including whether there need be any reference to state law and whether it must be alleged in the Indictment and proven at trial that at least one of these state law duties was violated. Thus, it is necessary for the Court to clarify what the Government must prove at trial regarding the state law duties cited in the Indictment. In order for an Indictment to pass muster, it must “sufficiently apprise[] the defendant of what he must be prepared to meet.” Kemp, 500 F.3d at 280. The Government contends that, even if a violation of a state law predicate is required by the failure to disclose theory of honest services fraud, a violation of a state law predicate need not be proven under the quid pro quo bribery theory. Oral Argument, 88-89. Instead, the Government argues that it need only allege, and ultimately prove, a quid pro quo bribery arrangement as described in the case law interpreting § 1346; specifically, cases involving the bribery prong of honest services fraud. Id.; Government’s Brief, 32 (“the indictment need not allege a violation of state law”). Why then, as asked by the defense, is the New Jersey Bribery Act and bribery provision of the New Jersey Conflicts of Interest Laws cited in the Indictment? According to the Government, these state laws “give contour” to Bryant’s fiduciary duty to the New Jersey public. Oral Argument, 84. In Defendants’ view, however, to sufficiently allege honest services fraud under § 1346, the Indictment must allege a violation of a predicate state law, and the Government must prove that violation at trial. For the reasons that follow, the Court finds that (1) once the Indictment adequately alleges that a duty of honest services was owed to the public, the Government need not allege a violation of an independent state law to adequately allege a violation of §§ 1341, 1343 and 1346 under the quid pro quo bribery theory, and (2) beyond establishing that a duty of honest services was owed to the public, the Government need not prove a violation of state law at trial to sustain a conviction under the quid pro quo bribery theory of honest services fraud. a. The Source of the Quid Pro Quo Bribery Theory of Honest Services Fraud In relevant part, the mail and wire fraud statutes provide: 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 ... [uses the mails or wires, or causes their use] for the purpose of executing such scheme or artifice ... shall be fined ... or imprisoned. 18 U.S.C. §§ 1341, 1343 (emphasis added). Again, to prove mail or wire fraud, the Government “must establish ‘(1) the defendant’s knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails [or interstate wires] ... in furtherance of the scheme.’ ” Kemp, 500 F.3d at 279 (citing Antico, 275 F.3d at 261). By enacting 18 U.S.C. § 1346, Congress clarified the meaning of the phrase “scheme or artifice to defraud” in the mail and wire fraud statutes: “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.” 18 U.S.C. § 1346. In Antico, the Third Circuit stated: “Given Congress’ clear intent in enacting § 1346, we join with those courts that recognize that the scope of the amendment includes the prosecution of state and local officials and public employees for depriving the citizens they serve of their right to honest services.” Antico, 275 F.3d at 262. Further, Antico explicitly held that “a scheme or artifice to deprive another of the intangible right of honest services,” 18 U.S.C. § 1346, includes quid pro quo bribery. “Honest services fraud typically occurs in two scenarios: (1) bribery, where a legislator was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain.” Antico, 275 F.3d at 262-63 (citing United States v.Woodward, 149 F.3d 46, 54-55 (1st Cir.1998)) (emphasis added); see also Panarella, 277 F.3d at 690 (“ ‘Honest services fraud typically occurs in two scenarios: (1) bribery, where a legislator was paid for a particular decision or action’ ”) (quoting Antico, 275 F.3d at 262-63); United States v. Murphy, 323 F.3d 102, 114 (3d Cir.2003) (“bribery ... may even be the paradigm case of honest services fraud committed by public officials”); United States v. Mangiardi, 962 F.Supp. 49, 51 (M.D.Pa.1997) (“The typical case of honest services fraud is the bribery of a public official”); United States v. Mariano, Docket No. 05-614, 2006 WL 487905, *3 (E.D.Pa. Feb. 27, 2006) (“A person of ordinary intelligence should know that bribery, conducted through the U.S. Mail or otherwise, is illegal”) (citation omitted); Third Circuit Model Jury Instructions, Fraud Offenses, 13 (2007) (“So, for instance, a public official who accepts a bribe or corrupt payment breaches the duty of honest, faithful and disinterested service”). Thus, since Antico was decided in 2001, it has been clear in this Circuit that a scheme whereby “a legislator [is] paid for a particular decision or action,” Antico, 275 F.3d at 263, constitutes a “scheme or artifice to defraud” within the meaning of § 1346, and as such, is prohibited by the mail and wire fraud statutes. In the Third Circuit’s recent decision in Kemp, the court embraced Antico’s construction of § 1346. In rejecting a challenge to the sufficiency of the evidence to establish the bribery theory of honest services fraud, the court held: “a reasonable jury could conclude beyond a reasonable doubt that Kemp ‘was paid for a particular decision or action.’ ” Kemp, 500 F.3d at 279 (citing Antico, 275 F.3d at 263). Further, the court elaborated on Antico’s description of the bribery prong of honest services fraud by emphasizing the crucial concept of a quid pro quo exchange: “We have repeatedly recognized that accepting money in exchange for an official action is a form of honest services fraud.” Kemp, 500 F.3d at 280 (citations omitted). The court further explained: As we held above, bribery requires a specific intent to give or receive something of value in exchange for an official act. We note that evidence of a “quid pro quo can be implicit, that is, a conviction can occur if the Government shows that [the defendant] accepted payments or other consideration with the implied understanding that he would perform or not perform an act in his official capacity.” Antico, 275 F.3d at 257. As we have recognized, “ ‘the official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.’ ” Id. at 258 (quoting United States v. Bradley, 173 F.3d 225, 231 (3d Cir.1999)). Kemp, 500 F.3d at 284 (emphasis in original). Thus, the quid pro quo bribery theory of honest services fraud is derived from §§ 1341, 1343 and 1346. b. No State Law Violation is Required Defendants contend that the quid pro quo bribery theory of honest services fraud requires that the Indictment allege, and the Government ultimately prove, an additional element beyond a quid pro quo exchange: the violation of a state law predicate. However, Kemp made clear that an indictment need only allege a quid pro quo exchange to sufficiently allege the bribery prong of honest services fraud. The defendant bankers who were convicted of bribing a public official, there argued that the indictment failed to allege the bribery theory of honest services fraud. The court responded: We conclude that the indictment here adequately charged Hoick and Umbrell with the bribery theory of honest services wire fraud. The wire fraud counts of the indictment (counts 15-22) plainly alleged honest services fraud, charging Hoick and Umbrell with engaging in “a scheme to defraud the City of Philadelphia and its citizens of the right to defendant COREY KEMP’S honest services in the affairs of the City of Philadelphia.” (App. at 587.) Then, the specific factual allegations — some of which were incorporated by reference to the allegations of the conspiracy charge, see Fed.R.Crim.P. 7(c)(1) (“A count may incorporate by reference an allegation made in another count.”); see also United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983) — were sufficient to alert Hoick and Umbrell that the government planned to pursue both theories. The indictment refers to “the benefits that HOLCK and UMBRELL extended to Kemp with the intent to influence KEMP’s official actions” (App. at 491), and charges that “defendants GLENN K. HOLCK and STEPHEN M. UMBRELL, on behalf of their employer, Commerce Bank, provided benefits to Kemp in the form of otherwise unavailable loans in exchange for favorable decisions by KEMP as Treasurer of Philadelphia ” (App. at 554). These allegations were sufficient to charge Hoick and Umbrell with honest services fraud under a bribery theory, and accordingly, we reject Hoick and Umbrell’s argument that the indictment should have been dismissed. Id. at 280-81 (emphasis added). Thus, the Third Circuit found the indictment to be sufficient without referring to any allegation that the defendants violated a state law predicate. Moreover, prior to its analysis of the indictment’s allegations, the court had just explained that “[w]e deem an indictment sufficient so long as it ... contains the elements of the offense intended to be charged.” Id. at 280 (emphasis added). The allegation that the defendants intended to give a public official “benefits ... in exchange for favorable decisions,” Id. at 281, contained the elements of the bribery theory of honest services fraud and no more was required. The recent decision in United States v. Flemming, 223 Fed.Appx. 117 (3d Cir.2007), confirms the proposition that the quid pro quo bribery prong of honest services does not require the Government to allege or prove the violation of a state law. The court held that there was sufficient evidence to support a conviction for honest services fraud where the defendant, the owner of company that had a contract with the Virgin Islands Housing Authority (“VIHA”), bribed a VIHA procurement officer to expedite payments: “the jury could logically infer that Flemming and the [procurement officer] intended to work together to achieve the common goal of defrauding the VIHA by expediting payments to Flemming’s company ahead of payments to other vendors.” Flemming, 223 Fed.Appx. at 121. After stating that “honest services fraud typically occurs ... where a legislator was paid for a particular decision or action,” Id. at 122 (quotations omitted), the court explained what was required to meet that standard: As described above, a reasonable jury could infer from the established facts and circumstantial evidence that Flem-ming and John knowingly and willfully participated in a scheme to expedite VIHA payments to Flemming’s company. The jury could also logically conclude that the money Flemming paid John was intended to influence John in this regard, thereby depriving the citizens of the Virgin Islands of the honest services of a VIHA employee. The government also elicited testimony establishing that the checks were processed in interstate commerce through electronic wires. Id. at 122-123. Thus, evidence that the defendant intended to influence a procurement officer with payments was sufficient for a finding that he “deprivfed] the citizens of the Virgin Islands of the honest services of the VIHA employee,” in violation of §§ 1343 and 1346. Id. In the context of quid pro quo bribery, then, the Third Circuit did not require a violation of a local law for a conviction under § 1346. Hence, the Government need not allege or prove a state law violation to sustain a conviction under the quid pro quo bribery theory of honest services fraud. c. The Duty to Provide Honest Services As Distinguished from Duties that Constitute Honest Services Kemp does reference a state law predicate in connection with the quid pro quo bribery theory of honest services fraud, albeit in another context. When discussing the sufficiency of the evidence with respect to the conviction of the defendant public official for honest services fraud under the bribery theory, the court stated: We have repeatedly recognized that accepting money in exchange for an official action is a form of honest services fraud. See United States v. Panarella, 277 F.3d 678, 690 (3d Cir.2002); Antico, 275 F.3d at 262-63. As Pennsylvania law provides, “public office is a public trust and ... any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust.” 65 Pa. Cons.Stat. § 1101.1. Here, the government presented sufficient evidence for a reasonable jury to find beyond a reasonable doubt that Kemp violated that trust by soliciting and accepting payment in exchange for taking official action. Accordingly, we find no plain error and reject Kemp’s challenge to his mail fraud convictions. Kemp, 500 F.3d at 280. If Kemp’s holding, as I have discussed, is that the indictment sufficiently alleged the bribery theory of honest serves fraud absent an allegation that any state law was violated, then it may be asked why the Third Circuit pointed to Pennsylvania law for its finding that the the public official violated the “public trust” of his public office. The answer to that question requires a focus on an important distinction drawn by the Third Circuit between two prongs of the analysis of a “state law predicate”: (1) whether a defendant has a fiduciary relationship such that he owes a duty of honest services to the public; and (2) whether a defendant’s conduct violated a type of state law duty that falls within the meaning of “honest services,” as defined in § 1346, and is therefore sufficient to constitute honest services fraud. The Third Circuit’s analysis in Murphy compels this analytical distinction. In Murphy, the county chairman of a political party was convicted of honest services fraud under the failure to disclose theory, but the Third Circuit reversed the conviction for lack of an adequate fiduciary relationship between the party chairman and the citizens of New Jersey. In other words, there was no basis to hold that the defendant owed a duty of honest services to the public. Murphy, 323 F.3d at 116. The government argued that Murphy’s conduct violated the New Jersey Bribery Act, N.J.S.A. 2C:27-2, and therefore that he had violated a sufficient state law duty to warrant a conviction for honest services fraud. But the Third Circuit found that, even though the bribery statute applied to the defendant’s conduct, the bribery statute could not itself create the requisite fiduciary relationship between the defendant and the public: While the Government is correct in noting that N.J.S.A. 2C-27-2 applies to party officers as well as public officials, it cannot point to anything in the statute that creates a fiduciary duty on the part of party officials to disclose information to the government ... Moreover, while bribery may often accompany breaches of a duty to disclose, see Panarella, 277 F.3d at 695, and may even be the paradigm ease of honest services fraud committed by public officials, see United States v. deVegter, 198 F.3d 1324, 1327 (11th Cir.1999), the Government points to no case that found that a bribery statute can create an obligation to provide honest services without any preexisting legal duty. Id. at 115 (emphasis added). Thus, being the chairman of a political party was insufficient to establish a sufficient fiduciary relationship with the public to give rise to a duty of honest services, a prerequisite for applying § 1346 to a scheme to defraud the public of the defendant’s honest services. The court’s analysis in Murphy clearly distinguishes between the fiduciary relationship necessary for a defendant to owe honest services to the public, and the kind of state law violations that can constitute deprivations of the honest services that are owed by a defendant. The court carefully drew the distinction in the following passage: This final point is the crux of the issue and it presents a slightly different question from that which we addressed in Antico and Panarella. In those cases we assumed, based on extensive pre-McNally case law, that public officials have a duty to provide honest services to the public[, i.e., the requisite fiduciary relationship with the public necessary to owe honest services under § 1346.] We then looked to state law to ascertain what standards of fiduciary care the public officials were required to meet in order to determine whether the officials defrauded the citizens of their right to honest services!, i.e., which state law violations can constitute fraudulent deprivations of honest services, assuming the defendant owes a duty of honest services.] For example, in Antico, we referred generally to state and local conflict of interest laws to identify what fiduciary duti