Full opinion text
MEMORANDUM AND ORDER DITTER, District Judge. I. Introduction The defendant, H. William Johns, was employed by Acme Markets, Inc., between May of 1979 and November of 1984, as director of packaging, equipment, and supplies procurement. Before May of 1979, he worked for Acme first as a quality control supervisor, and later as a packaging buyer. As director of packaging, equipment, and supplies procurement, Johns was responsible for Acme’s purchases of non-resale items, such as bags, cans, packaging supplies, and janitorial supplies and services. In August of 1979, Johns arranged for the incorporation in New Jersey of a company called “Pak-all.” In April of 1983, he arranged for the incorporation of “Alma Trading Corporation” and “Garo Service Corporation,” also New Jersey companies. Johns’ name did not appear on any of the incorporation papers for these companies, nor was he formally listed as an officer, director, or shareholder of any of them. These companies basically performed no services, but primarily acted as shells for Johns to deposit, withdraw, and transfer funds. Acme was not aware of the existence of these companies or of Johns’ affiliation with them. Beginning in October of 1979 and continuing through March of 1985, without Acme’s knowledge or consent, Johns agreed with six of the brokers and vendors who supplied non-resale goods and janitorial services to Acme that these brokers and vendors would deposit sums of money representing a percentage of the business their companies did with Acme into Pak-all and Alma checking accounts in exchange for continued business with Acme. These brokers and vendors paid a total of almost $2 million in kickbacks into Pak-all and Alma accounts at Johns’ direction and for Johns’ personal financial benefit between October of 1979 and March of 1985. All of the parties involved took pains to ensure that Acme was unaware of these kickback payments. At all times, the payments were contrary to Acme’s official conflict of interest policy. As a result of the defendant’s arranging for the payment of kickbacks to entities he controlled, the government charged him with thirty-eight counts of mail fraud, 18 U.S.C. § 1341 and § 2, nine counts of Travel Act violations, 18 U.S.C. § 1952 and § 2, and nine counts of violating the National Stolen Property Act, 18 U.S.C. § 2314 and § 2. Defendant waived his right to a jury trial. He and the government then submitted to me a comprehensive stipulation of facts and memoranda supporting their diverging positions as to whether the government had sustained its burden of proof. I later heard oral argument on the parties’ briefs. For the reasons set forth below, I conclude that defendant H. William Johns is guilty of the mail fraud and Travel Act charges, but is not guilty of violating the National Stolen Property Act. In accordance with Fed.R.Crim.P. 23(c), this opinion constitutes my special findings of fact and conclusions of law. For the purposes of this opinion, I have adopted the parties’ stipulation of facts in its entirety. II. The Mail Fraud Counts Defendant’s brief in support of his request for a verdict of not guilty challenges the legal sufficiency of the bill of indictment in light of the Supreme Court’s sweeping decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), and also attempts to defeat the merits of the government’s proof, as described in the stipulation of facts, in the event the indictment withstands judicial scrutiny. Because I find that the conduct alleged in the indictment charges an offense under McNally, and that the government has satisfied its burden of proof with respect to this offense, I conclude that Johns has violated section 18 U.S.C. § 1341 as interpreted by McNally. The reasons for this decision are discussed infra at subsections A and B. Even if I were to have found that the government’s indictment alleged only an “intangible rights” theory of prosecution, temporarily invalidated by McNally, I would nonetheless conclude that Johns’ conviction is proper in light of the post-McNally addition of section 1346 to the mail fraud chapter of the criminal code, which effectively overruled McNally. As discussed infra at subsection C, there is no ex post facto problem with retroactive application of section 1346 to Johns’ conduct. A. The indictment properly alleges an offense under McNally. 1. Under McNally, mail fraud requires a showing of property loss. In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court addressed for the first time whether the statutory and legislative history of the mail fraud statute, 18 U.S.C. § 1341, would support a tradition of court of appeals decisions interpreting that statute as proscribing schemes to defraud another of the intangible right to honest and impartial services. The McNally defendants, individuals who exerted control over the selection of workmen’s compensation insurance for the Commonwealth of Kentucky, were charged with committing mail fraud by engaging in a scheme to give the commonwealth’s insurance business to a large insurance agency that agreed to split its commissions with smaller agencies owned or controlled by the defendants. The government’s principal theory at trial was that the defendants had participated in a self-dealing patronage scheme to defraud the citizens of Kentucky of certain intangible rights, in particular, the right to have the commonwealth’s affairs conducted honestly. McNally, 483 U.S. at 352, 107 S.Ct. at 2877. Disagreeing with a long line of decisions from the courts of appeals, the Supreme Court construed the mail fraud statute to reach only frauds in which the alleged victim had been deprived by the defendants of money or property. Id. at 359, 107 S.Ct. at 2881. Because the jury instructions in McNally permitted the jury to base guilt solely on loss of the intangible right to honest government and did not require it to find that the citizens of Kentucky had lost money or property, the Court reversed the convictions. Later, in Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), the Court clarified its decision in McNally. Holding that “McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights,” id. at 25, 108 S.Ct. at 320, the Court sustained the conviction of a former journalist for the Wall Street Journal who sold the Journal’s confidential pre-publication financial information to securities brokers who then traded stocks on the basis of this information. The Court deemed the confidential material to be “property” within the meaning of the mail fraud statute and determined that the Journal had been “defrauded of much more than its contractual right to [defendant’s] honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute, which ‘had its origin in the desire to protect individual property rights.’ ” Id. (quoting McNally, 483 U.S. at 359, 107 S.Ct. at 2881). Invoking McNally and Carpenter, a significant number of pre-McNally criminal convictions have been challenged on the basis that verdicts were rendered pursuant to an impermissible intangible rights theory of prosecution. In general, the courts of appeals have responded to these challenges by overturning those convictions in which the indictment alleged only a deprivation of intangible rights or in which the jury instructions did not require that money or property interests be implicated, e.g., United States v. Zauber, 857 F.2d 137 (3d Cir.1988), cert. denied sub nom., Scotto v. United States, — U.S. -, 109 S.Ct. 1340, 103 L.Ed.2d 810 (1989); United States v. Holzer, 840 F.2d 1343 (7th Cir.1988); United States v. Covino, 837 F.2d 65 (2d Cir.1988); United States v. Murphy, 836 F.2d 248 (6th Cir.), cert. denied, 488 U.S. 924, 109 S.Ct. 307, 102 L.Ed.2d 325 (1988), and by affirming those convictions in which it was clear that the jury could not have reached a guilty verdict without concluding that the victim of the fraudulent scheme suffered a monetary or property loss at the hands of the defendant, even where the government relied in part on the deprivation of intangible rights, e.g., United States v. Asher, 854 F.2d 1483 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989); United States v. Perholtz, 836 F.2d 554 (D.C.Cir.1988); United States v. Piccolo, 835 F.2d 517 (3d Cir.1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988); United States v. Fagan, 821 F.2d 1002 (5th Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988). Significantly, the courts have generally concluded that kickback schemes — traditionally, one of the most common forms of criminal activity for which pre-McNally convictions were obtained on an intangible rights theory of mail fraud — will no longer implicate section 1341 unless the indictment charges and the government’s proof establishes that the alleged victim of the scheme, as opposed to the payor of the kickbacks, lost a cognizable, and not merely a “constructive,” interest in money or property as a result of the artifice. See McNally, 483 U.S. at 360, 107 S.Ct. at 2881 (“ ‘There are no constructive offenses; and before one can be punished, it must be shown that his case is plainly within the statute.’ ”) (quoting Fasulo v. United States, 272 U.S. 620, 629, 47 S.Ct. 200, 202, 71 L.Ed. 443 (1926)); United States v. Holzer, 840 F.2d 1343, 1346-47 (7th Cir.1988) (rejecting the “constructive trust” theory, a legal fiction of property loss in which the government had tried to argue that bribe money received by the defendant, a state trial judge, from lawyers appearing before him properly belonged to the public, to whom he owed a fiduciary duty). But see United States v. Little, 889 F.2d 1367,1368 (5th Cir.1989) (presumption that county lost money when contractor paid kickbacks to defendant), cert. denied, — U.S.-, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990). Paragraph ten of the Johns indictment contains the government’s mail fraud theories. The government charges that: From on or about June 15, 1978, to on or about March 5, 1985, in the Eastern District of Pennsylvania and elsewhere, defendant H. William Johns devised and intended to devise a scheme and artifice to: (a) defraud Acme of the salary it paid to him and other benefits it provided to him in reliance upon and in exchange for his loyal, faithful and honest services, free from conflict of interest; (b) obtain money and property from Acme and certain brokers and vendors doing business with Acme, by means of false and fraudulent pretenses, representations and promises; and (c) defraud Acme of the secret money and property obtained by him in the performance of his duties as an Acme employee. According to the indictment, it was the object of the scheme to defraud that Johns “would obtain payments and kickbacks from vendors and brokers who sold goods and services to Acme, which payments and kickbacks would be concealed from his supervisors at Acme.” Indictment at ¶ 11. Paragraphs twelve through twenty-one set forth the “means” by which Johns allegedly carried out the scheme. Specifically, the government charges that on two occasions, once in 1978 and once in 1982, Johns falsely represented on Acme’s conflict of interest questionnaires that during the two years preceding the date of the questionnaire he had not benefitted financially from any business transactions between Acme and any other person or corporation. The indictment also charges that Johns arranged for the incorporation of Pakall, Alma, and Garo, corporations he secretly controlled and used to receive and to disburse kickbacks from vendors and brokers doing business with Acme. As part of the means of the scheme to defraud Acme, the indictment alleges that various brokers and vendors paid Johns kickbacks which were deposited into Pak-all, Alma, and Garo, and about which his superiors at Acme were never notified. The United States mails were used to transmit the purchase orders, invoices, and checks between Acme and the brokers and vendors involved in the scheme and to transmit Johns’ kickback checks. 2. Subparagraph 10(a) of the indictment charges that Acme was deprived of its property by Johns’ fraud. Johns maintains that subparagraph 10(a) of the indictment is no more than the impermissible tangible rights theory in disguise which nonetheless runs afoul of McNally. Johns contends that “to avoid charging the discredited loyal-and-faithful-services theory directly, the indictment charges that Acme was defrauded of ‘the salary and benefits it paid to [Johns] and other benefits it provided to him in reliance upon and in exchange for [those same] loyal, faithful, and honest services’ which may not form the basis of an indictment.” Dft’s Mem. at 11 (emphasis in original). While Johns may be correct that subpara-graph 10(a) is an “exercise in creative legal drafting,” id., that, alone, is no ground for its dismissal. A plain reading of 10(a) charges Johns with defrauding Acme of the salary and benefits it paid to him, which would constitute a property loss contemplated by McNally. There is no authority which requires or even permits me to look beyond the wording of an indictment in order to rewrite it based on the defendant’s hypothesis of the government’s intent. Nonetheless, I am cognizant that the legitimacy of the government’s “salary theory” is largely undecided by the courts of appeals, and for this reason, a thorough discussion of the basis for my decision to uphold it is warranted. I am aware of only one appellate court that has considered the salary theory the government has presented here as the basis for a post-McNally mail fraud conviction, but I decline to adopt that court’s holding and analysis. In United States v. Goodrich, 871 F.2d 1011 (11th Cir.1989), the defendant, a Florida attorney, was accused of devising a scheme to bribe three county commissioners of Hills-borough, Florida, with the intent to influence them regarding certain zoning petitions. Contending that the county lost money by paying the costs associated with holding “sham” commissioner meetings at which the allegedly fraudulent zoning petitions were decided, the government charged Goodrich with defrauding the citizens of Hillsborough of, inter alia, “the salaries, emoluments, and services of elected and appointed personnel of Hillsborough County, Florida.” Id. at 1012. The Eleventh Circuit affirmed the district court’s decision to dismiss this portion of the indictment, concluding, as Johns would have me conclude, that “the property interest alleged to have been denied the victim here — what the government contends Hills-borough County paid salaries for but did not get — is the ‘honest and faithful services’ of the County Commissioners, an interest McNally held to be unprotected by the mail fraud statute.” Id. at 1013. Although the Third Circuit has not yet had an opportunity to consider the salary theory as charged in Johns’ indictment, I am confident that if the issue were before it, it would reject the narrow approach taken by the Eleventh Circuit in favor of an approach that presumes the validity of a mail fraud indictment in which legitimate property interests are clearly at stake. In United States v. Asher, 854 F.2d 1483 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989), upholding a pre-McNally conviction, the Third Circuit held that “[w]here ... a violation of the rights involved would result in depriving another of something of value, and the indictment, the proofs and the instructions are based on that fact, then the presence of intangible rights language will not prove fatal on appeal.” Id. at 1494. The indictment charges Johns with defrauding Acme of the salary and benefits it provided to him. The money with which the salary and benefits were paid was surely “something of value” to Acme, and was no less an interest in property than was the confidential business information at stake in Carpenter. In McNally, the Supreme Court refused to infer a loss of property where only the loss of intangible rights was charged in the indictment; conversely, I refuse to reword the indictment as the court essentially did in Goodrich, 871 F.2d at 1013, in order to find that the government has alleged the deprivation of honest and faithful services when on its face, the indictment charges the loss of salary and benefits. Justice Stevens, dissenting in McNally, contended that a financial loss to an employer is implicit where an employee is disloyal even if that disloyalty caused no direct loss of money or property: “When a person is being paid a salary for his loyal services, any breach of that loyalty would appear to carry with it some loss of money to the employer — who is not getting what he paid for.” 483 U.S. at 377 n. 10, 107 S.Ct. at 2890 n. 10. (Stevens, J., dissenting). The majority refused to bridge the gap created by what may have been an “apparent,” but nonetheless unalleged loss of money, holding that the mail fraud convictions could not stand where the jury “was not charged that in the absence of the alleged scheme the Commonwealth would have paid a lower premium or secured better insurance.” Id. at 360, 107 S.Ct. at 2882. It can be inferred from the court’s holding, however, that had the government been able to prove that the citizens of Kentucky paid a higher insurance premium to the insurance agent improperly selected by defendants or had it established that better insurance was available but was overlooked by defendants intent on patronizing their own insurance agencies, and had the jury been instructed as to the need for a finding of such a loss, the convictions would have been upheld. In McNally, the government never alleged that the citizens of Kentucky received less than they paid for; however, in its case against Johns, the government contends that Acme was cheated because it did not receive from Johns that for which it was paying him — his honest services. In United States v. Schermerhorn, 713 F.Supp. 88 (S.D.N.Y.1989), the court refused to dismiss an indictment charging defendant with a scheme to defraud the state of New York and its taxpayers of salary and other benefits provided a duly elected state senator. Defendant’s acts of mail fraud stemmed from his alleged failure to disclose illegal campaign contributions on financial disclosure statements required under state law. Distinguishing McNally, the court held that “[wjholly apart from the breach by defendant of an ethereal duty to fairly and honestly serve the people of New York, the taxpayers in this case paid a salary for ‘damaged or contaminated goods’ if the mail fraud counts here charged are proven.” Id. at 92. Accord United States v. Webb, 689 F.Supp. 703, 707 (W.D.Ky.1988) (denying motion to dismiss indictment for mail fraud based on salary theory, court holds that government may prove that salary paid to defendant engaged in election fraud constituted overpayment); United States v. Wellman, 830 F.2d 1453 (7th Cir.1987) (court upholds conviction for mail fraud despite intangible rights language in indictment because government established that company “lost” money as result of fraud when it received a product of lower quality than that for which it had bargained). I conclude that subparagraph 10(a) of the government’s indictment alleges a legally cognizable money or property loss by Acme pursuant to McNally. In subsection B, infra, I will discuss the merits of the government’s proof with respect to this charge as set forth in the stipulation and the government’s memorandum. 3. Subparagraphs 10(b) and (c) of the indictment charge that Acme lost money because Acme overpaid for goods and services and because money secretly paid to Johns belonged to it. In a voluntary bill of particulars, the government explains that the “money and property” alleged in subparagraphs 10(b) and (c) consist of the sums set forth in paragraphs 5, 8, and 21 of the indictment. Govt’s Answer to Dft’s Motion for Bill of Particulars at 1(a), (c). Paragraphs 5, 8, and 21 refer to kickback payments made to Pak-all, Alma, and Unique Packaging and Design Consultants, a sole proprietorship owned by Johns’ wife, by various vendors involved in the scheme, as well as checks paid by Acme to these vendors for goods received. The salary and benefits provided to Johns by Acme is not mentioned in either paragraph 5, 8, or 21, and it must be assumed, therefore, that the money and property described in 10(b) and (c) are distinct from the losses alleged in 10(a). A plain reading of 10(b) and (c) leads to the conclusion that while the money and property in (b) refers to the kickback money as well as to the money paid directly by Acme to the vendors, the “secret money and property” in (c) refers only to the kickback payments received by Johns. The payments made by Acme to the vendors were in exchange for the goods described in the purchase orders and invoices. There was nothing “secret” about this money. What was “secret” was the money paid by the vendors and brokers listed in paragraph 20 of the indictment to Johns after they had been paid by Acme. The government’s memorandum supports such a reading of the indictment, see Govt’s Mem. at 20-23, inasmuch as the government’s argument with respect to subparagraph 10(c) urges my adoption of a constructive trust theory, i.e., that the kickback money received by Johns belonged to Acme. See also Govt’s Response to Dft’s Motion to Strike Paragraphs 10(a) and 10(c) from Indictment at 5. (“This constructive trust theory comes into play only after Johns has obtained money by the means described in paragraph 10(b)”). Furthermore, while subparagraph 10(b) describes a scheme to “obtain money and property from Acme and certain brokers and vendors doing business with Acme,” suggesting that Johns received a portion of the money that Acme paid to the vendors, and therefore, that Acme was defrauded when it paid the vendors, the clear implication in subpara-graph 10(c), supported by the government’s memoranda and bill of particulars, is that Johns’ fraud came into play after Acme paid money to the vendors when Johns retained and concealed secret payments that properly belonged to Acme. Johns maintains that subparagraph 10(c) must be dismissed for improperly relying on a theory of property loss rejected by the Third Circuit in United States v. Zauber, 857 F.2d 137 (3d Cir.1988), cert. denied sub nom., Scotto v. United States, — U.S. -, 109 S.Ct. 1340, 103 L.Ed.2d 810 (1989), as being inconsistent with McNally. Were it not for the Third Circuit’s clarification of Zauber in United States v. Osser, 864 F.2d 1056 (3d Cir.1988), Johns might indeed be correct that any implication of the constructive trust doctrine in an indictment must fail. In Osser, however, the Third Circuit distinguished Zauber, explaining that because Osser’s indictment charged and the jury was instructed to determine whether the City of Philadelphia, the alleged victim of Osser’s scheme, lost money because of the defendant’s receipt of kickbacks, the conviction, which stemmed from the allegation that the defendant defrauded the city out of “secret monies obtained ... in the performance of his official duties as City Commissioner,” withstood McNally. 864 F.2d at 1063. The constructive trust doctrine and its attending controversy grew out of a seemingly innocuous statement by Justice Stevens in a footnote in his dissent in McNally. Invoking principles of agency law, Justice Stevens said, “ ‘If an agent receives anything as a result of his violation of a duty of loyalty to the principal, he is subject to a liability to deliver it, its value, or its proceeds, to the principal.’ ... This duty may fulfill the Court’s ‘money or property’ requirement in most kickback schemes.” 483 U.S. at 377 n. 10, 107 S.Ct. at 2890 n. 10 (Stevens, J., dissenting) (quoting Restatement (Second) of Agency § 403 (1958)). Relying on Justice Stevens’ footnote, a panel of the Sixth Circuit in United States v. Runnels, 833 F.2d 1183 (6th Cir.1987) (“Runnels I”), rev’d en banc, 877 F.2d 481 (6th Cir.1989) (“Runnells II”), affirmed the conviction of a union local president for accepting bribes in exchange for referring union employees’ workers’ compensation claims to a particular law firm. Although the government had relied exclusively on a pr&-McNally, intangible rights theory of prosecution, the court held that it was more or less implicit that because Runnels accepted a bribe in his role as the union local’s president, the money rightfully belonged to the local, of which he was an agent. “[T]he economic deprivation to the principal which occurs when the fiduciary knowingly breaches his duty by accepting a bribe, the value of which properly belongs to the principal, is itself sufficient to support a finding of taking of value.” 833 F.2d at 1187. The Runnels I panel reasoned that by taking bribes in his capacity as fiduciary to the union local, Runnels deprived the union of money in which it had an ownership interest. Id. Before it was vacated and reversed, Runnels I was openly criticized by other courts of appeals. E.g., United States v. Holzer, 840 F.2d 1343, 1347 (7th Cir.1988); United States v. Ochs, 842 F.2d 515, 525 (1st Cir.1988); United States v. Shelton, 848 F.2d 1485, 1491-92 (10th Cir.1988); see also United States v. Slay, 858 F.2d 1310, 1316 n. 4 (8th Cir.1988). Only the Fifth Circuit adopted the economic benefit/constructive trust reasoning of Runnels I and continued to apply it even after the reversal in Runnels II to affirm pve-McNally mail fraud convictions predicated on a defendant’s receipt of kickbacks which deprived others of substantial, albeit intangible, rights. E.g., United States v. Little, 889 F.2d 1367 (5th Cir.1989); United States v. Matt, 838 F.2d 1356 (5th Cir.), cert. denied, 486 U.S. 1035, 108 S.Ct. 2020, 100 L.Ed.2d 607 (1988); United States v. Fagan, 821 F.2d 1002 (5th Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988); United States v. Richerson, 833 F.2d 1147 (5th Cir.1987). Against this backdrop, the Third Circuit decided United States v. Zauber, 857 F.2d 137. In Zauber, the trustees and general counsel of a union pension fund were convicted, inter alia, of mail and wire fraud and of a RICO conspiracy based on predicate acts of mail and wire fraud. Defendants were charged with scheming to invest the pension fund’s money in a mortgage company in exchange for kickbacks. Pursuant to the agreement, the pension fund was to receive a favorable fixed rate of return; hence, although the indictment made reference to a loss of money and property, there was absolutely no allegation or proof at trial that the fund suffered a financial loss as a result of the scheme. The government’s theory of prosecution was based solely on the fund’s loss of its intangible right to the honest and faithful services of the defendants. Id. at 144-45. When the government attempted to argue for the first time on appeal that the kickbacks themselves constituted a property loss to the pension fund on the basis of the defendants’ fiduciary relationship to the beneficiaries of the fund, the court, noting that “the Runnels fiduciary duty theory is in trouble,” id. at 146, and that “the constructive trust theory has been flatly rejected by the Seventh Circuit,” id. (citing Holzer 840 F.2d at 1347-49), reversed the defendants’ mail fraud convictions and that part of the RICO convictions based on mail fraud stating, “We too reject [the constructive trust theory] as inconsistent with McNally,” id. See also Ochs, 842 F.2d at 526 (“With the issue squarely before it, the [McNally] Court held that the mere fact a fiduciary profits from a breach of duty is not a sufficient property deprivation to satisfy the requirements of the mail fraud statute if the property was not directly or indirectly at the principal’s expense.”). After Zauber, one might persuasively have argued that the Third Circuit would not accept reliance on principles of agency law as the basis of a money or property loss in a mail fraud prosecution. In Osser, however, the Third Circuit explained that its decision in Zauber was fact specific: Unlike the Zauber, Holzer, and McNally trials, the jury in this case was charged explicitly that it could find financial detriment to the City as a result of the kickbacks and commissions received by Os-ser. Thus, the trial court did not rely on a constructive trust doctrine as explicated in Zauber and Holzer. 864 F.2d at 1063. The allegation in the indictment that the court found to withstand McNally —indeed the only allegation that did not rely exclusively on the deprivation of intangible rights — charged that the defendant “devised and intended to devise a scheme and artifice to defraud.... The City of Philadelphia out of secret monies obtained by Maurice S. Osser in the performance of his official duties as City Commissioner of the City of Philadelphia.” Id. at 1058 n. 1. In Osser, the defendant, a former city commissioner, was accused of participating in a bid-rigging and kickback scheme for the city’s contracts with two printing companies. Although the indictment did not specifically allege that Osser’s scheme increased the cost of printing services to the city, the government established this fact at trial. The court seemed satisfied that because the city’s alleged loss was based on the theory that the kickbacks increased the price paid, the city’s entitlement to the value of the kickbacks was actual, and not merely constructive. Id. at 1063-64. The charge in Osser’s indictment which the court approved is almost identical to subparagraph 10(c) of Johns’ indictment. As Osser makes clear, the absence of a specific allegation that Acme paid more money to those sellers who paid kickbacks to Johns than it would have absent the scheme or had it known of the scheme is not fatal to the indictment. So long as the government proves that Acme suffered a net loss of money or property, and not merely a loss of “entitlement” to certain funds, a conviction based on subparagraph 10(c) survives McNally. Inasmuch as subparagraph 10(b) alleges that part of the money Acme paid to the brokers and vendors later improperly lined Johns’ pockets, a conviction based on subparagraph 10(b) withstands McNally if the government establishes that Acme paid an inflated price or otherwise lost money or property because of the scheme. Subsection B, below, discusses the merits of the government’s proof. B. Johns has committed an offense within section 1341 as interpreted by McNally. 1. Johns defrauded Acme of money by receiving his salary and benefits under false -pretenses. Relying solely on the stipulation of facts between the parties and the inferences reasonably drawn from them, I conclude that the government has sustained its burden of proof with respect to subparagraph 10(a), but not with respect to subparagraphs 10(b) and 10(c) of the indictment. On that basis, however, Johns is guilty of all thirty-eight counts of mail fraud charged in the indictment. Subparagraph 10(a) is “easily separable” from subparagraphs 10(b) and 10(c). See United States v. Cooke, 833 F.2d 109, 110 (7th Cir.1987). Subpara-graphs 10(b) and 10(c) may simply be treated as “[a] part of the indictment unnecessary to and independent from the allegation of the offense proved ... that ‘may be ignored.’ ” United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1815, 85 L.Ed.2d 99 (1985) (quoting Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793 (1927)). Because subpara-graph 10(a), standing alone, alleges a violation of the mail fraud statute (so long as the United States mail was utilized to execute the scheme), proof that Johns committed the acts averred in 10(a) is sufficient to convict him. To establish a mail fraud violation, the government must prove beyond a reasonable doubt that Johns (1) engaged in a scheme (2) to defraud Acme of money or property, or to obtain money or property from Acme by means of false and fraudulent pretenses. The evidence must also demonstrate (3) Johns’ specific intent to commit fraud and (4) that Johns mailed or caused to be mailed certain items for the purpose of executing the scheme. See United States v. Goss, 650 F.2d 1336, 1341 (5th Cir.1981). As an initial matter, Johns concedes at paragraph sixteen of the stipulation of facts that the United States mails were used to transmit all of the purchase orders, invoices, and checks between Acme and the brokers and vendors involved in the alleged scheme. Because Johns was in charge of the accounts of these brokers and vendors, see Stipulation Till 2-9, the items were mailed at his direction, i.e., he “caused them to be mailed.” Johns also stipulates at paragraph sixteen that he “arranged for the use of the mail by the brokers and vendors to transmit checks constituting payments from those brokers and vendors to be deposited into Pak-All and Alma bank accounts.” Paragraph sixteen covers all of the mailings alleged in the indictment. For the purpose of the mail fraud counts, Johns has conceded that he “mailed or caused to be mailed” the items listed in counts one through thirty-eight. To satisfy the mail fraud statute, “[I]t is sufficient for the mailing to be ‘incident to an essential part of the scheme,’ ... or ‘a step in [the] plot.’ ” Schmuck v. United States, 489 U.S. 705, -, 109 S.Ct. 1443, 1447, 103 L.Ed.2d 734 (1989) (quoting Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916)). In this case, there is no question that the United States Postal Service was the vehicle which enabled Johns to execute the scheme. The government has clearly established the existence of a scheme to defraud Acme. Evidence of an agreement to purchase from certain brokers and vendors in exchange for a percentage of the brokerage commissions or a percentage of the vendors’ total sales abounds in the stipulation of facts. See, e.g., Stipulation at 11 5 (“[A]t the request of Johns, Annick made payments to Unique Packaging and Design Consultants_[a portion of which] represented payments to Johns for business with Acme from which Annick received a brokerage commission.”); Stipulation at 1114 (“At Johns’ suggestion, payments by check were made by the following brokers and vendors doing business with Acme, payable to and deposited into Pak-all and Alma checking accounts ... ”); Stipulation at 1121 (“Johns requested and Annick agreed to share with him 40 percent of the commissions Annick received from sales of bags to Acme.... ”); Stipulation at ¶ 26 (“Within a few months after Anko entered the janitorial supply business with Acme, he and Johns reached an agreement that he would pay to Pak-all 4.5% of the business that Anko did with Acme); Stipulation at 11 53 (“[B]y arrangement with Johns, Sabana paid half of (its commission on sales to Acme] to Pak-all”); Stipulation at 1165 (“In mid-1980 Johns told Busel and Posner that they should cease paying commissions to Annick and begin paying them into Pak-all.”); Stipulation at 11 67 (“In approximately June of 1983, Johns told Busel and Pos-ner that future commission checks should be made to Alma.”); Stipulation at 1171 (“Stone gave Johns a check, payable to Alma, for $2,600.48, a portion of the commissions Stone received on Mobil’s sales to Acme.”) Johns maintains that there is no evidence from which to conclude that the payments to Unique, Pak-all, and Alma were a condition of the brokers’ and vendors’ continued business relationship with Acme. I disagree. Although the stipulation points to no express agreement between Johns and any of the brokers or vendors, as Robert Annick explained, “I think the implication was there.” Stipulation at ¶ 30. Barry Frazee, a broker serving the Acme account for Champion International, a paper bag manufacturer, testified that he understood that the commission payments he made at Johns’ direction to a company called Chelsea Sales were a condition of his doing business with Acme. Stipulation at 11 55. It is quite rare that tangible evidence of an unlawful scheme or covert agreement will exist. Its viability often depends on the absence of a traditional contractual relationship, either written or oral, and the existence, instead, of a mutual “understanding,” in which performance alone represents offer and acceptance. It is therefore entirely permissible for the government to rely on circumstantial evidence of such a scheme or agreement and for the fact finder to conclude, as I have, that one exists solely on the basis of that evidence. Likewise, I find there is sufficient evidence in the stipulation of facts of Johns’ specific intent to defraud Acme. In May of 1976, Acme’s board of directors adopted a conflict of interest policy, applicable to designated employees, mandating prompt disclosure of actual and potential conflicts of interest. Stipulation at 1118; Stipulation at Exh. 1A. The policy defines a “conflict of interest” as “a relationship or transaction that does or may (a) provide gain or benefit to an individual or a member of his family which may be at the expense of ... his or her employer ... (c) affect an individual’s objective-judgment and/or action with respect to any transaction between the individual’s employer, its customers or suppliers.” Stipulation at Exh. 1A. As required by the conflict of interest policy, Johns filled out conflict of interest questionnaires in 1978 and in 1982, Stipulation at Exhs. IB and 1C, in which he falsely represented to Acme that he has not benefitted financially from any “person, firm, partnership, corporation or association with which [Acme] has ... transacted business.” Stipulation at Exhs. IB, ¶ 1(c) and 1C, 111(c); see also Stipulation at Exhs. IB, 111(a) and 1C, 111(a) (requiring disclosure of any person or corporation with which Acme has transacted business that Johns or a family member “had a financial interest with.”); Stipulation at Exhs. IB, 111(d) and 1C, 111(d) (requiring disclosure of any “arrangement, understanding or agreement” not covered by the questionnaire, whereby Johns or a family member “benefit[ted] financially from any business transacted by [Acme].”). I find that Johns' failure to disclose to Acme his relationship with the brokers and vendors who made commission payments to Unique, Pak-all, and Alma, as well as his failure to reveal to Acme his financial interest in those so-called brokerage companies, Stipulation at ¶ 15; Stipulation at Exhs. IB and 1C, constituted knowing and willful violations of Acme’s conflict of interest policy which amounted to intentional fraud. See United States v. Carpenter, 484 U.S. 19, 27, 108 S.Ct. 316, 321, 98 L.Ed.2d 275 (1987) (Supreme Court holds that newspaper employee’s deliberate violation of employee manual proscribing revelation of confidential prepublication information constituted fraudulent activity and not mere “violation of workplace rules.”); United States v. George, 477 F.2d 508, 515 (7th Cir.) (employees’ violation of employer’s conflict of interest policy bore on their intent to defraud), cert. denied sub nom., Greensphan v. United States, 414 U.S. 827, 94 S.Ct. 49, 38 L.Ed.2d 61 (1973); see also Ingber v. Enzor, 841 F.2d 450, 456 (2d Cir.1988) (“Nothing in McNally bars conviction for deprivation of money or property through concealment of a conflict of interest.”). I also find that by denying the existence of a personal financial stake in any of the companies or with any of the people with whom Acme does business on two conflict of interest questionnaires, Johns intended to deceive and mislead Acme by false and fraudulent pretenses. Additionally, Johns’ deliberate omission of his name as an officer, shareowner, or stockholder on the incorporating papers and on all accounts of Pak-all, Alma, and Garo, Stipulation at 111111 and 13, despite the fact that he almost single-handedly controlled these companies and was their principal beneficiary, is further evidence of his intent to defraud Acme. Finally, I conclude that the government has established beyond a reasonable doubt that Acme lost money in the form of salary and benefits provided to Johns between June of 1978, when the indictment charges that the scheme began, until November of 1984, when Johns was forced to resign from Acme. Accepting as true the characterization in the indictment crediting Johns with being “an aggressive, knowledgeable and determined negotiator” in his dealings with vendors and brokers on behalf of Acme, Stipulation at H 84, and the statements acknowledging that Johns obtained the best prices for Acme from those vendors and brokers implicated in the scheme than he would have absent the scheme, Stipulation at 111185, 86; see also Stipulation at ¶ 87, I nonetheless find that Acme received less from Johns than his salary and Acme’s conflict of interest policy require he deliver. The conflict of interest policy expressly condemns the conduct in which Johns engaged for a period of at least six years. The policy is evidence of the high priority that Acme placed on honest and ethical services by its employees, free from the type of secret dealings which plagued Johns’ tenure with the company. As soon as the policy was adopted in 1976, its mandates became an integral part of the duties and obligations that Johns owed Acme. In exchange for his performing these duties and obligations, Acme paid Johns an annual salary and provided him with benefits. Implicit in the employment relationship is the notion that Acme paid for Johns’ honest and faithful services just as it paid for his aggressive negotiations with its customers, his knowledge of the various products which he was responsible for purchasing, his availability during established working hours to Acme’s management and to its customers, as well as his diligence in his other job responsibilities. When Johns failed to deliver his honest and faithful services consistent with Acme’s policy, Acme clearly paid more and got less than that for which it had bargained. Quoting United States v. Webb, 689 F.Supp. 703, 707 (W.D.Ky.1988), a case in which the court overwhelmingly approves of the salary theory as the basis for a loss of money or property under McNally, the government avers, “ ‘[T]he essence of fraud is that through false representations, the victim has something, whether it be a product, service or an employee, that is of lesser value than the price paid.’ ” Govt’s Mem. at 5. I agree. Although it is probably true that Johns’ salary and benefits were regularly budgeted items that would have been paid to some buyer, c.f. McNally, 483 U.S. at 360, 107 S.Ct. at 2881 (“Indeed, the premium for insurance would have been paid to some agency_”), foreclosing any argument that Acme would have saved money in the form of salary and benefits had it known of the fraud, the proof nonetheless establishes that Acme lost money when deprived of its “benefit of the bargain” with Johns. See Webb, 689 F.Supp. at 707 (denying motion to dismiss mail fraud indictment in which defendant is charged with scheme to fix county’s election of sheriff, court holds that “it is not the fact that the Commonwealth had regularly budgeted the salary of the Sheriff and intended to pay that salary upon which this case turns but instead the case turns on whether the Commonwealth received for payment of the Sheriff’s salary a properly elected official.”); United States v. Schermerhorn, 713 F.Supp. 88, 92 (S.D.N.Y.1989) (“[T]his court will not abide nor judicially sanction the conclusion that corrupt and non-corrupt elected officials are of equal value. Should it be proven that defendant engaged in the scheme here alleged, we think a presumption arises that the citizenry could have secured a better state senator.”). Having found that the government satisfied its burden of proof with respect to the fraudulent scheme alleged in subparagraph 10(a), I conclude that Johns is guilty of mail fraud on counts one through thirty-eight of the indictment, mailings made in connection with and to execute that scheme. Nonetheless, to establish a complete record for appeal, I will evaluate the government’s proof with respect to subpar-agraphs 10(b) and 10(c). 2. There was no proof that Acme lost money because its vendors paid kickbacks to Johns as charged in subpar-agraphs 10(b) and (c) of the indictment. As discussed earlier, in order to establish a mail fraud violation pursuant to subparagraphs 10(b) and 10(c), the government must prove that Acme lost money or property, aside from the salary and benefits it paid to Johns, because of the kickback scheme. With respect to subpara-graph 10(c), the only loss that would satisfy McNally, as interpreted by the Third Circuit in United States v. Osser, 864 F.2d 1056, 1063 (3d Cir.1988), is proof that the brokers and vendors involved in the scheme overcharged Acme, and that the amount of the overcharge then lined Johns’ pockets. Although the government also argues that I should recognize a constructive loss by Acme due to the legal fiction that it is entitled to the kickback money regardless of overcharge, that theory is effectively foreclosed by United States v. Zauber, 857 F.2d 137, 146 (3d Cir.1988), cert. denied sub nom., Scotto v. United States, — U.S.-, 109 S.Ct. 1340, 103 L.Ed.2d 810 (1989). With regard to subparagraph 10(b), the government argues that Acme lost money or property by means of false and fraudulent pretenses in any one of three ways: (1) that Acme lost its “property” right to control how its money is spent, Govt’s Mem. at 7; (2) that Acme was deprived of its “property” right to know material information concerning the amount its suppliers were willing to charge, Govt’s Mem. at 8, which “clearly had some economic value,” Govt’s Mem. at 16; and (3) that the kickback scheme increased the prices charged to Acme by the amount of the kickbacks to Johns, Govt’s Mem. at 16. Acme’s alleged “loss of control” over how its money was spent and “loss of the right to know” certain material information are not property losses within the meaning of McNally and must therefore be rejected as a matter of law despite proof in support thereof. In Zauber, the Third Circuit held that the “loss of control argument_is too amorphous to constitute a violation of the mail fraud statute as it is currently written.” 857 F.2d at 147. Similarly, the Second Circuit has held that the right to control the alienation of property is not covered by the mail fraud statute. See United States v. Evans, 844 F.2d 36, 42 (2d Cir.1988) (rejecting government’s theory that its right to control the transfer or resale of United States military weapons from one foreign country to another is a McNally property right); cf. United States v. Perholtz, 836 F.2d 554, 558 (D.C.Cir.1987) (“Here, defendants did more than assert control over the flow of the subcontractors’ funds. Their scheme ensured that the ‘negotiated’ cost of the subcontracts was higher than the price at which the subcontractors would have been willing to contract [absent the kickback scheme].”). Although the Fifth and Eight Circuits have reached different conclusions, see United States v. Fagan, 821 F.2d 1002, 1011 n. 6 (5th Cir.1987) (“[T]he scheme here was one to deprive Texoma of its property rights, viz: its control over its money.... ”); United States v. Shyres, 898 F.2d 647, 652 (8th Cir.1990) (“[Deprivation of the right to control spending can serve as the basis for a mail fraud conviction.”), and the Seventh Circuit has approved a modified version of the loss of control theory, see Ranke v. United States, 873 F.2d 1033, 1039 (7th Cir.1989), I am, nonetheless, bound by the mandates of the Third Circuit. I conclude that the right to know material information, like the right to control spending, is too ethereal to constitute a McNally property interest. The government’s theory is not analogous to the holding in United States v. Carpenter, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), where the Supreme Court recognized that the Wall Street Journal, the victim of defendant’s scheme, had a legitimate property interest in confidential pre-publi-cation financial information acquired by stock analysts who worked for it in the course of its business. While Acme might determine that certain price information in the hands of its brokers and vendors is valuable to it, it does not necessarily follow that this information belonged exclusively to Acme, that this information was a commodity which Acme could buy or sell, or that the withholding of this information constitutes a McNally property loss. In fact, there is no indication that this price information was ever in Acme’s possession or that Acme was at any time entitled to it. See United States v. Slay, 858 F.2d 1310, 1316 (8th Cir.1988) (“Withholding valuable information is not the same thing as depriving the City of its property, and only the latter conduct violates the mail fraud statutes.”); United States v. Covino, 837 F.2d 65, 71 (2d Cir.1988) (distinguishing Carpenter, court reverses defendant’s wire fraud conviction finding that “Covino was charged with depriving NYNEX of material information concerning breaches of his fiduciary duty, not with depriving it of property.”). It appears, then, that in order to obtain a conviction under either subparagraph 10(b) or 10(e), the government must prove that Acme paid additional money to its vendors as a result of the kickback scheme. See Osser, 864 F.2d at 1064. In the stipulation of facts, the government concedes that the brokers involved in the scheme would each testify that during Johns’ tenure with Acme, the prices charged Acme were “less than or equal to those charged other similarly sized purchasers buying on similar terms.” Stipulation at ¶1 85. The government also admits that the prices charged by the vendors who made kickback payments to Unique, Pak-all, and Alma “were not inflated, in comparison to prices they were charging other accounts, in order to fund the[se] payments.” Stipulation at ¶ 86. There is no evidence that Johns could legally have induced the vendors to charge Acme less money even if he were to forego his kickback payments since “Acme made its buyers aware that they were not permitted to violate the Robinson-Patman Act by inducing their vendors to sell to Acme at lower prices, or on terms more favorable, than those offered to Acme’s competition.” Stipulation at U 85. Although the government makes the argument that in the absence of Johns’ scheme, the prices charged by the sellers involved in the scheme might have been uniformly lower to all of the sellers’ customers, including Acme, there is no evidence in the stipulation of facts from which to infer that this necessarily would have occurred. The “simple economic logic” advocated by the government, Govt’s Mem. at 16, is no substitute for evidence. Finally, the government accepts as true a study conducted by Acme after Johns’ departure from Acme comparing floor care chemicals and material costs. Acme found “that the only competitor willing to supply the same grade product [as] Annick with the same level of service would charge Acme substantially more per year than An-nick, perhaps in excess of $400,000.” Stipulation at ¶ 87; see also Dft’s Exh. 28. The government cannot now claim that Acme paid more money as a result of the kickback scheme. If anything, the evidence suggests that were Acme to have lost its accounts with the vendors implicated in the scheme, its costs would have increased. See id. Cf. Perholtz, 836 F.2d at 558 (denying defendants’ motions for release pending appeal, court finds that the government, the victim of defendants’ fraud, would have paid less money “if the defendants had negotiated subcontracts that did not include the cost of bogus marketing agreements and other kickbacks.”); United States v. Horton, 847 F.2d 313, 319-20 (6th Cir.1988) (affirming defendant’s mail fraud convictions, court holds that because defendant engaged in “short-shipping” to Chrysler Corporation, the victim of his kickback scheme, “there is evidence ... not present in McNally, that the money Horton received was Chrysler’s money.”). Having failed to establish that Johns’ kickback scheme increased Acme’s costs, the government has not sustained its burden of proof with respect to subparagraphs 10(b) and 10(c). See United States v. Shelton, 848 F.2d 1485, 1496 (10th Cir.1988) (reversing defendants’ mail fraud convictions, court finds, inter alia, that “the evidence of several witnesses established without dispute that the payment of kickbacks had no impact on the way in which the price of county purchases was set.”) C. Johns has violated the mail fraud statute as amended by section 1346 of the mail fraud chapter of the criminal code. In McNally, the Supreme Court deferred to the rule of lenity in interpreting criminal statutes, refusing to venture beyond the plain and obvious language of the mail fraud provision until Congress “speak[s] more clearly than it has”: Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read section 1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has. 483 U.S. at 360, 107 S.Ct. at 2881. The following year, Congress did speak more clearly. On November 18, 1988, Congress passed The Anti-Drug Abuse Act of 1988, and in the process, added section 1346 to the mail fraud chapter of the criminal code: For purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to defraud another of the intangible right of honest services. Pub.L. No. 100-690, § 7603, 102 Stat. 4508 (1988). Section 1346 restores the scope of the mail fraud statute to its state before McNally, see 134 Cong.Rec. H11251 (daily ed. Oct. 21, 1988), and thereby criminalizes schemes to defraud another of the right to loyal and faithful services, regardless of whether the .scheme caused the alleged victim to lose money or property. “The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision.” Goodman v. Lukens Steel Co., 482 U.S. 656, 662, 107 S.Ct. 2617, 2621, 96 L.Ed.2d 572 (1987). The origin of this rule is almost two hundred years old, dating back to the opinion of Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801) (“It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.”) Nonretroactivity is appropriate when it “would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. School Board of City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); e.g., Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) (holding that it would be inequitable to apply decision specifying state statute of limitations retroactively where decision overruled clear, past precedent on which complainants were entitled to rely). Where the legislative history of an amendment reflects Congress’ intent to codify its rejection of a federal court’s interpretation of a statute, the courts should respond with particular deference to this amendment, unless one of the Bradley exceptions applies. See Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir.1987); see also N.L.R.B. v. Bell Aerospace Co. Div. of Textron Inc., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974) (“[Subsequent legislation declaring the intent of an earlier statute is entitled to significant weight.”), rev’d on other grounds, N.L.R.B. v. Hendricks County Rural Elec. Membership Corp., 454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1981). Unquestionably, section 1346 represents Congress’ intent to reverse the effects of McNally. The language of the amendment and the attending statements of its floor sponsor are direct and unambiguous. See 134 Cong.Rec. H11251 (daily ed. Oct. 21, 1988); United States v. Berg, 710 F.Supp. 438, 442 (E.D.N.Y.1989). (“The Court is persuaded that both the text of section 1346 and the uncontradicted comments of its floor sponsor indicate Congress’s intent to overrule McNally and restore the law to its state prior to McNally.”). There is no legislative directive accompanying the amendment signifying that Congress meant to prohibit its retroactive application. Johns can hardly complain that retroactive application of section 1346 to his conduct would be “manifestly unjust” in view of the fact that at the time he committed the acts with which he has been charged, every court of appeals to consider the issue, in particular, the Third Circuit, had interpreted the mail fraud statute to proscribe schemes to defraud another of the right to honest and faithful services. See, e.g., United States v. Clapps, 732 F.2d 1148, 1153 (3d Cir.), cert. denied 469 U.S. 1085, 105 S.Ct. 589, 83 L.Ed.2d 699 (1984); United States v. Frankel, 721 F.2d 917, 920 (3d Cir.1983); United States v. Scott, 701 F.2d 1340, 1343-44 (11th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 158 (1983); United States v. Margiotta, 688 F.2d 108, 122 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir.1981); United States v. Mandel, 591 F.2d 1347, 1359-60 (4th Cir.), aff'd in relevant part on rehearing, 602 F.2d 653 (1979) (en banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). At ail times from the inception through the termination of the kickback scheme, Johns was on notice that by depriving Acme of his honest and conflict-free services, he was violating the mail fraud statute as it had been interpreted by each court of appeals. See McNally, 483 U.S. at 362-68 & nn. 1-5, 107 S.Ct. at 2882-86 & nn. 1-5 (citing cases) (Stevens, J., dissenting). There is nothing unjust about holding a criminal defendant accountable for acts which were unlawful when they were committed and which would likewise be unlawful if committed today. Nonetheless, the Ex Post Facto Clause of the federal Constitution, U.S. Const. art. I, § 9, prevents Congress from enacting a law “which imposes a punishment for an act which was not punishable at the time it was committed.” Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1867); see Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162 (1810) (“An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.”). A statute violates the clause if it is both retroactive and more onerous than the law in effect when the offense was committed. Weaver v. Graham, 450 U.S. 24, 30-31, 101 S.Ct. 960, 965-966, 67 L.Ed.2d 17 (1981). Although the Ex Post Facto Clause does not explicitly apply to the judiciary, it is fundamental to the notion of ordered liberty: “If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964). Accordingly, an employee who committed fraudulent acts as defined by section 1346 could not be convicted on the basis of