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IN THE UTAH SUPREME COURT STATE OF UTAH, Respondent/Cross-Petitioner vs. RICHARD NORRIS, Petitioner/Cross Respondent. STATE OF UTAH, Plaintiff/Respondent, vs. RICHARD JEREMY MATTINSON, Defendant/Petitioner.

Case No. 20040880-SC


(Neither Petitioner incarcerated)

SUPPLEMENTAL REPLY BRIEF OF PETITIONERS

SUPPLEMENTAL REPLY BRIEF OF PETITIONERS SEEKING WRIT OF

CERTIORARI TO THE UTAH COURT OF APPEALS IN STATE V. NORRIS,

2004 UT APP 267, 97 P.3D 732, AND STATE V. MATTINSON, 2005 UT APP 155. Jeffrey S. Gray (5852) Matthew Bates (9861) Assistant Attorney General Mark L. Shurtleff (4666) Attorney General Jennifer K. Gowans (7538) Appeals Division FILLMORE SPENCER, LLC 160 East 300 South, 6th Floor AT JAMESTOWN SQUARE P.O. Box 140854 3301 North University Avenue Salt Lake City, Utah 84114-0854 Provo, Utah 84604

Attorneys for State of Utah Attorneys for Petitioners




(Neither Petitioner incarcerated)


SUPPLEMENTAL REPLY BRIEF OF PETITIONERS SEEKING WRIT OF

CERTIORARI TO THE UTAH COURT OF APPEALS IN STATE V. NORRIS,

2004 UT APP 267, 97 P.3D 732, AND STATE V. MATTINSON, 2005 UT APP 155. Jeffrey S. Gray (5852) Matthew Bates (9861) Assistant Attorney General Mark L. Shurtleff (4666) Attorney General Jennifer K. Gowans (7538) Appeals Division FILLMORE SPENCER, LLC 160 East 300 South, 6th Floor AT JAMESTOWN SQUARE P.O. Box 140854 3301 North University Avenue Salt Lake City, Utah 84114-0854 Provo, Utah 84604

Attorneys for State of Utah Attorneys for Petitioners

TABLE OF CONTENTS

ii

SUMMARY OF ARGUMENT ........................................................................................ 1

ARGUMENT................................................................................................................................1

I. THE STATE=S CONSISTENT INCONSISTENCY IN INTERPRETING '76-

10-1801 DEMONSTRATES THE STATUTE=S VAGUENESS ..................... 3

II. THE STATE MISAPPLIES RULES OF STATUTORY CONSTRUCTION ....8

III. THE STATE MISUNDERSTANDS STANDING REQUIREMENTS......... 12

IV. AMICUS CURIAE=S CLAIM THAT THE FEDERAL MAIL FRAUD STATUTE IS MORE BROAD AND PUNITIVE THAN '76-10-1801 IS

WITHOUT MERIT........................................................................................... 16

CONCLUSION ................................................................................................................ 19

iii

TABLE OF AUTHORITIES

Cases

Blackner v. State, 2002 UT 44, 48 P.3d 949 ....................................................................... 8

City of Chicago v. Morales, 527 U.S. 41 (1999)..........................................................12-15

Jackson v. Mateus, 2003 UT 18 .................................................................................... 8, 11

Provo City v. Thompson, 44 P.3d 828 (Utah App. 2002).................................................... 2

United States v. Salerno, 481 U.S. 739 (1987).................................................................. 15

Utah Pub. Emples. Ass=n v. State, 2006 UT 9 ................................................................... 15

Wagner v. Utah Dept. of Human Servs., 122 P.3d 599 (Utah 2005)................................... 8

West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994).................................................. 9

Constitutional Provisions

UNITED STATES CONSTITUTION, First Amendment ................................................. passim

UTAH CONSTITUTION, art. I, '15................................................................................passim

Statutes

18 U.S.C. '1341............................................................................................................................ 16

UTAH CODE ANN. ' 76-10-1801 ................................................................................. passim


Case No. 20040880-SC Case No. 20050415-SC


SUMMARY OF ARGUMENT

The State=s briefs, including amicus curiae, demonstrate the unconstitutional

vagueness of Utah Code Ann. '76-10-1801.

ARGUMENT

V. THE STATE=S CONSISTENT INCONSISTENCY IN INTERPRETING '76-10-1801 DEMONSTRATES THE STATUTE=S VAGUENESS.

The State notes, ATo the extent that this brief and any statements made at oral argument

may be interpreted as inconsistent, the State stands on the arguments and rationale expressed in

2

the [supplemental] brief.@ SUPPLEMENTAL BRIEF OF RESPONDENT (AResp. Supp. Br.@), at

15, fn. 3. In other words, throughout this proceeding and only after exhaustively briefing

and arguing the subject before both the Utah Court of Appeals and this Court, assistants

attorneys general, persons of more than ordinary intelligence, have been guessing about

the meaning of Utah Code Ann. '76-10-1801 and differing as to its application. Provo

City v. Thompson, 44 P.3d 828, 834 (Utah App. 2002). And they have now apparently

changed their minds about the meaning and application they previously adopted.

Apparently, the State argues, the statute no longer criminalizes schemes to obtain a kiss, a

vote, or an uninterrupted dinner, and the State no longer desires the unlimited discretion

they previously argued was appropriate. Since the State never raised this new argument

below, it is unpreserved.

Nonetheless, the obvious irony of the foregoing admission to the State=s own

confusion and inconsistent application and interpretation of the communications fraud

statute is that its context is an argument that the statute is not vague, and that persons of

ordinary intelligence understand the conduct it proscribes. If persons of above ordinary

intelligence require several years and in-depth federal and state judicial and legislative

research to understand the statute (not to mention law degrees), this fact would seem to

support an argument that the statute is void for vagueness.

As the above quotation demonstrates, the State undermines itself in its new and

innovative efforts to refute the fact that the statute is void for vagueness. For the past

several years while the Norris and Mattinson cases have been argued and reargued before

3

the Utah Court of Appeals and this Court, the State has interpreted the statute to

criminalize harmless conduct. See, e.g., SUPPLEMENTAL BRIEF OF PETITIONERS (APet.

Supp. Br.@), at 18. Indeed, the State has previously argued that the statute appropriately

criminalizes any scheme to obtain a kiss, a vote, or an uninterrupted dinner and that the

State has discretion under the express terms of the statute to prosecute such Acrimes.@ Id.

Now, the State seeks to change its position and argues for the first time that the

Aanything of value@ language in subsection (1) applies only to intangible property

interests. See, Resp. Supp. Br. at 16-18; BRIEF OF UTAH ATTORNEY GENERAL AS

AMICUS CURIAE (AAmicus Br.@), at 11-13. In other words, 21 years after the statute=s

enactment, it has taken at least four assistants attorneys general, including amicus curiae,

to develop what has been recently designated as the new Acommon-sense@ reading of the

statute. Resp. Supp. Br. at 3.

However, even now the State presents inconsistent and untenable arguments in

its futile efforts to grapple with the vague terms of the statute. The following table

summarizes just the State=s most recent inconsistent interpretations of just the phrase,

Aanything of value,@ and demonstrates the State=s difficulty with creating a consistent,

Acommon-sense@ definition:

4

Anything of Value Resp. Supp. Br. Amicus Br.

Only Intangible Property (not money or property)1

16, 17

5, 7, 9-10, 11, 13

Intellectual Property

19

Bank Accounts, Stock Options, Goodwill, Patents, Trademarks

17

A scheduled appointment with a furnace repairman

23

But see, Amicus Br. at 11 (Aanything of value@ does not include services)

Not sex

24

Not a newspaper subscription

24

1ATo define the phrase [anything of value] as encompassing more than intangible

property interests would subsume the concepts of money and property and render the statute=s use of those terms superfluous.@ Supp. Br. Resp. at 17. This new interpretation would require summary reversal of Mattinson=s conviction based solely on the trial court=s instructions to the jury regarding the meaning of Aanything of value.@ In response to the jury=s confusion, the trial court instructed the jury that Avalue@ was a question of fact. See, Mattinson=s opening brief, Addendum B. Mattinson did not petition this Court to review his Aas applied@ challenge primarily because he did not want to detract from the issue of the apparent facial unconstitutionality of the statute, and his case provides a classic example of the very real arbitrary and discriminatory enforcement the statute encourages. For the record, and since it appears to be an issue of some import to the State, Mattinson strongly disagrees with the court of appeals= conclusion that the Aas applied@ challenge was inadequately briefed. The court of appeals was apprised of the same unique facts and the applicable law that have been presented to this Court in the context of that challenge, including but not limited to the trial court=s vague instructions to the jury about the meaning of Aanything of value.@ The State now agrees that the trial court=s instruction was vague in light of its new argument that value is no longer a Aquestion of fact,@ but only intangible property interests.

5

Services/Not Services

16, 19 (Services)

11 (Not services)2

A family heirloom3 or a photograph of a family member (Only under subsection (1)(e) B not under subsection (1))

21

13

Anything that lacks physical existence

17

Any intangible property interest sought or obtained by the lie, ANo, you don=t look fat in that dress.@

23

2There appears to be a lack of consensus here among the assistants attorneys

general. Respondents argue that services are intangible property interests. Amicus curiae argues that Aanything of value@ does not include Athe intangible right of honest services and other non-property rights.@ Amicus Br. at 11.

3It appears that Respondents argue that a worthless family heirloom is property and thus not Aanything of value@ under subsection (1), but is Aother than something of monetary value@ under subsection (1)(e) (see, Resp. Supp. Br. at 21). Amicus curiae appears to make the same argument for a photograph having only sentimental value (or no value, since it is property, and thus qualifies under subsection (1)). Thus, according to the State=s arguments, value is not a necessary element of the offense as long as the object of the scheme is worthless Aproperty@ under subsection (1) (see, Amicus Br. at 13); and the purportedly Aless punitive@ (see. Amicus Br., at 14-15) provisions of Utah=s communications fraud statute would make a scheme to obtain either a chipped glass candy dish purchased from Walgreens in 1954 for 25 cents, or a completely valueless photograph of Aunt Gertrude, a second degree felony.

6

Amicus curiae and Respondents now argue for the first time that Aanything of value@

means only intangible property interests that are not Amoney@ or Aproperty.@ However,

they disagree on whether that phrase applies to services, with Respondents arguing that it

does and amicus curiae arguing that it does not. Resp. Supp. Br. at 16, 19; Amicus Br. at

11. Also, a newspaper subscription is not money, property, or anything of value. Resp.

Supp. Br. at 24. Therefore, it is not a crime to tell the lie, AYou don=t look fat in that

dress,@ if the object of the artifice is a newspaper subscription. See, Resp. Supp. Br. at

23-4. However, it is a crime B a second degree felony B if the object is a valueless

photograph of a family member. See, Amicus Br. at 13. And, according to the State, the

statute places greater value on a valueless photograph (because it is not money or

anything of monetary value, but is only valueless property under subsection (1)) than on a

woman=s virginity. See, id. and Resp. Supp. Br. at 24.

The confusion created by this dizzying logic is heightened by the fact that

amicus curiae expressly adopts Respondents= arguments, even though neither agrees on

whether services qualify as intangible property interests. See, table above; Amicus Br. at

4. Therefore, although both Respondents and amicus curiae, all assistants attorneys

general, admittedly discussed their arguments with each other in an effort to create a

united front, even they do not understand them. However, both apparently do agree that

the phrase Aanything of value@ in subsection (1)4 has a completely different meaning than

4Intangible property interests subject to monetary valuation, such as intellectual

property. Resp. Supp. Br. at 16-17; Amicus Br. at 5, 7, 9-10, 11, 13.

7

it has in the context of subsection (1)(e).5 Unfortunately, this one consensus only adds to

the confusing ambiguity of the statute and does not help the State=s new arguments.

Indeed, the State=s arguments serve only to illustrate the statute=s ambiguity.

5Objects classified as Aproperty@ in subsection (1) that have Aother than something

of monetary value.@ Resp. Supp. Br. at 20-21 (a valueless heirloom); Amicus Br. at 13-15 (a valueless photograph). Because intangible property interests such as intellectual property generally do have an ascertainable monetary value, a literal reading of the statute excludes such interests from subsection (1)(e).

8

Moreover, the State completely ignores what meanings persons of presumably

more than ordinary intelligence (including the State) have concluded about the meaning

of Aanything of value.@ As noted in Mattinson=s opening brief, the prosecutor at trial

argued that Mattinson=s helping his girlfriend to avoid a warrant for her arrest was

Aanything of value@ to Mattinson (see, Mattinson=s opening brief at 3). Presumably,

intelligently concluding that the evidence did not support the prosecutor=s theory, the jury

wanted to know if Aanything of value@ might be construed as Mattinson=s friend

Areceiving hospital treatment@, or Asomething other than monetary value.@ See, Id.,

Addendum B (the jury=s question also suggests that the jury rejected the prosecutor=s

alternative theory that Mattinson intended to defraud the hospital of money ir services).

The trial court, also a person of more than ordinary intelligence, instructed:

What you have asked is a question of fact. If you determine that hospital treatment is a thing of value which is the object of a scheme or artifice to defraud you may consider if the requisite value is met. You may also determine if hospital treatment is something of value which cannot be given a dollar worth for purposes of Asomething other than monetary value.@ The intent of instruction 4 is to explain that in order to establish a violation of the relevant statute the evidence must show, beyond a reasonable doubt, that a scheme or artifice to defraud to obtain something existed and, then, to determine the nature and/or value of whatever was sought.

Id. The trial court=s instruction reflected its interpretation of the literal words of the

statute.

Moreover, Respondents themselves have previously argued that Avalue@ includes

a kiss, a vote, and an uninterrupted dinner. See, Respondent=s opening brief in Mattisnon

at 15; Respondent=s opening brief in Norris at 14; Pet. Supp. Br. at 18. In light of the

9

myriad interpretations and applications of the statute by persons of more than ordinary

intelligence, the State=s argument that the statute is not vague fails.

VI. THE STATE MISAPPLIES RULES OF STATUTORY CONSTRUCTION.

Notwithstanding the foregoing, the State argues that application of the rules of

statutory construction render the provisions of Utah Code Ann. '76-10-1801 clear and a matter

of Acommon-sense@. Resp. Supp. Br. at 3, 11-18; see also, Amicus Br. at 4 (citing the federal

D.C. Circuit as authoritative in arguing that the meaning of words should be construed in light of

their historical usage). However, the State misconstrues the analysis applied by this Court in

determining the meaning of a statute.

AIn interpreting any statute, rules of statutory construction require the court to >first

look to the statute=s plain language, and give effect to the plain language unless the language is

ambiguous.=@ Wagner v. Utah Dept. of Human Servs., 122 P.3d 599, 602 (Utah 2005) (quoting

Blackner v. State, 2002 UT 44, & 12, 48 P.3d 949. A statute Ashould be applied according to its

literal wording, unless such a reading is unreasonably confused, inoperable, or in blatant

contravention of the express purpose of the statute.@ Jackson v. Mateus, 2003 UT 18, &21

(citations and quotations omitted). A[S]tatutory enactments are to be so construed as to render all

parts thereof relevant and meaningful, and interpretations are to be avoided which render some

part of a provision nonsensical or absurd.@ Id. (citations and quotations omitted).

In the context of this statutory construction analysis, the statute at issue must also be

examined in light of the more Adefinitive and inclusive@ provisions of article I, '15 of the Utah

Constitution under the totality of circumstances, and then under the First Amendment only if the

question of its constitutionality is not resolvable under the Utah Constitution. West v. Thompson

10

Newspapers, 872 P.2d 999, 1006, 1017 (Utah 1994) (citations and quotations omitted); see, Pet.

Supp. Br. at 8-18. Petitioners have already set forth this analysis, which is incorporated herein

by reference, and which defeats the State=s arguments.

Under the Aplain@ language of Utah=s communications fraud statute,6 there need be no

6Utah Code Ann. '76-10-1801 (1995) provides: (1) Any person who has devised any scheme or artifice to defraud another or to obtain from another money, property, or anything of value by means of false or fraudulent pretenses, representations, promises, or material omissions, and who communicates directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice is guilty of:

(a) a class B misdemeanor when the value of the property, money, or thing obtained or sought to be obtained is less than $300;

(b) a class A misdemeanor when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $300 but is less than $1,000;

(c) a third degree felony when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $1,000 but is less than $5,000;

(d) a second degree felony when the value of the property, money, or thing obtained or sought to be obtained is or exceeds $5,000; and

(e) a second degree felony when the object of the scheme or artifice to defraud is other than the obtaining of something of monetary value.

(2) The determination of the degree of any offense under Subsection (1) shall be measured by the total value of all property, money, or things obtained or sought to be obtained by the scheme or artifice described in Subsection (1) except as provided in Subsection (1)(e).

(3) Reliance on the part of any person is not a necessary element of the offense described in Subsection (1).

11

intent to defraud another of money or property, because a false communication made in

furtherance of a scheme or artifice to obtain from another anything of value is a crime. UTAH

CODE ANN. '76-10-1801(1). Under the Aplain@ language of the statute, each and every

additional communication, true or false, made in furtherance of the artifice, is a separate

crime. Id. at (5). Under the Aplain@ language of the statute, the category of offense is

determined by aggregating the total value of each scheme or artifice (which terns are not

defined), unless (according to the State) it is property with no value, in which case it is a

second degree felony. Id. at (1)(e) and (2). The Aplain@ language defines Acommunicate@

as every conceivable way of making something known. Id. at (5). Under the Aplain@

language, there need be no intent to harm or reliance. Id. at (1), (3), and (4).

(4) An intent on the part of the perpetrator of any offense described in Subsection (1) to permanently deprive any person of property, money, or thing of value is not a necessary element of the offense.

(5) Each separate communication made for the purpose of executing or concealing a scheme or artifice described in Subsection (1) is a separate act and offense of communication fraud.

(6) (a) To communicate as described in Subsection (1) means to bestow,

convey, make known, recount, impart; to give by way of information; to talk over; or to transmit information.

(b) Means of communication include but are not limited to use of the mail, telephone, telegraph, radio, television, newspaper, computer, and spoken and written communication.

(7) A person may not be convicted under this section unless the pretenses, representations, promises, or material omissions made or omitted were made or omitted intentionally, knowingly, or with a reckless disregard for the truth.

12

As has amply been demonstrated herein, during oral arguments, and in briefs of

Respondents and amicus curiae, application of the statute=s literal wording Ais

unreasonably confused [and] inoperable@. Jackson v. Mateus, 2003 UT 18, &21.7

(citations and quotations omitted). Moreover, it should also be apparent by now that if

the statute is Aso construed as to render all parts thereof relevant and meaningful,@ it

would be impossible to avoid interpretations Awhich render some part of [the] provision

nonsensical or absurd.@ Id. (citations and quotations omitted).

7Whether it is also Ain blatant contravention of the express purpose of the statute@

(Id.) is unknown, since it is unclear what the purpose of the statute is. Did the legislature intend to criminalize every lie for which an argument could be made that the object was to obtain anything of value, or did it intend only to criminalize schemes and artifices to obtain money, property, intangible property rights, and worthless family heirlooms and photographs?

13

Therefore, applying the foregoing established rules of statutory construction,

'76-10-1801 is vague. The State=s newly developed attempted narrowing construction of

Aanything of value@ directly conflicts with the State=s previous arguments that value

includes a kiss or a vote. As noted above, the State is confused even now about whether

its newly proposed narrowing construction of Avalue@ includes services. The State=s

consistent confusion mirrors everyone=s confusion about what conduct the Aplain@

language of the statute proscribes. Moreover, the interplay between subsections (1), (2),

(3), (4), (5), (6), and (7) is just as confusing, and as demonstrated by the table and

analysis in the previous section, oftentimes absurd. Accordingly, the statute should be

stricken for vagueness.

VII. THE STATE MISUNDERSTANDS STANDING REQUIREMENTS.

Respondents argue that '76-10-1801 does not implicate constitutionally protected

conduct, and thus Petitioners cannot mount a facial vagueness challenged. Resp. Supp. Br. at 5-

8. Petitioners have already refuted the State=s meritless claim, and will not reiterate their

arguments here. Pet. Supp. Br. at 3-5. However, in citing City of Chicago v. Morales, 527 U.S.

41 (1999), the State again undermines its own arguments. Accordingly, a brief analysis of that

case and its application to '76-10-1801 is warranted.

The ordinance in Morales created a criminal loitering offense Apunishable by a

fine of up to $500, imprisonment for not more than six months, and . . . up to 120 hours

of community service.@ Id. at 47. One of the issues that is pertinent for our purposes was

whether a party could mount a facial vagueness challenge when the loitering ordinance

14

did not implicate any conduct protected under the First Amendment. Id. At 52-3. The

U.S. Supreme Court concluded that Athe vagueness of [the] enactment [made] a facial

challenge appropriate. . . . When vagueness permeates the text of such a law,8 it is subject

to facial attack.@ Id. at 55.

8AIt is a criminal law that contains no mens rea requirement, and infringes on

constitutionally protected rights@. Id. at 55.

15

Ignoring solely for the sake of argument the fundamental fact that '76-10-1801

differs from the loitering ordinance in Morales because the Utah provision expressly

criminalizes communications and thereby implicates both the First Amendment and

article I, '15 of the Utah Constitution, Respondents argue here that because '76-10-1801

includes a mens rea requirement, Morales does not apply. Resp. Supp. Br. at 8. This is

incorrect. The Morales court merely noted that the ordinance at issue was a criminal

provision with no mens rea requirement. It did not hold that a criminal statute with a

mens rea requirement was not subject to a facial vagueness challenge. Further, the mens

rea specified in '76-10-1801(7) expressly applies only to the falsehood in subsection (1),

not to the scheme or artifice to defraud or to obtain anything of value, or to the additional

communications for which separate charges can be filed under subsection (5). Indeed, as

previously and exhaustively argued, the statute requires no intent to defraud, and

according to the State=s own recently developed arguments, the obtaining or seeking of

any kind of value is also apparently not a necessary element of the offense. See, fn. 3 and

7, supra. Accordingly and contrary to amicus curiae=s claim that communications fraud

is a specific intent crime (Amicus Br. at 13), the alleged Aspecific intent@ is as of yet

unspecified under a Aplain@ reading of the statute, even when applying the State=s own

newly-developed analysis of its meaning and application.

Contrary to the State=s arguments that a facial vagueness challenge may be

brought only if (1) the law is permeated with vagueness; (2) it infringes on a

constitutional right; and (3) it lacks a mens rea requirement (Resp. Supp. Br. at 7-8), the

16

U.S. Supreme Court made no such holding. Rather, the U.S. Supreme Court noted,

AVagueness may invalidate a criminal law for either of two independent reasons. First, it

may fail to provide the kind of notice that will enable ordinary people to understand what

conduct it prohibits; second, it may authorize and even encourage arbitrary and

discriminatory enforcement.@ Id. at 56 (citation omitted). The Court further noted that

either of these failures was ultimately a failure to meet the requirements of the Due

Process Clause. Id. ANo one may be required at peril of life, liberty or property to

speculate as to the meaning of penal statutes.@ Id. at 58 (citation omitted).

However, the existence or lack of a mens rea requirement was wholly irrelevant

to the ultimate holding in Morales. The fatal flaw that Adoomed@ the ordinance at issue in

that case, which flaw it shares with Utah Code Ann. '76-10-1801, was its Afailure to

distinguish between innocent conduct and conduct threatening harm.@ Id. at 57. Indeed,

in response to the City=s argument that a person could easily avoid prosecution under the

loitering ordinance merely by complying with a police officer=s requisite order to leave,

the Supreme Court concluded, AIf the loitering is in fact harmless and innocent, the

dispersal order itself is an unjustified impairment of liberty.@ Id. at 58.

Respondents erroneously argue here that because '76-10-1801 implicates no

constitutionally protected conduct, this Court must apply the more restrictive standing

requirements articulated in United States v. Salerno, 481 U.S. 739 (1987) (requiring a

person challenging a statute that does not implicate constitutionally protected conduct to

show that it is impermissibly vague in all of its applications). Notwithstanding the

17

previously argued fact that the communications fraud statute does implicate

constitutionally protected conduct (Pet. Supp. Br. at 3-5), Respondents= analysis

misconstrues the U.S. Supreme Court=s holding as demonstrated above.

Further, Respondents= interpretation of the Morales holding has already been

explicitly rejected by this Court:

When state courts interpret their own state law, the United States Supreme Court

has not required adherence to Salerno. . . . [T]he assumption that state courts

must apply the restrictive Salerno test is incorrect as a matter of law; moreover,

it contradicts essential principles of federalism. . . . [I]n state law cases in state

courts, a more appropriate threshold for determining the validity of facial

challenges may simply exist in establishing the substantive merits of the case B

the unconstitutionality of the legislation.

Utah Pub. Emples. Ass=n v. State, 2006 UT 9, &&21-2 (citing and quoting Morales, other

citations and quotations omitted).

Based on Petitioners= previous arguments and the foregoing facts and law,

Respondents= claim that Petitioners cannot mount a facial vagueness challenge is wholly

without merit.

VIII. AMICUS CURIAE=S CLAIM THAT THE FEDERAL MAIL FRAUD STATUTE

IS MORE BROAD AND PUNITIVE THAN ''''76-10-1801 IS WITHOUT MERIT.

Finally, Amicus curiae argues that Utah=s communications fraud statute is narrower and

less punitive than the federal mail fraud statute upon which it is modeled. Amicus Br. generally.

This argument is also without merit. From the outset, constitutional challenges to the federal

18

statute only invoke the strict scrutiny required under the First Amendment. Utah=s

communications fraud statute is additionally subject to even stricter scrutiny under the more

definitive and inclusive provisions of article I, '15 of the Utah Constitution. See, Pet. Supp. Br.

at 8-18.

Second, as to the scope of the two statutes, the federal statute applies to Amail@ and

state statute applies to Acommunication.@ Since Acommunication@ encompasses Amail,@

communication obviously includes a broader scope of conduct. Further, a side-by-side

comparison of the two provisions fully discredits the State=s argument. Under the federal statute,

18 U.S.C '1341, the elements are:

$ Devising or intending to devise any scheme or artifice $ To defraud, or obtain money or property $ By means of false or fraudulent pretenses $ Places in any post office or authorized depository for mail $ Matter to be sent or delivered by the Postal Service (or private or commercial

carrier)

In contrast, the initial elements of '76-10-1801 are:

$ Devised a scheme or artifice $ To defraud another, or to obtain from another money, property, or anything of

value $ By means of false or fraudulent pretenses $ Communicates directly or indirectly $ With any person $ By any means $ For the purpose of executing or concealing the scheme or artifice

This side-by-side comparison of these two statutes shows that the State=s claim that the

federal mail fraud statute is broader is untenable. The conduct criminalized in the federal statute

is narrowly defined as placing something to be mailed in a mail depository for the express

purpose of defrauding. In contrast, the conduct criminalized by the state provision is a

19

communication made in furtherance of a scheme or artifice to defraud or to obtain anything of

value. Further, as shown already herein and in previous briefing, the additional subsections in

'76-10-1801 not only broaden its scope beyond subsection (1), but create additional vagueness

and confusion. In short, the much narrower scope of the mail fraud provision is apparent on its

face. The converse is true of the state statute.

However, the State argues that Congress= extension of the mail fraud statute to

specifically protect Aa citizen=s right to honest government and, in some instances, other

intangible non-property rights@ (Amicus Br. at 9), broadens the scope of the federal mail fraud

statute beyond Utah Code Ann. '76-10-1801. Ignoring for the sake of argument the above-

demonstrated facial evidence wholly refuting the State=s arguments, the plain language of the

statute, and the fact that even the State does not agree on what Aanything of value@ means as

demonstrated above, this conclusory statement could perhaps be true if persons of ordinary

intelligence suddenly understood the State=s recently developed meaning of the term Aanything of

value.@ Since such a public epiphany is unlikely, the State=s argument fails. As the trial court in

Mattinson instructed the jury, as written, Aanything of value@ is a question of fact. See,

Mattinson=s opening brief, Addendum B.

As to the mail fraud statute being more punitive, this is not necessarily so and the

State=s argument is conclusory. The meaning of Amore punitive@ depends on circumstances and

they eye of the beholder. For example, a defendant who is subject to 15 years in state prison and

a fine of $10,000 for devising a scheme or artifice to obtain a worthless heirloom or photograph

from another would likely argue that the state provision is more punitive than the federal mail

fraud statute which requires proof that the defendant placed something in the mail to be delivered

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by the Postal Service for purposes of defrauding someone of money.

In summary, the claim that '76-10-1801 is less broad and less punitive than the federal

mail fraud statute, is without merit.

CONCLUSION

Petitioners, Richard Norris and Richard Jeremy Mattinson, respectfully request this

Court to reverse the Utah Court of Appeals and find that Utah Code Ann. '76-10-1801 is

unconstitutionally void for vagueness.

Respectfully submitted this ______ day of March, 2006

FILLMORE SPENCER, LLC

_______________________________

Jennifer K. Gowans Attorneys for Defendant/Appellant

MAILING CERTIFICATE

I hereby certify that on this ___ day of March, 2006, I caused to be mailed by

United States mail, postage prepaid, a true and correct copy of the foregoing

SUPPLEMENT REPLY BRIEF OF APPELLANTS to the following:

JEFFREY S. GRAY MATTHEW BATES KRIS LEONARD CHRISTINE SOLTIS Assistants Attorney General Heber M. Wells Building 160 East 300 South, 6th Floor PO Box 140854 Salt Lake City, Utah 84114-0854

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