United States of America, Plaintiff-appellee, v. Joseph M. Margiotta, Defendant-appellant, 811 F.2d 46 (2d Cir. 1982)

Prior report: 2nd Cir., 688 F.2d 108.

A petition for rehearing containing a suggestion that the action be reheard in banc having been filed by counsel for the defendant-appellant, Joseph M. Margiotta.

Upon consideration by the panel that heard the appeal, it is

ORDERED that the said petition for rehearing is DENIED, Judge Winter dissenting.

It is further noted that a poll of the judges in regular active service having been taken on the suggestion for rehearing in banc and there being no majority in favor thereof, rehearing in banc is DENIED.

Circuit Judges OAKES, MESKILL, NEWMAN, and WINTER dissent from the denial of rehearing in banc, believing that the extension of the mail fraud statute, 18 U.S.C. section 1341 (1976), reflected in the panel decision, warrants in banc consideration of the fundamental and recurring issue whether the statute applies to schemes to defraud members of the public of intangible rights, such as a right to the faithful performance of duty by a public official or a political leader exercising equivalent authority. See Comment, The Intangible-Rights Doctrine and Political Corruption Prosecutions Under the Federal Mail Fraud Statute, 47 U. Chi. L. Rev. 562 (1980).

Circuit Judge PRATT took no part in the consideration or decision of this case.