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A conviction for theft of honest services, based on a jury instruction lacking a kickback element, prior to the Supreme Court case Skilling v. United States is not in error if the record contains no evidence that could rationally lead to a contrary finding with regard to the new element.

Gary Wayne Rodrigues was convicted by a jury of several counts of “theft of honest services,” as well as counts of “conspiracy, embezzlement, money laundering, and health care fraud.” The verdict was previously appealed to the Ninth Circuit and affirmed. Rodrigues, the State Director for United Public Workers (UPW), negotiated health insurance contracts that included consultant’s fees. These fees were paid by the insurance providers, but caused them to charge UPW members higher premiums. The consultants were designated by Rodrigues; the first consultant was his girlfriend’s stepfather, the second was his daughter. Neither consultant did any consulting work. Additionally, some of the consultant’s fees were put towards Rodrigues’s personal use. Rodrigues appealed from the District of Hawaii, which denied his § 2255 Motion of January 31, 2011. On appeal, Rodrigues argued that the lack of a kickback element in his jury instruction on mail fraud created a substantial trial error. First, the Court reasoned that, in the original trial, Rodrigues had notice that the charges he was facing contained allegations of kickbacks. Second, the Court found that the Government’s case was ironclad; the Government’s evidence was so thorough that the Ninth Circuit reasoned that the omitted element of a kickback had been satisfactorily demonstrated. The Ninth Circuit held that the lack of a kickback element in the jury instruction did not cause a substantial error in the jury’s verdict. AFFIRMED.