UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, CROSS-APPELLANT,

v.

LLOYD HASNER, LISA FISHER, DEFENDANTS-APPELLANTS, CROSS-APPELLEES

PER CURIAM: Lloyd Hasner and Lisa Fisher Meuche (“Fisher”) were convicted, following a jury trial, for (1) conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, and (2) mail fraud, in violation of 18 U.S.C. § 1341.

Hasner was also convicted of money laundering, in violation of 18 U.S.C. § 1957, and Fisher was convicted for making false statements, in violation of 18 U.S.C. § 1001.

Hasner and Fisher appeal, challenging their convictions.

Fisher also appeals her sentence.

The government cross appeals the district court’s imposition of sentence for Hasner and Fisher. I.

BACKGROUND The Palm Beach County Housing Finance Authority (“HFA”) is a governmental entity chartered under Florida law to fund low-cost housing.

Hasner was the chairman of the HFA, the proprietor of Hasner Realty, and an officer in Castle Florida Building Corporation: a construction company owned by his brothers.

Lisa Fisher was a sales associate with Main Street Realty and owned Lisa Fisher & Company: a real estate consulting firm.

At the September 1996 HFA meeting, Hasner proposed that Fisher be hired as a consultant.

The HFA approved the motion to negotiate a contract with Fisher. Richard Ellington, a lawyer who served as the paid legal adviser to the HFA, was directed to prepare a contract.

This agreement was presented to the HFA at its October 1996 meeting.

The agreement provided for a six-month contract with Fisher at $ 5,000 per month and reimbursement of Fisher’s expenses.

Due to concerns about the amount of expenses to be paid, final action on the contract was deferred.

In the interim, Fisher was retained by Hawthorne Ltd., a developer of low-income housing projects, to find potential sites in Florida.

Fisher contacted Hasner about the availability of potential project sites.

On 13 November 1996, Hasner contacted Chris Fleming at Reichel Realty & Investments, Inc. (“Reichel Realty”) about a 30-acre tract of land in Greenacres City, Florida.

This 30-acre parcel of land would later be named Chelsea Commons.

Has-ner registered Fisher as the agent for a potential buyer. At Hasner’s direction, Fisher contacted Fleming to confirm that she was acting on behalf of Hawthorne.

On 14 November 1996, Fleming and Fisher reached an oral understanding for the sale of the 30-acre tract to Hawthorne for $1.8 million.

That same day, Fleming sent Fisher a letter confirming their agreement on the distribution of the 6% brokers’s commission.

Under this agreement, Reichel Realty and Main Street Realty, respectively, were to receive 3-1/2% and 2-1/2% of the commission.

It was also agreed that Reichel Realty and Fisher would each pay Hasner a referral fee of $4,500.

In addition, Main Street Realty agreed to pay Hasner a referral fee of 1% of the purchase price, or $18,000.

At the 18 November 1996 HFA meeting, it was announced that Hawthorne had secured a potential development site and wished to enter a proposal for the development of a publicly-funded affordable housing development.

It was revealed that Fisher had been retained by Hawthorne and would receive a $30,000 contingency fee from Hawthorne upon HFA’s final approval of the project.

At the 18 November meeting, the HFA also discussed the issue of Fisher’s still-pending consulting contract.

An HFA member expressed concern over Fisher’s simultaneous employment by Hawthorne and HFA. As a result, a provision was added to Fisher’s contract with the HFA which required Fisher to disclose any clients appearing before or submitting materials to the HFA. The HFA — including Hasner — unanimously approved Fisher’s consulting contract with the HFA. Neither Fisher nor Hasner disclosed that, if the Chelsea Commons sale was completed, Hasner would receive a referral fee.

Thereafter, beginning in January 1997 and continuing through June 1997, Fisher received by mail her monthly retainer and expense reimbursements from the HFA. On 16 December 1996, Hawthorne presented its proposal for Chelsea Commons and sought to have the project financed by HFA’s issuance of about $16 million in tax-exempt bonds.

At this meeting, Hasner announced that he had a “potential conflict” and recused himself from voting on the matter. Hasner also executed the prescribed form, stating that he had a potential conflict and was abstaining from discussing or voting on the matter. Hasner did not disclose the nature of his conflict to the HFA. The HFA voted to proceed with the development.

In early 1997, Castle Florida, the construction company owned by Hasner’s brothers, negotiated a contract with Hawthorne to consult on the Chelsea Commons project.

Ellington made an inquiry to the Florida Attorney General and the Florida Ethics Commission about the obligations of an HFA member who obtains a contract for services to be furnished in conjunction with a qualifying housing development.

After Ellington was informed that the possession of such an interest violated Fla. Stat. § 159.606, Hasner submitted a letter stating that he had resigned as an officer of Castle Florida on 10 February 1997 and that Castle Florida’s contract with Hawthorne had terminated.

At the² June 1997 HFA meeting, before the final vote on the Chelsea Commons project, an HFA member asked to be advised on conflicts involved in the project.

Ellington informed the HFA, in the presence of Hasner and Fisher, that Hasner at one point thought that he might be the contractor for Chelsea Commons, but that this event was not going to happen.

Ellington stated, however, that Hasner would continue to desist from voting on the Chelsea Commons issue.

Ellington also noted that Fisher had disclosed from the beginning that she was the agent for the project.

Ellington then stated “[ojther than that, I don’t know of any other disclosures that need to be made.”

Neither Ellington, Hasner, or Fisher informed the HFA that Hasner was to receive a $27,000 brokerage fee from the Chelsea Commons project.

The Chelsea Commons project involved the separate closings of the real estate and bond transactions.

The real estate sale closed first.

The initial draft of the closing statement (“HUD-1”), prepared by the buyer’s attorney, Gary Johnson, omitted all reference to Hasner’s fees.

Later, upon receiving the 14 November agreement reflecting Hasner’s $9,000 fee from Reichel and Main Street Realty, Johnson revised the HUD-1 to reflect the $9,000 payment to Hasner. The HUD-1 did not reflect the additional $18,000 fee Hasner was to receive from Main Street Realty.

Upon receiving the revised HUD-1, HFA’s bond counsel, Steve Sanford, and the developer’s attorney, Randy Alligood, concluded that Hasner’s receipt of payment was improper. As a condition of the bond issuance, the attorneys were required to warrant that the matter being financed had been conducted in accordance with Florida law, including the conflict of interest provisions of Fla. Stat. § 159.606.

Al-ligood and Sanford informed Ellington that they would withhold their approving opinions if Hasner’s payment was not repudiated.

Alligood prepared a letter for Hasner’s signature, in which the real estate fee was disclaimed and its inclusion in the closing statement deemed a mistake.

Ellington spoke with Hasner and informed him that “to fix the situation” Hasner should sign the letter disclaiming the interest in the $9,000 real estate fee and that Fisher would pay the fee to Hasner out of an unrelated project called Tierra Vista.

Ellington stated that it had to “be very understood” among Ellington, Hasner, and Fisher that “nobody else is to know about it.”

Hasner then contacted Fisher to obtain her assurance that he would be paid his commission even if he renounced his fees.

Fisher attempted to assure Hasner that the owner of Main Street Realty, Judy Black, would not learn of the disavowal letter. Hasner later informed Ellington that he would allow the entire housing project to “crater” if he did not receive a written commitment from Main Street Realty that he would receive his full fee.

Fisher called Steve Chitwood, the senior broker involved in Main Street Realty’s commercial real estate sales.

According to Fisher, Chitwood, after some debate, gave his permission for Hasner to be paid from the Tierra Vista project.

Nothing in the closing documents possessed by Main Street Realty reflected that Hasner was to receive a commission from the Tierra Vista project.

According to Black, it would have been Chitwood’s responsibility to note the changes in the file.

Black agreed, however, that the change was absent from the file did not necessarily mean that Chit-wood had not agreed to it.

Fisher provided Hasner with a handwritten letter signed by Fisher as an associate of Main Street Realty: a letter stating that Hasner Realty had earned a real estate commission from the Tierra Vista project.

Hasner then signed the Chelsea Commons disavowal letter. After receiving Hasner’s disavowal letter, the attorneys issued their opinion letters for the bonds.

Fisher did not provide Main Street Realty with a copy of the disavowal letter or her handwritten assurance to Hasner that he would be paid his commission on the Tierra Vista project.

The pending sales transaction forms— used by Main Street Realty to track the money received and expended by the company in real estate transactions — did not reflect that Hasner was to receive a commission for the Tierra Vista property.

The forms did reflect, however, that Has-ner was to receive a referral fee for the Chelsea Commons property.

As a result, Black wrote Hasner a check for his referral fee from the Chelsea Commons project.

Upon Hasner’s request, the check was sent to him by Federal Express.

Later, after Black learned of the disavowal letter, she sought the return of Hasner’s commission.

On 18 February 2000, the FBI interviewed Fisher at her home.

Fisher stated that she had not paid Hasner a fee from the Chelsea Commons transaction, had not directed anyone to pay Hasner a fee from the transaction, and had no side agreement to share her brokerage fee with Hasner. On 28 February 2000, Fisher was re-interviewed by an FBI agent and largely repeated her previous statements.

On 8 May 2001, a grand jury returned an indictment against Hasner and Fisher. Count One charged Hasner and Fisher with conspiring to deprive the Palm Beach County Housing Finance Authority (“HFA”) of Hasner’s honest services and to acquire money and property through fraudulent misrepresentations, in violation of 18 U.S.C. §§ 1341,1346.

Count Two charged Hasner and Fisher with mail fraud relating to Hasner’s receipt of a check from the Chelsea Commons project, sent via Federal Express, in violation of 18 U.S.C. § 1341.

Counts Three through Six charged Hasner and Fisher with additional counts of mail fraud relating to Fisher’s consulting contract with HFA. Count Seven charged Hasner with money laundering, in violation of 18 U.S.C. § 1957, and Count Eight charged Fisher with having made false statements to an investigating agent, in violation of 18 U.S.C. § 1001.

The jury convicted Hasner and Fisher of all counts on special verdicts.

At sentencing, Fisher argued that the appropriate guideline to establish her base offense level was U.S.S.G. § 2C1.3, the guideline pertaining to conflicts of interest, rather than U.S.S.G. § 2C1.7, which pertains to fraud involving the deprivation of the .intangible right to honest services.

Fisher further objected to an obstruction-of-justice enhancement based upon her testimony at trial.

The district court sustained Fisher’s challenge to the obstruction-of-justice enhancement.

The district court determined that U.S.S.G. § 2C1.3 was the appropriate guideline to establish the base offense level because the gravamen of the misconduct was the concealment of Hasner’s financial interest.

The district court, concluded, however, that an offense level of six, with a sentencing range of 0-6 months “trivialized” the misconduct; and the court imposed a four-level upward departure, resuiting in a sentencing range of 6-12 months.

The district court imposed a six-month sentence.

In a similar way, at Hasner’s sentencing, the district court applied U.S.S.G. § 2C1.3, resulting in a 14-month sentence.

Hasner and Fisher appeal their convictions.

Fisher appeals her sentence.

The Government cross-appeals Hasner and Fisher’s sentences.

II.

DISCUSSION A.

Vagueness Defendants argue that the “honest services” charges are unconstitutionally vague and fail to set boundaries for prosecutorial discretion.

Defendants assert that 18 U.S.C. § 1346, the “honest services amendment” to the mail fraud statute, provides no notice as to what conduct is prohibited.

Defendants contend that the district court erred by allowing the government to bring criminal charges based upon previously undefined conduct that had only been vaguely addressed by state civil statutes.

Because Defendants’ void-for-vagueness challenge to section 1346 does not raise a First Amendment issue, we review section 1346 only as applied in the instant case.

Waymer, 55 F. 3d 564, 568 (11th Cir.1995). A statute is unconstitutionally vague if it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”

Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

The constitutionality of a vague statutory standard is closely related to whether the standard incorporates a mens rea requirement.

Waymer, 55 F. 3d at 568. “A statutory requirement that an act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain.

But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware.”

Id. (internal quotation omitted).

In this case, to convict the Defendants of mail fraud, the government was required to prove specific intent to defraud. 18 U.S.C. §§ 1341, 1346.

As we will discuss, Defendants’ convictions were not based upon the Florida statutes; and the jury concluded that Defendants specifically intended to deprive the public of Hasner’s honest services.

See generally Waymer, 55 F. 3d at 568.

Accordingly, we conclude that section 1346 was not unconstitutionally vague as applied to Defendants. B.

Sufficiency of the Indictment/Constructive Amendment Defendants argue that the indictment improperly based the criminal violations on state ethics statutes which have not been similarly applied and have no criminal or civil penalties.

Defendants further argue that the district court constructively amended the indictment by not requiring the government to prove a violation of state ethics law. “A constructive amendment to the indictment occurs where the jury instructions so modify the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the indictment.”

Descent, 292 F. 3d 703, 706 (11th Cir.2002) (quoting Poarch, 878 F. 2d 1355, 1358 (11th Cir.1989), cert. denied, 537 U.S. 1132, 123 S.Ct. 913, 154 L.Ed.2d 820 (2003)).

Mere surplusage, however, may be deleted from an indictment without error. Cancelliere, 69 F. 3d 1116, 1121 (11th Cir.1995), as amended on clarification (2 February 1996). “To establish a violation of sections 1341 and 1346, the Government must prove that the defendants (1) intentionally participated in a scheme or artifice to defraud and (2) used the United States mails to carry out that scheme or artifice.”

Lopez-Lukis, 102 F. 3d 1164, 1168 (11th Cir.1997) (internal quotations omitted).

Proof of a state law violation is not required for a conviction of honest services fraud.

Cf Langford v. Rite Aid of Alabama, Inc., 231 F. 3d 1308, 1312-13 (11th Cir.2000) (concluding that duty to disclose information for purposes of mail fraud statute can be found even in the absence of a statute or regulation); see also deVegter, 198 F. 3d 1324, 1328 (11th Cir.1999) (private-sector, honest services fraud).

Although the indictment listed the state ethics statutes which purportedly prohibited Hasner from receiving the Chelsea Commons commission, the indictment did not rely upon violations of these state statutes as a basis for the honest services charges.

Instead, the indictment focused on Hasner’s unjust enrichment while he served as chairman of the HFA and on the concealment of Hasner’s financial relationship with Fisher. Because the inclusion of the state statutes in the indictment was mere “surplusage,” the district court’s redaction of these statutes did not result in an impermissible broadening of the indictment. C.

Jurisdiction Defendants contend that the government failed to demonstrate a sufficient connection to interstate commerce for the mail fraud and conspiracy counts, which are based upon Hasner’s receipt of a check through Federal Express.

Defendants assert that, because the check involved in these counts was sent by Federal Express and was an intrastate delivery, the government failed to establish jurisdiction.

In 1994, Congress amended the mail fraud statute to include mail sent by “private or commercial interstate carrier[sj.”

Violent Crime Control and Law Enforcement Act of 1994, Pub. L.

No. 103-322, § 250006, 108 Stat. 1796, 2087.

At trial, the parties stipulated that Federal Express was an interstate carrier. We conclude that Congress properly exercised its power under the Commerce Clause. U.S. Const, art. I, § 8, cl.³ by regulating private and commercial carriers as instru-mentalities of interstate commerce — even though the conduct took place entirely intrastate.

Gil, 297 F. 3d 93, 100 (2d Cir.2002) (concluding that private and commercial interstate carriers, which carry mailings between and among states and countries, are instrumentalities of interstate commerce, notwithstanding the fact that they also deliver mailings intrastate); Photogram-metric Data Servs., Inc., 259 F. 3d 229, 249-52 (4th Cir.2001), cert. denied, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002) (concluding that private and commercial interstate carriers are instrumen-talities of interstate commerce, which Congress can regulate and protect from harm, even where the conduct at issue was intrastate).

Accordingly, the district court had jurisdiction over the mail fraud charges against Defendants. D.

Sufficiency of the Evidence Defendants argue that insufficient evidence supports their honest services convictions.

In reviewing a conviction for sufficiency of the evidence, we determine whether “a reasonable jury, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the government could find the defendants] guilty as charged beyond a reasonable doubt.”

Poirier, 321 F. 3d 1024, 1032 (11th Cir.2003) (internal quotation omitted), petition for cert. filed, (2 July 2003). 1.

The Consulting Contract: Counts¹, 3-6 Defendants assert that the government did not prove a deprivation of “honest services” with respect to Fisher’s consulting contract.

Defendants contend that the undisputed facts at trial reflect that, before Hasner recommended that the HFA enter into a consulting contract with Fisher, Hasner and Fisher had no conversations about a potential real estate commission from Chelsea Commons.

Defendants assert that the only real estate related conversations occurred after the consulting agreement was approved, but before the HFA voted on the $2,500 cap for reimbursement of Fisher’s potential expenses under the contract.

Defendants further assert that the government presented no evidence that they had the specific intent to deprive the HFA of Hasner’s honest services, no evidence that there was a cognizable harm, and no evidence that the mailings were made in furtherance of the scheme to defraud.

Section 1341 proscribes use of the mails as part of a “scheme or artifice to defraud.” 18 U.S.C. § 1341 (1994).

Section 1346 defines “scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the intangible right of honest services.” “Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public’s best interest.” deVegter, 198 F. 3d at 1328.

When a public official, instead, secretly makes decisions based on his own personal interests, the official defrauds the public of his honest services.

See Lopez-Lukis, 102 F. 3d at 1169. “A defendant’s breach of a fiduciary duty may be a predicate for a violation of the mail fraud statute where the breach entails the violation of a duty to disclose material information.”

Waymer, 55 F. 3d at 571. A reasonable jury could conclude that Hasner breached his fiduciary duties by voting on Fisher’s consulting contract without disclosing the agreement he had with Fisher to receive a referral fee, if the Chelsea Commons real estate transaction was completed.

Hasner proposed Fisher’s consulting contract to the HFA in September 1996: before Fisher sought Hasner’s help in locating property for the Chelsea Commons project.

Fisher’s contract, however, was not approved by the HFA in its final form until 18 November 1996: after the Chelsea Commons proposal had been submitted to the HFA and after Fisher and Fleming had agreed to pay Hasner a referral fee if the real estate transaction was completed.

Because Hasner, by voting on Fisher’s contract, was taking discretionary action that directly benefited Fisher, Hasner’s agreement with Fisher to share the commission from the Chelsea Commons project was material.

Furthermore, the evidence at trial, including the wiretaps, indicated that Fisher and Hasner later took steps to conceal Hasner's interest in the Chelsea Commons project.

When an HFA member expressed concern about potential conflicts on the Chelsea Commons project, Hasner did not disagree with Ellington's representation-made in Hasner's presence-to the HFA that the conflict had to do with Has-ner's interest in his brothers' construction company.

When Hasner’s $9,000 referral fee was included in the HUD-1, Hasner’s brother, calling Fisher on Hasner’s behalf, commented to Fisher “Lloyd thought everything was going to be quiet.”

Fisher later acknowledged that the inclusion of the referral fee was “a major, major blunder.”

In the light of the evidence and Hasner’s failure to disclose the real estate commission he would receive if the property for the Chelsea Commons project was sold, a reasonable jury could conclude that Has-ner possessed the requisite intent to deprive the HFA of his honest services by using his discretionary authority to vote in favor of Fisher’s consulting contract. A reasonable jury could also conclude that Fisher possessed the requisite intent to deprive the HFA of Hasner’s honest services.

Fisher testified that she “had no clue” that Hasner’s vote on her consulting contract was subject to disclosure or recusal requirements and that she did not attempt to influence Hasner’s vote.

But the jury was free to reject this testimony.

Based upon the evidence and Fisher’s testimony, the jury was free to infer that the opposite of Fisher’s testimony was true and conclude that Fisher intended to influence Hasner’s honest services.

Mejia, 82 F. 3d 1032, 1038 (11th Cir.1996) (“A proper inference the jury can make from disbelieved testimony is that the opposite of the testimony is true”); Brown, 53 F. 3d 312, 314-15 (11th Cir.1995) (defendant’s explanations at trial can actually increase amount of evidence supporting guilty verdict).

Although Defendants argue that the government failed to demonstrate a cognizable harm because the consulting contract and Chelsea Commons projects both furthered the public good, the harm was to the public’s intangible (but very real) right to honest and impartial government.

See Lopez-Lukis, 102 F. 3d at 1168.

The government also established the requisite “mailing” to support Defendants’ convictions.

Although “mailing” is a required element of mail fraud, the use of the mails need not be an essential element of the scheme.

Parodies, 98 F. 3d 1266, 1282 n. 29 (11th Cir.1996).

Here, the fraud in this case did not achieve fruition until Fisher received the checks from the ill-obtained contract.

Thus, the government established the required mailing element. 2.

Counts¹ and² Defendants argue that, for the Chelsea Commons project, the Government failed to prove that Hasner’s “honest services” were corrupted or that Fisher intended to deprive anyone of Hasner’s “honest services.”

Defendants note that Hasner recused himself from voting on any matter relating to Chelsea Commons.

Defendants assert that, because Hasner did not engage in any official act for Chelsea Commons, no deprivation of Hasner’s honest services resulted.

Fisher also asserts that she had no duty to disclose or to clarify any conflict that Hasner may have had and that no evidence was presented that she intended to deprive the HFA of Hasner’s honest services. A government official may be guilty of honest services fraud if he withholds material information.

See Waymer, 55 F. 3d at 572.

Although Hasner filed conflict of interest forms and refrained from voting on the Chelsea Commons project, the record reflects that Hasner concealed material information (his financial stake) from the HFA. The conflict of interest forms stated that Hasner had a potential conflict of interest, but provided no details.

At the² June 1997 meeting, at which HFA members gave their final approval to the Chelsea Commons project, an HFA member specifically asked about conflicts in the project.

In Hasner and Fisher’s presence, Ellington informed the HFA that Hasner, at one time, had thought that he might be the contractor for the Chelsea Commons project.

Ellington informed the HFA that, although Hasner was not going to be the contractor, Hasner was going to continue to refrain from voting on the project.

Ellington stated that he did not know of other disclosures that needed to be made.

Has-ner did not correct Ellington’s statement or inform the HFA of the real estate commission agreement between Fisher and him.

By failing to disclose the commission that he would receive, Hasner prevented the HFA from making a fully informed decision, and he potentially placed the bond issuance in jeopardy.

At the bond closing, the attorneys, who were required to warrant that the Chelsea Commons project was being financed in accordance with Florida law, refused to approve the issuance of the bonds without Hasner disavowing his commission.

Although Hasner signed a letter disclaiming the real estate fee and claiming that the inclusion of the disbursement to Hasner Realty in the closing statement was a mistake, Defendants, in reality, ensured that Hasner would receive his fee.

Although it is perhaps true that Fisher had no duty to disclose Hasner’s conflict of interest, the jury, in the light of the evidence and Fisher’s testimony, was also free to disbelieve Fisher’s testimony that the commission on the Chelsea Commons project was not in exchange for Hasner’s vote on her consulting contract.

See Brown, 53 F. 3d at 314-15 (a statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant’s guilt).

Based upon the evidence presented at trial, a reasonable jury could conclude that Hasner and Fisher sought to deprive the HFA of Hasner’s honest services.