United States v. Cross

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

10-21-1997

USA v. Cross

Precedential or Non-Precedential:

Docket

96-3239,96-3240,96-3241

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Recommended Citation

"USA v. Cross" (1997). 1997 Decisions. Paper 245.

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Filed October 21, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 96-3239, 96-3240, 96-3241

UNITED STATES OF AMERICA

v.

WALTER V. CROSS, a/k/a Bobo

Appellant in No. 96-3239

JULES C. MELOGRANE

Appellant in No. 96-3240

NUNZIO MELOGRANE

Appellant in No. 96-3241

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Crim. Action Nos. 94-cr-00233-1, 94-cr-00233-2,

and 94-cr-00233-3)

Argued: August 12, 1997

BEFORE: STAPLETON, GREENBERG and COWEN,

Circuit Judges

(Opinion Filed October 21, 1997)

Philip A. Ignelzi (Argued)

Samuel J. Cordes

Michael A. Murphy

Ogg, Jones, Cordes & Ignelzi

245 Fort Pitt Boulevard

Pittsburgh, PA 15222

Attorneys for Appellant

in No. 96-3239

J. Alan Johnson

Swensen, Peror & Johnson

Two PNC Plaza

Suite 2710

Pittsburgh, PA 15222

Attorney for Appellant

in No. 96-3240

Kevin G. Sasinoski

2510 Lawyers Building

Pittsburgh, PA 15219

Attorney for Appellant

in No. 96-3241

Frederick W. Thieman

U.S. Attorney

Paul J. Brysh (Argued)

Assistant U.S. Attorney

Office of United States Attorney

633 U.S. Post Office & Courthouse

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

A jury in the U.S. District Court for the Western District

of Pennsylvania found Appellants Walter Cross, Jules

Melograne, and Nunzio Melograne guilty of one count each

of conspiracy to deprive Pennsylvania residents of their civil

right to fair and impartial trial, 18 U.S.C. S 241, and

conspiracy to commit mail fraud, 18 U.S.C. SS 371 and

1341. All three defendants appeal both convictions. They

assert that the civil rights conviction is based on a vague

and undefined theory that cannot support a criminal

conviction, and that the only mailings involved were not

sufficiently connected to the fraudulent scheme to bring it

within the federal mail fraud statute. We hold that

established precedent provided clear notice to the

defendants that their agreement would constitute a

conspiracy to violate a civil right of the victims of that

2

agreement; therefore, we affirm the convictions for

conspiracy to violate civil rights. We reverse the mail fraud

conspiracy conviction, however, because none of the

mailings contemplated in the conspiracy was undertaken

"for the purpose of executing" the scheme to defraud

Pennsylvania and its citizens of honest government

services.

I. Background

From December 1990 through July 1993, Cross and the

Melogranes conspired to "fix" cases coming before the

Statutory Appeals Division of the Court of Common Pleas of

Allegheny County, Pennsylvania (the "Statutory Appeals

Court"). In statutory appeals, the court exercises de novo

review of the decisions of courts of the "minor judiciary" on

matters such as traffic offenses and municipal ordinance

violations. Jules Melograne was a District Justice who

presided over one of the courts of the minor judiciary.

Cross was the supervisor of the Statutory Appeals Court in

Allegheny County, where he performed a number of duties,

including (1) determining when defendants, attorneys, and

witnesses (most often police officers) were present to begin

hearings, (2) controlling the order of hearings, (3) handling

requests for postponements, and (4) signing pay vouchers

for police officers who had appeared as witnesses. Nunzio

Melograne was the "tipstaff" for the judge assigned to hear

statutory appeals. He kept the court calendar, maintained

the case files, called the cases, and swore the witnesses.

Viewing the evidence at trial in the light most favorable to

the government, the record indicates that Cross and the

Melogranes conspired to influence the decisions of the court

in a variety of ways. Most frequently, they would utilize

their authority and access to the decision maker to assure

resolution of the case in the defendants' favor. Cross

repeatedly procured the absence of police officer witnesses

at hearings by telling them that they were not needed,

asking them to leave, or by calling the hearings early,

before the police witnesses had arrived. These tactics led to

automatic not-guilty verdicts. See Pa. R. Crim. P. 86(f).

Cross asked the judge not to rule on certain cases during

the hearing, but to take them under advisement, or "c.a.v."

3

After the hearings had concluded, Cross and Nunzio

Melograne would accompany the judge to his chambers

with the c.a.v. cases, and after fifteen to twenty minutes

they would emerge with several not-guilty verdicts. FBI

surveillance also recorded Cross discussing defendants

being found not guilty "because Jules wants it," App. at

929, presumably referring to Jules Melograne. Witnesses

reported that they had observed stars, check marks, or

"c.a.v." notations by defendants' names on Cross's trial

calendar before they had appeared; such defendants

normally were found not guilty or received reduced

sentences at their hearings. In addition, Cross was

observed accepting food, tickets to sporting events, fruit

baskets, and other items despite his office's policy against

employees accepting gifts. Witnesses testified that the gifts

had been offered in exchange for promises by Cross to

reduce or eliminate citations and to influence hearings.

On other occasions, Cross and the Melogranes would

work to assure that a case would be decided against the

defendant--as the government called them, the "to be found

guilty" cases. One witness testified that she had overheard

Cross telling the judge in one case to "find this sucker

guilty," and on another occasion, the defendant was found

guilty after Cross's prompting to the judge even though the

assistant district attorney at the hearing had attempted to

withdraw the charge on the ground that the evidence did

not demonstrate a violation. In yet another case, FBI agents

recorded one of Cross's telephone conversations in which

the husband of an accident victim called Cross and asked

that the case against the woman who had caused the

accident be heard first on its scheduled hearing date. In the

course of their discussion, Cross asked, "You want her

guilty, right?" and after the caller replied affirmatively,

Cross assured him, "Guilty? No problem." App. at 915.

Cross later told the victim's husband that "we'll burn her

ass." App. at 925.

Nunzio Melograne also was seen speaking to police

witnesses on at least one occasion before the police left the

court before their hearings. In addition, he kept a notebook

listing approximately 170 cases, and the name "Jules,"

again referring to Jules Melograne, appeared in connection

4

with 82 of those, many of which had been marked on

Cross's trial list. At least three cases in which defendants

were found not guilty were marked on Cross's trial calendar

and listed in Nunzio Melograne's notebook with the name

"Jules." And at least three cases in which a defendant was

found guilty appeared in Nunzio Melograne's notebook with

the word "guilty," including the one described above where

the district attorney attempted to withdraw the charge.

The government based its civil rights charge on matters

in which the conspirators had procured guilty verdicts--the

"to be found guilty" cases. In these cases Cross and the

Melogranes, the government charged, conspired to deprive

defendants appearing before the Statutory Appeals Court of

their fundamental due process right to a fair hearing before

an impartial tribunal. The mail fraud convictions were

based on the conspirators' agreement to deprive

Pennsylvania and its citizens of their own honest services

as public employees.1 It was alleged that, in furtherance of

this agreement, they caused the mail to be used to transmit

notices of case dispositions to parties and the Pennsylvania

Department of Transportation.

The district court properly exercised jurisdiction under

18 U.S.C. S 3231, and we invoke jurisdiction under 28

U.S.C. S 1291 to review the district court'sfinal order of

conviction. Because each of Appellants' challenges is based

on the district court's construction of statutes and case

law, we will exercise plenary review. Epstein Family

Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.

1994).

II. Conspiracy to Violate Civil Rights

The statute under which the defendants were convicted,

18 U.S.C. S 241, makes it a crime for "two or more persons

_________________________________________________________________

1. The government argued before us that the alleged mail fraud

conspiracy had two objectives: to deprive citizens of the honest services

of public employees and to deprive the Commonwealth of fines. Without

objection from the government, however, the case was submitted by the

district court to the jury as a conspiracy with the single objective of

depriving citizens of the honest services of the defendants. App. at 242-

43; 1109-11.

5

[to] conspire to injure . . . any person in any . . . state or

Commonwealth . . . in the free exercise or enjoyment of any

right or privilege secured to him by the Constitution or laws

of the United States." The evidence indicates that Cross and

the Melogranes agreed to use their best efforts to cause the

judge in the "to be found guilty" cases to consider factors

other than the merits of the case and to find against the

defendant. Cross and the Melogranes insist that they had

no fair notice that this agreement would violate S 241.

Because the fundamental due process right of a defendant

in a criminal case to an impartial tribunal is so well

established, and because that right is so clearly subverted

by an agreement of this kind, we reject the defendants'

contention that they had no fair notice.

The right to a fair and impartial trial for the resolution of

guilt lies at the very heart of the constitutional guarantee of

due process, as the case law of the Supreme Court and this

circuit reflects. In In re Murchison, 349 U.S. 133 (1955), a

Michigan judge who had presided over a one-person "judge-

grand jury" later, in separate proceedings, adjudged

witnesses in contempt for their conduct before him at the

hearing. Id. at 133-34. The Supreme Court held this to be

a violation of due process, opening its discussion of the law

with the following passage: "A fair trial in a fair tribunal is

a basic requirement of due process. Fairness of course

requires an absence of actual bias in the trial of cases. But

our system of law has always endeavored to prevent even

the probability of unfairness." Id. at 136. The Court warned

that " `[e]very procedure which would offer a possible

temptation to the average man as a judge . . . not to hold

the balance nice, clear, and true between the State and the

accused denies the latter due process of law.' " Id. (quoting

Tumey v. Ohio, 273 U.S. 510, 532 (1927)). Similarly, the

Court held in Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)

that "[t]he Due Process Clause entitles a person to an

impartial and disinterested tribunal in both civil and

criminal cases." 446 U.S. at 242. Among the concerns

protected by this rule, the Court noted, is the preservation

of

both the appearance and reality of fairness, "generating

the feeling, so important to a popular government, that

6

justice has been done" by ensuring that no person will

be deprived of his interests in the absence of a

proceeding in which he may present his case with

assurance that the arbiter is not predisposed tofind

against him.

Id. (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S.

123, 172 (1951)).

This circuit has also clearly acknowledged the

fundamental right to a fair and unbiased adjudication of

guilt. We defined the basic elements of due process not

simply as notice and the opportunity to be heard, 2 but "to

be heard by a fair and impartial tribunal." Sill v.

Pennsylvania State Univ., 462 F.2d 463, 469 (3d Cir. 1972)

(emphasis added). Moreover, we announced unambiguously

that "[i]f someone is deprived of his right to an impartial

tribunal, then he is denied his constitutional right to due

process, regardless of the magnitude of the individual and

state interest at stake, the risk of error and the likely value

of additional safeguards." United Retail & Wholesale

Employees Teamsters Union Local No. 115 Pension Plan v.

Yahn & McDonnell, Inc., 787 F.2d 128, 138 (3d Cir. 1985).

Indeed, we emphasized that "[t]he unfairness that results

from biased decisionmakers strikes so deeply at our sense

of justice that it differs qualitatively from the injury that

results from insufficient procedures." Id.

The defendants attempt to escape the clear import of

these teachings by pointing out that they arose in the

context of misconduct on the part of the decision maker,

and that no decided case imposes criminal liability for

violating S 241 by influencing or attempting to influence a

_________________________________________________________________

2. The defendants claim that all of those whom they conspired to injure

received the fundamental tenets of due process: notice and an

opportunity to be heard. But due process cannot be satisfied when the

state provides a "hearing" at which the judge is not really listening or

before which the decision has already been made. A myriad of cases hold

that mere notice and hearing are not enough if "the state has contrived

a conviction through the pretense of trial." See, e.g., Mooney v. Holohan,

294 U.S. 103, 112 (1935) (deliberate presentation of perjured testimony

by the State); Napue v. Illinois, 360 U.S. 264 (1959) (same); Pyle v.

Kansas, 317 U.S. 213 (1942) (same).

7

decision maker. However, where, as here, the civil right

allegedly violated is defined in the preexisting case law in a

way that gave clear notice that the defendant's proposed

conduct would abridge it, a prior conviction on analogous

facts is not necessary. This is clear from the Supreme

Court's recent decision in United States v. Lanier, 117 S.

Ct. 1219 (1997).

Lanier was convicted under 18 U.S.C. S 242 for violating

the constitutional rights of five women by assaulting them

sexually while he was serving as a state judge. Section 242

prohibits "the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or

laws of the United States" by anyone acting "under color of

. . . law."3 The Sixth Circuit Court of Appeals set aside the

conviction for "lack of any notice to the public that this

ambiguous criminal statute included simple or sexual

assault crimes within its coverage." United States v. Lanier,

73 F.3d 1380, 1384 (6th Cir. 1997). The Supreme Court

unanimously reversed, holding that the Court of Appeals

had employed an incorrect standard for determining

whether particular conduct falls within the proscriptions of

S 242. United States v. Lanier, 117 S. Ct. 1219 (1997). As

the Court pointed out, the "touchstone is whether the

statute, either standing alone or as construed by the

courts, made it reasonably clear at the relevant time that

the defendant's conduct was criminal." Id. at 1225.

The Court of Appeals in Lanier recognized two

prerequisites for a conviction under S 242: (1) a prior

decision of the Supreme Court recognizing the constitutional

right at issue, and (2) a prior conviction in a factual

situation "fundamentally similar" to the one at bar. The

Supreme Court rejected this view. It noted that no case has

confined the range of relevant decisions to Supreme Court

precedent. Id. at 1226. As for factual similarity, the Court

pointed out that it had upheld convictions under S 241

despite "notable factual distinctions" between prior

_________________________________________________________________

3. Section 242 is thus the substantive counterpart to the conspiracy

statute in 18 U.S.C. S 241, which is the focus of this appeal. Section 241

forbids conspiracies to violate federally protected rights, whether the

conspirators act under color of law or not.

8

decisions and the convictions at issue "so long as the prior

decisions gave reasonable warning that the conduct at

issue violated constitutional rights." Id. at 1227. It

conceded that "[i]n some circumstances, as when an earlier

case expressly leaves open whether a general rule applies to

the particular type of conduct at issue, a very high degree

of prior factual particularity may be necessary." Id. "But,"

the Court continued,

general statements of the law are not inherently

incapable of giving fair and clear warning, and in other

instances a general constitutional rule already

identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even though

"the very action in question has [not] previously been

held unlawful."

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

This case falls squarely within the language just quoted.

No earlier case leaves open whether prejudicing a judge

against a defendant violates the defendant's right to a fair

and impartial trial; rather, the "general constitutional rule

already identified in the decisional law"--that people are

entitled to fair adjudication of their guilt before an impartial

tribunal--"applies with obvious clarity to the specific

conduct in question." We therefore affirm the conviction for

conspiracy to violate civil rights.

III. Mail Fraud Conspiracy

The defendants were convicted of a conspiracy that

contemplated using the United States mail to deprive the

Commonwealth of Pennsylvania and its citizens of the

honest services of public employees. The indictment alleges

that this agreement contemplated that the defendants

would cause the following documents to be sent through

the United States mail by the Statutory Appeals Court to

the parties and the Department of Transportation ("DOT"):

(1) notices of dismissals, (2) notices of convictions, and (3)

"notices of favorable disposition." App. at 42, 51, 53. The

government insists that the defendants contemplated that

these documents would be sent through the mail in

9

furtherance of their conspiracy. While we agree that the

record will support an inference that the defendants

expected these notices to be dispatched by mail, we cannot

uphold the defendants' mail fraud convictions on this basis.

Because mailing of these notices was required by law as an

integral and necessary part of the court's adjudication of

cases, and because any deprivation of the honest services

of public employees had been completed in each instance

before the notice of disposition was mailed, the mailings of

notices of case disposition as a matter of law were not in

furtherance of the alleged conspiracy.

"The mail fraud statute does not purport to reach all

frauds, but only those limited instances in which the use of

the mails is part of the execution of the fraud." Kann v.

United States, 323 U.S. 88, 95 (1944). As we explained in

United States v. Tarnopol, 561 F.2d 466, 471-72 (3d Cir.

1977) (internal citations omitted):

In each case the question is whether or not the

"mailings were sufficiently closely related to

respondent's scheme to bring his conduct within the

statute." Moreover . . . "the close relation of the

mailings to the scheme does not turn on time or space,

but on the dependence in some way of the completion

of the scheme or the prevention of its detection on the

mailings in question." Thus, mailings taking place after

the object of the scheme has been accomplished, or

before its accomplishment has begun, are not

sufficiently closely related to the scheme to support a

mail fraud prosecution. Nor are routine mailings

required by law which are themselves intrinsically

innocent even though they take place during the

course of carrying out a fraudulent scheme, the

objective of which is the embezzlement of funds

received in response to the mailings.

We derived these governing principles in Tarnopol in large

part from Parr v. United States, 363 U.S. 370 (1960), a case

factually similar to that before us. The defendants in Parr

were charged with a scheme to embezzle funds from a

public school district in Texas. The mailings alleged to have

been in furtherance of their conspiracy included notices of

tax assessments dispatched by the district to local

10

residents and the tax payments sent to it in response.

Incoming tax revenue was either immediately converted by

the defendants or deposited in the district's account, on

which the defendants issued and cashed checks payable to

fictitious persons or in consideration of fictitious goods and

services. The scheme also allegedly included the

defendants' securing gasoline and other products and

services with school district credit cards, with the

knowledge that the mails would be used to collect from

school funds. Although the Court acknowledged this

"brazen scheme to defraud," it explained that the offenses

described were essentially state crimes, and they would

constitute federal mail fraud only if the mailings charged in

the indictment were made " `for the purpose of executing

such scheme.' " Parr, 363 U.S. at 385 (quoting 18 U.S.C.

S 1341).

Because the district was legally compelled to assess and

collect taxes for school purposes, and the taxpayers were

legally obliged to respond, the Court held that the mailings

in connection with the collection of revenue could not

support a mail fraud conviction even though the scheme to

embezzle could not have succeeded without tax revenue.

Rejecting the government's arguments that the mailings,

even if innocent in themselves, were "steps in a plot," the

Court remarked that no case had ever held that "a thing

which the law required to be mailed may be regarded as

mailed for the purpose of executing a plot or scheme to

defraud." Id. at 390. The Court stressed that: (1) the district

was legally required to assess and collect taxes; (2) the

indictment did not charge and the evidence did not prove

that the taxes assessed exceeded the district's legitimate

needs or that they were in any way unlawful; and (3) in

fulfilling its legal duty to collect and report the receipt of

taxes, the district was practically obliged to permit

taxpayers to use the mail. Id. at 391. In a passage of

central importance to this appeal, the Court summarized its

holding with respect to the tax collection mailings as

follows:

[I]t cannot be said that mailings made for or caused to

be made under the imperative command of duty

imposed by state law are criminal under the federal

11

mail fraud statute, even though some of those who are

so required to do the mailing . . . plan to steal . . .

some indefinite part of [the district's] moneys.

Id.

The Court also held that the mailings required to collect

for the credit card purchases would not support a mail

fraud conviction. The "scheme in each case had reached

fruition when [the defendants] received the goods and

services . . . . It was immaterial . . . to any consummation

of the scheme, how the [oil company] . . . would collect from

the [District]." Id. at 393 (quoting Kann v. United States,

323 U.S. 88, 94 (1944)) (internal quotation mark omitted).

Accordingly, it could not be said "that the mailings in

question were for the purpose of executing the scheme, as

the statute requires." Id.

Parr's holding with respect to the credit card portion of

the scheme was followed in United States v. Maze, 414 U.S.

395 (1974). Maze also involved credit card fraud. The Court

held that mailings of credit card invoices from a motel to a

bank for the purpose of securing reimbursement for the

goods and services supplied to Maze by the motel were not

"for the purpose of executing [the defendant's] scheme." Id.

at 405. The Court pointed out that Maze's "scheme reached

fruition when he checked out of the motel." Id. at 414. In

reaching its conclusion, the Court distinguished United

States v. Sampson, 371 U.S. 75 (1962), on the ground that,

while Maze had received no benefit from the mailings, the

mailings in the Sampson scheme "were designed to lull the

victims into a false sense of security, postpone their

ultimate complaint to the authorities, and therefore make

the apprehension of the defendants less likely than if no

mailings had taken place." Id. at 403.

We find this case indistinguishable from Parr. The

Statutory Appeals Court was charged by law with

adjudicating specified cases, just as the school district in

Parr was charged with running a school system. Its

mailings to the parties and the DOT, like the tax mailing in

Parr, were required by law as a part of the court's exercise

of its responsibilities. See Pa. R. Crim. P. 58(b)(2), 63(b)(2),

68(b)(2), 80, 9024, 9025; Pa. R. Civ. P. 236(a)(2); Pa. Stat.

12

Ann. tit. 75, S 6323 (West 1996). Given the volume of

business that the court conducted, it had little choice but

to transmit these required notifications by mail. The notices

of dispositions dispatched by the court, like the tax

mailings in Parr, performed precisely the function they were

intended by law to perform: they faithfully reported the

court's disposition of the case. As in Parr, the relevant

mailings would, of necessity, have been made whether or

not the conspiracy existed, and they would have performed

precisely the same function in the absence of the

conspiracy that they performed during its continuance.

We also find an analogy between this case and the credit

card aspects of Parr and of Maze. The objective of this

conspiracy was to deprive citizens of the honest services of

public employees charged with processing and adjudicating

cases. That objective would "reach fruition" when the

defendants' efforts caused a different disposition by the

court than would otherwise have been made. In short, all

that the conspirators needed to fix in order to achieve the

object of their agreement was the disposition of a case.

While routine mailings to the parties and the DOT and

between the DOT and the parties could reasonably have

been expected to follow in the ordinary execution of duties

imposed by law, by the time notices of dispositions were

dispatched, the conspiracy had either succeeded or failed,

the legal consequences of an acquittal or conviction had

been established, and the routine reporting of the

dispositions simply was not a part of the conspirators'

execution of their scheme. Nor did that routine reporting

have the effect of lulling anyone into a false sense of

security or otherwise making the conspirators'

apprehension less likely.4

_________________________________________________________________

4. Schmuck v. United States, 489 U.S. 705 (1989), a case relied upon

heavily by the government, appears to us to support the position of the

defendants. In Schmuck, a used car distributor was charged with

devising and executing a scheme to defraud retail automobile customers

by rolling back the odometers and inflating the prices he charged to

dealers based on the lower mileage readings. The Court held that the

mailing requirement was satisfied by the dealers' mailings of the title

application forms. The Court distinguished Parr on the basis that the

annual tax mailings in Parr continued regularly regardless of the

13

The scope of the federal mail fraud statute is limited. The

Supreme Court has clearly held that legally required

mailings in circumstances like those in this case cannot be

deemed to have been made "for the purpose of executing" a

fraudulent scheme. We therefore reverse the mail fraud

conspiracy convictions.5

IV. Conclusion

For the reasons set forth above, we will affirm the

convictions for conspiracy to violate civil rights and will

reverse the convictions for conspiracy to commit mail fraud.

We will remand for resentencing.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

scheme, while the mailings from the dealers in Schmuck were a direct

result of and would not have occurred but for the fraudulent scheme.

Schmuck, 489 U.S. at 713 n.7. Here also, the court regularly mailed

notices to parties and the DOT in every case, whether or not the

defendants had attempted to influence the result.

5. In a footnote in its brief, the government points to testimony that the

defendants caused notices to be mailed of the time, date, and place of

the hearings in the various cases. Appellee's Br. at 36 n.4. Even if these

had been alleged in the indictment to be mailings in furtherance of the

conspiracy, we could not sustain the defendants' mail fraud convictions

on the basis of these notices. They too are a necessary part of the

Statutory Appeals Court's carrying out its charge to adjudicate the cases

within its jurisdiction. These notices were sent in all cases and their

function was precisely the same during the conspiracy as it would have

been without that conspiracy.

14