Petition for Writ of Certiorari — King v. United States

B8-1079 |) FILED

Supreme Court, U.S.

NO. eS SE oa

Supreme Court of the United States

October Term. 198&&

In the

ROGER KING.

UNITED STATES OF AMERICA.

Petitioner.

-against-

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

December 198&

CORNELIUS D. MURRAY

Attorney for Petitioner

O°CONNELL AND ARONOWITZ.

a

(Stephen R. Coffey. Esq.. of

Counsel)

(Jeffrey D. Honeywell. Esq. of

Counsel)

100 State Street

Albany. New York 12207-1885

(518) 462-5601

QUESTION PRESENTED

Should this Court restrict application of the mail and wire

fraud statutes to only cover schemes in which actual money or

property loss occurs’

TABLE OF CONTENTS

PAGE

Question Presented i

Table of Authorities iv

Opinions Below 2

Jurisdiction 2

Statutes Involved 2

Statement of the Case 3

Argument &

]. The court should restrict application of the mail and

wire fraud statutes to only cover sehemes in which

actual money or property loss occurs

Conclusion

Appendix

Opinion of the United States Court of Appeals for the

Second Circuit (860 F.2d 54)

Motion to District Court for Judgment of Acquittal

Notwithstanding The Verdict (Dated January 5. 1988)

with Accompanying Memorandum of Law

Order of the District Court dated January 19, 1988

Denying Petitioner's Motion for Judgment of

Acquittal Notwithstanding the Verdict

Mandate of United States Court of Appeals for the

Second Circuit. dated October 24, 1988

la

Sa

l4a

Hi

Judgment of United States District Court for the Southern

District of New York. dated March 30, 1988 17a

Indictment and Superceding Indictment 20a

TABLE OF AUTHORITIES

CASES PAGE

Carpenter v. United States. U.S.

108 S.Ct. 316 (1987) &

Durland v. United States. 161 U.S. 306 (1896) &

McNally v. United States U.S. ,

107 S.Ct. 2875 (1987) 3.8.9. 11.12

United States v. Andreadis. 366 F.2d 423 (2d Cir. 1966) 8

United States v. Evans. 844 F.2d 36 (2d Cir. 1988) g

United States v. Gimble. 830 F.2d 621 (7th Cir. 1987) )

United States v. Shelton. 848 F.2d 14835 (10th Cir. 1988) g

United States v. Starr. 816 F.2d 94 (2d Cir. 1987) a)

United States v. Weiss. 752 F.2d 777 (2d Cir. 1985)

cert. denied. 106 S.Ct. 308 (1985) 3

In the

Supreme Court of the United States

October Term, 1988

ROGER KING.

Petitioner.

-against-

UNITED STATES OF AMERICA.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner respectfully requests that writ of certiorari be issued

to review a decision of the United States Court of Appeals for

the Second Circuit, entered on October 24, 1988. which affirms

Petitioner's conviction of mail fraud.

2

OPINIONS BELOW

The per curiam opinion of the Court of Appeals 1s reported as

United States v. King. 860 F.2d 54 (2d Cir. 1988), and is reprinted

in the Appendix to this Petition. infra, at la-4a.1

JURISDICTION

The opinion of the United States Court of Appeals for the

Second Circuit, from which review is sought. was dated and

entered on October 24. 1988 (1a to 4a). That decision affirmed a

judgment of conviction that was entered March 30, 1988 against

Petitioner in United States District Court for the Southern District

of New York after a jury trial before the Honorable Gerard L.

Goettel (17a-19a). This Court has jurisdiction to review the

judgment of the Court of Appeals under 28 U.S.C. §1254(1).

STATUTES INVOLVED

Title 18, United States Code

§1341. Frauds and Swindles

Whoever. having Gevised or intending to devise any scheme or

artiface to defraud. or for obtaining money or property by means

of false or fraudulent pretenses, representations. or promises. or

to sell, dispose of. loan. exchange. alter. give away. distribute.

supply, or furnish or procure for unlawful use any counterfeit or

spurious coin, obligation, security, or other article. or anything

represented to be or held out to be such counterfeit or spurious

article. for the purpose of executing such scheme or artiface or

attempting so to do, places in any post office or authorized

depository for mail matter, any matter or thing whatever to be

sent or delivered by the Postal Service. or takes or receives

therefrom. any such matter or thing, or knowingly causes to he

1. Citations to the Appendix to this Petition are denoted by a lower-case “a™

following the page number (* __a™). Citations to the Appendix submitted

to the Court of Appeals are denoted as “A 2

3

delivered by mail according to the direction thereon, or at the

place at which it is directed to be delivered by the person to

whom it is addressed. any such matter or thing, shall be fined not

more than $1.000 or imprisoned not more than five years. or

both.

STATEMENT OF THE CASE

This case presents the Court with the opportunity to resolve

an important issue regarding the scope of the Mail Fraud Statute

in the aftermath of McNally v. United States, US ;

107 S.Ct. 2875 (1987). and which has divided the various Courts

of Appeals. Here. the Court of Appeals. going beyond the limits

set by some other circuits, approved a conviction for Mail Fraud

in spite of the faci that there was no proof of loss of money or

property by either municipality involved.

Such a holding continues the “extraordinary expansion of the

mail and wire fraud statutes” which was halted by this Court in

McNally. United States v. Weiss. 752 F.2d 777.791 (2d Cir. 1985).

cert. denied. 106 S.Ct. 308 (1985) (Newman. J.. dissenting). The

continuing split amongst the various circuits regarding the outer

limits of the mail fraud statute and the import of the McNally

decision requires another decision by this Court.

Petitioner was convicted after a five day jury trial in the

United States District Court for the Southern District of New

York on two counts of mail fraud in violation of 18 USC §1341

and 2 (the original and superceding indictments are detailed in

Appendix 20a to 24a). The Federal statutes involved and Federal

Grand Jury Indictments formed the basis of jurisdiction in the

District Court.

Petitioner made a motion for judgment of acquittal notwith-

standing the verdict on the grounds that the government failed

to prove that the municipalities involved (alleged victims) “were

deprived of money or property” as a result of Petitioner's actions

(5a to 13a). This motion was denied by the District Court (14a).

The facts of this case are essentially as follows:

In June 1985 Special Agent Vincent Wincelowicz of the Federal

Bureau of Investigation was assigned as an undercover agent to

4

investigate Federal crimes in connection with the purchase and

sale of equipment and supplies by municipal officials and the

sellers of those supplies in New York State. To disguise his

identity, Wincelowicz assumed the identity of Vincent Silon and

in his undercover role as Vincent Silon posed as a sales

representative for various companies doing business with

municipalities and equipment suppliers in the State of New

York. All references hereinafter will be to Silon.

As part of his undercover role. Silon began to work with and

for J.J. King Company as a salesman for the equipment they had

or could order. The exact nature of the relationship between

Silon and J.J. King’s is nebulous. However. eventually Silon came

to a position where he felt that he could take “orders” for

equipment to be sold through J.J. King Company. As Silon

continued his contact with Petitioner he became. in effect. a

salesman for J.J. King Company.

The governments case-in-chief depended almost completely

upon meetings and conversations between Silon and Petitioner.

Count One of the Indictment pertains exclusively to the sale of a

used snowplow truck to the Town of Deer Park (22a to 23a) and

Count Two of the Indictment pertains to the sale of a sand

spreader to the City of Mount Vernon (23a to 24a).

COUNT I:

The following facts pertain to the sale of the truck to the Town

of Deer Park. On November 12. 1986, Silon and Richard Conklin

(Highway Superintendent of the Town of Deer Park) visited

Petitioner at his place of business (A. 14-15), the John J. King of

Monroe Company (hereinafter J.J. King Company). a company

founded by Petitioner's grandfather and in which Petitioner was

an officer. At the November 12, 1986 meeting. Conklin looked at

several used trucks and had conversations with Silon concerning

the possibilities of purchasing one of them for the Town of Deer

Park. Silon testified that during that meeting he was told by

someone whom he could not identify that the truck that Conklin

was interested in could be sold, as is, for the “ballpark figure” of

$6,500.00 (A. 16, 22).

Subsequently. on November 25. 1986, there were a series of

phone conversations between Petitioner, Silon. and Conklin.

>

In the first phone call, Petitioner quoted to Silon a price of

$6,500.00 for the truck in which Conklin had expressed an

interest (A. 19, 38). Silon then called Conklin to give him the

quoted price. Immediately however, Conklin informed Silon

that he had already quoted a price of $8,500.00 to the Town

Board, that he wanted a bigger plow on the front. and that he

wanted the total price split amongst three bills (A. 20. 39). Silon

then agreed with Conklin, without advising the Petitioner. that

$2.000.00 was “for him” (meaning a kickback to Conklin).

Silon then called Petitioner and told him that Conklin wanted

the truck but that he wanted a larger plow on the front and that

he wanted the final price split into three bills totaling $8.500.00

plus $875.00 for the plow (421). Silon, on his own. had already

broken the final price down into three bills and he proceeded to

give Petitioner the price breakdown (A. 39-40). Silon did not tell

Petitioner. in any manner. that the additional $2.000.00 was to

provide a “kickback” to Mr. Conklin (A. 40, 43. 96-97).

From November 26. 1986 to December 2. 1986. Petitioner.

with absolutely no knowledge of any kickback. invested his own

considerable time. effort. and parts in preparing the truck for

delivery to the Town of Deer Park (A. 84-95). Thereafter, on

December 2. 1986 Silon went to J.J. King Company and met with

Petitioner. At this time Petitioner indicated that the truck would

be delivered to the Town of Deer Park the following day.

The truck was delivered by J.J. King Company to the Town of

Deer Park on December 3, 1986 with a series of bills totaling

$9 375.00.

The evidence at trial indicated that Silon gave $2,000.00 to

Conklin as his “kickback” on the purchase of the truck (A.

24-25). This occurred at the Town of Deer Park on December 3,

1986 prior to Silon meeting with Petitioner and perhaps after the

truck had-been delivered to Deer Park. The $2,000.00 came

from money supplied by the FBI, not Petitioner (A. 24).

Later in the day of December 3, 1986 Petitioner gave Silon

$500.00 in cash as part of his commission for the sale of the truck

to Deer Park (A. 25). J.J. King Company was ultimately paid for

all four vouchers totaling $9.375.00. At a meeting on January 20.

1987 Petitioner gave Silon a check drawn on J.J. King Company

in the amount of $2,875.00 (A. 32-34). Silon asked if this check

6

was his “commission” on the sale of the truck to Deer Park and

Petitioner said yes (See Government Exhibit 10C, p. 16).

COUNT Il

With respect to the sale of sand spreaders to the City of Mount

Vernon as charged in the second count of the Indictment. the

following facts are pertinent. On November 25. 1986. Silon

advised the Petitioner in a phone conversation that the City of

Mount Vernon was interested in purchasing large and small sand

spreaders (A. 17-18).

Shortly thereafter. at a meeting on December 2, 1986. Petitioner

gave Silon an approximate price of $3.000.00 for a small sand

spreader (A. 23, 41-42) and an approximate price of $5.500.00 to

$6,500.00 for a large sand spreader.

Again. unknown to the Petitioner. Silon on November 25.

1986 and at various times thereafter. met with officials from the

City of Mount Vernon, and made certain bribes to these officials.

part of which were to secure a sale for sand spreaders.

Silon obtained an order book from the J.J. King Company on

December 22. 1986 (A. 26) and prepared two series of orders.

one for a large sand spreader and one for a small sand spreader.

The orders numbered 1001 through 1005, purported to breakdown

the large sander into seperate parts and had a total price of

$10,800.00 The orders numbered 1006 through 1008 purported

to break down the small sander into various parts and had a total

price of $6,000.00 (A. 27-29). The splitting of amounts and

selection of terminology was done solely by Silon and Wallace

Grosch (another equipment salesman).

J.J. King Company and Petitioner never took any action to

obtain a large or small sand spreader for the City of Mount

Vernon based on these slips or any statements of Silon (A. 35-36.

99-102. 110). However, in late January and early February. 1987.

certain officials of the City of Mount Vernon contacted Petitioner

directly concerning the purchase and delivery of sand spreaders

(A. 103-104) and asked him what the market price of a small sand

spreader would be. The subject of kickbacks was not discussed

at all. Petitioner quoted a price of $3.820.00. This was agreed

upon. As a result of this conversation, Petitioner obtained a

small sand spreader (PS-8) from a company in New Hampshire

5

and caused it to be delivered to the City of Mount Vernon on

February 10. 1987 (A. 107) and billed on February 13, 1987 in the

amount of $3,820.00 (A. 108).

VALUE:

The only evidence presented at trial regarding the value of the

truck and sand spreader was by Petitioner. Both Petitioner and

John Hogan (expert on value of four-wheel drive trucks) testified

that the truck sold to the Town of Deer Park was worth, as

delivered. between $10,000.00 and $15,000.00 (A. 65). Petitioner

also presented testimony regarding his substantial improvement

in the truck between the time of its order and delivery (A. 84-95).

The price paid by the Town of Deer Park was $9,375.00.

The sole evidence on the value of the sand spreader delivered

to Mount Vernon was that it was worth about $3,900.00 (A.

104-105). The price paid by the City of Mount Vernon was

$3.820.00.

There was no evidence presented at trial by Respondent that

the municipalities would not have purchased the equipment for

less absent the kickbacks or that they would have refused to

purchase the equipment at the stated prices if they had known of

the kickbacks.

Petitioner appealed his conviction on both Counts. The Court

of Appeals affirmed the conviction stating that “the validity of a

mail fraud conviction does not hinge upon a showing of actual

loss by the intended victim” (3a) and that any reliance on McNally

to support such a requirement is “misplaced” (3a).

ARGUMENT

I.

THE COURT SHOULD RESTRICT APPLICATION

OF THE MAIL AND WIRE FRAUD STATUTES

TO ONLY COVER SCHEMES IN WHICH ACTUAL

MONEY OR PROPERTY LOSS OCCURS

The scope of mail fraud under 18 USC §1341 was severely

limited by this Court in McNally v. United States. WS.

. 107 S.Ct. 2875 (1987) by its rejection of the “intangible

rights” theory. This Court held that mail fraud is limited in scope

to the protection of money or property rights. The jury charge

given by the District Court in McNally was held defective since

the jury was not required to find that the Commonwealth. itself.

was defrauded of any money or property. /d. at 2882.

In the instant case Petitioner specifically requested an

instruction to the jury that there must be proof that the

municipalities were actually defrauded out of money or property

(A. 115-116). The District Court denied this request.

The Court of Appeals. in affirming Petitioner's conviction for

mail fraud, held that no actual loss by the intended victim is

required by McNally. (3a). The Court of Appeals cited United

States v. Starr. 816 F.2d 94, 98 (2d Cir. 1987); United States \.

Andreadis, 366 F. 2d 423.431 (2d Cir. 1966). cert. denied. 385 U.S.

1001 (1967), and Durland vy. United States, 161 U.S. 306. 315

(1896) in support of this position. It is significant to note that all

of these cases predate McNall\.

Petitioner submits that language within McNally and decisions

of various Courts of Appeals requires actual loss of money or

property by the “intended victim” as a required element of mail

fraud.

This Court noted in McNally that in that case there was no

evidence that the Commonwealth itself would have paid a lower

premium absent the conduct of defendants in that case. In

essence, the Commonwealth would have spent the same amount

of money in any event. Thus, there was no loss of money despite

the actions of Defendants. Obtaining “money or property” is a

“necessary element of the crime” of mail fraud. Carpenter \.

United States. 5. . 108 S.Ct. 316, 320 (1987).

The Court of Appeals for the Seventh Circuit specifically

recognized the possibility that McNally requires a “resulting loss

of money or property” in United States v. Gimble, 830 F.2d 621.

627 n. 3 (7th Cir. 1987). The Court of Appeals in Gimble held

that “the relevant fact in both cases | McNally and Gimble| is that

the jury was not required to find that the scheme resulted in the

government being deprived of money or property”. Jd. at 627

(emphasis added). Clearly the Seventh Circuit reads McNally to

require actual deprivation.

Likewise. the Court of Appeals for the Tenth Circuit also

requires an element of actual pecuniary loss for a conviction of

mail fraud. United States v. Shelton. 848 F.2d 1485, 1496 (10th

Cir. 1988). In Shelton the Court of Appeals noted that “the

evidence of several witnesses established without dispute that

the payment of kickbacks had no impact on the way in which the

price of county purchases was set’. Jd. Thus. the record was void

of any evidence that the payment of kickbacks caused pecuniary

loss to the county. Jd. at 1497.

Finally. and perhaps most significantly. the Court of Appeals

for the Second Circuit has itself recognized that actual pecuniary

loss “may be the correct view of | 18 USC §1341]”. United States

v. Evans, 844 F.2d 36, 39 (2nd Cir. 1988). In Evans the Court of

Appeals stated:

Thus, as we read McNally. the Supreme Court did not

focus on whether the person deceived also had to lose

money or property.

Nonetheless, this may be the correct view of the

statute. If a scheme to defraud must involve the

deceptive obtaining of property, the conclusion seems

logical that the deceived party must lose some money

or property. Id. (emphasis added)

Indeed, the Court of Appeals relied on language from McNall:

to support this conclusion.

This language seems irreconcilable with the Court of Appeals

decision in affirming Petitioner's conviction.

10

In the instant case, the J.J. King Company received $9,375.00

from the Town of Deer Park for the 1967 FWD sander truck

(manufactured by FWD Corporation) with wing box. wing valves.

wing plow, trip arms with rams and cables, and a “Good Roads”

plow with caster wheels.

The only testimony at trial, uncontroverted even on cross-

examination. concerning the value of the truck delivered was

presented by Petitioner. John Hogan, an expert with years of

experience as a sales representative for FWD Corporation

(manufacturer of the truck), testified that he examined the truck

sold to the Town of Deer Park and that in his opinion the truck

was worth between $10,000.00 and $15,000.00 (A. 65).

In addition, Petitioner testified that his original quote to Silon

of $6,500.00 was based on the truck as it stood in his lot without

additions. Thereafter he realized from his conversations with

Silon and Conklin that Conklin wanted significant improvements

to the truck (e.g.. the better plow) and that this was the reason

for the increase in price (A. 80-84).

To this end. Petitioner spent several days (November 26 through

December 2. 1986) personally improving the condition and

equipment on the 1967 FWD sander truck (A. 84-95). Aside

from the time he spent as a mechanic, it was established that the

“new truck was substantially improved by replacing certain

parts. such as: the wing plow so that it had “tripping arms’: front

plow: two hydraulic motors: chain in the conveyor flight: plow

hitch; tires; orbital motors; rams for the wing box: windshield:

and pump. In addition, Petitioner personally performed general

servicing and undercoated the truck.

Respondent failed to present a scintilla of evidence to contradict

Petitioner's testimony that the truck delivered to the Town of

Deer Park was worth at least the $9.375.00 paid. if not substantial],

more. Quite simply, the Town of Deer Park got what it paid for.

In fact, it got more, which Respondent acknowledged by failing

to even attempt to establish that the Town of Deer Park was

defrauded of any “money or property”.

The evidence pertaining to Count Two of the Indictment

relating to sanders and the City of Mount Vernon is even more

clearly insufficient to support a finding of guilt as to Mail Fraud.

The evidence indicated that the City of Mount Vernon ordered a

eS

1]

sand spreader (Air Flow PS-8) from Petitioner of J.J. King

Company. in late January of 1987. Pursuant to this order Petitioner

contacted another supplier and secured a sander. had it shipped

from that supplier to J.J. King Company. inspected the sander

himself. and then had it delivered to the City of Mount Vernon.

The sander was delivered to the City of Mount Vernon on

February 10. 1987 and on February 13, 1987 Petitioner billed the

City of Mount Vernon for the sander in the amount of $3.820.00.

Regarding the value of the sander. the only evidence presented

at trial revealed that the value of the sander delivered to the City

of Mount Vernon was approximately $3,900.00. As such. the

purchase price paid by the City of Mount Vernon was actually

less than the normal sale value of the spreader. Therefore. the

City of Mount Vernon was not defrauded of any money or

property in the purchase of the sand spreader.

The lack of evidence of monetary loss by the City of Mount

Vernon and the marginal quality of the government's case on this

point was noted by the Trial Court at the conclusion of

Respondent's case-in-chief when Petitioner moved for a Judgment

of Acquittal (A. 47-62). At that time. the District Court noted

that the evidence was such that “the (Petitioner) is in a position

to say ‘forgetting the paperwork, we sent $3.000-some-odd worth

of equipment. and we got paid by Mount Vernon in that

approximate amount’. (A. 56). Even though the District Court

Judge denied Petitioner's Motion for Judgment of Acquittal as to

Count I]. he stated that he would “be amazed if the jury can

follow this second count’ (A. 61). Later in the trial at the conclusion

of evidence, the District Court noted that Petitioner was

“misindicted” (A. 114). Such comments only further illustrate

the paucity of evidence presented by Respondent as to a “loss”

of money or property by the City of Mount Vernon.

Quite simply. Petitioner did not receive any money or property

from the municipalities involved beyond that to which he was

fairly entitled due to the equipment he delivered. While the

evidence indicates that bribes were exchanged between other

individuals pursuant to these equipment transactions, the evidence

does not indicate that Petitioner was a party to them.

Petitioner's only “financial stake” in these two transactions

was selling two pieces of road equipment at a reasonable fair

market value. Thus, like the defendants in McNally, even though

12

—

Petitioner had a “financial stake” in selling the equipment. unless

the municipalities suffered an actual loss of money or property.

this “financial stake” does not constitute mail fraud under McNall\.

CONCLUSION

For the foregoing reasons. Petitioner respectfully prays that

the Court issue writ of certiorari to review the judgment of the

Court of Appeals for the Second Circuit.

Dated: December . 1988

CORNELIUS D. MURRAY. ESQ.

Attorney for Petitioner

O'CONNELL AND ARONOWITZ.

Peles

(Stephen R. Coffey. Esq.. of

Counsel)

(Jeffrey D. Honeywell. Esq.. of

Counsel)

100 State Street

Albany. New York 12207-1885

(518) 462-5601

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1418 August Term. 1987

(Argued August 18. 1988 Decided )

Oct 24 1988

Docket No. 88-1153

UNITED STATES OF AMERICA,

Appellee.

ROGER KING.

Defendant-Appellant.

Before: WINTER and MINER, Circuit Judges. and BILLINGS.

District Judge.*

Appeal from a conviction entered after a jury trial in the

United States District Court for the Southern District of New

York (Gerard L. Goettel. Judge) for two counts of mail fraud.

Appellant argues that the evidence was insufficient.

Affirmed.

*The Honorable Franklin S. Billings. Jr.. United States District Judge for the

District of Vermont. sitting by designation

STEPHEN R. COFFEY.

O'Connell and Aronowitz, P.C..

Albany. New York.

for Defendant-Appellant.

MICHELE HIRSHMAN,

Assistant United States Attorney

for the Southern District of

New York. New York. New York

(Rudolph W. Guiliani, United States

Attorney for the Southern District

of New York, New York. New York.

Celia Goldwag Barenholtz.

Assistant United States Attorney.

of counsel).

for Appellee.

3a

PER CURIAM:

Roger King. a Vice-President of J.J. King of Monroe, Inc., a

distributor of highway maintenance equipment. appeals from

his conviction under 18 U.S.C. §§1341 and 1342 (1982) of two

counts of mail fraud. The evidence against King showed that he

participated in a scheme in which the prices of various equipment

offered for sale to two municipalities were inflated. Under the

scheme. King broke the offering price down into several separate

components so that corrupt municipal purchasing agents could

evade competitive bidding requirements applicable to higher

priced items. The total of these prices was then inflated in order

to obtain money to pay kickbacks to those agents.

The defense presented evidence that, in the case of one

municipality. the equipment in question was worth the total

purchase price and. in the case of the other. the transaction was

frustrated before completion. The defendant argues that the

government failed to rebut this evidence and that there was

therefore an absence of proof that the municipalities were

defrauded of money or property. However. as we have said many

times. the validity of a mail fraud conviction does not hinge upon

a showing of actual loss by the intended victim. See. e.g.. United

States v. Starr. 816 F.2d 94. 98 (2d Cir. 1987); United States \v.

Andreadis, 366 F.2d 423.431 (2d Cir. 1966), cert. denied. 385 U.S.

1001 (1967); see also Durland v. United States, 161 U.S. 306, 315

(1896). It is enough that appellant knowingly devised a scheme

to defraud and caused the use of the mails in furtherance of the

scheme. In the case of the first municipality appellant misled it

as to the true sale price by evading competitive bidding

requirements and inflating the total to include a kickback. This

was fraud whether or not the municipality got fair value because

of some bizarre circumstances unexplained by King’s expert. In

the case of the second municipality, the frustration of the sale is

irrelevant because ultimate success is not an element of the

crime. United States y. Eskow. 422 F.2d 1060, 1064 (2d Cir.). cert.

denied, 398 U.S. 959 (1970).

Appellant also relies on the decision in McNally v. United

States, 107 §.Ct. 2875 (1987). to support his claim that loss of

money or property must be shown. That reliance is misplaced.

McNally held that mail fraud prohibits only schemes intended to

4a

deprive victims of property such as money and not schemes

depriving victims of intangible rights such as the right to honest

government. See also Carpenter v. United States, 108 S.Ct. 316

(1987) (mail fraud statute extends to schemes defrauding property

right to confidential information's exclusive use). The schemes

here were unquestionably directed at money in municipal

treasuries. The fact that kickbacks were also involved in McNall\

is of no aid to appellant because the legal theory of those

convictions was based on the alleged deprivation of intangible

rights. while King’s conviction was specifically bottomed on the

deprivation of what is undeniably property in a traditional sense.

We have examined appellant's other contentions and have

found them to be without merit.

Affirmed.

Lo a)

pe)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

87 Cr 699 (GLG)

ROGER KING.

Defendant.

Defendant respectfully moves the Court to grant him judgment

of acquittal notwithstanding the verdict for the following reasons:

1. The Government failed to prove that the municipalities of

Deerpark and Mount Vernon were deprived of money or property

as a result of the purchases of equipment from John J. King of

Monroe, Inc.

2. The Government failed to prove that in the absence of the

alleged scheme. the municipalities of Deerpark and Mount Vernon

would have paid a lesser price for the equipment purchased from

John J. King of Monroe, Inc.

3. The verdict is not supported by substantial evidence.

4. The Court erred in charging the jury and in refusing to

charge the jury. as requested by the defendant.

Dated: January 5, 1988

6a

Yours, etc.

DUGGAN. CROTTY & DUNN. PC.

By: Bruce C. Dunn, Sr.

Attorney for Defendant

Roger King

RD #2. Temple Hiil Road

New Windsor, New York 12550

Tel: (914) 562-6500

To: Rudolph W. Giuliani

United States Attorney

Michele Hirshman

Assistant United States Attorney

One Saint Andrew's Plaza

New York. New York 10007

Rie

Ta

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA.

87 Cr 699 (GLG)

ROGER KING.

Defendant.

PRELIMINARY STATEMENT:

Defendant seeks a judgment of acquitta! notwithstanding the

verdict as to Count | and Count II of the Indictment charging

him with violations of 18 U.S.C. 1341 and 18 U.S.C. 2 based on

the Government's failure to prove any money or property loss to

the municipalities in connection with the alleged scheme.

QUESTIONS PRESENTED:

1. Should the defendant's conviction stand in the absence of

proof that the municipalities of Deerpark and Mount Vernon

were defrauded of money or property?

2. Should the defendant's conviction stand in the absence of

proof that the municipalities of Deerpark and Mount Vernon

would have paid a lesser price for the equipment in the absence

of the scheme alleged by the Government?

Sa

ARGUMENT:

POINT I. NEITHER OF THE MUNICIPALITIES OF DEER-

PARK OR MOUNT VERNON WERE DEPRIVED OF MONEY

OR PROPERTY IN THEIR PURCHASE OF EQUIPMENT

FROM JOHN J. KING OF MONROE, INC.

COUNT I. TOWN OF DEERPARK

The Town of Deerpark purchased a 1967 FWD sander truck.

wing box, wing valves. wing plow. and trip arms with rams and

cables. and a “Good Roads” plow with caster wheels. John J. King

of Monroe. Inc. received $4,000.00 for the 1967 FWS sander

truck: $3,500.00 for the wing box. wing valves, and wing plow:

$1,000.00 for the trip arms with rams and cables: and $875.00 for

the “Good Roads” plow with caster wheels.

In order to sustain the charge of mail fraud under 18 U.S.C.

1341. the Government must show that the municipality of

Deerpark was deprived or money or property. through the

defendant's use of or participation in a fraudulent scheme and

his use of the United States mail in the furtherance of that

scheme. McNally v. United States. US. .107 S.Ct.

2875 (1987). The Supreme Court concluded that the Mail Fraud

statute clearly protects the property rights of persons and

municipalities but does not extend to the protecticn of the

citizenry’s intangible right to good or honest government.

US. . 107 S.Ct. at 2879. The Court noted “that the original

impetus behind the mail fraud statute was to protect the people

from schemes to deprive them of their money or property” /d.

In McNally. the Supreme Court reversed the District Court

and the Court of Appeals rulings on the grounds that the jury

charge given in the District Court permitted the defendant's

conviction for conduct not within the scope of 18 U.S.C. 1341

since the jury was not required to find that the Commonwealth.

itself, was defrauded of any money or property. Jd. at 2880.

John J. King of Monroe. Inc. received $9.375.00 from the

Town of Deerpark for the 1967 FWD sander truck with wing

box. wing valves. wing plow, trip arms with rams and cables. and

a “Good Roads” plow with caster wheels. The only testimony at

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trial concerning the value of the used equipment indicated that

its fair value was between $10.000 and $15,000.

The Government has failed to prove that the Town of Deerpark

was deprived of any money or property as a result of its purchase

of the truck and equipment from John J. King of Monroe, Inc.

The Government has failed to prove or dispute the value of the

truck and equipment. Further. the Government failed to offer

any proof at trial that a similar truck with similar equipment was

available to the Town of Deerpark for a lesser price. Since the

Government failed to prove that the Town of Deerpark was

deprived of any money or property under the McNally standard.

a judgment of acquittal notwithstanding the verdict should be

entered.

COUNT Il: CITY OF MOUNT VERNON

The City of Mount Vernon purchased (from John J. King of

Monroe, Inc.) one “Air Flow PS-8” material spreader with an

extended chute and screens for $3.820.00 This transaction

occurred pursuant to a Purchase Order submitted by the City of

Mount Vernon to John J. King of Monroe. Inc.

The Government alleged in its indictment that the defendant

inflated billings of John J. King of Monroe, Inc. to the City of

Mount Vernon so that kickbacks could be paid to public officials.

Yet the Government failed to prove that $3,820.00 was in fact, an

inflated price for the material spreader with an extended chute

and screens. Furthermore the Government failed to show that

any kickbacks or other monies were paid by the defendant to

public officials in the City of Mount Vernon, or the undercover

agent to cover any kickback payments he might have made.

In order to sustain this charge of mail fraud under 18 U.S.C.1341.

the Government must show that the municipality of Mount

Vernon was deprived of money or property through the defendant's

use of or participation in a fraudulent scheme and his use of the

United States mail in the furtherance of that scheme. McNall\ v.

UmibOd SOMBIE, ccecinieccnansc Wee etseninaacsinnony VOI O. Ct. 2615 (1987).

The Supreme Court concluded that the Mail Fraud statute

clearly protects the property rights of persons and municipalities

but does not extend to the protection of the citizenry’s intangible

right to good or honest government. /d. at 2879. The Court

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noted “that the original impetus behind the mail fraud statute

was to protect the people from schemes to deprive them of their

money or property ./d.

However. at the trial of this action. the Government failed to

prove that the City of Mount Vernon was deprived of any money

or property in connection with its purchase of the material

spreader with extended chute and screens from John J. King of

Monroe. Inc. The Government failed to prove that the billing of

this particular item was inflated or that the City of Mount

Vernon paid more money than the material spreader was worth.

The prosecution failed to show the retail cost of anew “Air-Flow

PS-8" material spreader, and also failed to prove the cost of any

substitute material spreader which the City could have purchased.

The proof at trial showed that this material spreader cost $2,741.00

to John J. King of Monroe, Inc. and that John J. King of Monroe.

Inc. paid more that $800.00 in shipping costs. Further. the defense

attorney offered testimony that the retail price of a new “Air-

Flow PS-8™ material spreader sold just before this transaction

exceeded $3900.00

Since the Government failed to prove that the City of Mount

Vernon was deprived of any money or property under the McNall\:

standard, a judgment of acquittal notwithstanding the verdict as

to Count II of the indictment against the defendant, Roger King.

should be entered.

POINT Il. THE MUNICIPALITIES OF DEERPARK AND

MOUNT VERNON WOULD NOT HAVE PAID A LESSER

PRICE FOR THE EQUIPMENT ORDERED FROM AND

DELIVERED BY JOHN J. KING, OF MONROE, INC. IN THE

ABSENCE OF THE SCHEME TO DEFRAUD ALLEGED BY

THE GOVERNMENT.

A. COUNT I. TOWN OF DEERPARK

Not only was the Town of Deerpark not deprived of money or

property in connection with its purchase of used equipment

from John J. King of Monroe, Inc., but the expenditure itself did

not constitute a deprivation of money or property under Title

18, Section 1341 of the United States Code. The Town of Deerpark.

through its officials sought to purchase a used four wheel drive

lla

truck with a front plow and an operating wing plow. Whether or

not this purchase was made from the defendant. the Town of

Deerpark was nevertheless going to expend funds in order to

make the purchase.

This Court, in Jngber v. Enzor, 664 F.Supp. 814 (S.D.N.Y. 1987)

held that the ordinary and necessary expenditures made by a

municipality do not constitute a loss of money or property. /d. at

821. Such ordinary and necessary expenditures do not rise to the

level of “loss” as was contemplated by the Supreme Court in its

decision in McNally. Jd. Ingber was originally convicted of mail

fraud in connection with his use of the mails to submit fraudulent

absentee ballots in the town elections in Fallsburg, New York.

The District Court's rationale in the Jngber case was that the

municipality of Fallsburg was going to pay a Supervisor's salary

to some duly elected office holder. regardless of who that

Supervisor was. Even though Ingber won his seat through the

use of fraudulent absentee ballots. there was no loss to the

municipality of money or property to sustain a conviction for

mail fraud under the McNally analysis. Jd. at 822.

The Government did not allege. much less prove. that the

Town of Deerpark, in the absence of the alleged scheme. would

have paid a lesser amount for the truck and equipment ordered

from the defendant and delivered by John J. King of Monroe.

Inc. The Government failed to prove that the Town of Deerpark

was defrauded in its expenditure of funds in connection with its

purchase from John J. King of Monroe, Inc. The Government

failed to offer testimony as to the value of the truck and equipment:

or even if the Town of Deerpark could have acquired a similar

used truck and equipment from another vendor in used equipment.

for a lower price.

Since an expenditure was going to be made by the Town of

Deerpark for a used sander truck with plows, the Government

must show that in the absence of the alleged scheme to defraud.

the Town of Deerpark would have paid a lesser price for the

truck and equipment. Since the Government has failed in its

burden, a judgment of acquittal notwithstanding the verdict as

to Count I of the Indictment against the defendant, Roger King.

should be entered.

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COUNT Il. CITY OF MOUNT VERNON

Not only was the City of Mount Vernon not defrauded in

connection with its purchase of a material spreader from the

defendant, but the expenditure itself did not constitute a

deprivation of money or property under Title 18, Section 1341 of

the United States Code. The Department of Public Works for

the City of Mount Vernon sought to purchase a material spreader.

Whether the City expended funds to purchase a material spreader

from John J. King of Monroe. Inc. or another supplier. the City

was still going to expend funds in order to make the purchase.

This court, in Ingber v. Enzor. 664 F. Supp. 814 (S.D.N.Y.

1987), held that the ordinary and necessary expenditures made

by a municipality. do not constitute a “loss” of money or property.

Id. at 821. Such ordinary and necessary expenditures do not rise

to the level of “loss” as was contemplated by the Supreme Court

in its decision in McNally. Id. Ingber was originally convicted of

mai! fraud in connection with his use of the mails to submit

fraudulent absentee ballots in the town elections in Fallsburg.

New York. The District Court's rationale in the Jngber case was

that the municipality of Fallsburg was going to pay a Supervisor's

salary to some duly elected office holder regardless of who that

Supervisor was. Even though Ingber won his seat through the

use of fraudulent absentee ballots. there was no loss to the

municipality of money or property to sustain a conviction for

mail fraud under the McNally analysis. Jd. at 822.

The Government did not allege. much less prove that the City

of Mount Vernon would have paid a lesser price for the materia!

spreader in the absence of the alleged scheme to defraud. The

Government failed to prove that the City of Mount Vernon was

defrauded of money or property in connection with its purchase

of a material spreader from John J. King of Monroe. Inc. The

Government failed to offer testimony as to the value of a material

spreader, or its retail cost. The Government also failed to prove

that the same or a comparable material spreader could have

been purchased from another supplier at a lesser price.

The proof at trial showed that this material spreader cost

$2.471.00 to John J. King of Monroe. Inc. and that John J. King of

Monroe, Inc. paid more that $800.00 in shipping costs. Further.

l3a

the defense attorney offered testimony that the retail price of a

new “Air-Flow PS-8" material spreader sold just before this

transaction exceeded $3900.00.

Since an expenditure was going to be made by the City of

Mount Vernon for a material spreader. the Government must

show that in the absence of the alleged scheme, the municipality

would have paid a lesser price for the eqiupment. Since the

Government has failed in its burden. a judgment of acquittal

notwithstanding the verdict as to Count II of the Indictment

against the defendant, Roger King, should be entered.

CONCLUSION

For all the foregoing reasons, a judgment of acquittal not-

withstanding the verdict should be entered as to Counts | and II of

the Indictment against the defendant. Roger King. based on the

Supreme Court's decision in McNally and the Southern District's

decision in the /ngber case.

Dated: January 5. 1988

Respectfully submitted.

/S

DUGGAN, CROTTY & DUNN, P.C.

By: Bruce C. Dunn. Sr.

Attorney for Defendant

Roger A. King

To: Rudolph W. Giuliani

United States Attorney

Michele Hirshman

Assistant United States Attorney

One Saint Andrew’s Plaza

New York. New York 10007

i paren ee

l4a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Received Jan 21. 1988

UNITED STATES OF AMERICA,

87 Cr. 699 (GLG)

-against-

ORDER

ROGER KING,

Defendant.

The defendant moves for judgment of acquittal notwithstanding

the verdict. The issues raised were put forth at trial and denied

by the court for reasons stated on the record. There is no

requirement in a mail fraud indictment that the Government

prove that the victims were deprived of money or property. or

that they would have gotten a better bargain had there been no

fraud involved. The jury's verdict was supported by substantial

evidence. The jury charge was proper. The motion for judgment

of acquittal is therefore denied.

SO ORDERED.

Dated: White Plains. N.Y.

January 19, 1988

GERARD L. GOETTEL

U.S.D.J.

SDNY

87 Cr 699

GOETTEL (0864)

aac enceniincmeenammnil

15a

UNITED STATES COURT OF APPEAL

for the

SECOND CIRCUIT

Ata stated Term of the United States Court of Appeals for the

Second Circuit, held at the United States Courthouse in the City

of New York. on the 24th day of October one thousand nine

hundred and eighty-eight.

Present: Hon. Ralph K. Winter.

Hon. Roger J. Miner, Circuit Judges.

Hon. Franklin S. Billings. District Judge.*

Filed Oct 24. 1988

UNITED STATES OF AMERICA,

Appellee.

Docket No. 88-1153

ROGER KING.

Defendant-Appellant.

Appeal from the United States District Court for the Southern

District of New York

This cause came on to be heard on the transcript of record

from the United States District Court for the Southern District

*Hon. Franklin S. Billings. Jr.. United States District Judge for the District of

Vermont. sitting by designation.

j a

16a

of New York. and was argued by counsel.

ON CONSIDERATION WHEREOF. it is now hereby ordered.

adjudged. and decreed that the Judgment of said District Court

be and it hereby is Affirmed in accordance with the opinion of

this court.

ISSUED AS MANDATE: NOV. 16. 1988

Elaine B. Goldsmith.

Clerk.

By: Edward J. Guardaro. Clerk

. —

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UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

United States of America vs.

ROGER A. KING

Old Country Road. Monroe, New York 10950

Docket No. S87 Cr. 00699-01 (GLG)

JUDGMENT AND PROBATION/COMMITMENT ORDER

In the presence of the attorney for the government AUSA

MICHELE HIRSHMAN

the defendant appeared in person on this date 03/30/88

Date of offense: 1986-87

O WITHOUT COUNSEL

However the court advised defendant of right to counsel and

asked whether defendant desired to have counsel appointed by

the court and the defendant thereupon waived assistance of

counsel.

Kk WITH COUNSEL BRUCE DUNN, ESQ.

(Name of Counsel)

1 GUILTY, and the court being satisfied that there is a factual

basis for the plea.

1 NOLO CONTENDERE. 0 NOT GUILTY

There being a finding verdict of

0 NOT GUILTY, Defendant is discharged

& GUILTY. to cts. $1 and S2.

Defendant has been convicted as charged of the offense(s) of

Mail Fraud (Title 18 U.S.C. §1341F.)

18a

The court asked whether defendant had anything to say why

judgment should not be pronounced. Because no sufficient

cause to the contrary was shown. or appeared to the court. the

court adjudged the defendant guilty as charged and convicted

and ordered that. The defendant is hereby committed to the

custody of the Attorney General or his authorized representative

for imprisonment for a period of THREE (3) MONTHS on ct. 1.

Sentence may be served on weekends. On ct. 2. the execution of

sentence is suspended. and the defendant is placed on probation

for a period of ONE (1) YEAR, subject to the standing probation

order of this court. Probation to comnience upon expiration of

confinement.

In addition, a $50 assessment is imposed by the Court upon the

defendant on each count (total $100) as provided by law pursuant

to Title 18, U.S. Code. Section 3013(a)(2).

The underlying indictment is dismissed.

THE EXECUTION OF SENTENCE IS STAYED PENDING

APPEAL.

As a condition of probation. the defendant shall not run for

public office or occupy a position of public trust.

In addition to the special conditions of probation imposed above.

itis hereby ordered that the general conditions of probation set

out on the reverse side of this judgment be imposed. The Court

may change the conditions of probation. or extend period of the

probation,

and at any time during the probation period or within a maximum

probation period of the years permitted by law. may issue a

warrant and revoke probation for a violation occurring during

the probation period.

The court orders commitment to the custody of the Attorney

General and recommends community treatment facility.

Ordered that the Clerk deliver a certified copy of this judgment

and commitment to the U.S. Marshal or other qualified officer.

19a

& U.S. District Judge

Filed March 30, 1988

GERARD L. GOETTEL

Date 3/30 ’&&

20a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Filed Sep 10 1987

UNITED STATES OF AMERICA,

INDICTMENT

87 CRIM. 0699

ROGER KING.

Defendant.

COUNT ONE

The Grand Jury charges:

1. At all times relevant to this Indictment, ROGER KING. the

defendant, was associated with John J. King of Monroe. Inc.

(hereinafter. “J.J. King’). a supplier of equipment.

2. Between in or about November, 1986 and in or about

January. 1987. in the Southern District of New York. ROGER

KING. the defendant. did devise a scheme and artifice to defraud

and to obtain money by means of false and fraudulent pretenses.

It was an object of the scheme to deprive the municipality of

Deer Park, New York (“Deer Park”) of approximately $2.000.

3. It was part of said scheme that the defendant. ROGER

KING. made a kickback payment of $2000 to the highway

superintendent of Deer Park. New York in connection with the

purchase of various equipment by Deer Park.

4. It was a further part of the scheme that ROGER KING. the

defendant, caused billings for the equipment to be inflated in an

amount totalling approximately $2.000 and. further. after J.J.

King had received payment from Deer Park for the equipment.

ROGER KING, the defendant, would and did authorize a

disbursement from J.J. King for the $2.000 kickback payment.

“ve

2la

5. In the Southern District of New York, ROGER KING. the

defendant. unlawfully, willfully and knowingly. and for the purpose

of executing the fraudulent scheme set forth in Paragraphs 1

through 4 of this Indictment did cause to be delivered by mail.

according to the direction thereon, matter and things. to wit.

invoices from J.J. King. Monroe, New York, to the municipality

of Deer Park. New York. on or about December 3, 1986 and did

receive through the United States mails a payment check from

the municipality of Deer Park. New York to J.J. King. Monroe.

New York. on or about January 17, 1987.

(Title 18. United States Code. Section 1341 and 2).

COUNT 2

The Grand Jury further charges:

6. Between in or about November. 1986 and February. 1987 in

the Southern District of New York. ROGER KING. the defendant.

did devise and intend to devise a scheme and artifice to defraud

and to obtain money by means of false and fraudulent pretenses

and representations. It was an object of the scheme to deprive

the City of Mount Vernon. New York of sums of money.

7. It was a part of the scheme that. in connection with the

purchase of certain equipment from J.J. King by the City of

Mount Vernon. New York. ROGER KING, the defendant. did

inflate billings from J.J. King to the City of Mount Vernon. New

York.

8. On or about February 13, 1987. in the Southern District of

New York. the defendant. ROGER KING, unlawfully. willfully

and knowingly and for the purpose executing the fraudulent

scheme set forth in Paragraphs 6 and 7 of this Indictment did

cause to be delivered by mail. according to the direction thereon.

a claim form and an invoice, from J.J. King. Monroe, New York

to the City of Mount Vernon, New York.

(Title 18, United States Code. Section 1341).

_ FOREPERSON

RUDOLPH W. GIULIANI

UNITED STATES ATTORNEY

22a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA.

Pe Vv.

INDICTMENT

S87 Cr. 699 (GLG)

ROGER KING.

Defendant.

COUNT ONE

The Grand Jury charges:

1. At all times relevant to this Indictment. John J. King of

Monroe. Inc. (hereinafter. “J.J. King”). located in Monroe. New

York, was a vendor of construction and other equipment to

various entities, including municipalities in the State of New

York.

2. At all times relevant to this Indictment. ROGER KING. the

defendant. was associated with J.J. King and did act for and on

behalf of J.J. King in connection with sales of equipment by J.J.

King to municipalities in the State of New York.

_ 3. Between in or about November. 1986 and in or about

January, 1987, in the Southern District of New York. ROGER

KING, the defendant, and others known and unknown to the

Grand Jury. unlawfully. willfully and knowingly did devise and

intend to devise a scheme and artifice to defraud the Town of

Deerpark. New York (hereinafter “Deerpark”) and to obtain

money by means of faise and fraudulent pretenses.

4. It was an object of the scheme that a kickback payment of

$2.000 would be and was made to the highway superintendent of

Deerpark in connection with the purchase of equipment by

Deerpark from J.J. King.

5. It was a part of the scheme that ROGER KING the defendant.

23a

did agree to inflate and did cause to be inflated the billing for the

equipment purchased by Deerpark in an amount totalling

approximately $2,000.

6. It was a further part of said scheme that. on or about

January 20, 1987. after J.J. King had received payment from

Deerpark for the equipment, ROGER KING, the defendant. did

cause a check to be issued by J.J. King to an undercover agent

acting as a salesman to cover the $2.000 kickback payment to

the Deerpark highway superintendent.

7. In the Southern District of New York, ROGER KING. the

defendant, unlawfully, willfully and knowingly. and for the purpose

of executing the fraudulent scheme set forth in Paragraphs 1

through 6 of this Indictment, and attempting to do so, did cause

to be delivered by mail, according to the direction thereon.

matter and things, to wit. vouchers and invoices from J.J. King.

Monroe. New York. to Deerpark. New York. on or about

December 3. 1986 and a payment from Deerpark. New York to

J.J. King. Monroe. New York. on or about December 17, 1986.

(Titie 18. United States Code. Sections 1341 and 2).

COUNT 2

The Grand Jury further charges:

8. Paragraphs One and Two of Count One of this Indictment

are realleged as if fully set forth herein.

9. Between in or about November. 1986 and in or about

February. 1987. in the Southern District of New York, ROGER

KING, the defendant, and others known and unknown to the

Grand Jury, unlawfully willfully and knowingly did devise and

intend to devise a scheme and artifice to defraud the City of

Mount Vernon. New York (hereinafter “Mount Vernon”) and to

obtain money by means of false and fraudulent pretenses and

representations.

10. It was an object of the scheme that kickback payments

would be and were made to employees and officials of Mount

Vernon in connection with a purchase of material spreaders by

Mount Vernon from J.J. King and that the price to be charged by

J.J. King would be in an amount to cover the kickback payments.

11. It was a part of the scheme that. in connection with the

24a

purchase of material spreaders from J.J. King by Mount Vernon.

ROGER KING, the defendant. would and did agree to inflate

the amount to be charged by J.J. King to Mount Vernon for the

material spreaders.

12. In the Southern District of New York, the defendant.

ROGER KING, unlawfully, willfully and knowingly and for the

purpose executing the fraudulent scheme set forth in Paragraphs

8 through 11 of this Indictment. and attempting to do so. did

cause to be delivered by mail. according to the direction thereon.

a claim form and an invoice, from J.J. King. Monroe, New York

to Mount Vernon. New York, on or about February 13, 1987. and

a payment check from Mount Vernon. New York to J.J. King.

Monroe. New York. on or about February 26, 1987.

(Title 18. United States Code. Sections 1341 and 2).

FOREPERSON

RUDOLPH W. GIULIANI]

UNITED STATES ATTORNEY