# Petition for Writ of Certiorari — King v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1065

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0664%3A1. Public record. Not legal advice.