Opposition Brief — Deliere v. United States

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Nos. 88-1623, 88-6952, 88-6953, and 88-72

JOSEPH F. SPANIOL, J

¢ aig LERK

neem

Jn the Supreme Court of the Gnited States

October TERM, 1988

JoHN A. DELIERE, PETITIONER

Vv.

UNITED STATES OF AMERICA

THOMAS K. DOHERTY, PETITIONER

Vv.

UNITED STATES OF AMERICA

NELSON E. BARNER, PETITIONER

Vv.

UNITED STATES OF AMERICA

NICHOLAS SALERNO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

THOMAS E. BOOTH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that

references to “intangible rights”’ fraud in the indictment

and the jury instructions did not require the reversal of

petitioners’ convictions.

2. Whether the evidence was sufficient to sustain

Doherty’s and Salerno’s convictions for conspiracy to

commit mail fraud.

3. Whether the evidence was sufficient to sustain

Doherty’s conviction for racketeering.

4. Whether the district court erred in admitting

evidence seized from Doherty’s residence.

5. Whether the district court erred in allowing

testimony showing that one of Doherty’s co-conspirators

improperly lowered the test scores of black applicants for

police jobs.

6. Whether the district court improperly failed to

submit the issue of the materiality of Barner’s perjurious

statements to the jury.

7. Whether Deliere’s conviction for mail fraud was

barred by the statute of limitations.

TABLE OF CONTENTS

Page

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eas ok ge ans co ete ee kn eee 5

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TABLE OF AUTHORITIES

Cases:

Anzona v. Hicks, 480 U.S. 321 (1987) .........0.0... 10

Carpenter v. United States, 108 S. Ct. 316 (1987)... .. 2,6

Grunewald v. United States, 353 U.S. 391 bit) are 13

Kungys v. United States, 108 S. Ct. 1537 (1988) ........ 12

McNally v. United States, 483 U.S. 350 (1987)... . passim

Moore v. United States, 865 F.2d 149 (7th Cir. 1989) .... 6

Pereira v. United States, 347 U.S. 1 (1954) 2... .00.... 8

Pope v. Illinois, 481 U.S. 497 (1987) ............... 6

R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350 (Sth

Re kn en kk tk ee ee 9

Rose v. Clark, 478 U.S. 570 NE ata be a a Gee 6

Russell v. United States, 369 U.S. 749 | Seen ee 12

Schmuck vy. United States, 109 S. Ct. 1443 ‘tr 8

Sinclair v. United States, 279 U.S. 263 (1929) .. 2.0... 12

Texas v. Brown, 460 U.S. 730 (1983) ............... 10

Unite States vy. Davis, 533 F.2d 921 (Sth Cir. 1976) .... 14

United States v. Ochs, 842 F.2d 515 tim (ow. 1968)... ... 7

United States v. Richardson, 596 F.2d 157 (6th

eS a cl 12

United States v. Robinson, 763 F.2d 778 (6th Cir. 1985) .. 9

United States v. Ross, 456 U.S. 798 (1982) ........... 1]

(III).

IV

Cases — Continued: Page

United States v. Slay, 858 F.2d 1310 (8th Cir. 1988) .... 6

United States v. Taylor, 693 F. Supp. 828 (N.D.

oe | RO ma IN API rare eee i teal ey on PPI 12

United States v. Turkette, 452 U.S. 576 (1981) ......... 9

United States v. Vitello, 425 F.2d 416 (9th Cir.),

count. denied, 400 413.522 CAPA... ee ee ee es 12

United States v. Watson, 623 F.2d 1198 (7th Cir. 1980) 12

Winship, In re, 397 U.S. 358 (1970)... 2 tees 12

Statutes and rule:

Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, § 7603, 102 Stat. 4508 ...............-. 5

WC FRO gsc oe ca bok vee eee eee eins 12

Wee eee ae

ee ME ete een eee oer ae 14

tee or oe eee ee ee ee

EO SO a ce ek nde phew evens 9

EEE 8 5 ea en ee ee ee 2

A a eo evaaees 13

ak a ee eee ee 11

Miscellaneous:

134 Cong. Rec. $17,376 (daily ed. Nov. 10,

SR ec bo eae ee ea ek Os & eee be 5

Jn the Supreme Court of the United States

Ocroser TERM, 1988

No. 88-1623

JOHN A. DELIERE, PETITIONER

V.

UNITED STATES OF AMERICA

No. 88-6952

THOMAS K. DOHERTY, PETITIONER

V.

UNITED STATES OF AMERICA

No. 88-6953

NELSON E. BARNER, PETTTIONER

V.

UNITED STATES OF AMERICA

No. 88-7249

NICHOLAS SALERNO, PEITIIONER

V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

55a)' is reported at 867 F.2d 47. The opinions of the

' ‘Pet. App.” references are to the appendix to the petition

in No. 88-1623.

(1)

4

district court are reported at 675 F. Supp. 712, 675 F.

Supp. 714, 675 F. Supp. 719, and 675 F. Supp. 726.

JURISDICTION

The judgment of the court of appeals was entered on

February 1, 1989. A petition for rehearing was denied

on March 16, 1989. The petitions for a writ of certiorari

in Nos. 88-1623, 88-6952, and 88-6953 were filed on April

1, 1989. The petition in No. 88-7249 was filed on May

19, 1989, and is therefore out of time under Rule 20.1 of

the Rules of this Court. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of Massachusetts, petitioner Doher-

ty was convicted on two counts of conspiracy to commit

mail fraud, in violation of 18 U.S.C. 371, and conspiracy

to commit racketeering, in violation of 18 U.S.C. 1962(c);

he was sentenced to 20 years’ imprisonment and a

$35,000 fine. Petitioner Deliere was convicted of con-

spiracy to commit mail fraud; he was sentenced to four

years imprisonment. Petitioner Salerno was convicted of

conspiracy to commit mail fraud; he was sentenced to

five years’ imprisonment and a $10,000 fine. Petitioner

Barner was convicted of perjury, in violation of 18 U.S.C.

1623; he was seatenced to four years’ imprisonment. The

court of appeals affirmed. Pet. App. la-55a.

1. The evidence at trial showed that three of the

four petitioners — Thomas Doherty, John Deliere, and

Nelson Barner — were among a group of Boston police-

men who, between 1978 and 1984, participated in a con-

spiracy to steal copies of civil service examinations and

sell them to police officers seeking promotions. Doherty

and Gerald Clemente, who pleaded guilty and testified

for the government, stole the exams from the offices of

the Massachusetts Department of Personnel Administra-

tion (MDPA). They normally charged $3,000 for a copy

of an exam and split the money. Barner and Deliere

were among the police officers who obtained stolen

exams from Clemente and Doherty. Barner was subse-

quently promoted to police captain, and Deliere became

the Revere police chief. In addition, Barner helped Cle-

mente research answers to stolen exams. The fourth pe-

titioner, Nicholas Salerno, was a state legislative aide who

obtained stolen exams at $3,000 each from Clemente for

resale to police officers. Pet. App. 6a-10a.

The mail fraud counts in the indictment alleged that

petitioners had devised a scheme to defraud the citizens

of Massachusetts of their right to the honest, loyal, and

faithful services of certain police officers. Such “‘intangi-

ble rights’’ allegations are concededly improper under

McNally v. United States, 483 U.S. 350 (1987), where this

Court held that the federal fraud statutes did not reach

schemes to deprive citizens of the intangible right to hon-

est government. Like the indictment, the jury instructions

contained intangible rights language that is erroneous un-

der McNally. Pet. App. 20a. Following their convictions

(which were obtained before McNally was announced),

petitioners moved for a new trial on the ground that

their convictions were invalid in light of McNally. The

district court denied the mouons, except as to Barner,

reasoning that the defects in the indictment and the jury

instructions constituted harmless error with respect to the

other petitioners. 675 F. Supp. 726, 730-737.’

2. The court of appeals affirmed petitioners’ convic-

tions. Pet. App. la-55a. It first held that the indictment

stated an offense even without reference to the intangible

rights language. The court noted that the indictment re-

peatedly stated that an objective of the conspiracy was

to obtain, for persons purchasing the exams, a “‘salary

Or increased salary by reason of appointment to or pro-

motion within the police department and whatever pen-

sion benefits would accrue by reason of the appointment

to Or promotion within the police department.” Jd. at

16a; see also td. at 17a. The court added that the intan-

gible rights language in the indictment did not affect

petitioners’ preparation for trial. Jd. at 18a.

The court of appeals next concluded that the inclu-

sion of intangible rights language in the jury instructions

was harmless beyond a reasonable doubt. The court rea-

soned that it was “virtually inconceivable that the jury

could have found [petitioners] guilty of conspiracy to

commit mail fraud without believing that they were con-

spiring to deprive the Commonwealth of money, in the

form of salary payments to improperly promoted officers.”

Pet. App. 22a. The court also rejected each of petition-

,

The court of appeals explained that the jury might have

convicted Barner, who helped research answers to stolen exams,

solely on the theory that he intended to corrupt the police promo-

lion system. The district court therefore granted his motion for a

new trial with respect to the mail fraud charges. Pet. App. 25a.

The other petitioners’ mail fraud convictions were upheld because

they plainly conspired to obtain increased salary payments for buyers

Of the stolen exams.

oA)

ers’ numerous other challenges to their convictions. Id.

at 26a-SSa.

ARGUMENT

1. Doherty (88-6952 Pet. 8-12), Deliere (88-1623 Pet.

8-10), and Salerno (88-7249 Pet. 16-18) contend that their

conspiracy to commit mail fraud and racketeering convic-

tions cannot stand in iight of this Court’s decision in

McNally v. United States, 483 U.S. 350 (1987). As an

initial matter, their contention that the decision below

cannot be squared with McNally is a matter of no contin-

uing importance. Congress recently amended the mail

and wire fraud statutes to provide that a “ ‘scheme or

artifice to defraud’ includes a scheme or artifice to de-

prive another of the intangible right to honest services.”’

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

§ 7603, 102 Stat. 4508 (Nov. 18, 1988). The legislative

history of the new provision explains that “‘[t]his section

Overturns the decision in McNally v. United States * * *.

The intent is to reinstate all of the pre-McNally caselaw

pertaining to the mail and wire fraud statutes without change.”

134 Cong. Rec. $17,376 (daily ed. Nov. 10, 1988). Thus,

although petitioners’ convictions must be judged under

the mail fraud statute as construed in McNally, their

convictions would plainly be valid under current law.

Review by this Court is therefore not warranted.

Furthermore, the decision below is consistent with

McNally. In Carpenter v. United States, 108 S. Ct. 316

(1987), this Court upheld the wire fraud conviction of

the writer of a column for the Wall Street Journal who

traded on his knowledge of what the column would say.

The Court made clear that a scheme to defraud does not

require proot that the victim of the scheme lost money,

aX 6

wee

but only requires that the scheme contemplated that the

victim would be deprived of a property interest of some

kind. 108 S. Ct. at 321. Here, petitioners’ scheme de-

prived the Commonwealth of Massachusetts of the ser-

vices of the best qualified police officers in senior leader-

ship positions; that is because some officers obtained

their positions not because they were best qualified, but

because they cheated by making use of petitioners’ ser-

vices. The Commonwealth’s important personnel inter-

est constitutes a property right at least as readily cogniza-

ble as the interest at issue in Carpenter — the Wall Street

Journal’s right to exclusive control over the information

it would publish.

In addition, the court of appeals properly examined

the erroneous jury instructions to determine whether the

inclusion of intangible rights language was harmless error.

This Court has repeatedly held that an erroneous jury

instruction, even On an essential element of an offense,

must be tested for harmless error, and that a conviction

will be upheld if the error was harmless beyond a reason-

able doubt. See Pope v. Illinois, 481 U.S. 497, 502

(1987); Rose v. Clark, 478 U.S. 570, 579 (1986). The

decision below is consistent with the rule in the Seventh

Circuit, which also evaluated an erroneous intangible

rights jury instruction under the harmless error rule. See

Moore v. United States, 865 F.2d 149, 153-154 (7th Cir.

1989)?

* No court has held that harmless error analysis is inap-

propriate in a case of ihis sort. Contrary to Deliere (88-1623 Pet.

9), the Eighth Circuit merely held in United States v. Slay, 858 F.2d

1310, 1315-1316 (1988), that the error in instructing the jury on

intangible rights fraud was not harmless under the facts of that case.

Nor, contrary to Salerno (88-7249 Pet. 17), does the decision below

The court of appeals also correctly determined that

the erroneous jury instructions were harmless under the

facts of this case. As the court stated, it is inconceivable

that “‘a jury believing the government’s account of the

scheme to the extent of finding these [defendants] guilty,

could, at the same time, have not believed that an object

of the conspiracies-was to obtain promotions and raises.”’

Pet. App. 22a. The tangible property the conspirators

desired necessarily followed from their scheme to corrupt

the MDPA’s promotion system.

2. Doherty (88-6952 Pet. 16-17) and Salerno (88-

7249 Pet. 11-16) contend that their mail fraud convictions

must be overturned because the government did not

prove that the mails were used in furtherance of their

scheme. The court of appeals rejected that contention

because the government had ‘‘presented evidence of

standard MDPA mailing practices, trom which the jury

could conclude that the MDPA mailed notices of promo-

tion interviews to * * * many * * * officers to whom the

conspirators provided exams; that it would not have

mailed these notices to these people, had the detendants

not dishonestly bought or sold exams; and that receipt of

these notices was a necessary step towards obtaining the

promotions the defendants sought.’” Pet. App. 37a.

The court of appeals correctly rejected this fact-

bound claim. The offense of conspiracy to commit mail

establish an intracircuit conflict with United States v. Ochs, 842 F.2d

515 (1st Cir. 1988). The court in Ochs held only that the deien-

dants’ mail fraud convictions had to be reversed in light of McNally

on the facts of that case. The court below carefully distinguished

this case: from Ochs (Pet. App. 24a-25a). In any event, an intracir-

cuit conflict does not warrant this Court’s attenuon.

8

fraud requires proof that the conspirators agreed to use

the federal mails to execute the fraud. Pereira v. United

States, 347 U.S. 1, 11 (1954). The use of the mails, how-

ever, need not be an essential element of the scheme; it

is sufficient if the use of the mails is incident to an essen-

tial part of the scheme. Schmuck v. United States, 109 S.

Ct. 1443, 1447 (1989). Moreover, the mailings them-

selves can be routine or innocent; there is no require-

ment that they contain false or misleading information.

Id. at 1449.

In this case, the mailings of the notice of promotion

interviews to petitioners and other policemen to whom

petitioners had provided exams satisfied the “‘use of the

mails’? element of the offense of mail fraud. An object

of petitioners’ scheme was to obtain promotions to higher

rank in the police force. As noted by the court of ap-

peals, the mailings furthered that scheme because the

Commonwealth ‘‘would not have mailed these notices to

these people, had [petitioners] not dishonestly bought or

sold exams, and * * * receipt of these notices was a

necessary step towards obtaining the promotions the

[petitioners] sought.” Pet. App. 37a.

3. Doherty maintains (88-6952 Pet. 13-16) that the

evidence does not support his racketeering conviction.

Specifically, he argues that the government failed to

prove that an enterprise existed, that petitioners’ predi-

cate acts were pertormed in furtherance of the enter-

prise, and that the crimes had a sufficient nexus with

interstate commerce. None of these fact-bound claims

Merits review.

The court of appeals correctly concluded that an

enterprise existed and that the government established

that Doherty acted in furtherance of the enterprise. A

racketeering enterprise is detined as “‘any individual,

9

partnership, corporation, association, or other legal entity,

and any union or group of individuals associated in fact

although not a legal entity.” 18 U.S.C. 1961(4). The

existence of an enterprise is normally proved by evidence

ot an “‘ongoing organization, formal or informal, and by

evidence that the various associates function as a continu-

ing unit.” United States v. Turkette, 452 U.S. 576, 583

(1981). The evidence in this case met that standard. As

the court of appeals stated, ‘‘[t]he government charged,

and introduced evidence of, two entries of the MDPA’s

otfices, ten efforts to obtain exams, thirteen instances of

providing exams to applicants, as well as various acts of

possessing exams, making answer sheets, changing scores,

causing MDPA mailings concerning exams, and taking

exams with illegal assistance. * * * The number of acts,

their relationship, their having taken place over several

years, and the consistent peeeipation of the central fig-

ures in the scheme show a ‘group of persons associated

together for a common purpose of engaging in a [crim-

inal] course of conduct.’”’ Pet. App. 44a (quoting United

States v. Turkette, 452 U.S. at 583).

In addition, the government proved a sufficient nexus

between the enterprise and interstate commerce. The

required nexus need only be minimal. See R.A.G.S.

Couture, Inc. v. Hyatt, 774 F.2d 1350, 1353 (Sth Cir.

1985); United States v. Robinson, 763 F.2d 778, 781 (6th

Cir. 1985). Here, as the court of appeals explained, the

evidence showed that petitioners’ ‘‘activities may have

prevented out-of-state applicants from obtaining jobs

(seventy Out-of-state applicants participated in one 1983

exam), thereby affecting the interstate labor market; that

the MDPA replaced its locks with locks ordered trom

Philadelphia [after learning of the break-ins]; and that an

10

out of state consultant developed and graded some exams.”

Pet. App. 45a.

4. Doherty contends (88-6952 Pet. 18-24) that the

district court erred in admitting into evidence a copy of

a promotion exam that was seized from his residence.

In 1984, one police officer shot another officer, in

Doherty’s presence, in a barn behind Doherty’s house.

Pet. App. 9a-10a. Following the shooting, law enforce-

ment officers obtained a search warrant authorizing them

to search Doherty’s barn for ‘‘blood, physiological tluids,

hair, fibers, shotgun wadding, shotgun pellets, shotgun

shells, a handgun and ammunition, a shotgun and ammu-

nition, ‘speedy dry.’’’ During the search, an officer

opened a manila envelope he found in the barn and

tipped it to determine whether the envelope contained

any of the items sought in the search warrant. The offi-

cer discovered a copy of an exam, which he recognized

because it contained a control number on the corner of

the document. The officer showed the exam to several

other officers, some of whom knew that Doherty was

suspected of stealing exams. They looked at the last

page of the exam, which stated that it had to be turned

in after it was given, and then seized it. /d. at 38a-39a.

At trial, the district court admitted the copy of the

exam into evidence on the ground that it was seized in

plain view. The court of appeals affirmed. It noted that

‘‘a ‘plain view’ seizure is lawtul if (1) the seizing officer

has a prior justification for being in a position to see the

item in plain view; (2) the discovery of the item Is inad-

vertent; and (3) the evidentiary value of the item is im-

mediately apparent to the officer.’’ Pet. App. 39a; see

Anzona v. Hicks, 480 U.S. 321, 326 (1987); Texas v.

Brown, 460 U.S. 730, 738-744 (1983). Doherty did not

challenge the introduction of the evidence on the first

11

two grounds. 88-6952 Pet. 21. Instead, he argued only

that the evidentiary nature of the exam was not im-

mediately apparent to the officers. The court of appeals

correctly rejected that claim, since “‘[t]hey had personal

experience with exams, they had suspicions about [Do-

herty], and they knew that officers were not allowed to

have exams at home.”’ Pet. App. 40a."

5. Doherty also maintains (88-6952 Pet. 17-18) that

the district court erred in allowing Barner to elicit from

Clemente on cross-examination that On One occasion,

after breaking into the MDPA’s offices with Doherty,

Clemente had lowered the scores on the exams of several

black applicants whom he did not like. But the district

court’s ruling was not an abuse of discretion because, as

the court of appeals stated (Pet. App. 42a), there was no

suggestion that Doherty participated in that activity.

Accordingly, Doherty was not unduly prejudiced by the

testimony. See Fed. R. Evid. 403. In any event, that

tact-bound question does not warrant further review.

6. Barner, who was convicted of perjury, contends

(88-6953 Pet. 7-11) that the district court erred by retus-

ing to submit to the jury the issue of the materiality of

his talse statements. As an initial matter, as the court of

appeals concluded (Pet. App. 48a), the district court did

* There is no merit to Doherty’s belated complaint (88-6952

Pet. 20-21) that the method of executing the warrant was unreasona-

ble. Inasmuch as the officers were validly in the barn on the au-

thority of the warrant to look for shotgun shells and bullets, they

were entitled to examine the manila ee for those items. See

Uniued States v. Ross, 456 U.S. 798, 820-821 (1982) (lawful search of

premises extends to entire area Sie i object of the search may

be found)

12

not expressly refuse to submit the issue to the jury.

Rather, it instructed the jury on materiality in its initial

charge, but failed to mention it in the final charge.

In any event, this Court held in Sinclair v. United

States, 279 U.S. 263, 298 (1929), that the question of

“the materiality of what is falsely sworn, when an ele-

ment in the crime of perjury, is one for the court.’’ This

Court has subsequently reaffirmed Sinclair. See Kungys

v. United States; 108 S. Ct. 1537, 1547 (1988) (8 U.S.C.

1451(a) naturalization proceeding); Russell v. United

States, 369 U.S. 749, 755-756 (1962). The courts of

appeals have uniformly followed Sinclair’s rule in pros-

ecutions under 18 U.S.C. 1623, the statute Barner was

convicted of violating. United States v. Watson, 623 F.2d

1198, 1201 (7th Cir. 1980); United States v. Richardson,

596 F.2d 157, 165 (6th Cir. 1979). See also United States

v. Vitello, 425 F.2d 416, 423-424 (9th Cir.), cert. denied,

400 U.S. 822 (1970).° Thus, the district court did not err

5 Barner’s assertion (88-6953 Pet. 10-11) that Jn re Winship, 397

U.S. 358 (1970), overruled Sinclair is meritless. In Winship, this

Court held that the prosecution must prove beyond a reasonable

doubt ‘‘every fact necessary to constitute the crime”’ charged. /d. at

364. That standard applies to questions of fact; it has no applica-

tion to questions of law.

® Barner relies heavily (88-6953 Pet. 7-9) on United States v.

Taylor, 693 F. Supp. 828 (N.D. Cal. 1988), where the district court

issued a pretrial order in which it held that it would submit the

issue of the materiality of a false statement to the jury. But unless

and until the Ninth Circuit agrees with the district court’s decision,

there is no reason for this Court to review the decision below, since

it presents, at most, a conflict between a decision of a court of

appeals and decision of a district court.

13

by failing to instruct the jury on materiality in its final

charge.

Contrary to Barner’s suggestion (88-6953 Pet. 9-10,

11), there is no reason to hold this case pending the

decision in Carella vy. California, No. 87-6997 (argued

Apr. 26, 1989). That case involves the validity of a statu-

tory presumption that a lessee who failed to ieturn per-

sonal property on demand intended to steal the property.

This case involves no question of intent, but rather a

question of materiality. Whether a defendant intended to

commit a crime is usually an intensely factual question,

while, as Barner acknowledges (88-6953 Pet. 7), ‘‘[t]he

nearly universal rule has been that proof of materiality,

in a trial of a perjury indictment, is a question of law to

be decided by the trial court and not by the jury.”’ Ac-

cordingly, the decision in Carella is not likely to have any

bearing on this case. Moreover, there is no reason to

reconsider the “‘nearly universal rule’’ Barner challenges.

7. Deliere contends (88-1623 Pet. 4-7) that his con-

Spiracy conviction cannot stand under the applicable five-

year statute of limitations, 18 U.S.C. 3282. There is no

basis for his claim that the government did not allege

and prove an act in furtherance of the conspiracy within

five years of the indictment.

The indictment was returned in July 1986. Accord-

ingly, the government was required to prove that at least

One Overt act in furtherance of the conspiracy occurred

atter July 1981. See Grunewald v. United States, 353 U.S.

391, 396-397 (1957). As the court of appeals stated (Pet.

App. 3la), the indictment alleged that Clemente provided

an exam to Deliere in 1979, so that he would be promot-

ed to chiet of police in Revere, “‘in return for services

and favors”’ from Deliere. The evidence showed that

atter Deliere became the chiet of police, he issued orders

14

in 1982 that helped Clemente’s girlfriend obtain more

bail bond businéss. Jbid. Thus, the proof showed that

Deliere performed acts in furtherance of the conspirator-

ial agreement within five years of the date of the indict-

ment.’

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EpwarbD S.G. DENNIS, JR.

Assistant Attorney General

THOMAS E. BOOTH

Attorney

JUNE 1989

7 Deliere’s reliance (88-1623 Pet. 6) on United States v. Davis,

533 F.2d 921 (Sth Cir. 1976), is misplaced. In that case the govern-

ment alleged a conspiracy to make false statements to the Depart-

ment of Labor in violation of 18 U.S.C. 1001, but the government

neither alleged nor showed that any false statement had been made

within five years of the indictment. 533 F.2d at 927. The court

rejected the government’s argument that the conspiracy continued

into the five-year period, because the defendants never corrected

their false statements. /d. at 928. Here, in contrast, the government

alleged that, as part of the conspiracy, Deliere agreed to provide

favors to Clemente and showed that, in fact, he did so within five

years of the date of the indictment.

US GOVERNMENT PRINTING OFFICE 1989— 241-699 00301