Opposition — Baptista v. United States

Supreme Court, U. $.

FILED

Nos. 75-1528 and 75-1529 SEP 2 1996

JR.,CLERK

—

In the Supreme Court ofthe Hited Ste

OcTOBER TERM, 1976

HOWARD BAPTISTA, PETITIONER

Vv.

UNITED STATES OF AMERICA

STEPHEN HATHAWAY, 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

ROBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. FEIT,

WILLIAM C. Brown,

Altorneys,

Department of Justice,

Washington, D.C. 20530.

SS A

INDEX

Page

SD CI ciniinicinanecencniinunnsescsneisiinnscneneascieinicunianiidian l

IED siteishiehcttusiistsinitsheeniseibnemenencescdiennaiininiiatiaiunidimnniinetia l

I IIIT "ssn ssasiptititeptsionamenemnncnienninnnensiinnbideinls 2

BUTI scacesciibishisniidnlirniniiciensinensintaanncssiidammsiiuaiiniegiitabastesatianuies 2

SN EITTITIT scien onpntsiiitieiciininiientinnebiansiccundeniapeniiiianhedenembennpiniiaicihadiie 5

RIOD csscccescsccncshssiesiiicihiisiieiiipieieeinsiniaaaiacnababieioni 1]

CITATIONS

Cases:

Bowman v. United States, 350 F. 2d 913 ............. 10

Glasser v. United States, 315 U.S. 60.............0000 6

lannelli v. United States, 420 U.S. 770 .........00....6. 5

RS Ds TT, GE We Ge sttnkcictctcctcincdisecsisen 10

Rewis v. United States, 401 U.S. 808 ................... 9

United States v. Braasch, 505 F. 2d 139,

certiorari denied, 421 U.S. 910.0... ee. 8, 10

United States v. DeCavalcante, 440 F. 2d

UIT icnisittaninadameatdaaemssnennedaabadianiicmbediciiainineeiiniedion 9

United States v. Flaxman, 495 F. 2d 344,

certiorari denied, 419 U.S. 1031 0.0.0... ee. 5

United States v. Lewis, 456 F. 2d 404 .................. 10

United States v. Marquez, 449 F. 2d 89,

certiorari denied, 405 U.S. 963 00... 9

United States v. Mazzei, 521 F. 2d 639,

certiorari denied, 423 U.S. 1014 2.0.0... 8

United States v. Miller, 508 F. 2d 444 ............000... 5

United States v. Trotta, 525 F. 2d 1096,

certiorari denied, May 19, 1976

I 8

In the Supreme Court of the United States

Page |

. OCTOBER TERM, 1976

Statutes: |

|| lp ASE ners aaes nen men nmCN ree em Mem eet 8 No. 75-1528

See ITs TIES \ cietiiinicennisiesdininsietsnantidnenibianenbineemasinitl 2 | Howarb BAPTISTA, PETITIONER

PIII: TIE sind cicencasienncnmniiniebeinaeniunnieniaennds 2 |

a bt ol wiaiaen citar delet in esas 8 | v.

Ss al allan os 2, 6 UNITED STATES OF AMERICA

ce SUITED sicssiaenicscitniieil ieemniianbaslitiateastaiihiliginiicmussiiniaiis 6

Mass. Gen. Laws, c. 268A, §2(b) (1964) ................ 6

No. 75-1529

STEPHEN HATHAWAY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEA'S FOR

THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (No. 75-1528 Pet.

App. 1-28; No. 75-1529 Pet. App. D) is reported at 534

F. 2d 386.

JURISDICTION

The judgment of the court of appeals was entered

on March 24, 1976. The petition for a writ of certiorari

in No. 75-1528 was filed on April 22, 1976, and the petition

in No. 75-1529 was filed on April 23, 1976. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

_-———--—--—__~»

(1)

2

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to support

petitioner Hathaway’s conspiracy convictions.

2. Whether the trial court erred in instructing the jury

that a violation of the Travel Act, 18 U.S.C. 1952, could be

predicated in part upon proof of voluntary bribery pay-

ments to a public official, where other counts of the in-

dictment alleged that the payments were the product of

“extortion” under the Hobbs Act, 18 U.S.C. 1951.

3. Whether the trial court erred in instructing the jury

regarding the interstate travel requirement of the Travel

Act.

4. Whether petitioners were denied due process by

the trial court’s grant of immunity to four prosecution

witnesses.

5. Whether petitioners were denied due process by

the government’s alleged failure to comply fully with a

pretrial discovery order.

STATEMENT

After a jury trial in the United States District Court

for the District of Massachusetts, petitioners were con-

victed on two counts of obstructing interstatz commerce

through extortion, in violation of the Hobbs Act, 18 U.S.C.

1951 (Counts III and V), on one count of conspiring to

commit that substantive offense, in violation of the same

statute (Count 1), on two counts of causing others to travel

and utilize facilities in interstate commerce to facilitate

unlawful activity, in violation of the Travel Act, 18.U.S.C.

1952 (Counts IV and V1), and on one count of having con-

spired to violate the Travel Act, in violation of 18 U.S.C.

371 (Count Il). Petitioner Baptista was fined $1,000 on

each of the six counts and was sentenced to two years’

imprisonment, with all but six months of that term

3

suspended in favor of eighteen months’ probation. Peti-

tioner Hathaway was fined $2,000 on each of the six counts

and was sentenced to two years’ imprisonment, with all

but four months of that term suspended in favor of twenty

months’ probation. The court of appeals affirmed in a

comprehensive opinion (No. 75-1528 Pet. App. 1-28;

No. 75-1529 Pet. App. D).

In June 1971, petitioner Baptista, the executive director

of the New Bedford Redevelopment Authority (“Author-

ity”), met with Thomas Graham, the chairman of the

board of Meridian Engineering, Inc. (“Meridian”), to

discuss the possible award to Meridian of a contract with

the Authority for a $230,000 construction project (I Tr.

34-35, 43, 51). At this meeting, Baptista arranged to insure

that Meridian would receive the contract in exchange

for a kickback to himself of $25,000 (1 Tr. 50-54). Graham

agreed to the payment because he believed that the

contract would not be awarded to Meridian unless the

payment was made (V Tr. 95).

The payment to Baptista was disguised through the use

of fraudulent invoices obtained from the firm of peti-

tioner Hathaway. The invoices from Hathaway’s firm

were completed by Graham to state that Hathaway had

provided services and equipment to Meridian, although no

such services were rendered by Hathaway. Graham would

then authorize payments from Meridian in accordance

with the fraudulent invoices, resulting in payments

to Hathaway and, through him, to Baptista. Baptista sug-

gested this procedure at the meeting and provided Graham

with blank invoices to use in making the payments (1

Tr. 50-54).

The $25,000 payment was subsequently made in a

series of four corporate checks payable to Hathaway and

mailed by Meridian from its office in Pennsylvania to

4

Hathaway in Massachusetts. The first check was mailed

in July 1971, and Baptista subsequently informed Graham

that the procedure was satisfactory and that the first

check had been received (I Tr. 63-70, 92-93; III Tr. 129-

130).

In August 1972, Graham and Baptista made a similar

arrangement - involving a smaller construction contract

with the Authority (1 Tr. 108-109; V Tr. 98-102). For

this contract, a $5,000 kickback to Baptista was agreed

upon, and Baptista again provided Graham with blank

invoices from Hathaway’s firm with which to disguise the

payment (I Tr. 113-114; V Tr. 98-102). Once again,

Graham believed that the contract would not be awarded

to Meridian if he did not agree to make the $5,000 pay-

ment to Baptista (V Tr. 101-102). This payment was sub-

sequently made in the same manner as the initial $25,000,

with Meridian mailing to Hathaway four corporate checks

prepared in accordance with the fraudulent invoices pre-

pared by Graham (III Tr. 107-108).

All the checks sent to Hathaway by Meridian were

cashed at the Southeastern Bank in New Bedford, Massa-

chusetts, and all were endorsed only in the name of the

payee, Stephen Hathaway. Hathaway. who did not have

an account at that bank, was approved for large check

cashing privileges there by Baptista, an officer of the

bank, who introduced Hathaway to the bank manager

(V Tr. 69-71).

Hathaway cashed a number of checks at that bank,

varying in amount between $200 and $20,000 (III Tr.

184-185, 193-194). Normally, Baptista’s secretary tele-

phoned ahead to the bank so that the cash would be ready

when Hathaway arrived at the bank (lil Tr. 193-194).

The head teller at the bank cashed a number of checks

for Hathaway, including two checks from Meridian

5

(IV Tr. 13-27). On one of these occasions the head teller

observed Hathaway talking to Baptista in the bank (V

Tr. 62-65).

‘ ARGUMENT

1. Petitioner Hathaway contends (Pet. 10-18) that

the evidence was insufficient to support his conspiracy

convictions because there was no direct evidence of an

agreement between himself and Baptista. The agree-

ment which is the essential element of a conspiracy,

however, need not be established by direct evidence,

or be shown to have been explicit, but can be inferred from

the facts and circumstances of the case. /annelli v. United

States, 420 U.S. 770, 777 n. 10; United States v. Miller,

508 F. 2d 444(C.A. 7); United States v. Flaxman, 495 F. 2d

344 (C.A. 7), certiorari denied, 419 U.S. 1031.

There was ample circumstantial evidence of an agree-

ment in this case. Not only did Baptista provide Graham

with Hathaway’s invoices and direct that payment be made

in that manner, but he aided Hathaway in cashing the

checks at his bank. Hathaway cashed checks mailed to

him by Meridian,' and Baptista told Graham that the pro-

cedure was satisfactory and that the first payment in

connection with the $25,000 kickback had been received.

As the court of appeals properly concluded (Pet. App.

25-26),? the evidence, when viewed in the light most

favorable to the government, provided sufficient support

‘Contrary to petitioner Hathaway's suggestion (Pet. 17), a bank

teller did identify him as the individual who cashed several Meridian

checks (1V Tr. 13-27).

*Hereinafter “Pet. App.” refers to the appendix to the petition in

No. 75-1528.

6

tor the jury’s finding that Hathaway was participating in

the scheme as a conduit for the transmission of the illegal

proceeds to Baptista. See Glasser v. United States, 315

U.S. 60, 80.3

2. Petitioners assert (No. 75-1528 Pet. 16-i8; No. 75-

1529 Pet. 23-25) that the trial court erred in instructing

the jury that they could be convicted under the Travel

Act, 18 U.S.C. 1952, upon proof of voluntary payment of

bribes. Petitioners do not challenge the instruction in and

of itself. Rather, they argue that, since the Hobbs Act

counts of the indictment required proof of “extortion,”

the jury instruction under the Travel Act was improper

because it allowed the government “to proceed on incon-

sistent theories” of proof.

The Travel Act, unlike the Hobbs Act, punishes bribery

(as well as extortion) that is “in violation of the laws of

the State in which committed.” 18 U.S.C. 1952(b)(2).

In charging the jury on the Travel Act counts, the district

court stated that a Massachusetts statute (Mass. Gen.

Laws, c. 268A, §2(b) (1964) ).4 was the applicable state law,

‘The cases cited by petitioner Hathaway (Pet. 11-18) do not con-

flict with the holding of the court below. Rather these cases involve

only the question whether the evidence in each particular case, when

assessed under settled principles of law. constituted sufficient evi-

dence of a conspiracy.

+This statute ts directed in part against:

Whoever. being a state, county or municipal employee or a

member of the judiciary or a person selected to be such an

employee or member of the judiciary, directly or indirectly,

corruptly asks, demands, exacts, solicits, seeks, accepts, receives

or agrees to receive anything of value for himself or for any other

person or enuiy. in return for

(1) being influenced in his performance of any official

act or any act within his official responsibility * * *

and distinguished between the elements of extortion

under the Hobbs Act, and the crime defined by the

Massachusetts statute, which does not require a finding

of extortion. The district court instructed (see Pet. App.

21):

It is not necessary to show that there was any duress

or compulsion with respect to the agreement to pay

or the actual payment in that case. Of course if the

transaction between Graham and Baptista does not

rise above a voluntary payment upon the part of

Graham, the defendants cannot be found guilty on

Counts 3 or 5 [the Hobbs Act counts]. They can be

found guilty upon Counts 4 and 6 [the Travel Act

counts] insofar as the unlawful activity is concerned,

namely the question of, to describe it briefly, the kick-

back, if you find that that has been proved to your

satisfaction beyond a reasonable doubt.

As the court of appeals correctly held, this instruction

did not prejudice petitioners (Pet. App. 21); the offenses

of bribery and extortion, as those terms are defined by the

state statute and the Hobbs Act, respectively, are not mutu-

ally exclusive:

Conviction based on findings both of extortion and

a violation of the Massachusetts statute wouid be

perfectly consistent. It is true that one not guilty of

extortion might still violate the [state] statute. But

the court took care of this possibility by explaining

to the jury that if no more than a voluntary payment

by Graham was found, there could be no Hobbs Act

conviction. There was no prejudice in the submis-

sion, under the Travel Act, of the broader theory.‘

3. Petitioners assert (No. 75-1528 Pet. 11-16; No. 75-

1529 Pet. 25-31) that the trial court also erred in instruct-

ing the jury that the interstate travel element of the Travel

Act need not be established by showing the use of inter-

state facilities by petitioners themselves, but would be

satisfied if petitioners “caused or induced” Graham to

travel interstate or to use the mail.

The court's instruction correctly stated the applicable

law. The Travel Act makes it unlawful to use any

facility in interstate commerce, including the mail, to

distribute the proceeds of anv unlawful activity or other-

wise to facilitate the carrying on of any unlawful activity;

in turn, 18 U.S.C. 2 provides that whoever induces the

commission of an offense is punishable as a principal.

Accordingly, the Travel Act may be violated where the

interstate travel or the use of the interstate facility is by

the individual who has acceded to the bribery demands

of the defendant, providing the defendant caused the

‘Indeed, the instruction may have been more favorable to peti-

tioners than that to which they were entitled under the Hobbs Act.

The definition of “extortion” under the Hobbs Act includes the act

of obtaining property from another, with the consent for the payment

having been “induced * * * under color of official right.” 18 U.S.C.

1951(b)(2). Since inducement under the color of official right need

not involve coercion, payments “extorted™ by a public official through

the wrongful use of his office may be “voluntarily” made in the

sense that the initiative for the payment may come from the payor.

See Pet. App. 11; United States v. Trotta, 525 F. 2d 1096 (C.A. 2),

certiorari denied. May 19, 1976 (No. 75-1032); United States v.

Mazzei, 521 F. 2d 639, 644-645 (C.A. 3). certiorari denied, 423 U.S.

1014: United States v. Braasch, 50S F. 2d 139 (C.A. 7), certiorari

denied. 421 U.S. 910. But, in any event, petitioners’ contention that

the court’s instruction allowed the government to proceed on incon-

sistent theories ts incorrect.

9

travel or usage. See United States v. DeCavalcante, 440

F. 2d 1264, 1268 (C.A. 3); United States v. Marquez, 449

F. 2d 89 (C.A. 2), certiorari denied, 405 U.S. 963. Rewis

v. United States, 401 U.S. 808, is not to the contrary. In

Rewis this Court held that Congress did not intend the

Travel Act to apply to criminal activity solely because that

_ activity is at times patronized by persons of another State.

401 U.S. at 811-812; but see 401 U.S. at 813-814. But the

interstate nexus here involves much more than travel

by one for the purpose of patronage. The mailing of the

checks by Meridian from its principal office in Pennsyl-

vania to Hathaway in Massachusetts constituted the very

essence of the scheme. These mailings were caused bv

petitioners, who arranged the method of payment. As the

court of appeals correctly pointed out (Pet. App. 19-20):

[E]vidence of Meridian’s prearranged use of the

mails to forward checks to defendants strongly sup-

ported a jury finding of a requisite interstate activity.

When Baptista gave Graham the blank invoices for

the purpose of making payments, he knew that Meri-

dian was a Pennsylvania-based company and that the

addresses on the invoices were in Massachusetts.

This use of the mails was more than “incidental”,

United States v. Isaacs, 493 F. 2d 1124, 1146-49

(7th Cir.), cert. denied, 417 U.S. 976 (1974), for it

was an important link in the interchange between

defendants and Meridian. Cf. United States v. Hedge,

462 F. 2d 220, 223-24 (Sth Cir. 1972). While the Travel

Act is to be construed narrowly, see Rewis v. United

States, this conduct falls squarely within the lan-

guage of 18 U.S.C. §1952. See United States v. Archer,

486 F. 2d 670 (2d Cir. 1973).

4. Petitioners also contend (No. 75-1528 Pet. 18-22;

No. 75-1529 Pet. 18-23) that they were denied due pro-

cess on the ground that the grant of immunity to four

10

prosecution witnesses did not comply with the require-

ments of 18 U.S.C. 6003. But the procedure followed in

the issuance of the immunity orders in this case fully com-

plied with the requirements of that statute. The orders

were properly issued upon the request of the United States

Attorney following the approval of the designated As-

sistant Attorney General.

In any event, a challenge to the validity of a grant of

immunity, like the assertion of the privilege against self-

incrimination, is personal to the witness, and petitioners

have no standing to contest the legal sufficiency of the

immunity orders issued in this case. See United States v.

Braasch, supra, 505 F. 2d at 146-147; United States v.

Lewis, 456 F. 2d 404 (C.A. 3); Lopez v. Burke, 413 F. 2d

992 (C.A. 7); Bowman v. United States, 350 F. 2d 913,

915-916 (C.A. 9).

5. Petitioners also argue (No. 75-1528 Pet. 18-19;

No. 75-1529 Pet. 18-19) that they were denied due process

by the action of the trial court permitting the four witnesses

to testify despite the failure of the government to comply

fully with a pretrial discovery order requiring disclosure

of any promises that had been made to encourage testi-

mony of government witnesses.

While the actual immunity orders were not issued until

the second day of trial, the government allegedly violated

the district court’s discovery order by failing to reveal

prior to trial the existence of a letter to the witnesses’

attorney stating that the government intended not to pros-

ecute these individuals (II Tr. 23-29). But petitioners

were aware both of the letter and of the immunity orders

before any of these witnesses testified, and petitioners

were therefore able effectively to exercise their right to

cross-examine the witnesses in this regard (II Tr. 45, 69,

i22; Ii! Tr. 67). Under these circumstances, petitioners

are unable to show prejudice, and the courts below were

therefore correct to dismiss petitioners’ contention. As the

court of appeals held (Pet. App. 28), “[t}he [district]

court’ has discretion in the handling of alleged non-

compliance with discovery orders, Fed. R. Crim. P. 16(d)(2),

and we find no such evidence of deliberate Government

misconduct or prejudice as to require a different disposition

from that adopted by the [district] court.”

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. Felt,

WILLIAM C. Brown,

Attorneys.

SEPTEMBER 1976.

DOJ-1976-08