Opposition — Henning v. United States

mA “x

Nos. 75-6968 AND 76-19

In the Supreme Court of the Hnited

OCTOBER TERM, 1976

LEONARD E. SWEENEY, PETITIONER

Vv.

UNITED STATES OF AMERICA

THOMAS WARREN HENNING, a/k/a

THOMAS WARREN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

RoBerT H. Bork,

Solicitor General,

RiCHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. FEIT,

KATHERINE WINFREE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

LTE ccisccsncdsiiiddsbicninicacpnabenitibiineieneennacnne

EN tikitcininhdatindcsinrdtadinsitijuininainianitnnsintenetenss

Questions presented ...................6004 shahisiniiaaeanmitiengsiiaeas

THMASTIPME 2.000. ccccceserersecrensonscccevesssesoosccsonseonseeosscsceses

IIIT ssccathiceinindigitiadiuandaeahalennseiiantpiiiaiidemetinndindenhonine

IS EE a CC OT

CITATIONS

Cases:

Blue v. United States, 138 F. 2d 351,

certiorari denied, 322 U.S. 736 ............0..000..

Breeland v. United States, 396 F. 2d 805,

certiorari denied, 393 U.S. 847 .....0.......0000...

Cool v. United States, 409 U.S. 100 ................

Cupp v. Naughten, 414 U.S. 141.0... ee.

Doyle v. Ohio, No. 75-5014, decided

ie eee ne AL cece er oN

Farrell v. United States, 321 F. 2d 409,

certiorari denied, 375 U.S. 992 0.0.00...

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

Glenn v. United States, 303 F. 2d 536,

certiorari denied sub nom. Belvin v. United

I

il

Cases (continued): Page

Opper v. United States, 348 U.S. 84 ....ccccccccceseeees 12

Pereira v. United States, 347 U.S. oo. .ccccccececceceeee 15

Schaffer v. United States, 362 U.S. SVL oo... eee 12

United States v. Aloi, 511 F. 2d 585,

certiorari denied, 423 U.S. 1015 wo... ee. 12

United States v. Armocida, 515 F. 2d 29,

certiorari denied sub nom. Joseph v.

Useited Senees, 423 US. GRO sccccascicieeieaaen 14

United States v. Cohen, 516 F. 2d 1358 ................ 15

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

certiorari denied, 419 U.S. 1031 o.....cccc eee &

United States v. Gorman, 390 F. 2d 147,

certiorari denied sub nom. Siegal v. United

Soases, FHA U.S. Foe scccccasenccecscdicadiaanaaaae 8

United States v. Hale, 422 U.S. 171 .......0.0000.0..... 10

United States v. Hutul, 416 F. 2d 607,

certiorari denied, 396 U.S. 1012 .......0..0..0cccceee ee. 12

United States v. Joyce, 499 F. 2d 9,

certiorari denied, 419 U.S. 1031 ........00..0.00.02... 8, 11

United States v. Medansky, 486 F. 2d 807,

certiorari denied, 415 U.S. 989 ooo eee. 1]

United States v. Patterson, 455 F. 2d 264 ............. 12

United States v. Pleasant, 469 F. 2d 1121 .............. 1]

United States v. Reicin, 497 F. 2d 563,

certiorari denied, 419 U.S. 996 oo... eee. 1]

United States v. Richman, 369 F. 2d 468 .............. 12

United States v. Stulga, 531 F. 2d 1377 .......cc. 14

Page

Cases (continued):

United States v. Trutenko, 490 F. 2d 678 ............ 11

United States v. Vigi, 515 F. 2d 290,

certiorari denied, 423 U.S. 912 00... eee 14

United States v. Weber, 437 F. 2d 327,

certiorari denied, 402 U.S. 932 oo... ceeeeeeees 13

Constitution and statutes:

Constitution of the United States,

sca a cccsenccnncoscooces 10

on cccsensncnnnsonoces 2

ee 2, 15

Miscellaneous:

EI oon cncssconsccsescnccscccctcoscococcoes 13

EE a 8

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 75-6968

LEONARD E. SWEENEY, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 76-19

THOMAS WARREN HENNING, a/k/a

THOMAS WARREN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals rendered no opinion.

JURISDICTION

The judgment of the court of appeals (No. 75-

6968, Pet. App. A; No. 76-19, Pet. App. 7-9) was

entered on March 23, 1976. Petitions for rehearing

were denied on May 24, 1976 (No. 75-6968, Pet. App.

(1)

2

B) and June 8, 1976 (No. 76-19, Pet. App. 10-11). The

petition for a writ of certiorari in No. 75-6968 was

filed on June 23, 1976, and in No. 76-19 on July 7,

1976. The jurisdiction of this Court is invoked under

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

QUESTIONS PRESENTED

Whether the evidence was sufiicient to support

petitioners’ convictions for mail fraud (Nos. 75-6968

and 76-19).

The following questions are raised only in No. 75-6968:

l. Whether the government's closing argument violated

petitioner Sweeney’s privilege against self-incrimination.

2. Whether testimony concerning the effect of fraud-

ulent claims on the losses and profits and premium

rates of an insurance company should have been excluded

as inflammatory and prejudicial.

3. Whether the indictment was sufficient to charge an

offense.

4. Whether the district court erred in denying peti-

tioner Sweeney's motions for a severance.

5. Whether the district court's instructions to the jury

were proper.

STATEMENT

After a jury trial in the United States District

Court for the Western District of Pennsylvania, peti-

tioner Sweeney was convicted on three counts of mail

fraud. in violation of 18 U.S.C. 1341, and petitioner

Henning was convicted of two counts of mail fraud and

of conspiracy to commit those substantive offenses,

in violation of 18 U.S.C. 371 and 1341. Sweeney

3

was sentenced to concurrent three-year terms of imprison-

ment and fined $1,000 on each count. Henning was

sentenced to concurrent four-year terms of imprisonment

and fined $500 on each of the mail fraud offenses and

$1,000 on the conspiracy offense. The court of appeals

affirmed both convictions without opinion (No. 76-19,

Pet. App. 7-9; No. 75-6968, Pet. App. A).

The nine-count indictment charged that from March

1, 1973, to February 5, 1974, petitioners and others

devised a scheme to defraud the Ohio Casualty In-

surance Company and the St. Paul Insurance Company. '

The overall scheme involved the preparation and sub-

mission of falsified medical and employment records to

document fraudulent personal injury claims arising out

of accidents on April 12, 1973, August 15, 1973, and

December 26, 1973.

a. On April 12, 1973, a car driven by co-conspirator

David Tompkins, who was insured by Ohio Casualty,

struck the rear of a car driven by co-conspirator

Roy F. Norris, Jr. Co-conspirators Louis Boscia and

Casey Babuscio were passengers in the Tompkins vehicle,

while co-conspirators Thomas Robert Gallo and petitioner

Henning were in Norris’ car (Tr. 53-59, 138, 451-452).

Boscia, the central figure in the fraudulent scheme,

brought the case to attorney Herbert M. Lurie, who

often gave Boscia free legal assistance and loans of

money in exchange for case referrals (Tr. 96-102, 256).

Lurie agreed to represent Boscia, Babuscio, and Gallo.

‘Both petitioners were named in Count One (conspiracy).

and substantive Counts Two through Four and Seven. Petitioner

Sweeney. also named in substantive Count Eight, was acquitted

on Counts One, Two, and Eight and convicted on Counts Three,

Four, and Seven. Petitioner Henning was acquitted on Counts

Four and Seven and convicted on Counts One, Two, and Three.

4

Boscia secured powers of attorney from Lurie’s clients,

gathered false documentation to support the claims for

injuries and lost wages, arranged the settlement con-

ferences, and received a share of the settlement money

(Tr. 116-121, 152-164, 455-456, 463-464, 506-516). Be-

cause Lurie refused to represent Norris and petitioner

Henning (who was using the alias Thomas Warren),?

their claims were referred to petitioner Sweeney, an

attorney, who was a former associate of Lurie’s firm

(Tr. 93-95, 140). Boscia brought Norris to petitioner

Sweeney’s office and provided materials to support

the claims (Tr. 953-955, 980-981, 994).3 Petitioner

Sweeney denied that he did any work on the file, but

admitted preparing a letter notifying Ohio Casualty

that he represented Norris and “Warren” (petitioner

Henning) (Tr. 988-990). Moreover, he sent the insurance

company a letter of transmittal and release of the

Warren (Henning) claim4 (Tr. 1004).

b. Using the name Thomas Roberts, co-conspirator

Gallo purchased an automobile insurance policy from the

St. Paul Insurance Company (Tr. 465-466). Following Lou-

is Boscia’s instructions, he increased the amount of cover-

age from $500 to $5,000 and shortly thereafter Gallo and

Boscia agreed to stage an accident (Tr. 467, 469). On

August 15, 1973, Boscia drove Gallo’s car into a bridge

abutment in the presence of Gallo, Norris, co-conspirator

“Lurie had represented petitioner Henning previously and knew

him as Thomas Henning (Tr. 140, 829-831).

‘Petitioner Sweeney admitted that he had previously given Boscia

Iree legal assistance in exchange for case referrals (Tr. 947,

975-979).

‘The mailings of these letters were the basis tor Counts Two and

Three of the indictment.

5

Sabatini, and petitioner Henning (Tr. 469-470). Boscia took

Gallo and Norris to West Allegheny Hospital where

Gallo stayed for 30 days (Tr. 471-472). Louis Boscia

negotiated with Louis Adams, a St. Paul insurance adjuster,

for settlement of Gallo’s claim (Tr. 473-478).

Thereafter, petitioner Sweeney represented “John T.”

Boscia in a claim allegedly arising out of this accident.

Gallo testified that he did not know a John T. Boscia

and that, although he had heard the name mentioned

in connection with the August 15, 1973, accident, no

John T. Boscia was involved in that accident (Tr. 473).°

Petitioner Sweeney, however, had prepared and forwarded

to St. Paul Insurance Company a letter stating that he

represented John T. Boscia who worked for him as a

private investigator earning approximately $225 per week.

The letter demanded a $25,000 settlement and threatened

suit if a response was not received within I5 days

(Tr. 592-593, 927-934, 1011-1016). The claim was sup-

ported by bogus medical reports and bills for dental

treatment allegedly rendered for John T. Boscia by

co-conspirator Michael F. DeRosa, D.D.S. DeRosa, how-

ever, never performed any medical services for a John

T. Boscia (Tr. 519-523).

c. The third accident, which occurred on December 26,

1973, involved a collision between an automobile owned

by John B. Sabatini and insured by Ohio Casualty

and an automobile owned by Richard Di Achille. Louis

Boscia brought to Lurie claims on behalf of the pas-

sengers in the Di Achille vehicle, including a John

‘This testimony was supported by that of petitioner Henning

(Tr. 856-857).

‘The alleged mailing of this letter was the basis of Count

Seven of the indictment. Petitioner Sweeney contended that he

gave the letter to Louis Boscia for delivery (Tr. 1017-1018).

6

T. Boscia. Although a letter of representation was

initially forwarded to Ohio Casualty from Lurie’s office,

Lurie declined the case after receiving the file and so

notified Louis Boscia, petitioner Sweeney, and Ohio

Casualty (Tr. 208-222).’ Petitioner Sweeney represented

the claim of another passenger, co-conspirator John V.

Sabatini, son of the owner of the auto insured by Ohio

Casualty. Sweeney sent Ohio Casualty a letter advising

that he represented Sabatini and other passengers in the

Sabatini vehicle (Tr. 1030-1031). After securing medical

reports and bills to support Sabatini’s claim, Sweeney

contacted Leavy, senior adjuster at Ohio Casualty,*

to discuss settlement (Tr. 1044). Leavy testified that during

their meeting on this claim, petitioner Sweeney offered

him $1,000 to settle for $13,500, which offer Leavy

declined because “[t]he medicals were so close to-

gether, the accident occurring December 26th, X-rayed at

Columbia, then X-rayed at Monsour, the 27th, and then

treated in Nevada, on the 28th” (Tr. 377).

d. Petitioner Sweeney's legal secretary, Katherine A.

Putz, handled all typing, filing, and other administrative

matters during her employment from June 1972 to Octo-

ber 1973 (Tr. 627-628). She typed the letter of May 8,

1973, from Sweeney to Ohio Casualty indicating his

representation of Norris and “Warren” (petitioner Henn-

ing), in connection with the accident of April 12, 1973

Lurie testified that he did not take the case because he “did

not know of the existence of a John Boscia, and [it] would have

been the third case against Ohio Casualty within the period of

a year * * * “ (Tr. 222).

‘Leavy had known Lurie for 20 years and had accepted money

from him on many past occasions. The money was never repaid

and, according to Leavy. such payments influenced the settlements

he made with Lurie (Tr. 105-107, 353-354).

7

(Count Two); the letter of May 22, 1973, to Ohio Cas-

ualty transmitting the release of “Warren’s” April 12,

1973, claim (Count Three); the letter of September 10,

1973, to Monsour Hospital in Jeanette, Pennsylvania,

requesting medical reports on Norris (Count Four); and

the letter of September 13, 1973, to St. Paul Insurance

indicating representation of John T. Boscia in connection

with the accident of August 15, 1973 (Count Seven)

(Tr. 629-641). Although she did not specifically recall

mailing the letters, she testified that there was nothing

in them to suggest that they would not have been mailed

as correspondence in the normal course of business (ibid.).

Leavy, of Ohio Casualty, never received any hand-delivered

letters from petitioner “weeney; to his knowledge, the

letters cf May 8, and May 22, 1973, were both handled

as routine mail (Tr. 351-353, 367, 404-409).°

ARGUMENT

1. Both petitioners challenge the sufficiency of the

evidence in support of their convictions of mail fraud.

They contend (No. 75-6968, Pet. 29-31; No. 76-19, Pet.

4-6) that the government failed to establish beyond a

reasonable doubt that the mails were used to deliver

the subject letters. Petitioner Sweeney further argues

(Pet. 26-29) that the evidence did not prove that he

devised or participated in the scheme to defraud the

insurance companies. Neither claim has merit.

a. The testimony of petitioner Sweeney’s secretary

Katherine Putz that normal office procedure was to mail

letters and that there was nothing to suggest the subject

letters were not mailed in the norma! course of business

"Both petitioners testified in their own behalf and denied

complicity in the fraudulent scheme (see, e.g., Tr. 757-760, 774-

776, 921-929, 932).

©

u

(Tr. 629-641) is sufficient to warrant the inference that

Sweeney's letters to Ohio Casualty, St. Paul Insurance,

and Monsour Hospital were mailed. Such testimoney

as to office practice is sufficient proof of mailing.

United States v. Joyce, 499 F. 2d 9, 15 (C.A. 7),

certiorari denied, 419 U.S. 1031; United States v.

Flaxman, 495 F. 2d 344, 349 (C.A. 7), certiorari denied,

419 U.S. 1031. Leavy’s testimony that the letters to

Ohio Casualty had not been hand-delivered (Tr. 351-

353, 404-409) further supported that inference. The fact

that neither witness specifically recalled mailing or re-

ceiving the letters is not controlling. See Fed. R. Evidence

406. Viewed in the light most favorable to the govern-

ment (Glasser v. United States, 315 U.S. 60, 80) the

evidence was sufficient to sustain the verdict of the

jury, which evidently rejected petitioner Sweeney’s claim

that the letters were hand-delivered.'”

b. Petitioner Sweeney claims (Pet. 24-31) that the evi-

dence is insufficient to show that he devised the fraud-

ulent scheme and used the mails in connection with it.

The government did not have to show that the idea

for the scheme originated with Sweeney. Proof of his

knowing participation in the mail fraud scheme was

sufficient. Hofmann v. United States, 353 F. 2d 188, 191

(C.A. 10); United States v. Gorman, 390 F. 2d 147

(C.A. 3), certiorari denied sub nom. Siegal v. United

States, 391 U.S. 954. The evidence established that Louis

Boscia was the central figure of the fraudulent scheme

and that both Lurie and petitioner Sweeney utilized his

"Sweeney offered no explanation as to how the letter requesting

Norris’ medical records from Monsour Hospital in Jeanette. Penn-

svlvania (Count Seven), could have been delivered other than by

mail.

9

services. Lurie’s relationship with Leavy, petitioner Swee-

ney’s relationship with Lurie and reliance on him to

negotiate the April 12 claims, Gallo’s agreement with

Louis Boscia to stage the August 15 accident, and the

evidence of fake medical records to support the claims

of personal injuries were circumstances from which the

jury could infer the existence of both a conspiracy and

a scheme to defraud.

Petitioner Sweeney represented claimants allegedly

injured in each of the three accidents that occurred

within an eight-month period. Moreover, he informed the

St. Paul Insurance Company that “John T. Boscia”

was employed by him earning $225 per week, when in

fact he was not so employed. Leavy testified that peti-

tioner Sweeney offered him a $1,000 kickback in con-

nection with the settlement of Sabatini’s December 26

claim.

Thus, viewed in the light most favorable to the

government, the evidence was sufficient to support the

jury’s finding that petitioner Sweeney knowingly joined

and participated in the illicit undertaking.

2. Testifying in his own behalf, petitioner Sweeney

maintained that it was not he, but Leavy, who requested

a $1,000 kickback for settling Sabatini’s December 26,

1973, claim (Tr. 931-932). During cross-examination,

petitioner Sweeney testified without objection that he

had failed to relate this incident to postal inspector

Trainor during an investigatory interview because he

“couldn't prove it” (Tr. 1045).

The government commented briefly on this evidence

during closing argument (see No. 75-6968, Pet. 19-20) in

an effort to impeach petitioner Sweeney's credibility

as a witness. Petitioner Sweeney contends (Pet. 19-21)

that the government’s closing argument relating to this

10

matter violated his privilege against self-incrimination

and requires reversal under this Court’s decision in

Doyle v. Ohio, No. 75-5014, decided June 17, 1976.

This claim is insubstantial. In Doyle, this Court found

that post-arrest silence following Miranda warnings is

“insolubly ambiguous” (slip op. 8) and accordingly

that “the use for impeachment purposes of petitioners’

silence, at the time of arrest and after receiving Miranda

warnings, violated the Due Process Clause of the Four-

teenth Amendment” (slip op. 10). Unlike the situation

in Doyle, however, petitioner Sweeney was not under

arrest, nor had he yet been indicted at the time of

the event in question. And Sweeney’s testimony dur-

ing direct examination that he had never asserted his

Fifth Amendment privilege and “{had] no intention to

do so” (Tr. 930) eliminates any element of ambiguity in his

silence. Cf. United States v. Hale, 422 U.S. 171. More-

over, petitioner Sweeney, an attorney himself, was

questioned in the presence of his attorney and was not

under unfavorable surroundings. See United States v.

Hale, supra, 422 U.S. at 176-179. In these circum-

stances, the government’s isolated comment on the

evidence was not inconsistent with Doyle.

3. Government witness William M. Linsenmann, vice

president of the Ohio Casualty Insurance Company,

explained how fraudulent claims affect his company’s

losses and profits and insurance premium rates (Tr. 545-

551). Petitioner Sweeney argues (Pet. 32-33) that this

evidence was inadmissible and “highly prejudicial”. How-

ever while proof that the scheme succeeded is not nec-

essary in a prosecution for mail fraud, such evidence is

admissible. Farrell v. United States, 321 F. 2d

409, 419 (C.A. 9), certiorari denied, 375 U.S. 992.

The government may introduce evidence to establish the

effect of the fraudulent scheme and need not confine

its proof to purely monetary loss. United States v.

Joyce, 499 F. 2d 9, 22 (C.A. 7), certiorari den d,

419 U.S. 1031. Moreover, Linsenmann’s testimony was

not an appeal to the pecuniary interests of the jurors,

nor did the prosecution attempt to impassion the jury

by commenting on this evidence. Compare United States

v. Medansky, 486 F. 2d 807, 815 (C.A. 7), certiorari

denied, 415 U.S. 989, with United States v. Reicin,

497 F. 2d 563, 574 (C.A. 7), certiorari denied, 419

U.S. 996, and United States v. Trutenko, 490 F. 2d 678,

679-680 (C.A. 7). The trial in this case lasted eight days

and the government presented substantial evidence

against petitioner Sweeney. Thus even if the testimony

should have been excluded, which we do not concede,

its effect was so limited as to render its admission

harmless. Cf. United States v. Trutenko, supra, 490 F. 2d

at 680. See also United States v. Reicin, supra, 497

F. 2d at 574. |

4. Petitioner Sweeney’s contention .nat the indictment

failed to state an offense because it did not allege in

Counts Three, Four, and Seven that he “knowingly”

caused the mailings (Pet. 33-34) is insubstantial. The

indictment charges that petitioner Sweeney “for the

purpose of executing the aforesaid scheme and artifice

to defraud and attempting to do so did cause [the

letters] to be delivered by the United States Postal

service according to the directions thereon * * * .”

An indictment “is not to be construed in a technical

manner, but rather according to common sense.” United

States v. Pleasant, 469 F. 2d 1121, $125 (C.A. 8).

See generally Hamling v. United States, 418 U.S. 87,

117-119. The essential element of knowledge is suf-

ficiently alleged by the phrase, “for the purpose of

executing the aforesaid scheme * * * and attempting to

do so.” “A person may unintentionally cause an

12

event to occur, but it is impossible for a person to cause

an event for a specific purpose without knowledge of

what he is doing” (emphasis in original). Glenn v.

United States, 303 F. 2d 536, 538-539 (C.A. 5), certiorari

denied sub nom. Belvin v. United States, 372 U.S. 922;

United States v. Richman, 369 F. 2d 465, 467 (C.A. 7).

5. The district court did not err in denying petitioner

Sweeney’s motions for a severance. The grant or denial

of a severance is addressed to the sound discretion of

the district court. Schaffer v. United States, 362 U.S.

S511; Opper v. United States, 348 U.S. 84. Petitioner

Sweeney contends (Pet. 35-36) that the court abused

its discretion here because “a substantial amount of

testimony was admitted which was not relevant or proba-

tive as to the consideration of the case against [him].”

A severance is not, however, required because some of

the testimony at trial may not relate to a particular

defendant. United State: v. Aloi, 511 F. 2d 585, 598

(C.A. 2), certiorari denied, 423 U.S. 1015; United

States v. Hutul, 416 F. 2d 607, 620 (C.A. 7), certiorari

denied, 396 U.S. 1012. The jury was properly insiructed

here to apply the evidence separately against each de-

fendant (see Opper v. United States, supra, 348 U.S.

at 95), and the differences in the verdicts as to the

various defendants and separate counts reflect that the

complexity of the evidence did not prevent the jury

from following instructions. Cf. United States v. Pat-

terson, 455 F. 2d 264, 267 (C.A. 9); United States v.

Hutul, supra, 416 F. 2d at 620.

Petitioner Sweeney argues (Pet. 36-37) that the joinder

of the conspiracy count with the substantive count

“substantially prejudiced * * * the presentation of his

defense.” In support of this contention, he asserts

(Pet. 36) that he desired to testify as to the charge

of conspiracy only, and to “rest on the record” as

13

to the substantive offense. But even if petitioner Sweeney

would have conducted his defense differently had there

been separate trials, severance was not required. See

United States v. Weber, 437 F. 2 327, 333-335 (C.A. 3),

certiorari denied, 402 U.S. 932. Indeed, his defense

as to the substantive counts rei.ed heavily on his own

testimony that the subject letters were not mailed but

hand-delivered.

Finally, petitioner Sweeney claims (Pet. 37) that

Counts Three and Four (relating to the April 12 accident)

should have been severed from Count Seven (relating

to the August I5 accident). However, the different

offenses were related to transactions which were “con-

nected together” and “of the same or similar character”

within the meaning of Fed. R. Crim. P. 8(a); moreover

petitioner Sweeney has failed to show any prejudice

warranting severance. Cf. Breeland v. United States,

396 F. 2d 805, 806 (C.A. 5), certiorari denied, 393

U.S. 847.

6. Petitioner Sweeney challenges (Pet. 21-23, 37-41)

various instructions given by the district court. The

court's charge to the jury, however, was entirely proper.

a. The court instructed that accomplice testimony “may

be of sufficient weight to sustain a verdict of guilty”

(Tr. 1141) but that such testimony “must be scrutinized

and weighed with care” (Tr. 1142). The court further

cautioned the jury: “you should never convict a defendant

on the unsupported testimony of an alleged accomplice

unless you believe that unsupported testimony establishes

guilt beyond a reasonable doubt” (Tr. 1143). Petitioner

Sweeney maintains (Pet. 21-23) that under Cool v.

United States, 409 U.S. 100, the court should have

instructed the jury that it could acquit, as well as

14

convict, on the basis of such testimony. In Cool, how-

ever, ihe ‘instruction required the jury “to ignore

defense testimony unless it believes beyond a reasonable

doubt that the testimony is true” (ibid.). In this case, the

instruction simply prevented the jury from convicting on

incriminating accomplice testimony unless it accepted

that testimony as true beyond a reasonable doubt;

it did not imply that exculpatory testimony must also

meet the reasonable doubt test. Moreover, in Cool

the chief witness for the defense admitted his own

guilt, but insisted that the defendant was not involved,

and this Court found that testimony “completely ex-

culpatory” (409 U.S. at 101). In the present case,

petitioner Henning testified on his own behalf and gave

self-exculpatory testimony. He was not testifying on behalf

of his co-defendant but, rather, was seeking to establish

his own innocence. Indeed, none of the witnesses called

by the government exculpated either petitioner. In view

of the nature of the accomplice testimony, therefore,

this case is not like Cool and United States v. Stulga.,

531 F. 2d 1377 (C.A. 6), on which Sweeney relies,

but instead is similar to United States v. Vigi, 515

F. 2d 290, 294 (C.A. 6), certiorari denied, 423 U.S.

912.!!

''The record also shows that any testimony of government

witnesses which might be construed as exculpatory of Sweeney

was of minimal evidentiary significance. The fact that Lurie

denied (Tr. 242-243) conspiring with petitioner Sweeney did not

preclude a finding that Sweeney participated with others in the

fraudulent scheme. Thus even assuming that Coo/ always requires

an inst.uction that the jury may acquit if it finds that exculpa-

tory accomplice testimony raises a reasonable doubt, the refusal

to give such an instruction was harmless. Cupp v. Naughten.

414 U.S. 141. See United States vy. Armocida, 515 F. 2d 29. 48

(C_A. 3). certiorari denied sah nom. Joseph s. United States.

423 U.S. 858.

15

b. It is well settled that the essential element of

knowing use of the mails is established “where such use

can reasonably be foreseen, even though not actually

intended.” Pereira v. United States, 347 U.S. 1, 9.

The court’s instruction (Tr. 1121; Pet. 37) accurately

stated this as the law and petitioner Sweeney's challenge

to this charge (Pet. 37-38) is therefore without merit.

c. The substantive counts of the indictment alleged that

petitioner Sweeney “did cause [the letters] to be delivered”

and not that he “placed the letters in any post

office.” Petitioner Sweeney asserts (Pet. 38-39) that the

district court “impermissibly broadened the indictment”

by reading to the jury the entirety of the relevant

statute, 18 U.S.C. 1341, which proscribes, inter alia,

“plac{ing] in any post office***” (Tr. 1118-1119).

The record does not support his unsubstantiated claim

of prejudice. The proof required to establish that peti-

tioner Sweeney himself actually placed a letter in the

mails necessarily would have beer sufficient to support

the allegation that he “did cause the delivery of the

letters.

d. Proof of a mail fraud scheme involving two or more

persons is analogous to proof of a conspiracy. An individ-

ual participant in such a scheme is liable for the acts

of a co-participant that are within the scope of the

scheme. United States v. Cohen 516 F. 2d 1358, 1364

(C.A. 8); Blue v. United States, 138 F. 2d 351, 359

(C.A. 6), certiorari denied, 322 U.S. 736. The court’s

instruction (Tr. 1124) properiy explained the law and

petitioner Sweeney’s challenge that it was erroneous

because “the principles of the conspiracy law are not

applicable” (Pet. 40-41) is groundless.

e. Equally without merit is petitioner Sweeney’s argu-

ment (Pet. 39-40) that the district court committed

16

reversible error by refusing to instruct as follows (Pet.

40):

In a mail fraud prosecution such as the defendants

are indicted for in this case it is necessary before

you may convict that you are satisfied that the govern-

ment has proven beyond a reasonable doubt that the

defendant devised the scheme and artifice to defraud

set forth in the indictmen* and for the purpose of

executing the scheme knowingly caused the mails

to be used in the manner set forth in the indictment.

The requested charge is, however, an incomplete state-

ment of the law, on which the court gave thorough

instructions (Tr. 1118-1126). As we have shown above

(supra, pp. 8-9), it was not necessary to prove that peti-

tioner Sweeney himself devised the scheme; it was

sufficient to show that he knowingly participated in the

use of the mails in executing the scheme of fraud,

and the court properly instructed the jury to that

effect.

CONCLUSION

It is therefore respectfully submitted that the petitions

for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

KATHERINE WINFREE,

Attorneys.

NOVEMBER 1|976.

DOJ-1976-11