# Opposition — Henning v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0246%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 976

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0246%3A2. Public record. Not legal advice.