# Petition — Mackey v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0604%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 1000 ## Text Supreme Sout, 8. 3. FILE D SEP 14 1976 GAG. O08AL, BCL In THE Supreme Court of the United States Ocroser Term, 1976 No. 76..2.6.- 376 > JEROME MACKEY, Petitioner, —V.-- Untrep Srates or AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS — FOR THE SECOND CIRCUIT Freperick FE, WEINBERG Attorney for Petitioner 515 Madison Avenue New York, New York 10022 (212) 752-1720 TABLE OF CONTIUNTS (pdedomes Below cs cece ee ee ese 6 8 6 8 Jurisdiction «ee cececrsccscecsereresceee e8 & Questions rresented. . 6 «eee ee ee ee co ee 0 2 Relevant Statutes. «esses ecccesvres ee oD Statement of Case. cee cc ee cece eee coc & The Reasons for Allowins a Writ of Certiorari. .. . 6 Conclusion. «ee cee ee cece rece ee woe X Appendices: Appendix A, Judgment of U.S.C.A. 2d Circuit. . .. . Al Appendix B, Order Denying Petition for Rehearing. . Bl Appendix Bl, Order Denying Petition for Rehearing en banc. ee ¢ © Bl-1 Appendic C, Opinion of District Court. « « «++ Cl appendix D, Indictment. S6@ 6 @ 6.6.66 5. 8 4&4 2.9 DL CASTS CITED: In THE Supreme Court of the United States : “a rm 13. eee 7 Goldberg We tie. (Cox. 2d cir.) 472 ..(2d) 5 Octoser Term, 1976 Pelz v. United States (C..\.2d Cir.) Sy *.(2d) 1001... © No. 76.............-- ee | 5 3 ; he .e 4S. ve Lown ( 26%S.D. of 2.Y.)115 2%. SuppeOl4 q JEROME Mackey, STATUIZS CITED: . Petitioner, . @ ° 3 tore 8 UeseGe SOGe LHe we we ee eo 2 ee 8 Oye eo — h Unrrep States or AMERICA, SB GSeCe Sete WAR ce eee ee eee ore ess Respondent. cocoon @ 23 VeSeve Sec. 125), (1) oan 2 6 2 2.92 . | @& <> PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT To the Honorable, the Chief Justice of the United States and the Associate Justices of the United States Su- preme Court. Petitioner, Jerome Mackey, respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Second Circuit entered on June 23rd, 1976, affirming a judgment of the United States District Court for the Eastern District of New York convicting him of devising a scheme to defraud involving the use of the United States mails. ii Opinions Below The Court of Appeals wrote an opinion which is not yet officially reported. A copy is annexed hereto as Appendix A. There was no opinion in the District Court, except an opinion rendered upon its denial of petitioner’s motion to dismiss the indictment by reason of the improper presenta- tion of privileged testimony to the indicting grand jury. A copy of that opinion is annexed hereto as Appendix C. Jurisdiction The judgment of the United States Court of Appeals for the Second Circuit was entered on June 23rd, 1976. A copy of the judgment is annexed hereto as Appendix A. A timely petition for rehearing with suggestion for re- hearing en banc was denied in orders entered on August 18th, 1976, copies of which are annexed hereto as Appendix B and Appendix B-1. No application has been made for an extension of time in which to file this petition. The Court’s jurisdiction is invoked pursuant to 28 U.S.C. See. 1254(1). Questions Presented 1. Whether petitioner’s awareness that certain salesmen had made fraudulent promises was, ipso facto, suf- ficient to establish that he had devised a scheme to defraud as alleged in the indictment. to Whether petitioner’s instruction to his attorney to sell to the co-defendant Nelson and to Taylor his stock in Mackey’s Judo, Inc., of which Mackey Distributors, Inc. was a subsidiary, was privileged and, if so, whether that attorney’s testimony to the indicting grand jury which repeated petitioner’s instruction to him and described the transaction required the dis- missal of the indictment. Relevant Statutes 18 U.S.C, § 1341: “$1341. Fraups anp SwinDLes. Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or fur- nish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or re- ceives therefrom, any such matter or thing, or know- ingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or 4 both. (June 25, 1948, ch. 645, 62 Stat. 763; May 24, 1949, ch. 139, § 34, 63 Stat. 94; Aug. 12, 1970, Pub. L. 91-375, § (6)(j)(11), 84 Stat. 778.)” 18 U.S.C. §$ 1342: “1342. Fictitious NAME or ADDRESS. Whoever, for the purpose of conducting, promoting, or carrying on by means of the Postal Service, any scheme or device mentioned in section 1341 of this title or any other unlawful business, uses or assumes, or requests to be addressed by, any fictitious, false, or assumed title, name, or address or name other than his own proper name, or takes or receives from any post office or authorized depository of mail matter, any let- ter, postal card, package, or other mail matter ad- dressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be fined not more than $1,000 or imprisoned not more than five years, or both (June 25, 1948, ch. 645, 62 Stat. 763; Aug. 12, 1970, Pub. L. 91-375, § 6(j) (12), 84 Stat. 778.)” Statement of Case The indictment charged that petitioner together with the co-defendant Nelson and one Richard E. Taylor had de- vised a fraudulent plan or scheme to sell, under the name of Mackey Distributors, Inc., distributorships for the sale of stereo tapes and equipment; and that that scheme had in- volved the use of the United States mails (Appendix D). It alleged the scheme to have been in violation of Title 18, United States Code, Sections 1341 and 2. ee The only testimony of what the agreement had been was furnished by the prosecution witness Taylor. He testified that it had been a tripartite profit-sharing agreement. He testified that one of the terms of the agreement was that the purchasers of the distributorships “were to be told just what they were getting into” (Record, p. 237). No part of his testimony revealed any intention to misrepresent or otherwise defraud the purchasers of the distributorships. It was established without contradiction that petitioner did no selling and gave no instructions to the salesmen. A number of purchasers having testified that they had not received what the salesmen had promised, the jury re- turned a verdict of guilty against petitioner under 6 counts of the indictment. The Court of Appeals affirmed. It stated in its opinion that the testimony showed that petitioner and the co-defendant Nelson “were aware of the fraudulent promises being made” (Appendix A). One Thomas Mazza was petitioner’s former attorney. He testified before the indicting grand jury that petitioner had instructed him to prepare an agreement under which Mackey’s Judo, Inc., in which petitioner had an interest, would sell all its stock to the co-defendant Nelson and Taylor (Appendix D, p. 8). Mackey’s Judo, Inc., was the parent corporation, owning all the outstanding stock of Mackey Distributors, Inc. By that transaction, therefore, petitioner had transferred, through the sale of his stock in Mackey’s Judo, Inc., his interest in Mackey Distributors, Inc. to the co-defendant Nelson and Taylor. That testimony of petitioner’s former lawyer was the only testimony pre- sented to the indicting grand jury which described the transaction whereby petitioner had given the co-defendant Nelson and Taylor an interest in the profits of Mackey Dis- 6 tributors, Inc. Petitioner did not waive his right to object to the presentation of that testimony before the grand jury. At the trial petitioner moved to dismiss the indictment upon the ground that his former attorney had given the indicting grand jury information which was privileged, since revealed confidentially to his attorney in the course of the attorney and client relationship. The motion was denied. In the opinion of the trial court which accompanied his denial of that motion the court stated that “the indictment was supported by ample non-privileged evidence.” (Ap- pendix C, p. 38). That reasoning was approved by the Court of Appeals (Appendix A, p. 2). The Reasons for Allowing a Writ of Certiorari First Reason. In a prosecution for the crime of devising a fraudulent plan, “there must be proof of an unlawful agreement and participation therein with knowledge of the agreement” (1932) Pelz v. United States (C.A. 2d Cir.), 54 F. (2d) 1001, 1005. The only evidence of the terms of the agreement between the three men which related to their conduct thereunder was Taylor’s testimony that the purchasers of the distribu- torships were to be told “just what they were getting into.” Thereby the absence of any evidence that petitioner had devised a scheme to defraud was accompanied by testimony of the prosecution’s witness, unequivocal and uncontra- dicted, that there was to be no misrepresentation of any kind.* * Petitioner’s motions to dismiss and to set aside the verdict were denied. 7 The injustice to this petitioner from this conviction is not the sole reason why the writ should be allowed. Under the principle implicit in petitioner’s conviction, United States Attorneys may hereafter employ the mail fraud stat- ute to the end of usurping the heretofore exclusive jurisdic- tion of the state courts over prosecutions for fraud. They will be able to do this simply by preparing indictments which charge the devising of a fraudulent plan involving the use of the United States mails, and then conducting the trial without producing any proof of such a plan. That was the procedure in this case. If this device for extending the jurisdiction of the United States courts is to be authorized, that practice should not be introduced inadvertently and without explicit recogni- tion. This situation warrants the deliberative consideration of this court. Second Reason. Petitioner’s instruction to his attorney Mazza to sell his stock in Mackey’s Judo, Inc. to the co-defendant Nelson and to Taylor was confidential and made in the course of the attorney and client relation. The prosecution had the burden of showing that it had not used that information or any information even indirectly derived therefrom. Other- wise the indictment will be dismissed. (1973) Goldberg v. U.S. (C.A. 2d Cir.), 472 F. (2d) 513, 516; (1953) U.S. v. Lawn (D.C.8.D. of N.Y), i115 F. Supp. 674. The prosecution cannot show that the grand jury had not been influenced by the foregoing testimony in handing down the indictment. On its face, the contrary is probable. The premise upon which the indictment proceeded and which, in fact, it alleged was that petitioner, the co-defendant 8 Nelson and Taylor had a community of interest in the sale of stereo tape distributorships by Mackey Distributors, Inc. The privileged testimony given to the indicting grand jury by the petitioner’s former attorney could have had a still more damaging significance. The transaction which that attorney described was a circuitous one. Petitioner sold an interest in the profits to be made by Mackey Dis- tributors, Inc. by way of a transaction which nominally passed title only to stock in the parent corporation, Mackey’s Judo, Ine. In the perspective of laymen, that might have appeared as an indirection bespeaking a fraudu- lent concealment. Thus, the transaction of sale which peti- tioner had confidentially instructed his attorney to conduct might very well have predisposed the grand jury to view the entire relationship between the three men with a jaun- diced eye. The trial court’s stated rationale for his refusal to dis- miss the indictment even if the grand jury had been given privileged testimony missed the real point. Assuming arguendo that there had been ample proper evidence upon the basis of which an indictment might have been handed down, that fact would not have made this privileged tes- timony harmless. The question is not whether the proper testimony presented to the grand jury would have been sufficient to support an indictment, if handed down. Rather, the question is whether, if the privileged testimony had not been presented, there would have been an indictment at all. Petitioner was entitled to a determination by the grand jury which had been based only upon the presentation to it of proper testimony. Any conjecture which might be made to the effect that the grand jury might have indicted even in the absence of 9 the privileged testimony is inappropriate. No one can really substitute himself for the grand jury and speculate as to what its determination would have been in the event that certain testimony which had been presented to it had _been omitted. There is still another aspect of this privileged testimony. As already shown, the prosecution did not produce even a scintilla of testimony of a fraudulent agreement. Since the one witness who testified to the terms of the agreement between the three men (Taylor) must have been i:terviewed by the United States Attorney, one is compelled to wonder about the source of the United States Attorney’s belief that there had been a fraudulent agreement at all. It seems probable that the entire basis for the charge of a fraudulent agreement had been simply a construction, an idea which had seemed probable to someone upon the basis of the trans- action which petitioner’s former attorney had described. =- CONCLUSION For the above-stated reasons, the writ of certiorari should be granted. Respectfully submitted, Freperick E. WEINBERG Attorney for Petitioner 515 Madison Avenue New York, New York 10022 (212) 752-1720 APPENDICES - Al APPENDIX A JUDGENT OF U.S.C.A. SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse in the City of New York, on the 23rd day of June, one thousand nine hundred and seventy-six. Present: HUNORASIE HENRY J. FRIENDLY HONORADIE WILFRED FLINBIRG HOWORABLE SLLSWORTH A. VAli GRAAFEILAND Circuit Judges, sss waceet eee weeéenae eee tbsoevseace 4 UNITED STATES Or AMERICA, Appellee, —acainst- JEROL= MACKSY and WILLIAi: NSLSON, Deferdants-Apnellants. ee ce eee nes en eeseeeceeeoaneeeece x No. 76=1118 Appeal from the United States District Court for the Eastern District of New York, This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was argued by counsel. ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed. i.2 Jerome Lackey and William Nelson appeal from their convictions after a jury trial before Judge \Weinstein for executing a scheme to defraud through the mails, 18 U.S.C Sec. 131. The fraudulent scheme charged was the sale of tape distributorships by means of false and misleading prorrises. The 21 count indictment charged 15 individual mailings of misleading advertisements and re= ceipt of six checks through the mail. One of tne advert=- isement counts was dismissed on government motion during trial. Nelson was convicted on all the remaining advert- isement counts and Mackey on six of them. Both defend- ents were acquitted on the check counts. They were sent- enced to five years imprisonment on each count to run concurrently,sentences suspended on four and one-half years of each count conditioned on probation. Both appellants question the sufficiency of the ev- idence to show that they knowingly participated in a scheme to defraud through the mails. Viewing the evidence in a licsht nest favorable to the Government, as we are re= quired to, both defendants were aware of the fraudulent promises bein: made and Nelson actually learned and em ployed the fraudulent sales pitch used to induce custom ers. Nelson also participated in the deception of cust- omers after the departure of a co-defendant, who testi- fied for the Government, Mackey knew of the past dub- ious sales techniques used by a salesman hired with his permission. Both Nelson and Lackey knew that inferior tapes were being provided instead of the brand names promised and when the scheme collapsed, lackey expressed confidence that the dissatisfied eutennen would never collect because the assets of the company had been trans- ferred. | Appellants also claim that the jury's guilty verdict must be set aside as inconsistent. It has been settled since Steckler v. United States, 7 F.2d 59 ( 2d Cir.1925) (L. Hand, J.), and Dunn v, United States, 28) U.S. 390 (1932)( Holmes,J.), that this is not a ground for rever- sal, and we have declined the invitation to depart from this rule. United States v. Carbone, 378 F.2d 420 (2d Cir, 1967)(Friendly,J.). loreover, the veridct is not really inconsistent. It is true that Nelson and lackey were convicted on the misleading advertisement but aq= quited on the check counts. 3ut the jury might have felt that appellants did not profit substantially from the scheme and allowed that to influence them on the check counts. Also, the jury misht have had a reasonable doubt that appellants knew that these checks were mailed rather than hand delivered. Similarly, a key meeting be- tween lackey and a co=defendant might explain lackey's acquittal on the counts involving advertisement mail- ings that antedated that meeting. Finally, appellants's claim that the guilty verdict was the result of prejud- icial and irrelevant testimony by victims of the scheme was not preserved for review since no objection was made to any such testimony. Individually, Newlson contends that the judge's "conscious avoidance" charge was inadequate and should not have not have been used on these facts. However, the charge taken as a whole was balanced and appropriate. Nor did the judge err in refusing to grant Nelson an adjournnent when he changes counsel on the eve of trial. Sovnsel did have five days to prepare and he failed to renew his motion at any point during the trial. Also, AS the judge properly exercised his Secsatten in exclud=- inga complaint filed with the Nassau County District Attorney,since the fact of the filing was stipulated to end the content of the complaint was self-serving hear- say. Finally, Mackey claims that his indictment wes in- valid because essential informtion before the rand jury was improperly obtained from his lawyer in violat-- ion of his attorney-client privilege. we reject the ar ment substantially for the reason set forth in Judge ‘ deinstein's opinion, reported at 05 F. Supp. 85 (E.D.N.Y. 1975). /9 coc 7.2 3/ We have considered all the points raised by appell- ants and find them wnpersuasive., Judgments of convict- ion affirmed. Henry J. Friendly Wilfred Feinberg Ellsworth A. Van Graafeiland U.S.C.JJ. APPENDIX B ONIN DENYING PETITION FOR RcHRARING UNIT) ST TSS COUT UF COP U.LS 6to0M CIRCUIT 4t a Stated Term of the United States Sourt of ipoelas, in a for the Second Circuit, held at the United States Courthouse, tin the City of ijew York, on the eicbtcenth day of Ausust, one thousand nine hundred and seventy-six. rresent: HON, Wong J, FRITNDLY HON, WILFRED FINBERG HON. SLLSWOLTH A. VAI! GLAAPTILAIM Circuit Judzes CE IE BOA OT aye ae ye ee AE X United States of imerica, Plaintiff-appellee, -—acainst- Jerome )iackey,ichard ©. Taylor, William Nelson, Defendants, 7 n Nelson, Jerome lackey, Def endants -* HOMORARLE DAVID G. TRAGER United States Attorney Eastern District of New York By: HAROLD J. FRIEDMAN Assistant United Scates Attorney For Government GROMAN, WOLT & ROSS, P. C. Carle Place, New York By: MARVIN YOLF, Fsq. : For Defendant Mackey McCARTHY, DORFMAN & BRENNER, Esqs. Mineola, New York Ry: DAVID W. McCARTHY, Esq. "or Defendant Nelson WEINSTEIN, D. J. qq Oarare - - - The defendants, Jerome Mackey and William Nelson, » were charged with mail fraud arising from their management of Mackey Distrioutors, Inc. 18 U.S.C. § 1341. Distributors was organized in 1°72 for the purpose of selling stereo tape distributorships. Mackey was president and Nelson secretary-treasurer. During the course of the grand jury investigation ee ee er ee eee - the government called as a witness an attorney, Thomas Mazza Mr. Mazza testified that he had been retained by Jerome Mackey to draw the incorporation papers for Distributors. — challenge on the ground that the grand jury oe © OT acted tie besis of information obtained in violation Fifth Amendment privilege against self-incrimination." United States v. Celandra, 414 U.S. 338, 345, 94 S.Ct. 613, | 618, 38 L.Ed.2d 561 (1974). It would seem to follow, a fortiori, that the right to invoke a common law testimonial privilege, which does not stand on a constitutional footing, does not imply any right to a dismissal of an indictment. The only limitation on | this principle has been the suggestion by some courts that ‘an indictment is invalid if it could not be supported without 'the privileged matter. See United States v. James, 493 F.2d 323 (2d Cir.), cert. denied, 419 U.S. 834, 95 S.Ct. 87 (1974); United States v. Pepe, 367 F.Supp. 1365, 1370 (D.Conn. 1973). : at 350, 78 S.Ct. of a defendant's cig | 19 See also People v. Eckert, 2 N.¥.2d 126, 128, 157 N.¥.S.2d 551, 554 (1956) (admission of doctor's testimony in violation of defendant's privilege was improper but indictment would not be dismissed where there was sufficient competent evi- . dence also presented to the grand jury). | | In the instant case, there was overwhelming evi- | ! dence of defendants’ mail fraud \ presented to the grand jury’ apart from Mazza's testimony. Mere violation of the attorney- client privilege, would not support dismissal. ! A second theoretical basis for dismissal is that | portion of the Fifth Amendment which guarantees that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury." U.S. Const. Amend. V. The theory here would be that this constitutional protection assumes that the grand jury will conform to the law and confine its deliber- ‘ations to —— or otherwise legally obtainable evidence. This sppreach was largely rejected by the Supreme Court in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). In Costello the defendant moved to dismiss the indictment on the ground that the only witnesses | _ the Fifth Amendment grand jury provision. | I ifs i! | | | | | ———SSSse SS SS | practices of the early English grand jury C20 ogi 20 to appear before the grand jury were three government investi- gators who had no first hand knowledge of the acts of tax evasion with which defendant was charged and who were only able to repeat the hearsay declarations of others. Costello argued that an indictment based solely on hearsay violated The Court based its analysis primarily on the "The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satis- factory." 350 U.S. at 362, 76 S.Ct. at 408. The Court concluded that: "If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, | 38 L.Ed.2d 561 (1974), affords some additional insight. cal 21 “of the evidence before the grand jury. This is not required by the Fifth | Amendment. An indictment returned by a legally constituted and unbiased ! grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." | , 350 U.S. 363, 76 S.Ct. at 408, 409. | Fairly read, Costello may be said to stand for the proposition that the validity of an indictment under the : Fifth Amendment is in no way dependent on the legality of the evidence received by the grand jury. Arguably, however, the facts if not the language of Costello are distinguishable in the sense that there defendant's contention went essentially to the reliability and, hence, the sufficiency of the evidence presented to the grand jury. In this case, by contrast, defendant's objection centers on the violation of his right to confidential communication with his attorney -- i.e., on the legality of the government's conduct in obtaining the evidence, in the first instance. In this connection, the Court's recent decision , least where there has not been a prior adjudication that C22 22 Calandra had obtained an order from a district court provid- ing that he need not answer a grand jury's questions which | were based upon records seized from his place of business | in violation of the Fourth Amendment. The Supreme Court | reversed the Sixth Circuit's affirmance, holding that at evidence has been illegally seized, a witness who has not been indicted may not invoke the exclusionary rule to secure suppression of evidence nor relief from the duty to testify. See esp. n. 8, 414 U.S. at 352, 94 S.Ct. at 622. It is true that the question in Calandra was the existence of a right to exclude evidence before the grand jury -- a right assumed here -- and that the primary rationale for the decision was the majority's view of limitations on the exclusionary rule. 414 U.S. at 347-355, 94 S.Ct. 619-624. o But it is hardly likely that the Court would permit the intro duction of illegally seized evidence if it anticipated the dismissal of a resulting indictment on the basis of the Fifth Amendment. This observation, coupled with the re- liance placed on its own gecteten in Lawn v. United States, noted above, indicate that the Court perceives no limitations inherent in the Fifth Amendment on the kind of evidence thet | may be considered by a grand jury. ; i ' 21 L.Ed.2d 131, (1968); United States v. Johnson, 419 F.2d 56, c23 a 23 The conclusion that an indictment is not invali- dated by grand jury reception of illegally ovtained evidence | is further supported by dicta in United States v. Blue, - 384.U.S. 251, 255 n. 3, 86 S.Ct. 1416, 1419, 16 L.Ed.2d / §10 (1966) and by a broad consensus of lower court authority. | +2. States v. Doe, 455 F.2d 1270 1274 (ist Cir. See, £-Z-, United Doe, 4' , : . 1972); united States ex rel. Almeida v. Rundle, 383 F.2d 421, 424 (3d Cir. 1967); cert. denied, 393 U.S. 863, 89 S.Ct. 144, | 58 (4th Cir. 1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1235 | 25 L.Ed.2d 423 (1970); Hunter v. United States, 405 F.2d 1187 | (9th Cir. 1969). SS See ee to dismiss an indictment based entirely on tainted evidence, }see, e.g., Laughlin v. United States, 385 F.2d 287, 291 '(D.C. Cir. 1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1245, '20 L.Ed.2d 103 (1968); United States v. Kahn, 366 F.2d 259, i ‘264 (2d Cir.), cert. denied sub nom. Pacyili v. United States, (385 U.S. 948, 87 S.Ct. 321, 324, 17 L.Ed.2d 226, rehearing A number of cases suggest that it may be necessary denied, 385 U.S. 984, 87 S.Ct. 502, 503, 17 L.Ed.2d 445 (1966) ; United States v. Isaacs, 347 F.Supp. 743, 757 (N.D. Ill. 1972) ;. —————S—_——Oo = ———==--—_—_ —— > — = i c2h United States ex rel. Pacheco v. Casseles, 312 F.Supp. 554, 556 (S.D.N.Y. 1970). As noted, this is not the case here. A third basis for dismissal of the indictment would be in the exercise of inherent "supervisory powers" over the conduct of government attorneys before the grand jury. See United States v. Estepa, 471 F.2d 1132, 1136 (2d Cir. 1972). The Supreme Court in Costello, however, specific- ally held that this power should not be exercised so as to permit defendants to challenge indictments on the ground that’ they are not supported by competent evidence. The Court concluded that: "[nJ]o persuasive reasons are advanced for establishing such a rule. It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice ‘nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict ob- servance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial." | 350 U.S. at 364, 76 S.Ct. at 409. _ 24 | | not applying the rules of evidence to grand jury proceedings | the Committee did not provide similar guidance on why the rules of privilege were excepted from that policy. | Advisory Committee Notes to Rules 1101(c) and (4). 025 2s *. ’ Given that dismissal of the indictment’ is not required by the court's interests in reliable fact finding by the grand jury or in preserving fairness to the defendant, it would seem to follow that the exercise of the court's supervisory power to dismiss can only be justified. by extrinsic ' policy considerations -- specifically, the policy considerations underlying that portion of Rule 1101(d) of the Federal Rules of Evidence which, in conjunction with Rule 1101(c), preserves the common law privilege in grand jury proceedings. Although the Advisory Committee which drafted the | | Federal Rules was explicit in setting forth the reasons for -- relying on the quotations from Costello set out above -- ee ee Pre- i federal Rules of Evidence cases which have either upheld or ret. cognized the right to invoke a testimonial privilege in a grand jury proceeding are likewise silent as to the reasons for doing so, See, United States v. Pappadio, 346 F.2d 5, 9 (2d Cir. 1965) (attorney client privilege), vacated sub nom. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 C26 26 C27 27 (1966); In Re Goldman, 331 F.Supp. 509 (W.D. Pa. 1971) See 1 C. Wright, Federal Practice and Procedure [Criminal] (attorney-client privilege); Blau v. United States, 340 U. Ss. § 106 (1969). It is true that no such obligation is imposed | 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951); United States v. on the witness, but there is no reason to assume that George, 444 F.2d 310 (6th Cir. 1971) (marital privilege) ;' testifying before a grand jury will render a privileged communi- In Re Verplank, 329 F.Supp. 443 (C.D. Cal. 1971) (priest- cant more likely to disclose confidential matter in the future. penitent privilege). | , | : At trial additional protections come into play. It The preservation of the traditional testimonial pri- is axiomatic that a testimonial privilege can only be waived ' vwileges in the grand jury context is consistent with several by the holder. Accordingly, the revelation of privileged policy objectives. One function of the rule is to preserve matter before the grand jury by an attorney, for example, would , the secrecy of confidential communications. Subdivision(c) of not constitute a waiver of the client's privilege so as to | Rule 1101 supports the view that confidentiality once destroyed entitle the government to introduce that matter at trial. cannot be restored, and that a privilege is effective only if _ Supreme Court Rule 512 expressly provided that a disclosure c bars all disclosures at all times. Nevertheless, in the of privileged information is not admissible against a holder | grand jury context, this unquestionably serious concern about \! | protecting important relationships is substantially mitigated by who had no opportunity to claim the privilege. The rule provided: | Several factors. Rule 6(e) of fhe Federal Rules of Criminal "Rule 512. Procedure imposes a strict obligation of secrecy on all jurors, Privileged Matter Disclosed Under Compulsion or Without Opportunity _attorneys, interpreters, stenographers, operators of recording to Claim Privilege. . Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (a) compelled erroneously or (bt) made without opportunity to claim the privilege." ‘devices, and typists involved in a grand jury proceeding. i \Such persons may disclose matters occurring before the grand jury only to government attorneys for use in the performance ‘of their duties or as otherwise directed by the court. ' | ont ST Se —— ee ee aaa OO eee Oe Se Ca Since the defendant Jerome Mackey was not before the grand jury when the testimony was given, he had no opportunity to claim the privilege. He would have been entitled, therefore, to object to Mazza's testimony at trial had it been offered by the overnment. It is also significant that where the holder of the privilege is called before the grand jury and compeiled erroneously to testify, Supreme Court Rule 512 would provide that no waiver occurs. Congress struck Rule 512 but, as already noted, th provision still is useful as a standard. Accordingly, the defendant would retain his right to invoke the privilege at trial, either to exclude testimony by the communicant or to bar introduction of his own prior statesent as an admission. In addition, the court would have some discretion to bar the fruit of the privileged testimony, at least where the government was a party to the improper breach. Finally, Supreme Court Rule 513 would prohibit any comment on the claim of privilege. The rule, as promulgated the Supreme Court but not adopted by Congress, stated 28 — ee oe C29 29 "Rule 513. COMMENT UPON OR INFEKENCi: FROM CLAIM OF PRIVILEGE: INSTRUCTION (a) Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior oc- casion, is not a proper subject of comment by judze or counsel. No inference may be drawn therefrom. (b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, 80 as to facilitate the making of claims of privilege without the knowledge of the jury. (c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of priv- ilege is entitled to an instruction that no inference may be drawn therefrom. a This approach is in accord with pre-existing practice in the | federal courts. See, e.g., Courtney v. United States, 390 | | F.2d 521, 527 (9th Cir.), cert. denied, 393 U.S. 857, 89 S.Ct. 98, 21 L.Ed.2d 126, rehearing denied, 393 U.S. 992, 89 S.Ct. | 440, 21 L.Ed.2d 457 (1968). | | | In sum, there exist substantial safeguards which guarantee continued secrecy for confidential communications improperly disclosed to a grand jury. Dismissal of an indict- ment would add little to these protections. A second objective of Rules 1101l(c) and (d) may be to supplement the traditional function of the privileges then- selves in encouraging the formation of protected confidential . = ———— >? + 1 = — Se a C30 30 relationships and free and frark discussion within those re- lationships. See, e.g., Wigmore, Evidence §§ 2285, 2286, 2290, 2291, 2332, 2333 (McNaughton rev. 1961); McCormick, Evidence §§ 72-74, 78, 87, 98 (Cleary ed. 1972). It should be observed, however, that only a small fraction of attorneys, spouses, physicians, and other privileged communicants are called before grand juries. Those that are called are al- ready guaranteed their authority to claim the privilege by Rule 1101. al ethical obligation to refuse to disclose confidential matters. A.B.A. Code of Professional Responsibility, Canon 4. Their training should alert them to the issue so that inadvertent breaches are unlikely. See, In Re Stolar, 397 F.Supp. 520 (S.D.N.¥. 1975); United States v. Mitchell, 372 F.Supp. 1239 (S.D.N.Y. 1973), and In Re Terkeltoub NS el 256 F.Supp. 683 (S.D.N.Y. 1966). It would thus appear that a rule guaranteeing dismissal of an indictment should a privilege be erroneously breached, would constitute, at best, a wholly speculative, marginal incentive to the formation of confidential relationships. In United States v. Calandra, the Court refused to extend the exclusionary rule to grand juries because of the slight incremental deterrent impact on ' police misconduct of such extension. Attorneys, in particular, are under a profession-. | | | : C31 31 The preservation of the testimonial privileges in grand jury proceedings also serves to prevent govern~- mental interferences with the protected relationships. An attorney or spouse, for instance, is very often a fertile source of incriminatory information. Without the Rule a | privileged communicant called as a witness would face the problem of choosing between disclosing confidential matter, testifying falsely, and possibly incurring contempt by remain silent. It is at least arguable that the risk of a dismissal of any resulting indictment is the only effective means of discouraging zealous prosecutors from improperly seeking privileged matter for grand juries in violation of Rules 1101(c) and (d). If valid, such an hypothesis would directly support the exercise of the court's supervisory power. In this connection, a line of Second Circuit de- cisions dealing with the use of hearsay in grand jury pro- ceedings is particularly instructive. In United States v. Umans, 368 F.2d 725 (2d Cir. 1966), cert. granted, 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872, cert. dismissed as improvidently granted, 398 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967), the Court strongly ad- monished the government not to make excessive use of hearsay: C32 32 "“Jhile we are not condemning the pro- cedure used here before the grand jury, we think it not amiss for us to state that excessive use of hearsay in the presentation of government cases to grand juries tends to destroy the historical function of grand juries in assessing the likelihood of pro- secutorial success and tends to destroy the protection from unwarranted pro- secutions that grand juries are supposed to afford to the innocent. Hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge." ae 368 F.2d at 730. In United States v. Arcuri, 252 F.Supp. 247 (E.D.N.Y.), aff'd, 405 F.2d 691 (2d Cir. 1968), cert. denied 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), this court after reviewing the decisions refused to overturn an indictment, despite the unjustified reliance on hearsay by the government, because the grand jury could not possibly have failed to indict on the basis of the non-hearsey evi- dence. But the government's continuing failure to comply with the Second Circuit's admonition in Umans was felt to warrant a stronger rule and more uniformly applied sanctions. It was held that a timely motion to dismiss an indictment handed down after March 31, 1968 would be granted without C33 | : oe a showing of prejudice to the defendant if it were clear ° t that hearsay alone was deliberately relied upon when better | | evidence was readily available. This local dismissal rule | has been exercised on at least one occasion. See United States v. Chesimard, 72 CR 5 (oral decision 1975). Finally, in United States v. Estepa, 471 F.2d 1132: (2d Cir. 1972), the Court of Appeals ordered an indictment dismissed because of the deliberate and misleading presenta- tion of hearsay to the grand jury. The Court reached the con- clusion that the time had arrived for the exercise of its supervisory power on the basis of the following considerations: ‘Ye had hoped that, with the clear warnings we have given to prosecutors, . . « and the assurances given by United States Attorneys, ...- 4 reversal for improper use of hearsay before the grand jury would not be required. Here the Assistant United States Attorney, whether wittingly or unwittingly -- we prefer to think the latter, clearly violated the first of these provisos. We cannot, with proper respect for the discharge of our duties, content ourselves with yet another ad- monition; a reversal with instructions to dismiss the indictment may help to translate the assurances of the United States Attorneys into consistent per- formanca by their assistants.” 4 | 471 F.2d 1136-37. | | Man 7 t \ ee ere ee eee cee ee - / C34 C35 35 ine upshot of these decisions is that just as a | : , (Stir Cir. 1970) (motion to quash indictment on ground that - court may exercise its supervisory powers to enforce the prosecutor had inaccurately informed grand jury that defendant standards of prosecutorial conduct licit in the Fifth - inp had a long record addressed to discretion of trial court; Amendment grand jury guarantee, so too the court may exercise & jury g ° y discretion not abused where other competent evidence had been | ' presented to the grand jury and misrepresentation by prosecution : was not deliberate); United States v. Tane, 329 F.2d 848, 853-4 : those powers to enforce the standards of prosecutorial conduct contemplated by Rules 1101(c) and (d) of the Federal Rules of Evidence. But, in determining whether to sh ‘ . , g vues (24 Cir. 1964) (trial court had discretion to dismiss indict- facially valid indictment, the court must weigh the added F ment based wholly on testimony procured as fruit of illegal deterrent effect of a dismissal against the substantial counter- . " wiretap); United States v. Thomas, 342 F.2d 132 (6th Cir.), ili id ti ticulated by the Supreme Court in Costell ee Ve oe me ee OSeen a F cert, denied, 382 U.S. 855, 86 S.Ct. 105, 15 L.Ed.2d 92, (1965) Such an assessment turns, for the most part, on the deliberateness (motion to dismiss indictment on ground that presentation of of the government's conduct, the egregiousness of the violation testimony to grand jury violated prior promise by government not aad the extent to which the defendant has beer prejudiced. In the to use certain evidence against defendante properly denied where absence of these factors, the court should consider whether the other competent evidence had been presented but some counts challenged practice contravenes an outstanding judicial admonition quashed); United States v. Pepe, 367 F.Supp. 1365 (D.Conn. 1973 or 4 prior statement of policy by the government. (although dismissal of indictment not required for violation of = court would Other cases have adopted a similar discretionary ap- defendant's privilege against gsi dani e "s conduct was proach to the exercise of the court's supervisory power where exercise discretion to dismiss ee deliberate and flagrant); United States v. Abbott Laboratories, © imilar values have been threatened by prosecutorial sia 369 F.Supp. 1396 (E.D.N.C. 1973) (indictment dismissed because misconduct. See, United States v. Fox, 425 F.2d 996, 1001 ' here is at best tenuous. Defendants have not alleged tha: 36 C36 prosecutor deliberately introduced by questions and remarks irrelevant evidence designed to inflame grand jury and create prejudice). By any of these standards, the indictment in this case should not be dismissed. The claim of privileg: the government acted with bad faith in questioning Mr. om The Assistant United States Attorney who handled this cas: hes presented en affidavit which discloses that he and Mr. Mazza carefully considered in advance the problems raised by the attorney-client privilege and concluded after dis- cussion that Mr. Mazza's testimony would not disclose cor fidential matters. Moreover, the defendants were not meming- fully prejudiced by Mr. Mazza's appearance. Even in the absence of his testimony, the grand jury could not con- ceivably have failed to indict. Ill. OBLIGATION OF UNITED STATES ATTORNEY To comply with the policy of Rule 1101 the Un:ted States Attorney should not knowingly violate a privilege before the grand jury. He should be sensitive to possib.e problems. If there is any substantial possibility of a ~ Brn SEH - . he cannot afford one; to refuse to answer questions if he See also, Standards 3.1(a); 3.5(b). C37 37 valid claim of privilege he should bring this fact to the attention of the witness, advising the witness of the right | to consult counsel; to have the court appoint a lawyer if believes a privilege may be involved; and to be brought before - the court for a ruling. The policy of the United States Attorney for the Eastern District of New York apparently is to comply with these guidelines. He and his staff, so far as this courtis aware, follow the American Bar Association's Standards Relating to the Prosecution Function (Approved Draft 1971). Standard 3.6 provides: : “Quality and scope of evidence before grand jury. (a) A prosecutor should present to the grand jury only evidence which he believes would be admissible at trial. However, in appropriate cases the prosecutor may present witnesses to summarize admissible evidence available to him wnich he believes he will be able to present | at trial." sd C38 38 IV. CONCLUSION There is no suggestion that the United States Attorney for the Eastern District of New York deliberately | and improperly placed privileged information before the grand jury. The indictment was supported by ample non-privileged , evidence. Accordingly, the motion to dismiss the indictment © is denied. : So ORDERED. Dated: Brooklyn, New York November ‘4, 1975. —_——— 2ED: HIF: mt DL t- ?.#741,964 we ott - 5 a4 Fey Pe ae? @ « iPPTDIX D Coy 2f UNITED STATES DISTRICT COURT Sly 5 “My 19 EASTERN DISTRICT OF NEW YORK Te Ay 75 & -_---- - -—_-— -— «= =—- = o Re > @ x Pt "+e s UNITED STATES OF AMERICA cr? - against - JEROME MPCKEY, RICHARD E. TAYLOR and WILLIAM NELSON, Defendants. 7 ee Ste FA) ‘* “2 THE GRAND JURY CHARGES: COUNTS ONE THROUGH FIFTEEN 1. At all times material herein, the defendant JEROME MACKEY was President of Mackey Distributors, Inc. 2. At all times material herein, the defendant RICHARD E. TAYLOR was Vice President of Mackey Distributors, Inc. 3. At all times material herein, the defendant WILLIAM NELSON was Secretary-Treasurer of Mackey Distributors, Inc. 4. At all times material herein, Mackey Distributors, Inc. was a corroration organized and existing under the laws of the State of New York with offices at 175 Fulton Avenue, Hempstead, New York, and purported to engage in the business of selling stereo tape distributorships. 5. Commencing on or about April 1, 1972, and continuing thereafter until at least March 1, 1973, the exact dates beir- . . unknown to the grand jury, within the Eastern District of New York, the defendants JEROME MACKEY, RICHARD E. TAYLOR, and WILLIAM NELSON did knowingly and wilfully devise and intend to devise a scheme and artifice to defraud prospective stereo tape distributors and- ; to obtain money from these distributors by means of false anid” ~~~ fraudulent pretenses, representations, and promises, well knowing ; 79 at the time that the pretenses, representations, and promises would be and were false and fraudulent when made, which scheme and artifice is set forth hereinafter. a i ey _ - os - ‘* D2 6. It was part of the scheme and artifice that the de- fendants JEROME MACKEY, RICHARD E. TAYLOR, and WILLIAM NELSON would and did start a distributorship business under the name of Mackey Distributors, Inc., in which they would sell stereo tape distributorships to prospective distributors. 7. It was a further part of the scheme and artifice that the defendants JEROME MACKEY, RICHARD E. TAYLOR, and WILLIAM NELSON would and did cause advertisements, offering for sale stereo tape distributorships, to be placed in various newspapers through ovt the United States to attract potential distributors. 8. It was a further part of the scheme and artifice that the persons responding to the advertisements would be in-~ duced to purchase stereo tape distributorships, and would be told that the nature of the business was as follows: | (a) Each distributor would purchase cabinets, each containing 40 stereo tapes. (b) The cabinets would be located in various stores and places of business by “professional locators" employed by Mackey Distributors, Inc. (c) The minimum ausbee of cabinets sold to a distributor would be ten, and the cost to the distributor for the ten cabinets containing a total of 400 tapes placed in ten locations would be approximately $2,375. (4) The merchants cn behalf of the distributor would display the cabinets in their stores and sell the tapes to the general public. (e) From time to time the distributor would restock _the cabinets with stereo tapes and collect from the merchants whese the cabinets were located proceeds from the sale of the tapes. (f) Both the merchant and the distributor would make approximately one dollar on the sale of each tape. 9. It was a further part of the scheme and artifice that the distributors would be induced to make full payment for D3 the purchase of the distributorships in advance of receiving the cabinets, tapes and locations. 10. It was a further part of the scheme and artifice that the defendants JEROME MACKEY, RICHARD E. TAYLOR, and WILLIAM NELSON would and did make and cause to be made the following false and fraudulent pretenses, representations, and promises to the prospective distributors, well knowing that these pretenses, representations, and promises would be and were false and fraudulent when made: (a) That Mackey Distributors, Inc., would furnish “major lapel" first quality tapes to the distributors; (b) That skilled "professional locators" would locate the cabinets and stereo tapes in highly marketable locations. (c) That the cabinets each containing 40 stereo tapes, would be provided in full and completely located within two to three weeks after payment in full was received. (4) That the prospective distributors had a money back guarantee, in that after one year Mackey Distributors, Inc., would repurchase the distributorships if so requested by the distributors; (e) That Mackey Distributors, Inc., would relocate cabinets where the location averaged less than five tape sales per week. ll. It was a further part of the scheme and artifice ’ that the defendants JEROME MACKEY, RICHARD E. TAYLOR, and WILLIAM NELSON would and did cause literature to be prepared and furnished to prospective distributors, containing the false and fraudulent representation that Mackey Distributors, Inc., was a wholly owned subsidiary of Jerome Mackey's Judo Incorporated, these defendants well knowing at the time that this representation would be and was false and fraudulent when made. 12. It was a further part of the scheme and artifice that the defendants RICHARD E. TAYLOR and WILLIAM NELSON would and aid cause prospective distributors to be furnished with a list of or references of purportedly successful distributors of Mackey - Distributors, Inc., and that the following false and fraudulent representations would be and were made to prospective distributors Four September 9, 1972 The Utica Press 221 Oriskany Plaza by two of the references, these defendants well knowing at the Utica, New York 13508 time that the representations would be and were false and fraud- Pive September 23, 1972 Times Independant Box 1121 490 Pirst Avenue, S. St. Petersberg, Florida 33731 Chicago Tribune 435 N. Michigan Avenue Chicago, Illinois 60611 ulent when made: (a) That these two references were distributors Six September 24, 1972 of Mackey Distributors, Inc.; (b) That their distributorships were successful. Seven September 25, 1972 Pittsburgh Press 13. It was a further part of the scheme and artifice Box 566 Pittsburgh, Pa. 15230 that when distributors inquired as to why Mackey Distributors, Eight October 1, 1972 Philadelphia Inquirer Imc., had not performed the terms of the distributorship contract, 400 N. Broad Street Philadelphia, Pa. 19101 Chicago Sun Times 401 N. Walbash Avenue Chicago, Ill. 60611 the defendants JEROME MACKEY, RICHARD E. TAYLOR, and WILLIAM NELSON Nine October 8, 1972 would and did make and cause to be made false and fraudulent explanations to the distributors concerning their failure to Ten October 12, 1972 Houston Chronicle perform in order to stall the distributors, well knowing at 801 Texas Avenue Houston, Texas the time that the explanations would be and were false and Eleven October 15, 1972 Kansas City Times fraudulent when made. 1729 Grand Kansas Ci Missour 14. On or about each of the dates hereinafter set cueh > ve October 15, 1972 Washington Post forth, within the Eastern District of New York, for the purpose of ex- . 1150 15th Street, N.W. Washington, D.C. 20071 ecuting the scheme and artifice and attempting to do so, the de- Thirteen October 16, 1972 Houston Post fendants JEROME MACKEY, RICHARD E. TAYLOR, and WILLIAM NELSON caused 4747 S.W. Preeberg Houston, Texas 77001 their advertising agent to place in post offices and authorized ae Pourteen November 5, 1972 Baltimore News American Lombard & South Streets depositories for mail matter in Hempstead, New York, various Baltimore, Maryland 25202 envelopes containing advertisements to be sent and delivered by the Pifteen November 11, 1972 Journal Gazzette 600 W. Main Street United States Postal Service as hereinafter set forth in Port Wayne, Indiana 46802 Counts One through Fifteen. x? , , In violation of Title 18, United States Code, Sections DATE OF im~ qa Glie COUNT MAILING ADDRESSEE lial Min ied 1341 anda 2. One August 17, 1972 Minneapolis Star Tribune . 427 Port Minneapolis, Minnesota 55415 Two August 24, 1972 Boston Globe 135 Morrissey Pi“. Boston, Mass. 02107 Three August 24, 1972 The Telegraph 62 Main Street Nashau, New Hampshire 03000 COUNTS SIXTEEN THROUGH TWENTY-ONE 1. The Grand Jury incorporates by reference and realleges herein all of the allegations contained in paragraphs "1" through "13" of Counts One through Fifteen of this indictment. 2. On or about each of the dates hereinafter set forth, within the Eastern District of New York, for the purpose of executing the aforesaid scheme and artifice and attempting to do so, the defendants JEROME MACKEY, RICHARD E. TAYLOR and WILLIAM NELSON did take and receive and cause to be taken and received from the United States mails various envelopes containing checks which had been delivered by the United States Postal Service to Mackey Distributors, Inc., 175 Fulton Avenue, Hempstead, New York from the following distributors-mailors: COUNT DATE DISTRIBUTOR-MAILOR Sixteen September 14, 1972 Mr. Paul Suk Seventeen September 25, 1972 Mr. Fred Cole Eighteen September 28, 1972 Mrs. Thomas Connor Nineteen October 30, 1972 Mr. John Metzger Twenty November 8, 1972 Mr. Mort Flynn Twenty-One November 14, 1972 Mr. Dale Webb In violation of Title 18, United States Code, Sections 1341 and 2. bw” OT EASTERN DISTRICT OF NEW YORK --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0604%3A1. Public record. Not legal advice.