Petition — Coast of Maine Lobster Co. v. United States

Filigg emmay m U. &

AUG 29 1977

MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED* STATES

OCTOBER TERM, 1977

No. i aA

COAST OF MAINE LOBSTER CO., INC.

ET AL.,

Petitioners

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

FIRST CIRCUIT

GEORGE F. WOOD

Attorney for Petitioners

199 Main Street

Saco, Maine 04072

(207) 282-1527

RICHARD E. VALENTINO

Attorney for Petitioners

99 Ferry Road

Saco, Maine 04072

(207) 284-5753

TABLE OF CONTENTS

Opinions Below.

Jurisdiction. ,

Questions Presented ‘te ae

Constitutional Provisions .

Statement of the Case... F

Reasons for Granting the Writ .

Conclusion. .. Dies:

Certificate of Service.

Appendix. a.

TABLE OF AUTHORITIES

Case Citations

Heisler v. United States, 394, F.2d

, t r.

Overstreet v. United States, 321 F.

th Cir.

Russell v. United ae 369 -

82 S.Ct.

1038 (1962)

Salinger v. United States, 272 U.S.

542, Bat 549 47 S.Ct. a7S, RR F

398 (1962).

Stirone v. ‘United § States, 361 U.S.

212 4 L.Ed. 2d 252, 80 S.ct. 270.

Thomas v. United States, 398 F.2d

531, 538 (5th Cir. 1957).

United States v. Ballard, 322 L U. Ss.

78, 88, 90-91, 64 S.Ct. 882, 88 L.

United States v. Cirami, 510 F.2d.

Ed. 1148 (1944)

r.

United States Vv. Colasurdo, 453 F.

2d at 590.

United States v. Dawson, "516 F.2d

796, 801 (Sth Cir.) cert denied

423, U.S. 855, 965, Ct. 104, 46

| Ed. 2d 80 (1975). yee

14,

16

11

15, 16

ii

United States v. Edwards, 465 F.2d

th Cir. 1972). a

United States v. Hall, 356 F. 2d 313

(10th Cir. 1976). . ‘oe 7

United States Vv. Maselli, 534 F. 2d |

(6th Cir. 1976). ‘ 14

United States v. Norris, 281 U. S. 619 ‘

14 L.Ed. 1076, 50 5.Ct. 424. . 9, 13

United States v. Pandilidis, 524 F.2d

th Cir. 1976) . . gk oc

United States v. Pryor, 546 F.2d 1254,

1257 (5th Cir. ‘77 hp eie ee

United States v. Wilner, 523 F.2d 68

(2d Cir. 1975). . 16

Ex parte Bain, 121 U. S. 1, 30 L. Ed.

a © ae Paks. 6 ake’ we Gs =F

a. co. oe.

Statutory and Rules Citations 14, 16

Title 1d - United States Code - §§

1341 & 1343... ron Py

Title 28 - United States “Code ~

I ao ge ge ‘ ‘

Constitutional Amendments

Fifth Amendment. ...... ... Multiple

i

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

COAST OF MAINE LOBSTER CO., INC.

i -

Petitioners

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

. OF APPEALS FOR THE

FIRST CIRCUIT

Petitioners, by and through their

attorneys, Richard E. Valentino and

George F. Wood, pray that a Writ of

Certiorari issue to review the judg-

ment heretofore entered against them

by the United States Court of Appeals

for the First Circuit.

Li)

1. OPINIONS BELOW

On or about October 3, 1975 the

Petitioners were found guilty in the U. |

S. District Court for the Southern : |

District of Maine by a jury on 29 Counts

of a 42 Count Indictment charging viola-

tion of Title 18, United States Code,

§§1341 and 1343. A timely Notice of

Appeal was filed as to both Petitioners

on or about October 3, 1975. By its Opi-

nion dated May 10, 1976 the United States

Court of Appeals for the First Circuit

vacated the Judgment of the District Court,

set aside the verdict, and ordered a new

trial. By its Opinion dated June 25, 1976

the United States Court of Appeals for

the First Circuit denied the Government's

petition for a new hearing.

Without being reindicted the Peti-

tioners were re-tried in the United

States District Court for the Southern

District of Maine and on or about

September 29, 1976 a jury verdict was

returned and filed finding the Petitioners

guilty of 29 Counts of violating Title

18 United States Code, §§1341 and 1343.

Notice of Appeal was timely filed as to

both Petitioners on September 30, 1976.

By an Opinion dated June 30, 1977, the

United States Court of Appeals for the

First Circuit affirmed the conviction

of the Petitioners, said Opinion being

set forth in Appendix A.

2. JURISDICTION

The Opinion and Judgment of the

United States Court of Appeals for the

First Circuit were entered on June 30, 1977.

By application dated July 22, 1977, the

Petitioners sought an Extension of Time

within which to file a Petition for a

Writ of Certiorari. On July 27, 1977

Mr. Justice Brennan signed an Order

Extending the Time to File the said Peti-

tion until and including August 29, 1977.

The jurisdiction of this Court is in-

voked pursuant to the provisions of

Title 28, United States Code, §1254(1).

3. QUESTION PRESENTED

Under the current posture of the Fifth

Amendment does making substantial dele-

tions from a criminal indictment by the

Trial Court represent an unconstitutional

"amendment" of that indictment in the

absence of its resubmission to the Grand

Jury.

4. CONSTITUTIONAL PROVISIONS

FIFTH AMENDMENT

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence

to be twice put in jeopardy of life or

limb; nor shall be compelled in any crinm-

inal case to be a witness against himself;

nor be deprived of life, liberty, or pro-

perty, without due process of law; nor

shall private property be taken for public

use, without just compensation.

5. STATEMENT OF THE CASE

Both Defendants, Jonathan M. Singer

and Coast of Maine Lobster Co., Inc.,

were indicted by the United States

District Court for the Southern District

of Maine on April 22, 1975 on 42 separate

Counts of mail and wire fraud, 18 United

States Code, §§1341 and 1343. After

having been convicted on some 29 Counts

of a 42 Count Indictment, the Petitioners

prosecuted a successful appeal to the

United States Court of Appeals for the

First Circuit which ordered the Judgment

be vacated and a new trial.

The Defendants were not reindicted.

The original 42 Count Indictment was

merely amended by the Trial Court by

placing masking tape over the counts

having been previously dismissed or

upon which the Defendants had been pre-

viously acquitted by the jury. There-

after, the Defendants were tried before

a jury and convicted on the remaining

29 Counts of mail and wire fraud.

More specifically, prior to the new

trial ordered by the United States First

Circuit Court of Appeals, the United

States District Court for the Southern

District of Maine masked the charging

paragraph of Count I of the Indictment.

Also Counts numbered X, XXVI, XXVII,

XXVIII, XXX, XXXI, XXXIII, XXXIV, XXXV,

XXXVI, XXXVIII, and XL of the original

Indictment had all been covered by

masking tape by the Trial Court for pre-

sentment to the jury at the second trial.

As counsel for the Petitioners real-

ized upon having seen for the first time

——

Oe

how the amended version of the original

indictment would appear to the jury, the

masked and patched version of the indict-

ment was going to imply to the jury that

some judicial action had preceded the

trial and would permit the inference that

the Defendants had done something bad

enough to warrant additional judicial

action against them.

For example, paragraph 1 of each of

the remaining counts in the amended

indictment referred to a paragraph 16

of the original Count I, which paragraph

had obviously been deleted from the indict-

ment. Upon reading the indictment with

which they were provided, it was inevita-

ble that the jury would engage in specu-

lation and conjecture as to why the ori-

ginal indictment had been changed.

Counsel for the Petitioners specifically

objected to the indictment and requested

that the Petitioners be reindicted (Record,

page 7b). The Trial Court denied this

request and offered to instruct the jury

not to speculate as to why 13 Counts of

a 42 Count Indictment were missing.

The Court's explanation of the amended

form of the indictment is instructive not

only of the prejudice created with the

jury by the amended indictment but also

of the magnitude of the deletions made

from the original indictment.

"As I also believe I explained

to you at the start of the trial,

the Indictment originally in this

case, contained 42 Counts as they

are called or separate charges.

The Government has offered no proof

with respect to thirteen of

these counts, and those Counts,

those thirteen Counts, were

withdrawn before the trial started.

These thirteen Counts are there-

fore not before you. They should

not be discussed or considered by

you and the fact they were origi-

nally in the Indictment and are

not before you now should have no

bearing one way or the other in

your consideration, of the remain-

ing 29 Counts of the Indictment,

and for your convenience, with the

agreement of the parties, we have

prepared a copy of the Indictment

for your use from which the thir-

teen Counts which are no longer

before you have been withdrawn.

What we actually have done is to

mask the Counts which are not

before you and you will understand

that these Counts -- don't try to

read under the masking. I don't

think you can, but they are not

before you in any way.' (Record,

Page 927 and 928).

After the Court's instruction, counsel

for the Petitioners renewed their objec-

tion to that part of the Court's instru-

ction referring to the thirteen counts of

the Indictment on the ground that it would

permit the jury to infer that the Peti-

tioners had been previously tried. (Record,

Page 953). Instead of the actual masked

indictment, a photocopy of the amended

version of the original indictment was

the presented to the jury for their use

during their deliberations. Defense

counsel relented that it was ‘too late

now” to repair the damage already

created in the minds of the iury from

the amended indictment, but indicated

that it would prefer a photocopy of

the indictment to the original indict-

ment covered with masking tape. (Record,

Page 954).

In response to the Petitioners' ob-

jection with regard to the form of the

indictment, the Trial Court acknowledged

that it was obvious that there was

something missing from the indictment

(Record, Page 954), but dismissed the

objection of the Petitioners character-

izing their counsels’ concern as "un-

necessary." The Court again brought the

fact of the substantial deletions from

the indictment to the attention of the

jury and gave them a photocopy of an

indictment containing spaces where there

were once additional counts:

"Ladies and Gentlemen, as I

indicated, the Counts which are

no longer before you which have

been withdrawn on the copy of the

Indictment I had were masked. We

are going to have the Clerk photo-

stat this so that even the masking

won't be present. There will be

blanks where those Counts were.

As I explained to you, you are to

disregard entirely those Counts.

You are to disregard entirely the

fact that the original indictment

did contain thirteen Counts more

which are no longer before you."

(Record, Page 955).

It is also important to note that des-

pite the Trial Court's belittling of the

prejudicial effect of the substantial

deletions made in the original indictment,

the Trial Court upon its own suggestion

dismissed one member of the jury panel

who had learned inadvertently through pre-

trial publicity that Jonathan Singer and

Coast of Maine Lobster Company had been

tried before. (Record, Pages 30, 35, and

36).

After the amended Indictment was pre-

sented to the jury in the form of a photo-

copy, the Defendants were convicted on

all twenty-nine counts of the amended

indictment.

oe

eS

6. REASONS FOR GRANTING THE WRIT

Certiorari Should Be Granted to Resolve

a Conflict Among the Circuits

The Petitioners maintain that they were

denied their 5th Amendment Right to be tried

upon an indictment by a Grand Jury when

prior to the second trial, the Court per-

mitted wholesale deletions from the original

indictment without resubmitting it to the

Grand Jury. The Petitioners additionally

maintain that they were prejudiced by the

unconstitutional amendment of the indict-

ment because the form of the amendment

permitted the jury to speculate that the

Petitioners had been previously tried.

The principle that a general indictment

cannot be amended by a Federal Court or

prosecutor except by resubmission to the

Grand Jury was most prominently articulated

by the United States Supreme Court in Ex

arte Bain, 121 U.S. 1, 30 L.Ed. 849, 7

cE TET from which the Supreme Court

quoted extensively in Russell vs United

States, 369 U.S. 749, 8 L.Ed. 2d 240, 255,

82 S.Ct. 1038 (1962):

"This underlying principle is reflected

by the settled rule in the federal

courts that an indictment may not be

amended except by resubmission to the

grand jury, unless the change is merely

a matter of form. Ex parte Bain, 121 US

1,30. L.Ed. 849, 7 5.Ct. 781; United

States vs. Norris, 281 US 619, 74 L.Ed.

1076, 50 S.Ct. 424; Stirone v United

States, 361 US 212, 4 L.Ed. 2d 252, 80

S.Ct. 270. ‘If it lies within the

province of a court to change the charg-

ing part of an indictment to suit its

10

own notions of what it ought to have

been, or what the grand jury would

probably have made if their attention

had been called to suggested changes,

the great importance which the common

law attaches to an indictment by a

grand jury, as a prerequisite to a

prisoner's trial for a crime, and

without which the Constitution says

"no person shall be held to answer,"

may be frittered away until its value

is almost destroyed. . .Any other

doctrine would place the rights of the

citizen, which were intended to be

protected by the constitutional pro-

vision, at the mercy or control of

the court or prosecuting attorney; for

if it be once held that changes can

be made by the consent or the order

of the court in the body of the indict-

ment as thus changed, the restriction

which the Constitution places upon the

power of the court, in regard to the

prerequisite of an indictment, in

reality no longer exists." Ex rte

Bain, supra, (121 US at 10, T3). We ~

reaffirmed this rule only recently,

pointing out that ‘The very purpose

of the requirement that a man be

indicted by the grand jury is to

limit his jeopardy to offenses charged

by a group of his fellow citizens acting

independently of either prosecuting

attorney or judge.' Stirone vs. United

States, supra, (361 U.S. at 218)."

Id. L. Ed. 2d at 255.

The United States Court of Appeals

For the First Circuit on Pages 8 and 9

of its Opinion, found at the Appendix A of

this Petition, was quick to allude to the

often cited but much confused exceptions to

this general rule which permit, among other

11

things, the withdrawal of parts of an

indictment by the court from the jury's

consideration as opposed to making

judicial additions to the indictment.

United States vs. Dawson, 516 F 2d 796,

801 (9th Cir.) cert. denied, 423 U.S.

855, 965, Ct 104, 46 L. Ed. 2d 80 (1975).

The United States Court of Appeals

for the 9th Circuit clearly articulated

that "the law in this circuit" (United

States vs. Dawson, at 802) was that the

general rule enunciated in Ex parte Bain,

supra, did not preclude a Court's making

deletions in an indictment.

"In additon to the rule permitting

amendment on matters of form, another

ameliorating doctrine is the rule that

a portion of an indictment that the

evidence does not support may be with-

drawn from the jury, and this is not

an impermissible amendment, provided

nothing is thereby added to the indict-

ment, and that the remaining allega-

tions charge an offense. (C. Wright,

1 Federal Practice and Procedure 274-

75, 1969)." United States vs. Dawson,

supra, at 80l.

In footnotes number 3 and 4 of the

9th Circuit Opinion in United States vs.

Dawson, that Circuit supported its inter-

pretation of the Ex parte Bain decision

with decisions from the Ist,.3rd, 5th, 6th,

7th, 8th, 9th, and 10th Circuits, all of

which supposedly stand for the proposition

that mere deletions from an indictment

cannot be characterized as an amendment

of substance which the Constitution pro-

hibits without its resubmission to the

Grand Jury.

12

Of the more instructive circuit court

opinions adhering to this exception to

Ex parte Bain is the 10th Circuit decision

in United States vs. Hall, 356 F. 2d 313

(10th Cir. 1976). The LOth Circuit Court

in United States vs. Hall, emphasized

that the Supreme Court in Ex parte Bain,

supra, and Stirone vs. United States,

361 U.S. 212, 80 S.Ct. 270, 4 L.Ed. 2d

252 (1960), had not specifically ruled

that a trial court was unable to withdraw

charges from an indictment. This appar-

ently justified that circuit's conclusion

that changes in an indictment accomplished

by deletion as opposed to additon do not

require the resubmission of that indict-

ment to the Grand Jurv. Several decisions

out of the 5th Circuit have also charac-

terized the lst Circuit's position on

this issue as a well-defined exception

to the Ex parte Bain decision which permits

deletions from an indictment without its

resubmission to the Grand Jury.

"It is clear that an indictment may

not be amended except by resubmission

to the grand jury. Russell vs. United

States, 369 U.S. 749, S.CT. P

L.Ed. 849 (1887). But the Supreme

Court has held that withdrawing a part

of a charge from the consideration of

the jury does not work an amendment of

the indictment, Salinger vs. United

States, 272 U.S. 542, 548-549, 47 S.Ct.

173, 71, L.Ed. 398 (1962), provided

nothing is thereby added to the indict-

ment, See United States v. Ballard,

322 U.S. 78, 88, 90-91, 64 S.Ct. 882

88 L.Ed. 1148 (1944) (Stone, C. J.

dissenting). The ‘severance’ which

occurred in this case was not an amend-

ment which added any charges to the

13

indictment and was therefore proper.”

Overstreet v. United States, 321 F 2d

455, Tél (5th Cir. T9563).

"But the Supreme Court has held that

withdrawing a part of a charge from the

consideration of the jury does not

work an amendment of the indictment,

Salinger v. United States, 272 U.S. 542,

- ’ ct. 173, J1 L.Ed 398

(1962), provided nothing is thereby

added to the indictment. See United

States v. Norris, 281 U.S. 619, 623 50 ~

S.Ct. 424,74 L.Ed 1076 (1930); United

States v. Ballard, 332 U.S. 78, 88,

90-91, 64 S.Ct. 882, 88 L.Ed. 1148

(1944) (Stone, C.J. dissenting). ..

On a fortiori grounds therefore, we

refuse to hold that the striking of

portions of the indictment here con-

stituted an encroachment upon the

principles announced in Ex parte Bain

(supra)." Thomas v. Unit States,

398 F 24 531, 538 (5th Cir., 1957).

See also United States v. Pryor, 546

F 2d 1254, 1257 (5th Cir. ToyTy~

Despite the unequivocal language and

air of finality utilized by the majority

of United States Circuit Courts addressing

the issue, there continues to be a conflict

among the circuits with respect to whether

or not making substantial deletions from

an original indictment violates a Defend-

ant's 5th Amendment Rights in the absence

of the resubmission of that indictment

to the Grand Jury.

"Ever since the Supreme Court announced

in Ex parte Bain, 121 U.S. 1, 7 S.Ct.

781, 35 L.Ed. 9849 (1887), that an

indictment cannot be amended except

by resubmission tc a grand jury, the

law has been in a ‘confused state,'

United States v. Edwards, 465 F2d 943,

14

950 (9th Cir. 1972) as to whether

any alteration is permissible and if

so, how any appropriate changes may

be properly be made." United States

vs. Cirami, 510 F2d 69, 72 (2d Cir.

The United States Court of Appeals for

the 9th Circuit, although it did not feel

that it had the case to set the law straight,

recognized the conflict among the circuits

on this issue.

"In short, we think that the progeny

of Bain are out of joint. We do not,

however, think that the present case

was born to set them right." Heisler

vs. United States, 394 F2d 695, 699

(9th Cir. 1968).

The United States Court of Appeals for

the 2nd and 6th Circuits have appeared to

adopt the minority position that sub-

stantial deletions by a trial court from

an indictment issued by a Grand Jury can

deprive that Defendant of his 5th Amend-

ment Right to be tried upon an indictment

issued by a Grand Jury. The United States

of Appeals for the 6th Circuit stated in

United States vs. Maselli, 534 F2d 1197,

1202 (6th Cir. 1976):

"Though it is not entirely clear from

the record, it appears the court did

prepare a copy of the indictment with

counts-1-8 deleted and furnished it to

counsel in the case with an indication

that this truncated document would

be given to the jury. Furthermore, it

appears that the jury was given a copy

of the indictment which contained the

first eight counts, but from which

other deletions had been made. . .An

indictment returned by a federal grand

15

jury may be amended only upon resub-

mission to the grand jury except as to

merely formal changes. Russell vs.

United States, supra, 369 U.S. at 770,

82 S.Ct. at 1050, 8 L.Ed. 2d at 254;

United States vs. Pandilidis, 534 F2d

644 (6th Cir. 1976). Thus, an indict-

ment should be neither changed nor —

reduced by the Court. However, since

the only changes actually made in the

copy of the indictment which was appar-

ently furnished to the jury in this

case were made on the motion of one

of the Defendants, or with the acquies-

cence of all parties, there was no

prejudice." Id. at 1202.

The 2nd Circuit for the United States

Court of Appeals is apparently the only other .

circuit standing directly in conflict

with the majority of the circuits which

adhere to the view that even a substantial

deletion from an indictment does not

require a resubmission to the Grand Jury

under the provisions of the 5th Amendment.

In United States vs.Cirami, 510 F2d 69

(2a Cir. 1975), the Defendant was charged

by a 19 count indictment covering three

sets Of violations of social security

and unemployment tax evasion. The Govern-

ment made errors in drafting the first 17

counts of that indictment by alleging that

taxes were due from individual appellants

as opposed to an employer corporation. The

deletion of the incorrect wording in 17

counts of that indictment upon the motion

of the Government was challenged as a

denial of the 5th Amendment Right to trial

upon indictment. Although the court held

that the deletion caused no prejudice

because "(t)he disregarded portions of the

indictment in this case were plainly

16

surplusage. . ." (Id. at 73), that

court did hold that mere deletions of even

unnecessary language in an indictment may

constitute an amendment impermissible

under the Constitution without resubmission

of the indictment to the Grand Jury.

"This Court has viewed Bain as holding

that some deletions of unnecessary

language may work an impermissible

‘fundamental change’ in the charge set

forth in an indictment, even though a

legally sufficient allegation remains.

See United States v. Colasurdo, supra,

453 F2d at 590, That type of change,

involvong the disregard of language

that might well have had a significant

bearing on the grand jury's decision

to indict, may still violate the Bain

rule." Id. at 72.

After stating that substantial deletions

from an indictment can represent an uncon-

stitutional amendment of that indictment,

the 2nd Circuit in United States vs.

Cirami, supra, and again in United States

vs. Wilner, 523 F2d, 68 (2d Cir. 1975), also

expressed disapproval of the trial Court's

method of making deletions.

"We do not approve of the procedure

followed by the District Court in

physically deleting the allegations

relating to the August 1971 overt

acts. We are informed that this was

accomplished by making a photostatic

copy of the indictment with the deleted

portions covered over. As we pointed

out in United States v. Cirami, supra,

'the preferable course is to prepare

a retyped "clean" version of the

indictment, omitting the language to

17

be disregarded without any indication

of its omission.' However, since Judge

Laker had already advised the jury

that he was physically deleting a portion

of the indictment, and only 23 words were

actually deleted, we see no prejudicial

error." United States v. Wilner, supra,

at 72.

"In the instant case, we are neither

asked to decide, nor do we express, any

view as to whether the jury is to

inspect an indictment in any or all

criminal prosecutions. But, if a jury

is permitted to see the indictment, and

if any language of that indictment is

surplusage or other matter that a jury

may properly be instructed to disregard,

we think the preferable course is to

prepare a retyped ‘cliean' version of

the indictment, omitting the language

to be disregarded without any indication

of its omission. If the language is not

to be considered by the jury, it is surely

better to remove it from their scrutiny,

rather than rely on instructions. Crossing

out or covering the deleted words only

serves to arouse the jury's curiosity and

stimulate unwarranted specualtion as to

the full scope of the original allegations."

United States vs. Cirami, supra at 74.

In both of these cases the United States

Court of Appeals for the 2nd Circuit con-

cluded that the fact of deletion and the

means by which it was accomplished did

not prejudice the Defendant. That conclusion

cannot safely be reached in the present case.

The Trial Court acknowledged that it would

be obvious to the jury that something was

missing from the first masked and then

18

photocopied indictment. (Record, Page 954).

The Trial Court nevertheless dismissed the 7

Petitioner' concern over the indictment as

"unnecessary." : if

Despite the Trial Court's apparent

belittling of the prejudice created against

the Petitioners by the masked indictment,

the Court repeatedly drew the attention of

the jury to the deletions by its cautionary

remarks instructing the jury to ignore

what the Court had made even more obvious.

(Record, Pages 927, 928, and 955). .The

Court's repeated references to the deletions

along with the indictment's obviously patched

condition certainly served "to arouse the

jury's curiousity and stimulate unwarranted

specualtion as to the full scope of the

allegations." United States vs. Cirami,

supra, at 74.

By dismissing a juror who had admitted

to some vague knowledge of a previous trial

of the Petitioners (Record, Pages 30, 35,

and 36), the Trial, Court acknowledged

implicitly that the Petitioners could be

prejudiced in an atmosphere of juror spec-

ulation about previous judicial action. This

atmosphere was in fact created in the second

trial of the Petitioners through the use of a

masked, patched, amended, photocopied, and

much discussed version of the original

indictment.

CONCLUSION ‘

There is a conflict among the United

States Circuit Courts of Appeal as to whether

under the current posture of the 5th Amend-

ment making substantial deletions from a

criminal indictment represents an unconsti-

“ntional amendment of that indictment in the

absence of its resubmission to the Grand

19

Jury. Your Petitioners maintain that

under the circumstances of the case at

bar, the deletions made by the Court from

the indictment violated their 5th Amend-

ment rights. The Petitioners were prejudiced

by this unconstitutional amendment because

they were thereafter tried in an atmosphere

of speculation regarding previous judicial

action made obvious by the amended indict-

ment and by the Trial Court's repeated

references to the deletions. :

WHEREFORE, pursuant to the foregoing,

the Petitioners pray that this Honorable

Court issue a Writ of Certiorari to

the United States Court of Appeals for the

lst Circuit and pursuant thereto that the

said convictions be reversed.

Respectfully submitted,

WW Coy

ichard E. Valentino

20

CERTIFICATE OF SERVICE

We, George F. Wood, Esq. and Richard

E. Valentino, Esq., attorneys for the

Petitioners in the above matter, hereby

certify that we have this day caused notice

of the foregoing Petition for a Writ of

Certiorari to be served by depositing in

the U.S. Mail, airmail postage prepaid,

three conformed copies of said Petition

addressed as follows:

Robert H. Bork

Solicitor General

Department of Justice

Washington, D.C. 20530

99 Ferry Road

Saco, Maine 04072

FOL

eorge #. Wood, Esq.

Attorney for Petitioners

199 Main Street

Saco, Maine 04072

Dated at Saco, Maine, this 26th Day of August,

1977.

APPENDIX

21

United States Court of Appeals

for the First Circuit

No. 76-1498

UNITED STATES OF AMERICA,

APPELLEE,

v.

COAST CF MAINE LOBSTER CO., INC.,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRIC: COURT

FOR THE SOUTHERN DISTRICT OF MAINE

[Hox. Epwarp T. Gicnovx, U.S. District Judge]

Before Corrix, Chief Judge, ~*

CampsBe.., Circuit Judge, and

Markey,* Judge.

Bichard A. Valentino, with whom George F. Wood and Smith, Elliott, Wood

$ Nelson were on brief, for appellants.

John B. Wlodkowski, Assistant United States Attorney, with whom Peter

Mills, United States Attorney, was on brief, for appellee.

June 30, 1977

Markey, Judge. Appellants, Jonathan M. Singer and

Coast of Maine Lobster Co., Inc. (CMLC), were convicted

of twenty-nine counts of mail and wire fraud in violation

* Of The Court of Customs and Patent Appeals, sitting by designation.

Ms U.S. U. COAST OF MAiNE LOBSTER CO., INC,

of 18 U.S.C. §§ 1341’ and 1345* following a six-day jury

trial. Singer was sentenced to a one year term of imprison-

ment under each count, the terms to be served concur-

rently. CMLC was fined $1,000 under each count, but the

fine was remitted in view of CLMC’s inability to pay.

ISSUES

The issues presented on appeal are whether the trial

court erred in (1) admitting into evidence a stipulation

that appellants had not filed for bankruptcy; (2) denying

appellants’ motion for a mistrial based on the prosecutor’s

interruption of defense summation and on the related jury

instruction; (3) refusing a requested instruction on the

legal theory of the defense; (4) presenting to the jury an

altered form of indictment without resubmission to the

grand jury; (5) engaging in a colloquy with the jury which

coerced or unduly hastened its verdict; and (6) accepting

1 Section 1341 provides:

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, gi.e away, distribute, supply, or furnish 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 receives therefrom,

any such matter or thing, or knowingly 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 both.

2 Section 1343 provides:

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, transmits or causes to

be transmitted by means of wire, radio, or television communication in

interstate or foreign commerce, any writings, signs, signals, pictures, or

sounds for the purpose of executing such scheme or artifice, shall be fined

not more than $1,000 or imprisoned not more than five years, or both.

3A prior judgment against these appellants on the same charges was re-

versed by this court because of publicity given during the earlier trial to

prosecutorial statements needlessly impugning the integrity of that trial.

United States v. Coast of Maine Lobster Co., 538 F.2d 899 (1st Cir. 1976).

7

23

OPINION OF THE COURT

a verdict not supported by the evidence, Finding no basis

for any of appellants’ assignments of error, we affirm.

BACKGROUND

CMLC was incorporated on April 21, 1972, the articles of

incorporation listing Singer as incorporator, clerk, di-

rector, and sole stockholder.

During the first weeks of June 1972, appellants conducted

an extensive promotional campaign, through advertise-

ments in prominent newspapers, primarily in southern and

western portions of the United States, and through bro-

chures mailed to individuals, offering guaranteed delivery

of live Maine lobsters and clams at ‘‘irresistible prices’’

which included the cost of air freight. The offer was limited

to the month of July 1972; orders and checks had to be

received by June 18, 1972, to guarantee July delivery.

Eleven prosecution witnesses testified that they had re-

sponded to appellants’ offer and mailed an order form

accompanied by a check or money-order for the purchase

price to CMLC,* paying amounts varying between $39.95

and $64.45. Instead of lobsters, however, all received a

lulling letter or telephone call informing them that their

order could not be filled as requested, but the goods could

be reordered for delivery at a later date, or the purchase

price could be refunded.®

Inability of CMLC to deliver was blamed on an attach-

ment of its bank account and on a theft of its operating

capital. Mrs. Ichie Dozier testified that she received a tele-

phone call from CMLC during which she was told that, as

a result of the attachment and theft, the corporation would

be going into bankruptcy.

4 Eleven counts of the indictment relate to the delivery of th

the Postal Service to CMLC. 7 ese checks by

5 Thirteen counts of the indictment relate to the letters or telephone calls.

The remaining five counts involve the sending of order confirmations by CMLC.

; U.8. VU. COAST OF MAINE LOBSTER CO., INC,

24

Singer’s bank accounts, personal and corporate, were

attached on June 27, 1972, during a civil action for damages

brought by Salt Water Farms, Inc. (SWF), York Harbor,

Maine. SWF, also in the mail-order lobster business, based

its suit on appellants’ possession of several thousand pre-

addressed labels bearing names of prospective customers

and a computer printout listing 40,000 customers’ names

and addresses, the labels and listing having been reported

stolen from SWF in September 1971. The labels and cus-

tomer list were used in carrying out appellants’ promo-

tional campaign.

On the morning of July 1, 1972, the approximate date

of the first air delivery of lobsters, Singer reported to the

Portland, Maine Police Department that his office safe had

been peeled open, and that $23,000 in customers’ money

had been stolen therefrom. However, Philip McDonough,

an evidence technician whose qualifications as an expert

in the field were stipulated at trial, testified that he investi-

gated Singer’s complaint and that the undisturbed coating

of dust on all inside surfaces of the safe evidenced the ab-

sence of money or corporate papers in the safe at the time

it was peeled open.

Regina Schueler, who worked as a secretary-office clerk

for appellants from the end of May 1970 to June 30, 1972,

testified that during her employment the office safe was

never used and its door was always open. She testified

further that her services were terminated at the end of

June by Singer because ‘‘he hadn’t done as well as te had

expected to do,’’ notwithstanding that daily orders were

averaging $1,000.

Subpoenaed records of the corporation reflected 572

orders received by CMLC. Shippers’ receipts documented

that lobsters had been sent to 37 individuals. None of the

eleven prosecution witnesses received either lobsters or a

refund. Four of the eleven had mailed checks to CMLC

25

OPINION OF THE COURT

on or after June 30, 1972, the day prior to the alleged theft.

Singer admitted that the monies of these four witnesses

could not have been included in the amount allegedly stolen

from the safe on July 1, 1972.

(1) The Stipulation That Appellants Had Not Filed For

Bankruptcy

Under the general rule, relevancy of evidence is within

the sound discretion of the trial judge, whose ruling will not

be disturbed unless an abuse is shown. United States v.

Carter, 173 U.S. App. D.C. 54, 522 F.2d 666 (1975). One

element of the violation charged in the present indictment

was that appellants ‘‘devised . . . [a] scheme or artifice to

defraud, or for obtaining money or property by means of

false or fraudulent . . . representations.’’ The stipulation

that neither appellant had filed for bankruptcy was clearly

relevant, and thus admissible, in light of Mrs. Dozier’s

testimony that CMLC had told her it was going into bank-

ruptey. We find no abuse of discretion in admitting the

stipulation. :

(2) Interruption of Defense Summation

During a one-and-a-half hour defense summation, the

prosecutor twice objected to counsel’s ‘‘putting himself as

a witness.’? The rule that counsel must refrain from inter-

jecting personal beliefs into the presentation of his case,

United States v. Cotter, 425 F.2d 450 (1st Cir. 1970), ap-

plies equally to defense counsel and prosecutors, and the

prosecutor acted within his rights in raising these ob-

jections.

The prosecutor also objected to this statement to the

jury by appellants’ counsel: :

Now, the computer printout list has been right in

here in this case so much, has the Defendant ever been

U.S. U. COAST OF MAINE LOSSTER CO., INC,

26

charged with the crime for doing that? I haven’t heard

any evidence to that effect. None. None. And you can

bet your life if he had, it would be before you.

The basis for objection was that the statement permitted a

false jury inference that the government could have

brought charges for other crimes but had not done so.

In response to the objection, the trial judge gave the fol-

lowing instruction:

Well, Ladies and Gentlemen, I must instruct you that

certain crimes are within the jurisdiction of the State

Courts, certain crimes are within the jurisdiction of

the Federal Court. A burglary of the type with which

we are here concerned would be a matter which, if a

criminal charge would be filed, would be within the

jurisdiction of the State Courts in Maine and not the

Federal Court.

Appellants’ argument that the objection and instruction

disparaged or interfered with appellants’ defense are un-

persuasive. Counsel resumed his summation along the same

line pursued prior to the objection, and, as will appear be-

low, appellants’ theory of defense was clearly communi-

cated to the jury in the court’s general charge. The trial

court has broad discretion in controlling the scope of clos-

ing argument, United States v. Sawyer, 143 U.S. App. D.C.

297, 443 F.2d 712 (1971), and the trial judge’s clarifying

instruction was well within his discretionary powers.

(3) Refusal to Instruct

Upon completion of the charge to the jury, the court re-

fused appellants’ requested instruction that ‘‘a scheme to

defraud is not necessarily to be inferred from business

adversity or unprofitable ventures.’’

< te

OPINION OF THE COURT ) 27

Appellants contend that their theory of defense focused

on exercise of poor business judgment, as opposed to a

specific intent to defraud, and that the court’s failure to

give the requested instruction effectively precluded ap-

pellants from presenting their theory of defense to the

jury. We disagree.

As this court pointed out in New England Enterprises,

Inc. v. United States, 400 F.2d 58 (ist Cir. 1968), cert.

denied, 393 U.S. 1036, 89 S. Ct. 654, 21 L.Ed. 2d 581 (1969),

a failure to instruct in the precise words sought by counsel

is not determinative. The relevant inquiry is whether the

instruction as given communicates to the jury the substance

of the request. 3

In the present case, the court’s relevant instruction was:

b

If you are satisfied from the evidence beyond a rea-

sonable doubt that as the Government contends Mr.

Singer devised a scheme to defraud persons who could

be induced by his promotional campaign to order lob-

sters from him and to make payment before delivery

and that he made use of the mails or interstate tele-

phone communications in execution of that scheme, you

should find the defendant guilty. But if, on the other

hand, you are not so satisfied or, it goes without saying,

you believe the testimony of Mr. Singer that he acted

in good faith and was prevented from fulfilling his

commitments by the attachment of his bank accounts

and burglary of his office, then you should find the de-

fendants not guilty.

The last sentence of the foregoing charge is clearly tanta-

mount to that requested by appellants. Though expressed

in terms of ‘‘good faith’’ rather than ‘‘business adversity,”’

the particular events on which appellants based their de-

fense, i.e., the attachment and burglary, were specifically

U.S. U. COAST OF MAINE LOBSTER CO., INC,

mentioned. The requested reference to ‘‘unprofitable ven-

tures’? would have been inconsistent with the contention of

appellants that a modest profit would have been generated

had the attachment and burglary not occurred. The trial

court’s refusal to give the requested instruction did not in

any manner prejudice appellants’ defense.

(4) The Indictment

As an aid in its deliberations, the jury was presented

with a photocopy of the original indictment. The counts

which had been dismissed, and upon which appellants had

been acquitted in the first trial, were masked with tape prior

to photocopying. The charging portion (para. sixteen) of

Count I of the original indictment was also masked.* The

masking did not alter the incorporation by reference of the

other fifteen paragraphs of Count I into each of the twenty-

nine counts remaining in the indictment, which appeared

just as they had in the original indictment.

Appellants maintain that the changes in the indictment

contravened the rule, enunciated by the Supreme Court al-

most a century ago in Ex parte Bain, 121 U.S. 1,7 S. Ct.

781, 30 L.Ed. 849 (1887), that a federal indictment cannot

be amended except by resubmission to a grand jury. We

see no merit in this argument.

As was noted in United States v. Dawson, 516 F.2d 796,

801 (9th Cir.), cert. denied, 423 U.S. 855, 96 S, Ct. 104, 46

L.Ed. 2d 80 (1975) : .

Although the language and rationale of Bain are

exceptionally broad, in the considerable time that has

passed since Bain was decided the courts have en-

grafted several exceptions and limitations on this ‘‘no

amendment rule’’. ...

6 Appellants noted a timely objection to fe changes in the indictment by

geotsiel motion in accordance with Fed. Rules Cr. Proc. Rule 12(b)(2), 28

U.S.C.

OPINION OF THE COURT 29

One such exception relates to matters of form. Russel

v, United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed. 2d 240

(1962).?

Moreover, as pointed out in C. Wright, 1 Federal Prac-

tice and Procedure 274-75 (1969) :

In addition to the rule permitting amendment on

matters of form, another ameliorating doctrine is the

rule that a portion of an indictment that the evidence

does not support may be withdrawn from the jury,

and this is not an impermissible amendment, provided

nothing is thereby added to the indictment, and that the

remaining allegations charge an offense.®

Cited in support of the above rule is Salinger v. United

States, 272 U.S. 542, 47 8. Ct. 173, 71 L. Ed. 398 (1926),

wherein the Supreme Court held that withdrawal from the

jury of parts of an indictment u supported by the evidence

was not an amendment of the indictment and ‘‘was not

even remotely an infraction of the constitutional provision

that ‘no person shall be held to answer for a capital or

otherwise infamous crime unless on a presentment or in-

dictment of a grand jury.’’’ Id. at 549, 47 S. Ct. at 175,

71 L. Ed. at 402. Thus, Salinger clearly authorizes the

withdrawal of parts of an indictment from consideration by

the jury where, as here, no evidence has been presented

with respect thereto, and appellants were not prejudiced

by the deletion made here.

Appellants further argue that the manner in which the

deletions were made ‘‘would permit the jury to infer that

* The Supreme Court in Russell made reference to ‘‘the settled rule in the

federal courts that an indictment may not be amended except by resubmission

to the grand jury, unless the change is merely a matter of form.’’ 369 U.S.

at 770,82 5. Ct. at 1050, 8 L. Ed. 24 at 255.

By way of dicta, the 2nd Circuit disparaged masking and photocopying ih

United States v. Wilner, 523 F.2d 68 (2nd Cir. 1975).

8 Appellants have not alleged that anything was added to the indictment,

or that the remaining allegations failed to charge an offense.

U.S. VU. COAST OF MAINE LOBSTER CO., INC,

the Defendants had been tried previously.’’ We disagree.

Any possibility of the feared inference was effectively nulli-

fied by the following instructions of the trial judge:

{T]he Indictment originally in this case, contained 42

Counts as they are called or separate charges. The

Government has offered no proof with respect to thir-

teen of these counts, and those Counts, those thirteen

Counts, were withdrawn before the trial started.

These thirteen Counts are therefore not before you.

They should not be discussed or considered by you

and the fact they were originally in the Indictment

and are not before you now should have no bearing

one way or the other in your consideration, of the re-

maining 29 Counts of the Indictment, and for your con-

venience, with the agreement of the parties, we have

prepared a copy of the Indictment for your use from

which the thirfoen Counts which are no longer before

you have been withdrawn.

Nor are we persuaded that the masking of the charging

portion of Count I, upon which appellants were acquitted

in the previous trial, vitiated the incorporation by reference

of the remainder of Count I into the other twenty-nine

courts. United States v. Shavin, 287 F.2d 647, 650 (7th

Cir. 1961).

We thus find no reversible error in the trial court’s

handling of the indictment.

(5) Alleged Coercion of the Jury

Tae jury retired to commence its deliberations at 3:07

P.M. on Tuesday, September 28, 1976. At 11:15 P.M., the

tri:' judge summoned counsel and told them that at 10:00

P.M. the jury foreman had been asked whether the jury

mci reach a verdict at a reasonable hour that evening,

30

mn ly Wii te noms Monti

OPINION OF THE COURT 31

that the foreman had responded that he expected a verdict

within the hour, and thet a second inquiry had been made

at 11:00 P.M. to which the foreman responded that he did

not expect a verdict in the ‘‘immediate future.’’ Counsel

were also informed that an effort to secure nearby lodgings

for the jurors had been unsuccessful.

It was proposed by the trial judge to call the jury into

the courtroom, and to inquire of the foreman whether the

jury had been able to agree on a verdict with respect to

either defendant on one or more counts. If so, the trial

judge indicated that a partial verdict would be accepted;

if not, the jury would be permitted to return home for the

night after having been given the appropriate cautionary

instructions.

Thereupon the jury was called in and the following col-

loquy ensued:

THE COURT: The Court is going to inquire, first,

of your Foreman, as to whether you, Mr. Foreman, feel

that you can arrive at a verdict in this case within the

next hour or so or whether you would prefer to go

home and return tomorrow morning at, say, 10:00

o’clock, and resume your deliberations then?

THE FOREMAN: Well, we have cume upon agree-

ment on certain points and at the present time it looks

like we might be able to complete it in an hour.

THE COURT: Would you prefer to attempt to do

that? It is 11:30 in the evening. When I say ‘‘yon,’’

I speak through you to the entire Jury.

THE FOREMAN: We would prefer to do it tonight,

I guess, rour Honor.

THE COURT: Have you agreed upon your verdict

as to any of the Counts? |

THE FOREMAN: Yes.

32

U.S. V. COAST OF MAINE LOBSTER CO., INC.

THE COURT: You have? All right. Well, then,

the Jury may retire and continue their deliberations

and, Mr. Foreman, when you have reached the point

where you feel you cannot conclude your deliberations

this evening, would you send a note through the Jury

Officer and we will be waiting.

The jury resumed its deliberations at approximately

11:30 P.M. and returned a verdict at 12:35 A.M., finding

both defendants guilty on all counts charged in the indict-

ment.

Thouzh appellants entered no objection at the time, with

respeci to any coercive or hastening effect, they now claim

that their defense was prejudiced by the quoted colloquy,

arguing that the jury was being urged to reach a verdict

within the hour or be prepared to drive a good portion of

the nig: t to their homes.

There is nothing in the present record to suggest disa-

greemeut among the jurors which was resolved in a rush

to judgment. On the contrary, the jury foreman indicated

at 10:69 P.M. that the jury was moving toward a verdict,

and at 11:30 P.M., that the jury had agreed on certain

points and that he thought it could arrive at a verdict

within an hour. The trial judge gave no indication that a

verdict must be reached,® much less that a verdict be

reached within a specified time.’ The jury could only have

unders‘ood if it could not conclude its deliberations that

night, it would return to resume the next day. Even then,

the time for potential resumption was not fixed but was

referred to as ‘‘say, 10:00 o’clock.’’

9Cf. U-‘ted States v. Flannery, 451 F.2d 880 (1st Cir. 1971) (expressed

disapprovs' of instruction suggesting that ‘‘the case must at some time be

decidei.’" . There was no such suggestion here, and no suggestion, implicit

Or other«'s-, as im Flannery, that it was ‘‘more important {for the jury] to

be quick =*2n to be thoughtful.’’ Id. at 833.

10 Cf. E_-roughs v. United States, 365 F.2d 431 (10th Cir. 1966) (entreat-

ing jury :» strive toward a verdict by a certain time held reversible error).

OPINION OF THE COURT 33

Appellants point to the speed with which the verdict was

reached after the quoted colloquy, as compared with the

prior period of deliberation, as indicative of a hastening

effect. The foreman’s statement, however, that the jury

had already reached a verdict with respect to one or more

of the counts, the seven prior hours of deliberations, and

the basic similarity of the evidence on each count, all make

it unsurprising that the verdict was reached when it was.

The circumstances are fully compatible with a conjecture |

that the verdict would have been reached at about the same

time if there had been no colloquy with the court.

Nothing of record supports appellants’ speculation, im-

plicit in appellants’ argument, that jurors were motivated

by self-interest in expediting their decisions. Cf. United

States v. Scallion, 533 F.2d 909, 919-20 (5th Cir. 1976)."

The totality of the circumstances here presented reflects

an absence of coercion or hastening of the jury’s verdict

and the absence of reversible error in the court’s col-

loquy.”

(6) Evidentiary Support for Verdict

In considering appellants’ contention that the verdict

was unsupported by the evidence, the determinative ques-

tion is ‘‘whether a rational juror drawing reasonable in-

ferences from the evidence viewed in the light most favora-

ble to the government could have found guilt beyond a

reasonable doubt.’’ United States v. Sheehy, 541 F.2d 123,

126-27 (1st Cir. 1975).

11 Evidence that some sort of compromise had beep reached among the

jurors to avoid returning the next day would not of itself have warranted a

new trial. United States vt. Green, 523 F.2d 229 (2nd Cir. 1975), cert. denied,

423 U.S. 1074, 96 S. Ct. 858, 47 L. Ed. 2d 84 (1976).

12 Other Cirevits have found similar instruction noncoercive. See, United

States v. Peskin, 527 F.2d 71, 84-85 (7th Cir. 1975), cert. denied, Us.

,97 S. Ct. 63, 50 L.Ed. 2d 79 (1976); and Glazerman v. United States,

421 F.2d 547, 554 (10th Cir.), cert. denied, 398 U.S. 928, 90 8S. Ct. 1817, 26

L. Ed. 24 90 (1970). :

34

U.S. UV. COAST OF MAINE LOBSTER CO., INC,

The jury was fully entitled here to draw a rational in-

ference that appellants misrepresented the attachment as

preventing timely delivery of the lobsters. The attachment

had little, if any, effect on appellants’ ability to ship lob-

sicrs. Nor was the inference unwarranted that the burglary

was merely a ruse employed in furtherance of an overall

scheme to defraud.

The inferences permissible from the evidence severely

uncermine appellants’ theory that the attachment and

robbery were unfortunate and unforeseen setbacks en-

countered, in a good faith business undertaking, by one

having little business acumen. Had the jury drawn these

inferences, it could have reached no other conclusion than

thai appellants’ good faith defense was unworthy of belief.

The receipt of money subsequent to the robbery, followed

by neither lobster delivery nor refand, could only have ren-

dered disbelief the more inescapable.

CONCLUSION

Appellants’ arguments fail to convince us of the pres-

ence of prejudicial error of any kind.

A firmed.

Ac—. Ofice, U.S. Courts — Addison C. Getchell, Inc. Legal Printers Boston