Petition — Garrett v. United States

Supreme Court, U. &

{ FILED

\

APR 27 1978

In THE

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

NO. . 771541

ARTHUR GARRETT, ANGELO MORINI,

FIESTA FOODS, INC.,

Petitioners

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

JAMES E. MCLAUGHLIN

618 Frick Bldg.

Pittsburgh, Pa. 15219

(412) 371-3250

Attorney for Petitioners

Davip O’HANESIAN

525 William Penn Place

Pittsburgh, Pa.

Of Counsel

SMITH BROS... LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

INDEX TO PETITION

PAGE

Citation To Opinions Below... ..... . . . . . . 1

r è ¾ SEES 1

,, ...... 2

e T...... 2

e ... 3

Reasons for Granting the Writ 4

D a saietenidansosbioneobons 8

Appendix A

Opinion of the Court Appeals BeloW,ẽ/ʒ;=R· la

Appendix B

, Ä 2... lll 12a

TABLE OF CITATIONS

CASES

Mann v. United States, 319 F.2d 404 (5th Cir. 1963),

Cert. Denied 375 U.S. 986 (1964) 4,5,6

Sherwin v. United States, 320 F.2d 137 (9th Cir.

c 7

United States v. Barash, 365 F. 2d 395 (2nd Cir. 1986) 6

United States v. Chiantese, 560 F.2d 1244 (Sth Cir.

— . 5

United States v. Diggs, 527 F. 2d 509 (8th Cir. 1975) 6

United States v. Helms, 340 F.2d 15 (5th Cir. 1964) 5, 6

United States v. Jenkins, 442 F.2d 429 (5th Cir.

ED ů——̃ — —„—-—⅛ 6

United States v. Wilkins, 385 F.2d 465 (4th Cir.

. . —— 7

United States v. Woodring, 464 F.2d 1248 (10th

. ̃ ̃ͤ 3 —1—— — 6

In THE

Supreme Court of the United States

OCTOBER TERM, 1977

NO. Cee 22240

ARTHUR GARRETT, ANGELO MORINI,

FIESTA FOODS, INC.,

Petitioners

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

CITATIONS TO OPINIONS BELOW

Direct appeal was taken to the United States Court

of Appeals and therefore, there was no opinion in the Dis-

trict Court. The Opinion of the Court of Appeals is not yet

reported but a copy of the slip Opinion is reproduced in

Appendix A hereto, infra.

JURISDICTION

The judgment of the Court of Appeals was entered

on March 28, 1978. The jurisdiction of this court is in-

voked under 28 U.S.C. §1254(1).

Statutes Involved.

QUESTION PRESENTED

IS IT NOT REVERSIBLE ERROR FOR THE DIS-

TRICT COURT IN A CRIMINAL CASE TO INSTRUCT

THE JURY IN SUCH FASHION AS TO SHIFT THE

BURDEN OF PROOF ON THE CRITICAL ELEMENT

OF INTENT FROM THE PROSECUTION TO THE DE-

FENDANTS.

STATUTES INVOLVED

The statutory provisions involved are set forth in

Appendix B., infra.

Statement of the Case.

STATEMENT OF THE CASE

In light of the fact that this petition is directed

solely to a question of law, the facts of the case will be

reviewed only briefly.

Petitioners were tried jointly on indictments

charging twenty counts of mail fraud and one count of

conspiracy. The defendants were Arthur Garrett, food

service director at Slippery Rock State College; Fiesta

Foods, Inc., a food supply company; and Angelo Morini,

the president of Fiesta Foods. They were charged with

using the mails in connection with a scheme to falsify

bids to the college in order to ensure that Fiesta would

be awarded supply contracts for part of Slippery Rock’s

food service. The government’s evidence as to the use of

the mails was not disputed. The jury found each defend-

ant guilty of eight counts of mail fraud. The individual

defendants were sentenced to prison.

Timely direct appeal was taken from the judgment

of sentence and conviction and the Third Circuit Court of

Appeals affirmed the conviction on March 28, 1978.

Reasons for Granting the Writ.

REASONS FOR GRANTING THE WRIT

Petitioners contend that a portion of the court’s in-

structions to the jury impermissably shifted the burden

of proof on intent from the government to the defendants.

We further contend that this instruction and consequent

burden shifting constituted reversible error.

The portion of the charge to which petitioners took

specific exception at the trial and to which they took ap-

pellate exception was:

“As a general rule it is resonable to infer that a per-

son intends all the natural and probable conse-

quences of an act knowingly done or knowingly omit-

ted. So unless the evidence of a case leads you to a

contrary conclusion you may draw the inference and

find that the accused intended all the natural and

probable consequences which one standing in like

circumstances and possessing like knowledge should

reasonably have been expected to result from an act

knowingly done or knowingly omitted by the ac-

cused.”

This instruction is popularly known as the “Mann”

instruction and derives its appellation from the fact that

its use was condemned and found to be plain error in the

case of Mann v. United States, 319 F.2d 404 (5th Cir.

1963), cert. denied 375 U.S. 986 (1964). In the fifteen

years since Mann came into being it has been revisited

many times in a number of Circuits and such visits have

created considerable confusion and a conflict in the Cir-

cuits. The instant case is the first time that the Third

Circuit has directly addressed itself to the Mann problem

and its solution of the problem is what has prompted us

to seek review in this Court.

Reasons for Granting the Writ.

In Mann, supra., the court gave the identical instruc-

tion on intent as was given in this case. In spite of a lack

of objection to the instruction, the Fifth Circuit held it

to be plain error and reversed, stating:

“If the charge had ended when the jury was told that

a person is presumed to intend the consequences of

his own acts, when considered in the light of the

charge as a whole, there would have been no error.

When the words, “So unless the contrary appears

from the evidence“ were introduced, the burden of

proof was thereupon shifted from the prosecution to

the defendant to prove lack of intent. If an inference

from a fact or set of facts must be overcome with op-

posing evidence, the inference becomes a presump-

tion and places a burden on the accused to overcome

that presumption. Such a burden is especially harm-

ful when a person is required to overcome a presump-

tion as to anything subjective, such as intent or wil-

fulness, and a barrier almost impossible to hurdle

results.” 319 F.2d 404 at 409.

In the instant case the matter of petitioners intent was

purely subjective and the jury was permitted to infer

evil intent from the use of the mails alone.

The advent of the Mann decision has given rise to a

plethora of appellant problems. A detailed analysis of the

recurring appearances of the Mann problem in the Fifth

Circuit is to be found in the recent case of United States

v. Chiantese, 560 F.2d 1244 (5th Cir. 1977). Chiantese,

supra., discloses that Mann over the years has caused the

Fifth Circuit more than a modicum of judicial labor and

frustration. Since the decision came down in 1963 the

original teaching of Mann has been distinguished as often

as it has been followed by the Fifth Circuit. In United

Reasons for Granting the Writ.

States v. Helms, 340 F.2d 15 (5th Cir. 1964), it was held

that where there was objective evidence of intent, the

1963 holding Mann did not obtain. In this case there was

no objective evidence of intent. In 1971 the Fifth Circuit

held that where curative instructions were given immedi-

ately after the Mann instruction, the harm indigenous to

Mann was vitiated. United States v. Jenkins, 442 F.2d 429

(5th Cir. 1971). Finally, in 1977 the Fifth Circuit at-

tempted to put Mann in what it thought to be proper per-

spective. In Chiantese, supra., the Fifth Circuit ruled

prospectively en banc, that the Mann charge was no

longer to be given and that curative instructions would

not be considered in determining whether its use was re-

versible error.

In this case the Third Circuit while recognizing the

vice of the Mann instruction found that the vice was

cured by the virtue of the charge as a whole and then goes

on to rule that the use of such instructions ninety days

hence will be considered reversible error. While this

holding may be considered a just solution by the Third

Circuit, it can hardly be embraced with much enthusiasm

by the petitioners who have been left in the unfortunate

posture of legal pioneers on their way to the penitentiary.

Since the weight of authority finds this type of instruc-

tion offensive it would have been far more equitable to

call a spade a spade and treat reversible error as rever-

sible error whenever it appeared.

The Mann instruction and similar instructions have

been weighed and found wanting in the Second Circuit

in United States v. Barash, 365 F.2d 395 (2d Cir. 1966)

and have been criticized in the Eighth and Tenth Cir-

cuits. United States v. Diggs, 527 F.2d 509 (8th Cir. 1975);

United States v. Woodring, 464 F.2d 1248 (10th Cir.

Reasons for Granting the Writ.

1972). On the other hand a Mann type instruction has

been approved by the Ninth Circuit in Sherwin v. United

States, 320 F.2d 137 (9th Cir. 1963) and found harmless

by the Fourth Circuit in United States v. Wilkins, 385

F. 2d 465 (4th Cir. 1967). Thus it can be seen that there is

a conflict in the Circuits which can be resolved only by a

grant of certiorari to this Court. That the question is

important enough to warrant review can be judged from

the amount of appellant litigation the use of the in-

struction has engendered. Mann has returned to the Fifth

Circuit a minimum of seventeen times in the last fifteen

years and has been the subject of appellant consideration

in six other Circuits. The instruction has resulted in the

reversal of numerous convictions and the puzzling af-

firmance of a number of others. It is important to the

petitioners because they stand convicted on a charge

that has been judicially labelled poison in the future but

harmless in the past.

Conclusion.

CONCLUSION

It is our contention that any shift of the burden of

proof of intent from the government to the defendant is

reversible error of a Constitutional dimension. At present

the Mann instruction is proper in the Ninth Circuit and

probably proper in the Fourth. It is improper in the

Second Circuit and questionable in the Eighth and Tenth

Circuits. It is now error in the Fifth Circuit but not per se

reversible. In a few months it will constitute reversible

error in the Third Circuit. The status of the instruction

in the remaining Circuits is unresolved. It is submitted

that this conflict and confusion in the Circuits calls for a

final solution and that solution can only be supplied by a

grant of review in this case.

Respectfully submitted,

JAMES E. MCLAUGHLIN

618 Frick Bldg.

Pittsburgh, Pa. 15219

(412) 471-3250

Attorney for Petitioners

Davip O’HANESIAN

525 William Penn Place

Pittsburgh, Pa. 15219

Of Counsel

la

Appendiz 4.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 77-1780/1/2

UNITED STATES OF AMERICA,

Appellee,

v.

ARTHUR GARRETT, ANGELO MORINI,

FIESTA FOODS, INC.,

Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

D.C. Crim Nos. 77-18-1, 77-18-2, 77-18-3

Argued January 13, 1978

Before ALDISERT and HUNTER, Circuit Judges and

CaHN,* District Judge

Blair A. Griffith

Alexander H. Lindsay

Bruce A. Antkowiak

Attorneys for Appellee

David O’Hanesian

Attorney for Appellants

OPINION

(Filed March 28, 1978)

*Honorable Edward N. Cahn, United States District

Judge for the Eastern District of Pennsylvania, sitting

by designation.

2a

Appendiæ A.

HUNTER, Circuit Judge:

In this case, appellants challenge the trial judge’s

jury instruction on intent in their joint trial for mail

fraud, 18 U.S.C. §1341 (1870). They contend that part

of the charge impermissibly shifted the burden of proof

on intent from the government to the defendants. Our

review of the trial judge’s charge convinces us that no

reversible error was committed. We affirm.

I.

The facts will be outlined only briefly. The defend-

ants are Arthur Garrett, food service director at Slip-

pery Rock State College; Fiesta Foods, Inc., a food sup-

ply company; and Angelo Morini, the president of Fiesta

Foods. They were charged with using the mails in

furtherance of a scheme to falsify bids to the college

in order to ensure that Fiesta would be awarded supply

contracts for part of Slippery Rock’s food service.

At trial, the government introduced evidence-that

Garrett had obtained a financial interest in Fiesta

Foods. The college’s purchasing agent testified that pur- he:

chases of perishable foods were to be made after com-

peting bids were solicited, if the product sought was

available from more than one source. The evidence indi-

cated that Garrett had instructed food services em-

ployees to solicit the required multiple bids for pizzas

from defendant Morini, with the result that Fiesta Foods

was awarded the pizza contracts. Representatives of

other food companies, which had been listed on college

purchase orders as participating in the bidding, testi-

fied that the bids made on behalf of their companies for

the pizza contract were not authorized.

3a

Appendiæ A.

Evidence of the use of the mails for submitting

contracts and receiving payments for supplies was intro-

duced by the government and not disputed by defendants.

In its closing, the government contended that the evi-

dence presented demonstrated that defendants engaged

in a scheme to defraud the college and used the mails

to perpetrate the scheme, The jury found each defendant

guilty of eight counts of mail fraud.

II.

The defendants’ contentions in this appeal are di-

rected solely at the following portion of the trial judge’s

charge to the jury:

As a general rule it is reasonable to infer that.

a person intends all the natural and probable conse-

quences of an act knowingly done or knowingly

omitted. So unless the evidence of a case leads you

to a contrary conclusion you may draw the infer-

ence and find that the accused intended all the

natural and probable consequences which one

standing in like circumstances and possessing like

knowledge should reasonably have been expected

to result from an act knowingly done or knowingly

omitted by the accused.

Counsel for defendants objected to this portion of the

charge but were overruled by the trial judge.

The thrust of defendants’ argument is that by in-

structing the members of the jury that they may infer

the specific intent to defraud element of the crime of

mail fraud from acts by the accused “unless the evi-

dence leads [the jury] to a contrary conclusion,” the

trial judge shifted the burden onto defendants to intro-

duce evidence of their lack of intent to defraud. Further,

4a

Appendiz A.

defendants argue that the instruction is inconsistent

with other elements of the charge placing the burden of

proving all elements of the crime on the government.

The Fifth Circuit has reviewed the instruction

under consideration here numerous times over the last

fifteen years. In Mann v. United States, 319 F.2d 404

(Sth Cir. 1963) cert. denied 375 U.S. 986 (1964), the

court held that the trial judge’s use of the instruction in

a prosecution for wilful evasion of income tax payments

constituted plain error. In Mann, the court stated:

When the words “So unless the contrary appears

from the evidence” were introduced [after the first

sentence of the instruction], the burden of proof

was thereupon shifted from the prosecution to the

defendant to prove lack of intent. If an inference

from a fact or set of facts must be overcome with

opposing evidence, then the inference becomes a

presumption, and places a burden on the accused to

overcome that presumption. Such a burden is es-

pecially harmful when a person is required to over-

come a presumption as to anything subjective, such

as intent or wilfulness, and a barrier almost im-

possible to hurdle results.

319 F.2d at 409. See also Uniied States v. Schilleci, 545

F.2d 519 (5th Cir. 1977); United States v. Driscoll, 454

F.2d 792 (5th Cir. 1972); Henderson v. United States,

425 F. 2d 134 (5th Cir. 1970); South v. United States, 412

F. 2d 697 (5th Cir. 1969).

Although Mann seemed to indicate that use of the

charge in subsequent criminal cases would constitute re-

versible error per se, later Fifth Circuit cases recognized

factual situations in which a conviction would not be re-

5a

Appendiæ A.

versed even though the “Mann instruction” was given.

First, in United States v. Helms, 340 F.2d 15 (5th Cir.

1964), cert. denied 382 U.S. 814 (1965), another tax eva-

sion case, the court refused to reverse a conviction after

a jury trial in which the Mann instruction was given. In

that case, the government introduced two sets of rec-

ords, one of which was false and from which defendant’s

tax returns were prepared. The appeals court noted that

the jury’s determination of whether the defendant had

prepared the two sets of books—a matter of objective

conduct—was dispositive of his criminal intent. The

Mann decision was distinguished on the ground that the

jury in that case, in which intent could not be deter-

mined from objective conduct alone, could have been

misled far more easily by the offensive language in the

charge. See also United States v. Durham, 512 F.2d 1281

(5th Cir.) cert. denied 423 U.S. 871 (1975).

Another factual situation in which use of the Mann

charge was determined not to constitute reversible error

is found in United States v. Jenkins, 442 F.2d 429 (5th

Cir. 1971). Although the same language was used in

Jenkins as in Mann, the court found that curative in-

structions immediately following the Mann language

vitiated any harmful effect that the challenged instruc-

tion might have on the jury.! See also United States v.

1. The sa elements of the charge included di-

rectives 1) that the jury was entitled to consider any

statements made and acts done or omitted by the ac-

cused, and all facts and circumstances in evidence which

may aid in determination of state of mind; and 2) that

the law never im on a defendant in a criminal case

the burden of witnesses or ow i evidence.

ora States v. Jenkins, 442 F.2d 429, (5th Cir.

6a

Appendiz A.

Roberts, 546 F.2d 596 (5th Cir.), cert. denied 431 U.S.

968 (1977); United States v. Duke, 527 F.2d 386 (5th

Cir.), cert. denied 426 U.S. 952 (1976) ; United States v.

DeSimone, 452 F.2d 554 (5th Cir. 1971), cert. denied 406

U.S. 959 (1972).

In United States v. Chiantese, 560 F.2d 244 (5th

Cir. 1977), the Fifth Circuit attempted to rid itself of

the recurrent appeals arising from use of the charge.

Although the court refrained from mandating a rule of

per se reversal whenever the Mann charge is given, the

court en banc held prospectively that curative instruc-

tions will not be considered in determining whether a

trial judge’s use of the Mann charge is reversible.

‘ Other circuits have criticized the language of the

instruction.? This circuit, however, has not had occasion

to pass on the challenged instruction until now. In

United States v. Restaino, 405 F.2d 628 (3d Cir. 1968),

the district court had instructed the jury on intent in

language similar to that used in this case. Defense coun-

sel timely objected to the instruction, and the district

judge corrected and supplemented the charge on intent.

Thus, on appeal, this court did not review the instruc-

tion.

2. See, e.g., United States v. Robinson, 545 F.2d 301

(2d Cir. 1976); United States v. Diggs, 517 F.2d (8th

Cir. 1975); United States v. Robinson, 464 F.2d 1248

(10th Cir. 1972); United States v. Wilkens, 385 F. 2d 465

(4th Cir. 1967); Cohen v. United States, 378 F.2d 751

(9th Cir. 1967) ; United States v. Releford, 352 F.2d 36

(6th Cir. 1965).

— ee ee ee

7a

Appendiæ 4.

III.

An appellant court’s role in reviewing jury instruc-

tions is to examine the entire charge in order to deter-

mine whether the district judge properly performed his

function. See Cupp v. Naughten, 414 U.S. 141 (1973).

The district judge is responsible for giving the jury the

guidance by which it can make appropriate conclusions

from the testimony. This duty is performed by clearly

stating the relevant legal criteria. Bollenbach v. United

States, 326 U.S. 607 (1946).

We thus must determine, in light of the entire jury

charge, whether the trial judge’s use of the Mann in-

struction misled the jury by effectively imposing on de-

fendants the burden of proving lack of intent to defraud.

As to the first sentence of the challenged instruc-

tion As a general rule it is reasonable to infer that a

person intends all the natural and probable consequences

of an act knowingly done or knowingly omitted“ de-

fendants do not contend and we do not hold that this

portion is in any way improper. Rather, defendants

point to the second sentence of the charge— “.. unless

the evidence of a case leads you to a contrary conclus-

ion, you may draw... [the inference outlined in the first

sentence] as containing what they assert to be the im-

permissible, “burden-shifting instruction.” Although it

has been suggested that the instruction does not have

the effect of shifting the burden of proof to the de-

fendant, 3 it is possible that a jury might construe the

second sentence of the instructiou as an invitation to

3. See United States v. Chiantese, 560 F.2d 1244,

1256 & 1259 (5th Cir. 1977) (Hill, J., concurring) (Ains-

worth, J., dissenting).

8a

Appendiæ A.

resume the requisite intent in the absence of rebuttal

evidence introduced by defendant. The instruction’s pro-

lixity serves only to confuse the jurors and adds little to

their understanding of the legal criteria they must ap-

ply, “since insofar as the statement has logical validity

the jury would know it anyhow.” United States v. Ba-

rash, 365 F.2d 395 (2d Cir. 1966).

In this case, however, the instructions as a whole

fully informed the jury of the government’s burden of

proof on the question of intent. The jury was instructed

on the following:

1) the law presumes the defendants ‘o be innocent

of a crime;

2) the presumption of innocence alone is sufficient

to acquit unless the jurors are satisfied beyond a reason-

able doubt of a defendant’s guilt;

3) the burden is always on the prosecutor to prove

guilt beyond a reasonable doubt;

4) this burden never shifts to a defendant;

5) a defendant is never under a burden or duty of

calling any witnesses or producing any evidence;

6) the burden is on the government to establish the

guilt of a corporate defendant, just as in the case of an

individual defendant;

7) the prosecution has the burden of proving beyond

a reasonable doubt that the defendants knowingly did

an act forbidden by law purposely intending to violate

the law; and

8) that such jatent may be determined from all the

facts and circums surrounding the case.

ee ree ee wr eee oe ee

— —

94

Appendiæ 4.

We hold, in light of these instructions, that the trial

judge properly informed the jury of the government's

burden of proof on the issue of intent and that the po-

tentially harmful effect of the Mann instruction was

vitiated. Thus we find no reversible error in this case

arising from the use of the Mann instruction.

IV.

Notwithstanding our holding in this case, the con-

fusing nature of the instruction’s language and the ex-

tent of judicial time spent reviewing charges containing

the Mann instruction convinces us to prohibit its use in

criminal trials commenced ninety days after the filing of

this opinion.

Hereafter, district courts in this circuit shall not

use language in instructions that reasonably can be in-

terpreted as shifting the burden to the accused to pro-

duce proof of innocence. This includes charges indi-

cating that the law presumes a person to intend the nat-

ural and probable consequences of his knowing acts, as

well as charges substantially similiar to that given in

this case. Use of this instruction will be deemed error,

and convictions obtained in trials in which the instruc-

tion is given will be reversed, except in those “very

extraordinary circumstances [in which] the error may

be found so inconsequential as to avoid the necessity of

reversal on appeal.” United States v. Fioravanti, 414

F. 2d 407, 420 (3d Cir. 1969).

Certainly, the use of particular language in

charging the jury is left to the sound discretion of the

4. See United States v. Chiantese, 560 F.2d 1244

(5th Cir. 1977).

*

10a

Appendiæ 4.

trial judge. See United States v. Bailey, 451 F.2d 181

(3d Cir. 1971); Government of the Virgin Islands v.

Rivera, 439 F.2d 1126 (3d Cir. 1971). Further, a trial

judge should tailor his instructions to a particular case

and not rely too heavily on form instructions. See United

States v. Barber, 442 F.2d 517 (3d Cir. 1971). Never-

theless, the charges outlined in Devitt & Blackmar, Fed-

eral Jury Practice and Instructions 514.13 (1977 ed.) 5

and in United States v. Wilkinson, 460 F.2d 725 (5th

Cir. 1972) ,6 may be of some help to trial judges in avoid-

5. The instruction prepared by Devitt & Blackmar

is as follows:

Intent ordinarily may not be proved directly,

because there is no way of fathoming or scruti-

nizing the operations of the human mind. But you

may infer the defendant’s intent from the surround-

ing circumstances. You may consider any statement

made and done or omitted by the defendant, and all

other facts and circumstances in evidence which

indicate his state of mind.

You may consider it reasonable to draw the in-

ference and find that a person intends the natural

and probable consequences of acts knowingly done

or knowingly omitted. As I have said, it is entirely

22 you to decide what facts to find from the

evidence.

1 Devitt & Blackmar, Federal Jury Practice & Instruc-

tions 514.13 (1977 ed.)

6. The Wilkinson court suggested the following lan-

It is reasonable to infer that a person ordinar-

4 —— the natural and probable consequences of

knowing acts. The jury may draw the inference

that the accused intended all of the consequences

which one standing in like circumstances and poss-

like knowledge should reasonably have ex-

pected to result from an intentional act or conscious

—ͤ—— — TO

lla

Appendiz 4.

ing the use of instructions on intent that might be con-

strued by a jury to shift the burden of proof to the de-

fendant in a criminal case.

We repeat and emphasize that this decision with

respect to the Mann instruction shall have only pros-

pective application in those jury trials which shall

commence ninety days after this opinion is filed.

The judgments of conviction will be affirmed.

A True Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Third Circuit.

omission. Any such inference drawn is entitled to be

considered by the jury in determining whether or

not the government has proved beyond a reason-

able doubt that the defendant possessed the re-

quired criminal intent.

United States v. Wilkinson, 460 F.2d 725, 733.

Appendiz B.

APPENDIX B

$1341. Frauds and 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 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 execu-

ting 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 de-

livered 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.

As amended May 24, 1949, c. 139 §34, 63 Stat. 94; Aug.

12, 1970, Pub. L. 91-375, §6(j) (11), 84 Stat. 778.