Opposition — North v. United States

7 ey hw

RB ee” eee

%*% a ro ot ae ae J

a ee N, pies SERS 5

”

>

-

. te

a a ’

rg bey ee

: SB ee, Fos A v

ae

* Ke

a og

a

Page

i a 2

IIE iat sites nbieencenmbuibitcbisitndsahstiecntledle Sanhiectiliadthade 2

Questions presented 2

RE at RI AR Ae Ram eee ER CeCe 3

Argument Let ine st nc? Sed Ma CNA Reet 10

A a a Oe Ls ee Ne ee 25

CITATIONS

Cases:

Alderman v. United States, 394 U.S. 165 16

Ashe v. Swenson, 397 U.S. 436 _ ae 22

Barnes v. United States, 412 U. S. 837. . 138,14

Bayless v. United States, 381 F.2d 67 _ 23

Berenyi v. Immigration Director, 385 U.S.

EIA Tice ere Pe ee a 11,17

DiCarlo v. United States, No. 77-990, cer-

tiorari denied, March 20, 1978 .. 10

Dunn v. United States, 284 U.S. 390 | ———— +

Grand Jury Proceedings, In re, 563 F.2d

577 can oa 10

Hamiliniv. United States, 418 U. S. 87. 22

Hoffa v. United States, 385 U.S. 293 _..__ 19, 20

Kann v. United States, 323 U.S. 88 _. 11

Kirby v. Illinois, 406 U.S. 682 20

Markert v. United States, Nos. 77-1504

and 76-179, certiorari denied, 429 U.S.

IER TE SE ce ee Sar Ne el | 10

Massiah v. United States, 377 U.S. 201 20

Pereira v. United States, 347 U.S. 1 __11, 13, 15

Sealfon v. United States, 332 U.S. 575 22

Smith v. Wunker, 356 F. Supp. 44 17

Cases—Continued Page

Stubbs v. Smith, 533 F.2d 64 21

United States v. Agurs, 427 U.S. 97 ___. 21

United States v. Akin, 464 F.2d 7, certio-

rari denied, 409 U.S. 981... 21-22

United States v. Armocida, 515 F.2d 49,

certiorari denied, 423 U.S. 858 - 17

United States v. Avila, 443 F.2d 792, cer-

tiorari denied, 404 U.S. 944 . 19

United States v. Barrett, 505 F. 2d 1091. 13

United States v. Bastone, 526 F.2d 971,

certiorari denied, 425 U.S. 973 19-20

United States v. Biggins, 551 F.2d 64 _ 19

United States v. Brewster, 408 U.S. 501. 10, 23

United States v. Buchanan, 544 F.2d 1322,

certiorari denied, 432 U.S. 907 11

United States v. Bynum, 360 F. Supp. 400,

affirmed, 485 F.2d 490, vacated on other

grounds, 417 U.S. 903, appeal! after re-

mand, 513 F.2d 533, certiorari denied,

423 U.S. 952 _ a 17

United States v. Gorceres, ‘No. 76-1309,

certiorari Sune 5, 1978 - 21

United States v. Carbone, 378 F. 2d 420,

certiorari denied, 389 U.S. 914 22

United States v. Carson, 464 F.2d 424,

ceritorari denied, 409 U.S. 949 - 24

United States v. Clegg, 509 F.2d 605 18

United States v. Cosby, 500 F.2d 405 19

United States v. Feola, 420 U.S. 671 - 15

United States v. Greene, 497 F.2d 1068,

certiorari denied, 420 U.S. 909 22

United States v. Hall, 536 F.2d 313, cer-

tiorari denied, 429 U.S.919 17

United States v. Harvey, 540 F. 2d 1345. 18

ll

Cases—Continued Page

United States v. Hodge, 539 F.2d 898, cer-

tiorari denied, 429 U.S. 1091 19

United States v. Isaacs, 493 F.2d 1124,

certiorari denied, 417 U.S. 976 = 14

United States v. Jones, 545 F.2d 1112, cer-

tiorari denied, 429 U.S. 1075 . 19

United States v. Marcello, 423 F. od 993,

certiorari denied, 398 U.S. 959 _ 23

United States v. Marion, 535 F.2d 697 | 18

United States v. Maze, 414 U.S. 395. 11,18

United States v. Nace, 561 F.2d 763 19

United States v. Pacente, 503 F.2d 543,

certiorari denied, 419 U.S. 1048 __ =e 24

United States v. Perkal, 530 F.2d 604, cer-

tiorari denied, 429 U.S. 821. _. 11

United States v. Ransom, 515 F.2d 885,

certiorari denied, 424 U.S. 944 z 17

United States v. Serlin, 538 F.2d 737 . 22

United States v. Street, 529 F.2d 226 _ . 11

United States v. Sweig, 441 F.2d 114, cer-

tiorari denied, 403 U.S. 932 24

United States v. White, 401 U.S. 745 i9

United States v. Zane, 495 F.2d 683, cer-

tiorari denied, 419 U.S. 895 22

Constitution, statutes and rules:

United States Constitution, Fourth

Amendment _ a 19

Travel Act, 18 U.S. C. 1952. 2,3,11,14

18 U.S.C. 371 3

18 U.S.C. 1841 _._.__.... 2,3, 11

18 U.S.C. 2510(11) 16

18 U.S.C. 2511(1) (b) | _. 16,17, 18

Constitution, statutes

and rules—Continued Page

ER) eee 16, 17, 18

ee ee 17

18 U.S.C. 2517(3) BESET 18, 19

ae ee 19

RR Ee se 16

Rule 901, Fed. R. Evid. oo - 19

Rule 12(f), Fed. R. Crim. P. 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1499

FRANK P. NORTH, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-1500

JACK E. WALKER, PETITIONER

v.

UNITED STATES OF AMERICA

No. 77-1501

PETER V. PAPPAS, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-1502

ROBERT CRAIG, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (Pet. App. 59-

151) is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on December 12, 1977. A petition for rehearing was

denied on March 21, 1978, and the petitions for a

writ of certiorari were filed on April 20, 1978. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether a state legislator is privileged ic pre-

vent introduction of evidence of his legislative acts

in a federal criminal prosecution.

2. Whether the evidence regarding use of the mails

and interstate travel was sufficient to prove violations

of the mail fraud statute, 18 U.S.C. 1341, and the

Travel Act, 18 U.S.C. 1952.

3. Whether specific intent to use the mails must be

proven as to a defendant convicted of conspiracy to

commit mail fraud.

4. Whether recordings of conversations of peti-

tioners Craig, Walker, and Pappas were properly

admitted into evidence in the circumstances of this

case.

5. Whether exculpatory materials were improperly

withheld from petitioner Walker (No. 77-1500).

6. Whether the rule of Dunn v. United States, 284

U.S. 390, permitting inconsistent verdicts, should be

overruled (No. 77-1499). :

7. Whether petitioner Craig is entitled to a new

trial by reason of his tactical decision to rely on an

earlier opinion of the court below on the legislative

privilege issue (No. 77-1502).

8. Whether petitioners were prejudiced by joinder

of a co-defendant’s perjury indictment.

STATEMENT

After a jury trial in the United States District

Court for the Northern District of Illinois, petitioners

were convicted of conspiracy to commit mail fraud,

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

Craig and Pappas were convicted on 11 substantive

counts, and petitioners Walker and North were con-

victed on three substantive counts, all in violation of

18 U.S.C. 1341. In addition, petitioners Craig and

Pappas were convicted on two counts of interstate

travel to commit bribery, in violation of 18 U.S.C.

1952. Petitioners Craig, Walker, and North were

sentenced to concurrent terms of three years’ im-

prisonment and a fine of $5,000; petitioner Pappas

was sentenced to five years’ imprisonment and a fine

of $10,000. The court of appeals affirmed in a lengthy

opinion, with one judge dissenting (Pet. App. 59-

151).

* “Pet. App.” refers to the joint appendix filed by petitioners

in Nos. 77-1499, 1500, 1501, 1502 and 1504.

4

The evidence is set forth in detail in the opin-

ion of the court of appeals. Briefly, it showed that

certain members of a trade association, the North-

ern Illinois Ready-Mix and Materials Association

(NIRMMA), wanted to increase the weight limit on

ready-mix cement that could lawfully be hauled by

its members’ trucks on Illinois state roads. At an

October 1971 meeting of the NIRMMA board, it was

determined that the time was ripe for the introduc-

tion of a weight-relief bill in the Illinois legislature.

NIRMMA member James McBride knew petitioner

Peter Pappas, a lobbyist with the Illinois Motor Ve-

hicle Laws Commission, which had initial jurisdic-

tion to draft and consider such a bill. McBride pre-

dicted that getting the bill enacted would cost a great

deal of money; two other NIRMMA board members

estimated that the cost of enacting the bill might

reach $100,000 (Pet. App. 61-62). Shortly there-

after, McBride, unindicted co-conspirator Lauwereins,

and several other NIRMMA members met with peti-

tioner Pappas to discuss passage of the bill; Pappas

advised them that his fee would be $5,000 and that

more money would be required later (Pet. App. 61-

62).

At some time in October or early November 1971,

petitioner Pappas contacted Republican state rep-

resentative Pete Pappas (no relation), a member of

the Motor Vehicle Laws Committee (MVLC), and

advised him that the industry representatives were

willing to pay for passage of the weight relief bill

(Pet. App. 62-63). Rep. Pappas then separately spoke

with co-defendant Donald Carpentier, a Republican

state senator and also a member of the MVLC, and

with petitioner Craig, a Democratic state representa-

tive; Rep. Pappas told them of the industry’s willing-

ness to pay for passage of the bill (Pet. App. 63).

After a few days, Craig contacted Rep. Pappas and

advised him that the fee for the Democratic side of

the state House would be $10,000; Rep. Pappas and

Carpentier followed this lead and determined that it

would require $10,000 each for the Republican sides

of the state House and Senate (ibid.). Craig said the

money ought to be paid as the bill passed each house.

Rep. Pappas proceeded to talk with Democratic state

Senator Kenneth Course, and the latter agreed to

participate (Pet. App. 64).’ Petitioner Pappas was

then advised of the sum involved and of the require-

ment that it be paid as soon as the legislation passed

each house (Pet. App. 66).

On November 5, 1971, petitioner Pappas met with

several NIRMMA members, advised them that the bill

would be first introduced through the MVLC, and left

the members with the understanding that any pay-

ment beyond his $5,000 fee would be required only if

the bill passed both houses of the legislature and was

signed by the governor (Pet. App. 64-65). On No-

vember 8, 1971, petitioner Pappas met with ID-

MRCA* member Herbert Craig (no relation to peti-

2 Course was also convicted at trial, but he died while the

appeal was pending.

?1D-MRCA was a down-state trade association (Illinois Di-

vision—Midwest Ready-Mix Concrete Association) that in-

tioner Craig) and several NIRMMA members to re-

hearse Craig’s testimony before the MVLC, scheduled

for the next day. Shortly after the MVLC meeting,

the Commission secretary mailed notices of the date,

time and place for the December 1971 meeting of the

Commission. One of the persons on the mailing list

was NIRMMA executive secretary Tom Connolly

(Pet. App. 66).

At the December 1971 meeting of the MVLC, a

subcommittee that included Course, Carpentier, and

Rep. Pappas was created to consider the bill that had

been drafted at the request of petitioner Pappas ( Pet.

App. 67). After this meeting, notices concerning the

agenda of the January 1972 meeting of the Commis-

sion were mailed out.

The day of the January MVLC meeting, McBride

met with fellow NIRMMA member Wille and told him

that petitioner Pappas had said that the fee for pas-

sage of the ready-mix industry bill would be $50,000

in cash, to be paid only if the bill became law (Pet.

App. 67). To collect the $50,000, NIRMMA members

ultimately decided to assess each member $40 per

truck in operation (Pet. App. 68). In addition,

Lauwereins travelled from Chicago to Indianapolis on

February 29, 1972, where he addressed members of

the ID-MRCA in a hotel room. He attempted unsuc-

cessfully to convince the ID-MRCA members to con-

tribute to the $50,000 fund to obtain the weight relief

legislation (Pet. App. 68-69).

cluded businesses that would also benefit from the weight-

relief legislation (Pet. App. 64).

7

During March 1972, NIRMMA members accumu-

lated all but $3,160 of the $50,000 sought. False ex-

pense vouchers were sent by mail to NIRMMA to re-

imburse one company for the advance of the $3,160.

The checks issued by NIRMMA were in turn cashed

by the individuals who submitted the false vouchers,

and the contributor was given the proceeds (Pet. App.

69-70). After petitioner Pappas counted the money,

the $50,000 fund was deposited in a safe deposit box

in Chicago (Pet. App. 68, 70).

Shortly before the industry bill was introduced in

the state legislature in April 1972, petitioner Pappas

informed Sen. Carpentier and Rep. Pappas that the

fund was ready. Later that month, petitioner Pappas

advised Rep. Pappas that the industry would pay

when the governor signed the bill (Pet. App. 70-71).

Rep. Pappas pointed out that the legislators’ agree-

ment had been otherwise. He contacted Craig, and

the two spoke with petitioner Pappas. Craig offered a

compromise: payment would be made after the bill

passed both houses of the legislature, irrespective of

what the governor might do. A few days later, peti-

tioner Pappas informed Rep. Pappas that the indus-

try would agree to the compromise (Pet. App. 71).

In early May 1972, Carpentier spoke with ten Re-

publican senators—one of them, petitioner Jack E.

Walker, agreed to support the bill in return for “help

in his district” (Pet. App. 71). Carpentier told

Course that eleven Republican votes could be delivered

in the Senate and that Course would have to make up

the rest (Pet. App. 72). In return for an extra $500,

petitioner Walker later took over sponsorship of the

bill in the Senate (ibid.).

In June 1972, while the bill was pending in a Sen-

ate committee, defendant Herbert Craig of ID-MRCA

received an urgent call from Lauwereins. The latter

said that the bill was in danger and that petitioner

Pappas needed $500 immediately. Lauwereins said he

would prepare a false voucher to NIRMMA to reim-

burse Craig; the latter, along with Chalden, the ex-

ecutive secretary of ID-MRCA, prepared and cashed

a $500 check, and Herbert Craig delivered the money

to petitioner Pappas (Pet. App. 72).

The bill passed the Senate on June 21, 1972, and

the industry requested its members, through bulletins

mailed to them, to urge the governor to sign the bill.

At the same time, the legislators were eager to receive

their payments, but Rep. Pappas was rebuffed after

speaking with McBride, Lauwereins, and petitioner

Pappas (Pet. App. 73-74). After the governor vetoed

the bill on August 8, 1972, Course began to make in-

quiries about his “campaign contribution” (Pet. App.

74).

The industry representatives decided not to pay the

original $50,000 because their understanding of the

agreement was that payment would only be required

if the bill was signed into law. However, they de-

cided to raise an additional $30,000 to be provided by

two companies to compensate the legislators for their

services (Pet. App. 74-75). In response to further

requests for payment from Rep. Pappas, the $30,000

was raised in September 1972 and was turned over

to petitioner Pappas around the end of the month

(Pet. App. 76).

Petitioner Pappas in turn delivered $5000 in cash in

an envelope to Course; the latter divided the money

among several Democratic state senators. On Sep-

tember 25, 1972, petitioner Pappas met by pre

arrangement with Rep. Pappas, Carpentier, and pe-

tioner Frank P. North; an envelope containing

$10,000 in cash was given to Rep. Pappas (Pet. App.

77). The latter gave $1,000 to North and $5,000 to

Carpentier (Pet. App. 78). A few days later Car-

pentier mailed $500 to petitioner Walker and $100

each to eight other state senators ‘Pet. App. 78-79).

After deciding against a veto override attempt on

the advice of Course and Rep. Pappas, the industry

representatives removed the $50,000 fund from the

safety deposit box and redistributed it to the con-

tributors (Pet. App. 79).

Carpentier was subpoenaed to appear on May 29,

1973, before the grand jury that eventually returned

the indictment in this case. Petitioner Pappas advised

him to deny everything, which he did (Pet. App. 79).

Two months later, Craig, Rep. Pappas and petitioner

Pappas met. Petitioner Pappas informed the others

that he had been visited by two federal prosecutors

about the cement bill legislation. Petitioner Pappas

offered to concoct a story for the grand jury if Craig

and Rep. Pappas would each give him $5,000. Peti-

tioner Pappas also made a similar offer to Carpentier,

but neither Carpentier nor Rep. Pappas gave him the

money (Pet. App. 79-80).

10

ARGUMENT

1. Petitioners first contend that as state legislators

they were entitled to the benefit of a federal common-

law “legislative privilege,” which, they claim, bars in-

quiry into their legislative activities and requires dis-

missal of an indictment involving such acts.* This

claim is also raised in the companion case of Markert

v. United States, No. 77-1504. However, despite dicta

to the contrary in In re Grand Jury Proceedings, 563

F.2d 577 (C.A. 3), there is no common law privilege

that immunizes the acts of state legislators or that

bars the receipt of evidence bearing on such acts in a

criminal prosecution in federal court. The same argu-

ments in support of a legislative privilege claim were

recently raised in DiCarlo v. United States, No. 77-

990, and this Court denied certiorari on March 20,

1978. We rely on the analysis contained in our brief

in opposition in DiCarlo, as well as the analysis in

our brief in opposition in Markert v. United States,

No. 76-179, certiorari denied, 429 U.S. 999. Copies

* All petitioners have joined in this argument by adoption,

either specifically (Pet. No. 77-1500, p. 19; Pet. No. 77-1501,

p. 8; Pet. No. 77-1502, p. 16) or by general adoption of the

other petitioners’ arguments (Pet. No. 77-1499, p. 2).

We note that petitioner Pappas has no standing to raise this

claim. Although admitting that he was not a legislator, he con-

tends (id. at 8) that he drafted the bill in question as an “aide”

to legislators. However, his soliciting of money from industry

representatives and his other acts in furtherance of the scheme

were not, by any conceivable interpretation, acts performed as

a part of or incidental to the role of a legislator. See United

States v. Brewster, 408 U.S. 501, 52°.

11

of our briefs in opposition in those cases are being

forwarded to counsel for petitioners herein.

2. Petitioners contend (Pet. No. 77-1500, pp. 11-

12; Pet. No. 77-1501, pp. 9-12; Pet. No. 77-1502, pp.

17-18) that the instant prosecution represents federal

overreaching under the mail fraud statute, 18 U.S.C.

1341, and the Travel Act, 18 U.S.C. 1952. They rely

chiefly upon the dissenting opinion of Judge Swygert,

who thought that the mailings were not sufficiently

central to the bribery scheme and the interstate travel

not so significant as to warrant federal intervention

(Pet. App. 127-143). The majority below, in a thor-

ougi opinion, found that the mailings and interstate

travel were sufficiently related to the scheme to justify

application of the two statutes to petitioners. This

essentially factual determination by the court of ap-

peals does not merit further review. See Berenyi v.

Immigration Director, 385 U.S. 630, 636. It is, more-

over, amply supported by the record.

a. It is true, as petitioners note, that the mailings

ust be for the purpose of executing the scheme.

'"y tod States v. Maze, 414 U.S. 395, 399-400; Kann

\. ‘ nited States, 323 U.S. 88, 94. However, it is not

necessary that the scheme specifically contemplate the

use of the mails; it is sufficient if the mailings were

incident to an essential part of the scheme. Pereira

v. United States, 347 U.S. 1, 8; United States v.

Buchanan, 544 F. 2d 1322, 1325 (C.A. 5), certio-

rari denied, 432 U.S. 907; United States v. Perkal,

530 F.2d 604, 607 (C.A. 4), certiorari denied, 429

U.S. 821; United States v. Street, 529 F.2d 226, 228

(C.A. 6).

12

Petitioners’ scheme here had the ultimate purpose

of securing, through bribery, passage in the Illinois

legislature of a weight relief bill for ready-mix indus-

try cement trucks. The core of the plan was the col-

lection of bribery funds from a host of member firms

and the dissemination of such funds to an almost

equally numerous group of corrupt legislators. The

mailings made in furtherance of the plan fall into

three groups: those between co-conspirators concern-

ing the passage of the cement bill; those that facili-

tated the gathering of the bribe funds; and those that

resulted in a distribution of the funds to state leg-

islators.

The first group includes the mailings in counts 2-5

(notices of MVLC meetings and agenda) and 10-11

(bulletins to industry representatives to urge the gov-

ernor to sign the bill) (Pet. App. 96-98, 101). The

MVLC mailings “served to inform the recipients of

the status of their sought-after proposal in the MVLC

so that the steps necessary to secure its passage could

be taken” (Pet. App. 99). These mailings thus fur-

thered and promoted the scheme. The bulletins in-

volved in counts 10 and 11 sought to achieve the ulti-

mate purpose of the scheme, 7.e., the signing into law

of the cement bill, and thus were also in furtherance

of the scheme, as the court below held (Pet. App.

101-102).

The second group of mailings, those concerning the

gathering of the bribe funds, involve counts 6 and 7

(dues abatement letters mailed to NIRMMA mem-

bers) and counts 8 and 9 (fraudulent expense vouch-

13

ers mailed to NIRMMA to reimburse one of the con-

tributors to the bribe fund) (Pet. App. 96, 99-100).

The fund was collected by assessing each NIRMMA

member $40 per each truck which he operated. As pe-

tioner Craig conceded below (Pet. App. 99-100), the

purpose of spreading the assessment among all the

members and remitting dues through the letters in

question was to “soften the blow’—and therefore to

make more likely the prospect of collecting all of the

money needed for the bribery fund. Hence, the broad-

based collection was an essential element of the scheme

which simply could not have been effective without the

low cost and relative speed provided by using the

mails. The court helow therefore properly concluded

that the mailings involved in these counts were both

foreseeable and essential to consummate the scheme

(Pet. App. 100).

The final mailing, that of $500 to petitioner Walker

from Sen. Carpentier (count 12), was a distribution

of a portion of the bribery fund in consummation of

the bribery scheme. As such, it was clearly incident

to an essential element of the scheme, i.e., the bribery

of state legislators, and was reasonably foreseeable.

United States v. Maze, supra, 414 U.S. at 400-401;

Pereira v. United States, supra; United States v.

Barrett, 505 F.2d 1091, 1104 n. 11 (C.A. 7).°

* We would also point out that, because concurrent sentences

were imposed in this case, it is unnecessary to review the

adequacy of the evidence under each separate count of the in-

dictment. See, e.g., Barnes Vv. United States, 412 U.S. 837, 848

n. 16.

14

b. There is no merit in the argument of petitioners

Craig (Pet. No. 77-1502, pp. 17-18) and Pappas

(Pet. No. 77-1501, pp. 10-12) that the degree of in-

terstate travel underlying their convictions on counts

13 and 14 was insufficient to warrant conviction un-

der the Travel Act, 18 U.S.C. 1952.

The gravamen of these counts was co-conspirator

Lauwereins’ travel to Indianapolis, Indiana, in Febru-

ary 1972 to attempt to enlist ID-MRCA’s aid in con-

tributing to the bribe fund. Given the magnitude of

the benefit petitioners and those paying the bribes

hoped to achieve by procuring passage of the bill and

the concomitant need to raise funds from all of those

who stood to gain by it, the court below correctly held

that travel for this purpose was more than “minimal”

or “incidental” and thus sufficient to warrant applica-

tion of the Travel Act (Pet. App. 111-112). Indeed,

the trip was viewed by the conspirators as an “im-

portant” episode in the fund raising campaign. /bid.

This distinguishes the present case from United States

v. Isaacs, 493 F.2d 1124, 1146 (C.A. 7), certiorari de-

nied, 417 U.S. 976, on which petitioners rely, since in

Isaacs a check drawn on an Illinois bank account to

distribute bribery proceeds fortuitously happened to

clear through an out-of-state bank. Here, the inter-

state travel was both planned and undertaken to

achieve an essential step in the fraudulent scheme.”

* Again, it is not necessary to reach the validity of the con-

victions on these counts because of the concurrent sentences

15

3. Petitioner Walker also contends (Pet. No. 77-

* 1500, pp. 12-14) that specific agreement and intent to

use the mails is an essential element of the offense

of conspiracy to commit mail fraud.’ The court of

appeals, in a thorough analysis upon which we rely

(Pet. App. 103-106), held that since the substantive

offense does not require an intent to use the mails,

conspiracy to commit the offense could not require a

greater mental state than the underlying substantive

offense. The court noted that petitioners were argu-

ing in effect that they had to have knowledge of the

federal jurisdictional basis of their offense, an argu-

ment laid to rest by United States v. Feola, 420 U.S.

671, 694. Since guilt of the substantive offense of

mail fraud does not require an intent to use the mails,

but may be established by proof that the scheme to

defraud caused a use of the mails (Pereira v. United

States, supra, 347 U.S. at 8-9), the decision below is

correct in this regard and does not merit further

review.

4. Petitioners Craig, Pappas, and Walker raise

several arguments with respect to certain recordings

of their conversations introduced into evidence at

that were imposed. Barnes v. United States, 412 U.S. 837,

848, n. 16.

’ The district court’s charge emphasized that the government

must prove beyond a reasonable doubt “that the defendant,

with knowledge of the purpose of the conspiracy, and reason-

ably foreseeing a use of the mails in furtherance thereof, will-

fully became a member of the conspiracy * * *” (Pet. App.

103). This charge was based firmly on Periera v. United

States, supra, 347 U.S. at 8-9.

16

trial." Craig and Pappas were overheard in face-to-

face conversations with Rep. Pappas, and Walker was

recorded in telephone calls with Carpentier (Pet. App.

81, 85-87, 89). Their claims are meritless and do not

warrant further review.

a. Pappas and Craig first contend (Pet. No. 77-

1501, pp. 27-33; Pet. No. 77-1502, pp. 18-20) that

Rep. Pappas did not consent to the recording of his

conversations, so that the “color of law” exception of

18 U.S.C. 2511(2)(c) for consensual interceptions

was improperly invoked.” The court of appeals held, in

an opinion on which we rely (Pet. App. 85-89), that

Rep. Pappas agreed to cooperate with the government

prior to recording any conversations with petitioners.

The court below correctly noted that although a for-

mal plea agreement was not signed until after two of

the conversations had been recorded, Rep. Pappas was

clearly cooperating with the government at the time

of the recordings, and that “every aspect of the re-

cording of the conversations * * * was supervised by

the government” (Pet. App. 86-87). Indeed, a gov-

® Petitioner North was not overheard in any conversations,

and no such recording was directed against him (Pet. App.

94). He therefore is not an “aggrieved person” within the

meaning of Title III and lacks standing to challenge the

validity of the recordings. See 18 U.S.C. 2518(10) (a) and

2510(11); see also Alderman Vv. United States, 394 U.S. 165,

171-173.

* Petitioner Walker concedes that Carpentier consented to

the recording of his conversations; he does not here pursue the

claim raised below that Carpentier’s consent was legally in-

valid. See Pet. App. 82, n. 13.

17

ernment agent set up the recording equipment for

Rep. Pappas, operated the equipment, and took cus-

tody of the equipment and the tapes thereafter (ibid.).

See United States v. Hall, 536 F.2d 313, 317, 327

(C.A. 10), certiorari denied, 429 U.S. 919; United

States v. Ransom, 515 F.2d 885, 890 (C.A. 5), cer-

tiorari denied, 424 U.S. 944; United States v. Armo-

cida, 515 F.2d 49, 52 (C.A. 3), certiorari denied, 423

U.S. 858." This factual resolution by the courts be-

low does not require further review. Berenyi v. Im-

migration Director, supra.

b. Petitioners Craig and Pappas also contend ( Pet.

No. 77-1502, pp. 19-20; Pet. No. 77-1501, p. 4) that

18 U.S.C. 2511(2) (c), which removes criminal penal-

ties for those who intercept conversations under

“color of law,” does not authorize the use at trial of

the fruits of such an interception. Petitioners’ argu-

ment appears to be that Section 2511(1)(b), which

prohibits the use of a recording device to intercept an

” United States v. Bynum, 360 F. Supp. 400, 408-409 (S.D.

N.Y.), affirmed, 485 F.2d 490 (C.A. 2), vacated on other

grounds, 417 U.S. 903, appeal after remand, 513 F.2d 533,

certiorari denied, 423 U.S. 952; and Smith v. Wunker, 356

F. Supp. 44, 46 (S.D. Ohio), are not to the contrary. Rather,

they hold that the mere recording of a conversation by a party

to it, for later revelation to the government, is not even an

“interception” within the meaning of Title III. Since the re-

cording by Rep. Pappas here also was for later revelation to

the government, it is difficult to understand how the storing of

his recordings could invalidate the procedure. See also 18

U.S.C. 2511(2) (d), authorizing a person, not acting under

color of law, to intercept communications to which he is a

party where he has no purpose to commit a criminal or tortious

act.

18

oral conversation, also bars evidentiary use of the

recording of a lawfully intercepted conversation. The

plain language of Section 2511(1)(b) shows, how-

ever, that it is concerned with the unauthorized in-

vasion of privacy rights; it has nothing to do with

evidentiary use of legitimately intercepted conversa-

tions. Use at trial of the fruits of an interception is

instead governed by 18 U.S.C. 2517(3), which re-

quires a threshold determination that the interception

was authorized under Title III. See United States v.

Armocida, supra, 515 F.2d at 52 (“18 U.S.C. §§ 2511

(2)(c) and 2517(3), taken together, specifically au-

thorize the admission into evidence of warrantless re-

cordings [where one of the parties has consented]’’) :

see also United States v. Harvey, 540 F.2d 1345,

1352-1353 (C.A. 8); United States v. Marion, 535

F.2d 697, 707 (C.A. 2); United States v. Clegg, 509

F.2d 605, 612-613 (C.A. 5).

ce. Next, petitioners contend (Pet. No. 77-1501,

pp. 15-23) that the recordings should not have been

admitted because of purported failures to demonstrate

the chain of custody of the tapes and to seal them

promptly. The court of appeals held that notwith-

standing a lack of proof at trial of strict chain of

custody, the purpose of the rule—to show that the

item is in the same condition as it was when received

by the proponent—-was satisfied by reliable proof.

Representative Pappas, who participated in the con-

versations, testified that the tapes accurately reflected

such conversations, and an expert witness, Prof.

Weiss, testified that in his opinion the tapes had not

19

been altered (Pet. App. 90-91). Under these circum-

stances, the court below properly held that the dis-

trict court had not abused its discretion in accepting

the government’s foundation for the admission of the

evidence. United States v. Nace, 561 F.2d 763, 771

(C.A. 9); United States v. Biggins, 551 F.2d 64, 66-67

(C.A. 5); United States v. Cosby, 500 F.2d 405, 406

(C.A. 9); United States v. Avila, 443 F.2d 792, 795-

796 (C.A. 5), certiorari denied, 404 U.S. 944; Rule

901, Fed. R. Evid.

Nor was there any error in the failure to present

the tapes to the district court for sealing. We rely

on the reasoning of the court below that Congress

exemj ted consensual interceptions from the require-

ments of Title III, including the sealing requirement

of 18 U.S.C. 2518(8)(a) (Pet. App. 93).

d. Petitioners also contend (Pet. No. 77-1501, pp.

23-27) that their Fourth Amendment rights were vio-

lated by the consensual recordings here. As the court

below concluded (Pet. App. 81-82), petitioners have

no legitimate Fourth Amendment interest here, ‘for

that Amendment affords no protection to ‘a wrong-

doer’s misplaced belief that a person to whom he vol-

untarily confides his wrongdoing will not reveal it’”’

(Pet. App. 82, quoting from Hoffa v. United States,

385 U.S. 293, 302). See also United States v. White,

401 U.S. 745, 749; United States v. Jones, 545 F.2d

1112, 1114 (C.A. 8), certiorari denied, 429 U.S. 1075;

United States v. Hodge, 539 F.2d 898, 905 (C.A. 6),

certiorari denied, 429 U.S. 1091; United States v.

Bastone, 526 F.2d 971, 978 (C.A. 7), certiorari de-

nied, 425 U.S. 973.

e. Next, petitioners Walker (Pet. No. 77-1500, pp.

17-18) and Pappas (Pet. No. 77-1501, pp. 43-45)

contend that the rule of Massiah v. United States, 377

U.S. 201, excluding evidence of post-indictment inter-

rogations of a defendant in the absence of counsel,

should be extended to pre-indictment and pre-arrest

situations. They argue that at the time their conver-

sations were recorded, the government already had

enough evidence to return an indictment against them,

so the delay was purely for the convenience of the gov-

ernment in order that more evidence could be elicited.

The right to counsel, however, which is the basis of

Massiah, does not attach until the institution of for-

mal criminal proceedings. Kirby v. Illinois, 406 U.S.

682. Moreover, as the court below properly held ( Pet.

App. 84), there was no evidence suggesting any delay

in this investigation of a complex, multi-party scheme

and there is no requirement that the government cease

an investigation once probable cause is obtained. See

Hoffa v. United States, supra, 385 U.S. at 309-310.

f. Petitioner Pappas also argues (Pet. No. 77-1501,

pp. 36-39) that the recordings here were not obtained

in compliance with guidelines promulgated by the At-

torney General. He raised this claim prior to trial,

but he then abandoned it, as he now concedes (id. at

38). It was not until the court below had affirmed his

conviction that he moved for further discovery and

hearings in the district court. He had his opportunity

to delve into the matter prior to trial, yet he chose not

21

not pursue it further. As the government documented

in its February 21, 1978, memorandum opposing fur-

ther hearings on this subject, petitioner had ample in-

formation before him to pursue his claim of guideline

infraction, but elected not to do so and thus waived

the claim under Rule 12(f), Fed. R. Crim. P. The

resolution of this factual question under Rule 12(f)

warrants no further review.”

5. Petitioner Walker contends (Pet. No. 77-1500,

pp. 14-17) that exculpatory materials, in the form of

interviews with nine state senators whose information

contradicted Senator Carpentier’s testimony, was im-

properly withheld from him. The record shows that

prior to trial Walker knew the identities of each of

these senators and had in fact spoken with all but one

or two of them; all had denied receiving money from

Carpentier (Pet. App. 117). Moreover, Walker was

offered the opportunity by the district court to sub-

poena the senators and have a hearing outside the

presence of the jury to elicit the information he was

seeking, but he declined that offer (ibid.). Accord-

ingly, since the witnesses were already known by

Walker, and since he also knew the substance of their

testimony, he was not prejudiced and no suppression

of favorable testimony occurred. See, e.g., United

States v. Agurs, 427 U.S. 97, 103; Stubbs v. Smith,

533 F.2d 64, 67 n. 5 (C.A. 2); United States v.

1 There is, accordingly, no occasion to hold this case pending

disposition of United States v. Caceres, No. 76-1309, certiorari

granted, June 5, 1978, where a similar argument is raised.

Akin, 464 F.2d 7, 8 (C.A. 8), certiorari denied, 409

U.S. 981.

6. Petitioner North (Pet. No. 77-1499, pp. 5-12)

urges this Court to reconsider its holding in Dunn v.

United States, 284 U.S. 390, that inconsistent verdicts

are permissible. Despite his recognition that Dunn

has been followed “by numerous federal judges in

the past 46 years” (id. at 5-6), he argues that

this Court’s subsequent decisions in Sealfon v. United

States, 332 U.S. 575, which applied the principle of

res judicata to separate prosecutions, and Ashe v.

Swenson, 397 U.S. 436, which applied the principle of

collateral estopel to subsequent trials, have undercut

the rationale for the decision in Dunn. That conten-

tion is without merit, for this Court has recently re-

affirmed the rule of Dunn in Hamling v. United

States, 418 U.S. 87, 101, and the concepts of res

judicata and collateral estoppel have no application

to the issue of inconsistent verdicts. See United States

v. Serlin, 538 F.2d 737, 746-747 (C.A. 7); United

States v. Carbone, 378 F.2d 420, 422-423 (C.A. 2),

certiorari denied, 389 U.S. 914; United States v.

Greene, 497 F.2d 1068, 1086 (C.A. 7), certiorari de-

nied, 420 U.S. 909; United States v. Zane, 495 F.2d

683, 690 (C.A. 2), certiorari denied, 419 U.S. 895.

7. Nor is there any merit to petitioner Craig’s

claim (Pet. No. 77-1502, pp. 21-22) that he was preju-

diced by reliance upon the first decision by the court

#2 North was convicted on three substantive mail fraud

counts and acquitted on eight others. In addition, he was

convicted of conspiracy to commit mail fraud.

am -

below in his companion case (528 F.2d 773), holding

that an evidentiary privilege was available to state

legislators but could be waived. The instant tria’ was

completed prior to the time that the court of appeals

held, on rehearing en banc, that there was no federal

common-law legislative privilege (537 F.2d 957).

Craig argues that, had he anticipated this holding, he

would have offered a different defense at trial. Since

references in the indictment to legislative acts were

deleted prior to trial, and since Craig was well aware

that he could be prosecuted for fraud and corruption

without an explicit showing of legislative acts (United

States v. Brewster, 408 U.S. 508), it is difficult to

understand how he could have been misled. He cer-

tainly has demonstrated no prejudice and merely spec-

ulates that he might have conducted his defense dif-

ferently. As the court below recognized, however, the

decision whether to testify in his own behalf was a

strategy decision on Craig’s part (Pet. App. 115); he

sought to gain a tactical advantage and should not

now be heard to complain because his strategy failed.

See, e.g., United States v. Marcello, 423 F.2d 993,

1004-1005 (C.A. 5), certiorari denied, 398 U.S. 959;

Bayless v. United States, 381 F.2d 67, 75 (C.A. 9).

8. Finally, petitioner Pappas urges (Pet. No. 77-

1501, pp. 39-42) this Court to exercise its supervisory

powers and reverse his conviction because co-defendant

Course’s perjury indictment was consolidated for trial

with petitioners’ indictment for the cement bill

24

scheme.” Pappas argues that introduction of evidence

on the perjury count against Course tainted the prose-

cution against the other defendants (Pet. No. 77-1501,

pp. 41-42).“ The perjury occurred during Course’s

testimony before the grand jury investigating the

fraudulent scheme involved in this litigation; the com-

monality of the two offenses made joinder permissible

as to Course. See United States v. Pacente, 503 F.2d

543, 545-546 (C.A. 7) (en banc), certiorari denied,

419 U.S. 1048; United States v. Carson, 464 F.2d 424,

436 (C.A. 2), certiorari denied, 409 U.S. 949; United

States v. Sweig, 441 F.2d 114, 118-119 (C.A. 2), cer-

tiorari denied, 403 U.S. 932. Even if the joinder were

improper as to Course, it is difficult to understand how

the co-defendants could have been prejudiced, par-

ticularly when the trial court instructed the jury that

the evidence as to Course’s alleged perjury did not

have any applicability to the other defendants (Tr.

2135-2136).

** Walker and North apparently join in this contention.

See Pet. No. 77-1499, p. 2; Pet. No. 77-1500, p. 19. Petitioners

did not raise this issue in the court of appeals, although it was

raised in pre-trial motions.

“ Course was convicted on the perjury count as well as the

mail fraud and travel act counts, but he died while the appeal

was pending below.

25

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

WILLIAM G. OTIS,

Louis M. FISCHER,

. Attorneys.

JUNE 1978.

2 © 8. SOVERnmENT Peintine Office, 1976 266960 40