Petition — Hasenstab v. United States

WILLIAM F. HASENSTAB,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

|

~~ Supreme Court, U.S

FILED

MAY 23 1978

MICHAEL RODAK, JR., CLER

FRIEDMAN, FRIEDMAN, LEVY & BOTTIGLIERI, PC

Attorneys for Petitioner

655 Madison Avenue

New York, N.Y. 10021

By: Richard D. Friedman

Dick Bailey Printers, 290 Richmond Ave.. Staten Island, N.Y. 10302

Tel.: (212) 447-5358

TABLE OF CONTENTS

Page

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Constitutional Provisions, Statutes and

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Reasons for Allowing the Writ .................... 4

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TABLE OF AUTHORITIES

Cases . Page

United States v. Staszuk, 502 F.2d 875 (7th Cir. 1974). 5

United States v. Tarnopol, 561 F.2d 466 (3rd Cir.

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STATUTES

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

WILLIAM F. HASENSTAB,

Petitioner,

~against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

William F. Hasenstab petitions for a writ of certiorari

to review a judgment of the United States Court of Ap-

peals for the Second Circuit, which affirmed a judgment

of conviction of the United States District Court for the

Southern District of New York.

OPINION BELOW

The judgment of conviction of the United States

District Court for the Southern District of New York is

unreported.

The Court of Appeals affirmed the judgment of con-

viction in an opinion (see Appendix A) dated April 24,

1978.

JURISDICTION

The judgment of the Court of Appeals was dated and

entered on April 24, 1978. Jurisdiction is conferred upon

this Court by 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the mailings and the use of interstate wire

facilities were sufficiently closely related to Petitioner’s ac-

tions to bring his conduct within the purview of 18 U.S.C.

§§1341 and 1343.

2. Whether the evidence is sufficient to support a con-

viction under 18 U.S.C. §1343.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

18 U.S.C. §1341

**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 ex-

ecuting 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 Post Office Department, or takes or

receives therefrom, any such matter or thing, or knowing-

ly 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 im-

prisoned not more than five years, or both.’’

18 U.S.C. $1343

**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 com-

munication 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.”’

= STATEMENT OF THE CASE

Petitioner, William F. Hasenstab, was indicted and

charged in three counts with mail fraud, wire fraud and

conspiracy, in violation, respectively, of Title 18, United

States Code, Sections 1341, 1343 and 371. He was con-

victed.an August 26, 1977 after a five day trial and was

sentenced on October 5, 1977 to six months imprisonment

on Count One, two years probation on Count Two, and a

fine of $7500 on Count Three.

Petitioner appealed from his conviction to the United

States Court of Appeals for the Second Circuit which af-

firmed the conviction.

The charges herein stem from Petitioner accepting

gratuities while acting in his capacity as supervisor in the

purchasing department of Pan American World Airways,

Inc. (‘Pan Am’’), from George Barney, the President of

Tabulating Stock Forms, Inc. (‘‘Tabforms’’), a vendor of

paper products. Petitioner was indicted as a result of an

expanding F.B.I. investigation after the conviction of

George Barney in an unrelated case of commercial

bribery.

REASONS FOR ALLOWING THE WRIT

1. The Mail Fraud Question

Petitioner urges this Court to find the absence of suf-

ficient nexus between the mailings and the illegality charg-

ed to bring his conduct within the purview of 18 U.S.C.

§1341.

Petitioner was convicted of defrauding Pan Am of his

honest and faithful services as its employee and over

$45,000.

It was alleged that petitioner, in his capacity as super-

visor in Pan Am’s purchasing department, was responsible

for referring certain business to Tab Forms; however, the

record is devoid of proof that Pan Am suffered financially

as a result. There was no testimony that the prices paid for

the goods purchased were, in any way, affected by the

payments to Petitioner, that had such payments not been

made, the prices to Pan Am would have been any less or

that the prices paid by Pan Am were not, in fact, the best

prices available;

Routinely, during the transaction of business between

Pan Am and Tab Forms, a business which, in and of itself,

was never alleged, nor proved, to be tainted by fraud,

ly innocent, representing the normal method of trans-

acting business in this field, and having nothing what-

soever to do with the fraud itself.

It is respectfully submitted that the essence of the

fraud herein was the acceptance of gratuities by Petitioner

and the failure to report such receipt to his employer.

Thus, the fraud did not take root until after the transac-

tion of business and after the normal and routine transmit-

tal of mailings between Pan Am and Tab Forms. Under

these facts, the mailings were not sufficiently, closely

related to the dishonesty to bring Petitioner’s conduct _

within the statute, U.S. v. Tarnopol, $61 F.2d, 466 (3d

Cir. 1977).

The United States Court of Appeals for the Second

Circuit stated in its opinion ‘‘the essence of the scheme to

defraud Pan Am was the creation of a system under which

Pan Am would buy forms and paper from (Tab Forms)

that it normally would have purchased elsewhere and that

carrying out the scheme foreseeably involved the use of the

mails . . .”” The Court of Appeals also stated, ‘‘in effect,

(Petitioner) and Barney were setting up a new business be-

tween Pan Am and (Tab Forms) with the direct purpose of

benefitting themselves to the detriment of Pan Am.”’

Finally, in this connection, the Court of Appeals stated the

mailings were ‘‘actually in furtherance of the scheme to

‘earn’ kickbacks by the betrayal of Pan Am.”’

Petitioner respectfully submits this interpretation of

the fraud by the Court of Appeals is inconsistent with the

facts. Further, the record fails to establish a nexus between

the fraud and the mailings.

The prosecution merely inferred that the payments

received by Tab Forms for the goods delivered to Pan Am

served as a source or fund for the gratuities later paid to

the Petitioner, that is but for the sales, intrinsically inno-

cent in themselves, there would be no fraud. However, the

record is absent any proof connecting these particular

aad GS . In ef-

fect, the government’s case rests on a “* or’’ type argu-

2S i innocent in

themselves, there would be no fraud.

This type of argument has been rejected by the

Seventh and Third Circuits. See U.S. v. Staszcuk, 502

F.2d 875 (7th Cir. 1974) and U.S. v. Tarnopol, 561 F.2d,

466 (3rd Cir. 1977).

2. The Wire Fraud Question

Petitioner submits the evidence of the interstate use of

wire facilities was insufficient to sustain his conviction

under 18 U.S.C. §1343. Barney testified that he spoke by

telephone from his office in New York with Sol Welger at

Pan Am’s computer facility in New Jersey several times a

week, and on one occasion, called Petitioner, Hasenstab,

in New York from New Jersey.

At the outset of this litigation, the government stated

it was unable to specify each and every transaction be-

tween Pan Am and Tab Forms to be illegal or to identify

which transactions were illegal. The government never

established that any particular transaction was illegal.

Most importantly, the record is devoid of any connection

between the interstate telephone calls and any fraudulent

transaction. Thus, the conviction for wire fraud cannot

stand.

Of course, even if the interstate use of wire facilities

were of a character similar to the use of the mails, the con-

viction on this count could not stand because of the

absence of sufficient nexus as previously set forth re-

garding the mail fraud.

This case gives the Court the opportunity to resolve a

conflict among the Circuits in the application of the

phrase ‘‘for the purpose of executing such scheme’’ in the

mail and wire fraud statutes. In addition, the case gives the

Court an opportunity to review the expansion of Federal

jurisdiction in commercial bribery cases under the guise of

violations of the mail and wire fraud statutes, 18 U.S.C.

§§1341 and 1343.

CONCLUSION

Certiorari should be granted and the judgment below

reversed.

Respectfully submitted,

FRIEDMAN FRIEDMAN LEVY &

BOTTIGLIERI, P.C.

Attorneys for Petitioner

655 Madison Avenue

New York, New York 10021

By: Richard D. Friedman

la

APPENDIX ‘‘A”’

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 613—September Term, 1977.

(Argued January 23, 1978 Decided April 24, 1978.)

Docket No. 77-1442

UNITED STATES OF AMERICA,

Appellee,

-against-

WILLIAM F. HASENSTAB,

Appellant,

Before:

HAYS and GURFEIN, Circuit Judges,

and BRYAN, District Judge.*

Appeal from judgment entered by the District Court

for the Southern District of New York (Ward, D.J.) after

a jury trial convicting appellant of mail and wire fraud.

The Court of Appeals held: (1) the evidence was suffi-

cient to establish that appellant, a purchasing supervisor

for an airline company, had used mail and wire com-

munications in furtherance of a scheme to defraud his

* Honorable Frederick vanPelt Bryan, United States District Judge for the

Southern District of New York, sitting by designation.

2a

employer by accepting bribes from the president of one of

the airline’s suppliers; and (2) the District Court did not

err in permitting the Government to elicit impeaching

evidence on direct examination of appellant’s co-

conspirator.

Affirmed.

RICHARD FRIEDMAN, New York, N.Y. (Fried-

man, Friedman, Levy & Bottiglieri, P.C., New York,

N.Y., of counsel), for Appellant.

T. BARRY KINGHAM, Assistant United States At-

torney, Southern District of New York (Robert B. Fiske,

Jr., United States Attorney, and Robert J. Jossen, Assis-

tant United States Attorney, Southern District of New

York, of counsel), for Appellee.

GURFEIN, Circuit Judge:

William Hasenstab appeals from a judgment of con-

viction entered in the United States District Court for the

Southern District of New York on October 6, 1977, follow-

ing a five-day jury trial before the Honorable Robert J.

Ward, United States District Judge.

An indictment, filed on July 5, 1977, charsed the

defendant Hasenstab in three counts with mail fraud, wire

fraud and conspiracy, in violation, respectively, of Title

18, United States Code, Sections 1341, 1343 and 371. The

jury returnec » verdict of guilty on all counts.’

The Government’s proof at trial demonstrated that

from 1968 through 1976 William Hasenstab, a purchasing

supevisor for Pan American World Airways, Inc. (‘‘Pan

1. On October 5, 1977 the District Court imposed a sentence of six months

imprisonment on Count One, two years probation on Count Two, and a fine

of $7500 on Count Three.

3a

American’’), received about $50,000 in secret cash

kickbacks from his co-conspirator George Barney, who

testified for the Government. Barney, the president of

Tabulating Stock Forms, Inc., a company which supplied

Pan American with printed business forms, paid

Hasenstab the kickbacks in return for Hasenstab’s efforts

to see that Tabuiating received favored treatment from

Pan American. In furtherance of the kickback scheme,

Barney submitted bills to and received payment from Pan

American through the mail. Barney also made periodic

telephone calls between New York and Pan American’s

computer center at Rockleigh, New Jersey.

Barney met Hasenstab in 1967 when the defendant

was a buyer of business forms at Pan American. During

the next three years, Barney sold forms to Pan American

through Hasenstab and, in appreciation for the business

he received, Barney paid Hasenstab approximately fifty to

one hundred dollars, once or twice each month. Due to

labor trouble in 1970, Barney was unable to take new

orders from Pan American. When Barney resumed active

business with Pan American in 1972, Hasenstab told

Barney that he liked their payoff arrangement, expected it

to continue, but would be satisfied to receive only what

Barney thought Hasenstab’s services were worth. Barney

told Hasenstab he would pay him 5% of the total dollar

sales by Tabulating Forms to Pan American.

Between 1973 and 1976 Pan American’s purchases

from Tabulating Forms rose from $68,648 to $498,659,

annually. In return for this substantial business,

Hasenstab received something on the order of $50,000 in

cash, with payments made on a monthly basis. The

kickbacks were delivered by Barney to Hasenstab at

various places: the Pan Am Building in Manhattan,

Hasenstab’s office at JFK Airport, and the Hamilton

House restaurant in Brooklyn. Following Barney’s arrest

by the FBI in late 1976 for different offenses, two of

4a

Hasenstab’s meetings wit Barney were recorded with

Barney’s consent.’ At the first of the recorded meetings,

on December 1, 1976, Barney paid Hasenstab $1,000 in

cash at the Hamilton House in Brooklyn. Because $3,000

was due on the schedule of payments for that month,

Hasenstab expressed dismay, but recognized that it was

the first time that Barney was short. At the second record-

ed meeting on January 6, 1977, Barney said he could not

pay because he had not received payment from Pan

American on certain orders. Hasenstab again complained,

adding that Barney was getting him used to a ‘“‘life style.’’

In return for the secret kickbacks, Hasenstab also

helped Barney to fix price levels and to rig bids without

competition. This practice contrasted with the normal pur-

chase of business forms at Pan American by competitive

bidding. Usually, Walter O’Toole, the Purchasing

Manager, would refer Pan American’s requisitions for

business forms to Nicholas DiNapoli, a senior buyer.

DiNapoli would distribute the requisitions among the

buyers, including himself. The assigned buyer would

solicit price quotations and select the supplier. The com-

pleted paperwork would then be sent for approval to

Hasenstab, the Purchasing Unit Supervisor, and the order

would be made final. The business with Barney’s company

was handled differently, however. DiNapoli testified that

for about 60% of orders placed with Barney’s firm,

Hasenstab himself informed DiNapoli what prices and

which ‘‘competitors’’ to enter on the bid quotation sheets,

with Barney’s price invariably appearing as the lowest.

DiNapoli did not know whether Hasenstab actually ob-

tained quotations, but he followed Hasenstab’s orders,

assuming that Hasenstab, an experienced printed forms

specialist, knew what he was doing. Moreover, as a

2. Tape recordings of the meetings were introduced in evidence and played

for the jury.

5a

**management’’ employee, Hasenstab was not permitted

to fill out the bid sheets for orders. All such ‘productivity

work’’ had to be done by union employees like DiNapoli.

Hasenstab was thus able to make it appear as if it was

DiNapoli who had actually obtained the bid quotations.

In addition to routine orders, Pan American also had

several long-term contracts with suppliers of printed

forms. One of these was for the computer paper which was

used by. Pan American’s data processing facility at

Rockleigh, New Jersey. For the supply of paper in 1975,

this contract had been awarded to Moore Business Forins,

one of the nation’s largest suppliers. However, during

1975, Hasenstab arranged for Barney’s company to supply

about half the year’s remaining requirements for such

paper. That contract was awarded without any com-

petitive bids. Shortly thereafter, Barney’s company was

favored with the entire contract for the next year, 1976,

worth about $300,000, as an ‘‘extension’’ of the improper-

ly obtained 1975 contract. All of these arrangements were

made by Hasenstab at a time when he was receiving cash

payments from Barney ranging between $1,000 and $2,000

a month.

Throughout the period 1968 to 1976, Pan American

mailed payments, and Barney sent invoices, bills and con-

firmations of the rigged orders through the mail. In addi-

tion, Barney used the telephone between New York and

Rockleigh, New Jersey to expedite his business with Pan

American’s computer center, and on occasion called

Hasenstab in New York from Rockleigh in order to

facilitate the placing of orders and payment of invoices.’

3. In an effort to help Barney disguise the kickbacks, Hasenstab at first sug-

gested putting his own wife on Barney’s payroll. He also gave Barney blank

receipts from a restaurant near Hasenstab’s office so that Barney could take

false tax deductions for entertainment expenses for the money given to

Hasenstab. To cover his own part in the scheme, Hasenstab filed false conflict

of interest forms with Pan American. On those forms, Hasenstab falsely

swore that he had not received any personal benefit apart from his salary for

his work at Pan American, thus concealing from his employer the fact that he

had received thousands of dollars from Barney on a regular basis.

6a

pellant’s principal claim is that the evidence failed

to at that “ Jae mails and interstate telephones

was sufficiently connected to his scheme to defraud to sup-

port a conviction under the mail and wire fraud statutes,

18 U.S.C. §§1341, 1343 and 2.‘ He does not dispute with

any vigor that the scheme was fraudulent but says that

there was no federal crime. He contends that the only

mailings were between Pan American and Tabulating

Forms and that these were routine in nature, of the sort

that would have taken place if there had been no

fraudulent scheme whatever. He asserts that ‘‘neither the

checks . . . , the invoices, or purchase orders served any

purpose in relation to the basis of the fraud claimed to be

against Pan Am.”’ The fraud, he submits, was his accep-

tance of kickbacks without the knowledge of Pam, after

the mailings occurred.

S.C. §1341 provides in part:

" ” aalianan etenditartetncentaeempetamnene

tifice to defraud, or for obtaining money or property by means of false

or fraudulent pretenses, representations, or promises . . . for the pur-

pose 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 Post Office Department,

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 mattcr or thing, shall be fined not more than

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

. “aan a ny or intending to devise any scheme or ar-

tifice 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 com-

munication 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.’’

Under 18 U.S.C. §2, anyone who “‘abets, counsels, commands, induces or

procures’’ the commission of a federal offense, or ‘‘willfully causes’’ such an

offense to be committed is punishable as a principal.

7a

Appellant misses the point that the essence of the

scheme to defraud Pan Am was the creation of a system

under which Pan American would buy forms and paper

from Barney’s company that it would normally have pur-

chased elsewhere. Carrying out the scheme foreseeably in-

volved use of the mails in the sending of invoices by

Tabulating Forms to Pan Am, the return of payments by

mail from Pan Am, and the consequent payment of the

commercial bribe. In effect, appellant and Barney were

setting up a new business between Pan Am and Tabulating

Forms with the direct purpose of benefiting themselves to

the detriment of Pan Am.

To sustain a conviction under the mail fraud statute,

“It is enough that [the defendant] participated in the

scheme ahd that it was foreseeable that the scheme would

involve use of the mails.” United States v. Finkelstein, 526

F.2d 517 527 (2d Cir. 1975), cert. denied sub nom. Scar-

dino v. United States, 425 U.S. 960 (1976). We have since

reaffirmed that rule in United States v. Cyphers, 556 F. 2d

630, 634 (2d Cir.), cert. denied, 431 U.S. 972 (1977). In

this case, as we shall see, the mailings were, moreover, ac-

tually in furtherance of the scheme to “‘earn’”’ the

kickbacks by the betrayal of Pan Am.

Appellant relies upon United States v Tarnopol, 561

F.2d 466 (3d Cir. 1977), but that case is not in point.

There, officers and managers of recording companies kept

sales off the books and retained the cash to make illegal

payments to disc jockeys and program directors of radio

stations. The Government charged them with using mail

and wire communications to impede the functions of the

IRS and to defraud artists and publishers of their

royalties. The only mailings relied upon by the Govern-

ment were of packing slips listing the records shipped. The

essence of the scheme was the failure to record the sales on

the books. The packing slips were a routine part of ship-

8a

pingrecords and had nothing to do with increasing or

diminishing the number of records shipped. The mailings

themselves were legitimate as well as routine. They were

unrelated to the scheme to withhold some of the cash pro-

ceeds.

On the contrary, here the mailings were products of

the fraud itself. Barney’s sales to Pan Am were a direct,

not incidental, result of the scheme.

Appellant’s reliance on United States v. Maze, 414

U.S. 395 (1975) is also misplaced. There the Court held

that the defendant’s scheme to defraud a bank by using a

stolen credit card ended when he used the card to pay

motel bills. The mailings of invoices and payments bet-

ween the motels and the bank which issued the credit card

were not in furtherance of the scheme because, as the

Court observed, the purpose of mailing the invoices was to

adjust accounts between the various victims of Maze’s

frauds, and there was ‘‘no indication that the success of

his scheme depended in any way on which of his victims

ultimately bore the loss.’’ 414 U.S. at 402. Here, the ob-

taining of money to generate the kickbacks for ap-

pellant—the essence of the scheme—required the use of

the mails.°

The evidence of use of interstate telephones was also

sufficient to sustain Hasenstab’s conviction on Count

Two. Barney testified that he spoke by telephone from his

office in New York City\with Sol Welger at the Rockleigh,

New Jersey computer facility several times a week and, on

one occasion, called Hasenstab in New York from New

5. Appellant also cites United States v. Staszcuk, 502 F.2d 875 (7th Cir.

1974), modified on other grounds in banc, 517 F.2d 53, cert. denied, 423 U.S.

837 (1975). There, in connection with the bribery of an alderman to change the

zoning laws with respect to certain property, a committee of the City Council

mailed form notices for a public hearing to adjacent owners. This was the only

‘‘mailing’’ charged. The mailings were obviously not in furtherance of the

fraud, and the Seventh Circuit so held.

9a

Jersey. The purpose of each of these interstate phone calls

was to regulate and control the paper contract between

Tabulating and Pan American. Thus, the telephone was

used in furtherance of the fraud because it was necessary

for Barney to insure the continued receipt of requisitions

from the New Jersey facility under the long-term com-

puter paper contract which was ‘‘negotiated’’ by

Hasenstab. The taped luncheon conversations between

Hasenstab and Barney reveal that Hasenstab knew this,

and that he was getting payments on a percentage basis,

depending upon the amount of paper delivered under the

contract which had been obtained by fraud. Barney’s use

of the telephone facilitated that process.

Hasenstab contends further that it was plain error for

Judge Ward to allow the Government to elicit on the direct

examination of its principal witness, Barney, an admission

that he was guilty of similar commercial bribery schemes

with others. Appellant suggests that his own association

with Barney, a ‘‘bad man,”’ spilled over to him unfairly,

leading the jury to believe that he should be judged by the

company he kept.

This is an old argument. Nothing disturbs a defense

lawyer more than, when, for example, he has a record of

conviction in his file ready to use in cross-examination, the

Government uses it first. Permitting the Government to

use it first does not turn on the extent to which a party may

impeach his own witness on credibility. It is bottomed,

rather, on a different theory. If the prosecution failed to

elicit the impeaching evidence in the first instance, the jury

might improperly assume that the Government was inten-

tionally hiding it. See United States v. Rothman, 463 F.2d

488, 490 (2d Cir.), cert. denied, 409 U.S. 956 (1972);

United States v. Del Purgatorio, 411 F.2d 84, 87 (2d Cir.

1969). In any event, it is long settled that the Government

may proceed in this way, and that when no request is made

10a

for a cautionary instruction, such instruction need not be

given. Here there was no request.

We have examined with care the attack on Judge

Ward’s charge and find nothing which merits discussion.

We have examined the other claims of error and find them

insubstantial.

The conviction is affirmed.

Notes