Opposition — Ford v. United States

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PILED

No. 77-1774

In the Supreme Court of the United States

OCTOBER TERM, 1978

NICOLA FORD, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wapt H. McCree, Jr..

Solicitor General,

PHILIP B. HEYMANN,

Assistant Attorney General,

JosePH S. DAvies, JR.,

KATHERINE WINFREE,

Attorneys,

Depariment of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 77-1774

NICOLA FORD, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet. App.

A) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

May 16, 1978. The petition for a writ of certiorari was

filed on June 15, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. 12541).

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to sustain

petitioner’s convictions for mail fraud.

2. Whether the evidence showed that petitioner used

the mails to promote the unlawful activity of arson, in

violation of 18 U.S.C. 1952.

(1)

STATEMENT

After a jury trial in the United States District Court for

the Eastern District of Pennsylvania, petitioner was

convicted of five counts of mail fraud (Counts | through

5), in violation of 18 U.S.C. 1341, and one count of

interstate travel in aid of arson (Count 6), in violation

of 18 U.S.C. 1952. He was sentenced to concurrent terms

of three years’ imprisonment on counts | through 3, to be

followed by concurrent terms of three years’ probation on

Counts 4 through 6. The court of appeals affirmed (Pet.

App. A).

The evidence showed that in the spring of 1973 peti-

tioner became the principal stockholder of a corporation

that owned and operated the 1846 Colonial Inn, a bar and

hotel in Crum Lynne, Pennsylvania (1! Tr. 30-32).

(hereafter, petitioner experienced managerial and

financial difficulties with the bar (1 Tr. 39-42, 88; 2 Tr. 19-

20, 24; 3 Tr. 42. 43A-44). Accordingly, during the first

half of 1974 he separately approached three employees to

whom he offered substantial sums of money to burn down

the bar; each refused (1 Tr. 41-42, 92-94; 2 Tr. 26-29). In

late September 1974, petitioner advised a fourth employee

that he had made arrangements to have the bar burned on

October 13 for $5,000 (3 Tr. 45-46, 48-52). On October 4

and October 7 petitioner mailed to his insurance agency

requests for significant increases in insurance coverage for

the premises, and the insurance coverage was increased

effective October 4, 1974 (2 Tr. 126-139; 3 Tr. 2-3;

G. Exs. 6-8).!

On October 13, 1974, the 1846 Colonial Inn was

destroyed by a fire of incendiary origin (4 Tr. 30, 51).2 On

December 6 and 17, 1974, and February 13, 1975, a claim

'These mailings formed the basis for Counts | and 2.

?Several persons were in the building when the fire started, but

there were no serious injuries (3 Tr. 118-121, 133-137).

adjustment company acting on petitioner's behalf mailed

various documents to his insurance company in

connection with his claim of loss on the bar. Each mailing

contained. inter alia, representations by petitioner that he

believed the fire to be of undetermined origin and not the

result of any action on his part (4 Tr. 64-112).

ARGUMENT

1. Petitioner contends (Pet. 12-13) that the evidence

failed to establish a sufficient nexus between his use of the

mails and his scheme to commit arson and collect

insurance to support his convictions for mail fraud.*

The offense of mail fraud is established by proof of a

scheme to defraud and the mailing of a letter or other

matter in furtherance of the scheme. Knowing use of the

mails is shown “‘where such use can reasonably be

foreseen, even though not actually intended * * * [and

it] is not necessary that the scheme contemplate the use

of the mails as an essential element.” United States

v. Maze, 414 U.S. 395, 399-400 (quoting Pereira v.

United States, 347 U.S. 1, 8-9); United States vy. Kaplan,

554 F. 2d 958, 965 (C.A. 9), certiorari denied sub nom.

Dolwig v. United States, 434 U.S. 956. Furthermore,

mailings are in furtherance of the scheme if they are

“incident to an essential part of the scheme.” Pereira,

supra, 347 U.S. at 8.

Here the evidence clearly established that petitioner

committed mail fraud. Petitioner devised a scheme to

3Counts 3 through 5 arose out of these mailings.

*Petitioner also objects to the district court's instructions on mail

fraud (Pet. 12-13), but the grounds for his objection are not clear and

he made no objection to the instructions at trial (Pet. 8). The record

shows, in any event, that the court correctly instructed the jury about

the elements of mail fraud (8 Tr. 33-36).

4

defraud his insurance company of the proceeds of the

insurance policy covering the bar. On two occasions in

furtherance of that scheme, he mailed requests for

increases in the policy limits. After arranging for the bar

to be burned, petitioner separately caused three “proof of

loss” documents to be mailed to his insurer falsely

representing that he was not responsible for the

destruction of the bar. In short, petitioner's mailings were

not only “closely related” (Maze, supra, 414 U.S. at

399) to his scheme, but obviously were also an integral

part of it.°

2. Petitioner also challenges (Pet. 9-11) his conviction

on Count 6 under the Travel Act, 18 U.S.C. 1952. The

sentence petitioner received on the count was identical to

and concurrent with those imposed on Counts 4 and 5. As

we have shown, those convictions were valid, and

accordingly this Court need not grant review to consider

petitioner’s claims with regard to Count 6. Andresen v.

Maryland, 427 U.S. 463, 469 n. 4; Barnes v. United

States, 412 U.S. 837, 848 n. 16. In any event, his

contentions are without merit.

Count 6 charged that petitioner's mailings violated the

Travel Act. 18 U.S.C. 1952 (a) (3), because they were used

to carry on the crime of arson, in violation of the laws of

‘Kann vy. United States, 323 U.S. 88, and Parr v. United States,

363 U.S. 370, on which petitioner relies (Pet. 12-13), are

inapposite. The mailings alleged in those cases were not used

in furtherance of the fraudulent scheme. They were either mailings

that occurred after the fruition of the scheme (Aann and Parr)

or were mailings that the defendants were required by law to

make (Parr). Here the mailings occurred before the fruition of

the scheme and were not required by law.

Petitioner's hypothetical concerning mailings prior to the

formation of the scheme to detraud (Pet. 13) bears no relation to the

facts of this case or the district court's instructions.

Pennsylvania.® Petitioner alleges that the evidence was not

sufficient to establish a violation of the Travel Act

because the prosecution failed to prove that the mailings

were used to foster the crime of arson (Pet. 10). Under

Pennsylvania law, however. the crime of arson includes the

Starting of a fire “with intent of destroying or damaging

any property, whether [one’s] own or of another, to collect

insurance for such loss.” 18 C.P.S.A. § 3301(b)(3)(1973)

(Pet. 11). In the instant case, the evidence established

that petitioner mailed requests for increased insurance

coverage. intending to detraud his insurance company by

setting fire to the bar and collecting the increased pro-

ceeds for the loss. Accordingly, the mailings were used

for the purpose of “carrying on” the crime of arson, as

defined by Pennsylvania law, in violation of the Travel

Act.’

Rewis v. United States, 401 U.S. 808, and United States

v. Archer, 486 F. 2d 670 (C.A. 2), upon which petitioner

relies (Pet. 10-11). are inapposite. In Rewis the defendants

were convicted under the Travel Act for conducting a

gambling operation frequented by out-oi-state bettors.

There was no evidence that the detendants actively sought

The Travel Act makes it unlawful to travel or use any facility

(including the mails) in interstate commerce with the intent to

“promote, manage. establish, carry on, or facilitate the promotion,

management, establishment. or carrying on, of any unlawful

activity.” 18 U.S.C. 1952(a3). The definition of “unlawful

activity” includes arson. in violation of state or federal law.

18 U.S.C. 1952(b\(2).

’That Congress intended the Travel Act to prohibit the use of the

mails in connecticn with arson such as that involved here is reflected

in its legislative history. !n 1965, the crime of arson was added to the

definition of unlawful activity in subsection (b) (2) out of concern

that arson was often used by organized crime to collect under

insurance policies. See H.R. Rep. No. 264, 89th Cong., Ist Sess.

(1965); United States v. Nardello, 393 U.S. 286, 291 n. 8.

interstate patronage, or that they themselves traveled or

used facilities in interstate commerce. This Court held

that Congress did not intend to make criminal

activity a federal offense “solely because that activity ts at

times patronized by persons trom another State” (401

U.S. at 812). In Archer, the Second Circuit applied the

principles of Rewis to reverse the convictions of

defendants involved in an incident of local corruption; the

court found that interstate and foreign telephone calls

from undercover agents to the defendants were in no way

initiated by the defendants and were made by the agents

solely to create federal jurisdiction. Here, in contrast, it Is

undisputed that the use of interstate facilities (the mails)

was initiated by petitioner.*

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wapt H. McCree, JR.,

Solicitor General.

PHILIP B. HEYMANN,

Assistant Attorney General.

JosePu S. Davies, JR.,

KATHERINE WINFREE,

Attorneys.

AuGuSsT 1978.

‘Petitioner also objects to the district court's instructions on the

Travel Act (Pet. 11), but his reasons are not clear, and again, no

objection was made to the district court (Pet. 8). In this case the

mailings were evidence of the state crime of arson (which includes

burning to obtain insurance proceeds) and also evidence of the Travel

Act violation. That does not mean, centrary to petitioner's

assertion (Pet. !1), that “any state crime of arson could also

constitute a federal crime.”