# Petition — Coleman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2355%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 980 ## Text | Supreme Court, U.S. | FILED JAN 17 1979 4 i MICHAEL RODAK, JR, CLERK | IN THE Supreme Court of the United States Ocrosper TERM, 1978 vo. #871124 | NATHANIEL COLEMAN, Petitioner. VS. UNITED STATES OF AMERICA, Respondent. | | PETITION FOR WRIT OF CERTIORARI TO ) THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT CHESTER SLAUGHTER, 188 West Randolph Street, Chicago, Illinois 60601, 312/236-5277, PHILANDER S. NEVILLE, JR., 4320 Vincennes, Chicago, Illinois 60653, 312/373-5155, Attorneys for Petitioner Keenan Printing Company 312-648-0050 THE SEVENTH CIRCUIT’S DECISION VIOLATED THE THIRTEENTH AM- ENDMENT’S PROHIBITION AGAINST SLAVERY WHEN THE COURT HELD THAT CETA WORKERS’ SERVICES, WHICH WERE PAID FOR WITH FED- ERAL FUNDS, WERE PROPERTY OWNED BY THE FEDERAL GOVERN- EE SURESEE Opp 05,55 e806 ¥00 aes so 008s. 10 11 ii. V. THE SEVENTH CIRCUIT’S DECI- SION VIOLATED THE PROHIBITION AGAINST EX POST FACTO LAWS WHEN THE COURT CONSTRUED THE WORD PROPERTY IN 18 U.S.C. § 665 TO INCLUDE SERVICES AND RETRO- SPECTIVELY APPLIED ITS _ CON- STRUCTION OF SECTION 665 TO THE ALLEGED CONDUCT OF THE AC- GF: 5 ais chi coated anewest wep heheese VI. THE SEVENTH CIRCUIT SANC- TIONED SUCH A DEPARTURE BY THE LOWER COURT FROM THE ACCEPT- ED AND USUAL COURSE OF JUDI- CIAL PROCEEDINGS, AS TO CALL FOR AN EXERCISE OF THE SUPREME COURT’S POWER OF SUPERVISION .. ae i are Se NAP Rae (RL A cam el ct he Or APPENDICES: A. THE OPINION OF THE COURT OF APPEALS AFFIRMING THE DEFENDANT’S CONVIC- TION FOR THEFT OF SERVICES ........... B, THE INDIOTMEINT .cccccccsvccsccceccssveess THE COURT’S INSTRUCTION NUMBER 6 .. THE COURT’S INSTRUCTION NUMBER 7 .. THE COURT’S INSTRUCTION NUMBER 8 .. THE COURT’S INSTRUCTION NUMBER 10 . THE COURT’S INSTRUCTION NUMBER 11 . THE JURY'S NOTH ow scvcscscsccnvevcvacence THE CONTRACT BETWEEN GARY MAN- POWER AND GENERAL SERVICES ...... THE APPLICATION FOR FINANCIAL AS- BISTANGE onsccscrcvscccccvccccsvdseccccses 14 14 19 IN THE Supreme Court of the United States Ocroser Term, 1978 No. —— NATHANIEL COLEMAN, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 2 The petitioner, NATHANIEL COLEMAN, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Seventh Circuit, affirming the petitioner’s conviction under 18 U.S.C. § 665 for theft of services. OPINION BELOW The opinion of the Court of Appeals, as yet unreported, appears at Appendix A, infra, pp. 1-8. JURISDICTION The judgment of the Court of Appeals was entered on December 18, 1978. This petition for certiorari was filed less than 30 days from the beforementioned date, The jurisdiction of the Court is invoked under 28 U.S.C. Section 1254 (1). QUESTIONS PRESENTED FOR REVIEW I. WHETHER THEFT OF SERVICES IS AN OF- FENSE WITHIN THE PURVIEW OF 18 U.S.C. § 665. Il. WHETHER CONFLICTING DECISION IN THE NINTH AND SEVENTH CIRCUITS AS TO WHETHER OR NOT THEFT OF SERVICES IS AN OFFENSE WILL DESTROY CERTAINTY AND PREDICTABILITY IN THE LAW. ° II. WHETHER THE SEVENTH CIRCUIT’S DECI- SION CONFLICTS WTH SUPREME COURT DE- CISIONS WHICH PRESCRIBE CANONS OF CONSTRUCTION FOR CONSTRUING STAT- UTES. 3 IV. WHETHER THE SEVENTH CIRCUIT’S DECI- SION VIOLATED THE THIRTEENTH AMEND- MENT’S PROHIBITION AGAINST SLAVERY WHEN THE COURT HELD THAT CETA WORKERS’ SERVICES, WHICH WERE PAID FOR WITH FEDERAL FUNDS, WERE PROP- ERTY OWNED BY THE FEDERAL GOVERN- MENT. V. WHETHER THE PROHIBITION AGAINST EX POST FACTO LAWS IS VIOLATED WHEN THE COURT CONSTRUES THE WORD PROPERTY IN 18 U.S.C, § 665 TO INCLUDE SERVICES AND RETROSPECTIVELY APPLIES ITS _ CON. STRUCTION OF SECTION 665 TO THE AL- LEGED CONDUCT OF THE ACCUSED. VI. WHETHER THE DEFENDANT'S SIXTH AM- ENDMENT RIGHT TO A FAIR TRIAL IS VIO- LATED (A) WHEN INADMISSIBLE HATCH ACT EVIDENCE IS ADMITTED AT HIS TRIAL, AND (B) WHEN THE JURY IS IMPROPERLY INSTRUCTED BY THE TRIAL JUDGE. CONSTITUTIONAL PROVISIONS AND FEDERAL STATUTES INVOLVED United States Constitution, Amendment XIII: Section 1, Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. United States Constitution, Amendment VI: In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of 4 the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense. United States Constitution, Article 1, Section 9(3) : No ex post facto law shall be passed. Federal Statute, 18 U.S.C. § 665(a): Theft or embezzlement from manpower funds; (a) Whoever, being an officer, director, agent, or em- ployee of, or connected in any capacity with, any agency receiving financial assistance under the Com- prehensive Employment and Training Act of 1973 em- bezzles, willfully misapplies, steals, or obtains by fraud any of the moneys, funds, assets, or property which are the subject of a grant or contract of assistance pur- suant to this Act shall be fined not more than $10,000 or imprisoned for not more than two years, or both; but. if the amount so embezzled, misapplied, stolen, or obtained by fraud does not exceed $100, he shall be fined not more than $1,000, or imprisoned not more than one year, or both. Federal Statute, 29 U.S.C. § 990: Political Activities Prohibited The Secretary shall not provide financial assistance for any program under this Act which involves political activities; and neither the program, the funds provided therefor, nor personnel employed in the administration thereof, shall be, in any way or to any extent, engaged in the conduct of political activities in contravention of chapter 15 of title 5, United States Code [U.S.C. §§ 1501 et seq.]. Federal Statute, 42 U.S.C. § 2706(3) : (3) the term ‘‘financial assistance” includes assistance advanced by grant, agreement, or contract, but. does not include the procurement of plant or equipment, or goods or services. STATEMENT OF FACTS The government filed a two count indictment against Nathaniel Coleman on October 14, 1976. Appendix B, infra, pp. 1-2. Count I alleged that Coleman violated 18 U.S.C. §665 of the United States Code by stealing the services of CETA employees, and Count II alleged that the defendant vio- lated 18 U.S.C. § 1503 of the United States Code by attempt- ing to influence a government witness. The defendant filed a pretrial motion to dismiss Count I of the indictment be- cause section 665 did not make theft or misapplication of services of employees of the Manpower Administration an offense, and Count II because it failed to charge an offense under Section 1503. On April 11, 1977, the defendant’s mo- tion to dismiss was denied and the trial began in the cause. However, a mistrial was declared and, after the defendant filed a second motion to dismiss the indictment, the govern- ment moved to dismiss Count IT of the indictment and the motion was granted by the court. THE PROSECUTION The facts establish that the City of Gary entered into an agreement with the Department of Labor to set up a pro- gram to provide employment and training for unemployed persons who were economically disadvantaged. The City of Gary created the Gary Manpower Administration to admin- ister two programs: (1) the Adult Work Experience Pro- gram (AWE) which provided short term employment (6 months to 1 year), and (2) a Public Service Employment Program (PSE) which provided extended employment (1 to 2 years). Gary Manpower received money for adminis- trative expenses and wages for the AWE and PSE pro- grains from the Department of Labor. 6 Three AWE participants testified that they were on a special detail which cut grass, constructed a little league fence, worked around the Coroner’s office, and performed clean-up work at the Mayor’s house. The AWE participants also testified that they built a residential foundation for a house, built a block fence and a cyclone fence at two other houses, painted a gate at a third house, and dug a latrine at a fourth house. Finally, one AWE participant testified that he built a patio and painted at the defendant’s house. At the close of the government’s case, the defendant made a motion for a judgment of acquittal. The court denied the motion and took it under consideration because the court recognized that theft of services was an offense but was unsure if section 665 covered the precise conduct com- plained of in the indictment. THE DEFENSE The Superintendent of Park and Recreation for the City of Gary testified that the little league fence (the one con- structed by the AWE people) was on city property and the wire used to construct the fence was purchased with city funds. A bricklayer who worked for Coleman testified that he built the two brick fences and that he poured the residential foundation for the basement. A city employee testified that he cut grass for Coleman after work, and Coleman’s brother-in-law testified that he worked with Coleman and Coleman’s son at the Coroner’s office. The Coroner testi- - fied that the work at his office was never performed during business hours. Nathaniel Coleman testified that he was the Assistant Director of General Services in 1975 and that the Coleman Construction Company, a one man operation, was his com- pany. The witness testified that he was a part-time custo- 7 dian at the Lake County Coroner’s office, and that he had a verbal agreement to cut grass in his neighborhood with Hughes Realty. The witness testified that he built the latrine on a Saturday with two AWE participants and that he put in a footing for a customer and constructed a decorative block fence for two sisters. Coleman also testified that two AWE participants worked for him on two or three different Saturdays: they poured a driveway for the witness, one for his brother-in-law, and on another occasion, one AWE participant did some ex- terior painting at a friend’s house. The witness testified that some of the AWE participants were assigned to the cosmetic crew which cleaned vacant lots, picked up debris and cut grass on private property, parkways, and vacant lots. In addition, the clean-up crew would clean up debris and garbage when citizens, including the Mayor, requested such work. Finally, the witness testified that two of his pri- mary accusers (AWE participants) were suspended by the Director of Personnel for misconduct although the letters had his signature on them. REASONS FOR GRANTING THE WRIT I. THE SEVENTH CIRCUIT DECIDED A QUESTION OF FEDERAL LAW (THAT THEFT OF SERVICES IS AN OFFENSE WITHIN THE PURVIEW OF 18 U.S.C. § 665) WHICH SHOULD BE, BUT HAS NOT BEEN DECIDED BY THE SUPREME COURT. In United States v. Coleman, the Seventh Circuit decided that theft of services is an offense within the purview of 18 U.S.C. § 665. Section 665 was promulgated as part of the ‘‘Comprehensive Employment and Training Act (CETA) of 1973’’ which became effective on December 29, 1973. 29 U.S.C. § 801. And section 665 is a part of the embezzlement and theft statutes in chapter 31, title 18 of the United States Code and has been in existence for five years, yet the Sev- enth Circuit was the first Court of Appeals to construe the statute. The Seventh Circuit held that theft of services was an offense within the purview of 18 U.S.C. § 665, despite the fact that the preamble for section 665 provides that the prescription applies to ‘“‘theft of manpower funds,’’ and despite the fact that services is not delineated in the pre- scription. See 18 U.S.C. § 665. Section 665 is violated when the accused embezzles, willfully misapplies, steals or ob- tains by fraud ‘‘money’’, ‘‘funds’’, ‘‘assets’’, or ‘*prop- - erty’’, which is the subject of the grant or contract of as- sistance. See 18 U.S.C. § 665. Finally. section 665 was not violated in the instant ease because theft of services was not an offense delineated in the prescription. Congress promulgated the Com- prehensive Employment Training Act (29 U.S.C. § 801), 9 and authorized the Secretary of Labor (hereinafter Secre- tary) to make financial assistance available to prime spon- sors (e.g. City of Gary) to carry out the CETA programs. 29 U.S.C. § 812 (a) (2). Then in 1975, Congress authorized that two and one half billion dollars ($2,500,000) would be appropriated to fund the programs and the Secretary was authorized to enter into arrangements with eligible appli- cants to make assistance available for the purpose of pro- viding transitional employment for unemployed persons in jobs providing public service. 29 U.S.C. § 962. Congress clearly appropriated money for the CETA programs and not people or services. It is also clear that the application for financial assistance submitted by Gary Manpower to the Department of Labor made a request for money but made no request for people or services, Appendix B, Infra, p. 9. Therefore, the subject of the grant or contract of assistance would be the money appropriated by Congress and applied for by Gary Manpower, rather than the CETA employees or their services which were not appropriated by Congress or requested in the application for financial assistance. Moreover, 42 U.S.C. § 2706 (3) (Supp. X, 1976)! defines financial assistance and provides that financial assistance includes assistance advanced by grant, agreement, or con- tract, but does not include the procurement of plant or equipment or goods or services. Therefore, according to 42 U.S.C. § 2706 (3) (Supp. X, 1976) the money applied for by Gary Manpower and not services procured with appro- 1. The definition for financial assistance in 42 U.S.C. § 2706 (3) was used in conjunction with the “Manpower Pro- gram’’ in the Economie Opportunity Act which was re- placed with the “Manpower Program”’ in the Comprehen- sive Employment Training Act of 1973. H.R. No. 659, 93d Cong. 2d Sess. 2936 (1973). 10 priated money, would be covered, if stolen, by 18 U.S.C. § 665. Consequently, in light of the proceeding, theft of serv- ices is not an offense, within the purview of 18 U.S.C. § 665 and ihe services of the CETA employees, which were paid for with federal money, would not be money, funds, assets or property which is the subject of the grant or contract of assistance. Therefore, the Supreme Court should review this case since it is the only decision construing 18 U.S.C. § 665, and since theft of services is not an offense within the purview of the prescription, See 18 U.S.C. § 665. Il. THE SEVENTH CIRCUIT HAS RENDERED A DECI- SION WHICH CONFLICTS WITH A NINTH CIRCUIT DECISION. In United States v. Coleman, the Seventh Circuit held that theft of services was an offense within the purview 18 U.S.C. § 665 of the United States Code. While in Chappell v. United States, 270 F. 2d (9th Cir. 1959), the Ninth Cireuit held that theft of services was not an offense within the purview of 18 U.S.C. § 641 of the United States Code. Although the Courts in Coleman and Chappell were construing different statutes, both statutes are in chapter 31 of title 18, the em- bezzlement and theft statutes in the United States Code, and both statutes were promulgated to prohibit the theft of public money or property. See 18 U.S.C. §§ 641, 665. There- fore, because of the disagreement in the Ninth and Seventh * Cireuits as to whether or not theft of services is an offense within the purview of the embezzlement and theft statutes in chapter 31, and because the conflicting decisions have de- stroyed certainty and predictability in this area of the law, the Supreme Court should issue a Writ of Certiorari and resolve this conflict in the circuits. 11 IIl. THE SEVENTH CIRCUIT’S DECISION CONFLICTS WITH SUPREME COURT DECISIONS. The Supreme Court has on several occasions enunciated a variety of canons of construction to be used in interpret- ing federal criminal statutes. The opinion rendered in the case at bar by the Seventh Circuit ignored every applicable canon and reached a result inconsistent with these canons. In Coleman, the Seventh Cireuit construed a statute which made it a crime to wrongfully obtain any ‘‘money, funds, assets, or property’’. See 18 U.S.C. § 665(a). When con- struing this portion of the statute, the Court held that ‘recognizing that the term property is protean, capable of assuming varied meanings depending on context, and that the criminal law does not of necessity adopt the most re- strictive meaning as the ‘literal terms’, there is no reason to suppose that Congress intended to withhold protection from services purchased while extending protection to tangible property purchased”, Appendix A, infra, p. 6-7. In reaching this conclusion, the Seventh Circuit ignored several very im- portant canons of construction which this court has stated should be used in construing federal statutes. The Seventh Circuit’s opinion ignored the canon that a criminal defend- ant is entitled to a reasonably strict construction of the law he is accused of violating. See United States v. Fruit Express Company, 279 U.S. 363, 369. This construction also ignored the canon that the federal judiciary is not to create crimes or enlarge the reach of criminal statutes by construing them from anything less than the incriminating components con- templated by the words used in the statute. See Morissette v. United States, 263 U.S, 246, 263. Additionally, according to the principles of ejusdem generis, where a general word fol- lows a series of more specific words in a statute, the general 12 word’s meaning is limited by the more specific words. United States v. Powell, 423 U.S. 87, 91. If these canons are applied to the case at bar, it becomes apparent that a court applying these canons would give the word ‘‘property’’ a different construction than the one given it by the Seventh Circuit. Clearly, the Seventh Circuit gave a very broad construc- tion to the word ‘‘property.’’ The Congressional Record in no way indicates that Congress intended to use the word in this manner. H.R. No. 659 98d Cong. 2d Sess. 2959. Moreover, the words ‘‘money’’, “funds’’, and ‘‘assets”, when used in conjunction with the word ‘‘property,’’ indi- cate that Congress had in mind tangible things rather than intangibles. Therefore, when the word ‘‘property’’ is viewed in the context of these more specific words, a court should limit the meaning of the word property to tangible things. Finally, the preceding clearly establishes that the Seventh Circuit has deviated from the Supreme Court’s canons of construction by broadly construing 18 U.S.C. § 665 and has created a crime by construing the word property to include services when theft of services is not an offense delineated in the statute. IV. THE SEVENTH CIRCUIT’S DECISION VIOLATED THE THIRTEENTH AMENDMENT’S PROHIBITION AGAINST SLAVERY WHEN THE COURT HELD THAT CETA WORKER'S SERVICES, WHICH WERE PAID FOR WITH FEDERAL FUNDS, WERE PROP. ERTY OWNED BY THE FEDERAL GOVERNMENT. In this theft of services prosecution the United States goevrnment had to prove it owned (52 A O.J.S. §1 (1) (1955)), had title to or possession of the property, the CETA workers services, which was allegedly stolen by the defendant. See United States v. Farrell, 418 F. Supp. 308, 13 (M.D. Pa. 1976). It is axiomatic that the United States (U.S.) can have title to real property (e.g. land) or per- sonal property (e.g. automobiles) because these are chat- tels or things. See Black’s Law Dictionary 1649 (4 rev. ed. 1968). But, the U.S. can not own or acquire title to or possession of people, including CETA workers, because peo- ple have not been chattels or things since the Thirteenth Amendment abolished slavery. Slavery exists whenever the law recognizes a right of property in a human being. Robert- son Vv. Baldwin, 165 U.S. 275, 292. In Coleman, the Seventh Cireuit recognized a right of property in human beings by holding ‘‘(a) right to benefit of services for which one pays is a property right. Appendix A, infra, p. 7. Therefore, according to the Seventh Circuit, the U.S. government ac- quired a property right in CETA workers’ services by pro- viding the funds which paid their wages. If certiorari is denied, the Seventh Cireuit’s decision will set a dangerous precedent because the U.S. will acquire a ‘‘ property right” in all the people (e.g. welfare recipients) it subsidizes throughout the United States. Of course, the Seventh Cir- cuit’s holding is erroneous because the U.S. and no one else acquires a property right, because of the Thirteenth Amendment, in CETA workers or their services by paying their wages. A careful analysis of the Seventh Circuit’s opinion reveals that the Court had to hold there was a property right in order to assist the U.S. in proving owner- ship, a material clement of the offense of theft. However, because the U.S. does not own, have title to or possession of the CETA workers or their services (it is impossible to separate a worker from his labor, his services), there is no federal property (See Patmore v. United States, 1 F. 2d 8, 10 (6th Cir. 1924)) and therefore, no violation of 18 U.S.C. § 665. See United States v. Farrell, 418 F. Supp. 308, 311 (M.D. Pa. 1976). 14 V THE SEVENTH CIRCUIT'S DECISION VIOLATED THE PROHIBITION AGAINST EX POST FACTO LAWS WHEN THE COURT CONSTRUED THE WORD PROP.- ERTY IN 18 U.S.C. § 665 TO INCLUDE SERVICES AND RETROSPECTIVELY APPLIED ITS CON- STRUCTION OF SECTION 665 TO THE ALLEGED CONDUCT OF THE ACCUSED. The United States Constitution provides that ‘‘No... ex post facto law shall be passed.’’ U.S. Const. Art. I § 9(3). While section 665 was passed prior to the alleged conduct complained about in the indictment, theft of services did not become an offense, it was not delineated in the prescrip- tion, until the Court of Appeals construed the statute to include the offense. By construing the statute to include theft of services, the Court of Appeals made an action, done before its construction, criminal. Therefore, the pro- hibition against ex post facto laws was violated when the court restrospectively applied its construction of the stat- ute to the conduct of the defendant which was complained about in the indictment. VI. THE SEVENTH CIRCUIT SANCTIONED SUCH A DEPARTURE BY THE LOWER COURT FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR AN EXERCISE OF THE SUPREME COURT’S POWER OF SUPERVISION. The Sixth Amendment to the United States Constitution guarantees an accused person a fair trial. In order to ef- fectuate this amendment, Congress promulgated the Fed- eral Rues of Evidence and the Federal Rules of Criminal Procedure. These rules prescribe the evidence which is ad- missible and the procedure which is to be followed during a trial. The defendant maintains that the Seventh Circuit 15 sanctioned a departure from the rules and from the ac- cepted and usual course of judicial proceedings by approv- ing the introduction of inadmissible Hatch Act evidence and by approving the erroneous instructions given by the judge over the objections of the defendant. A The Defendant’s Sixth Amendment Right To A Fair Trial Was Violated When Inadmissible Hatch Act Evidence Was Admitted At The Trial. The trial court permitted a Department of Labor Repre- sentative, who was not qualified as an expert, to express an opinion about the Hatch Act and political conduct pro- scribed by the Hatch Act, and the Seventh Circuit approved this testimony in its opinion. Appendix A, infra, p. 7. The representative’s testimony was not relevant because section 665 does not prohibit political activities (See 18 U.S.C. § 665), and because the defendant was not charged in the indictment with violating the Hatch Act. Moreover, the Hatch Act specifically excludes the defendant from the purview of the prohibition because the defendant was a City employee paid with City funds and not with loans or grants paid by the United States or a federal agency. See 15 U.S.C. § 1501(4) (a). While the Court of Appeals is cor- rect that 29 U.S.C. $990 incorporates the Hateh Act prohi- bitions and prohibits all forms of political activities by agencies and personnel which get CETA funds, the Court apparently overlooked 1) the fact that 15 U.S.C. § 1501(4) (a) specifically excludes the defendant from the purview of the Hatch Act, and 2) the fact that General Services, the defendant’s agency, received no CETA funds. Appendix B, infra, p. 8. Therefore, the evidence couldn’t be used to show the commission of another offense because Coleman, the Assistant Director of General Services, was not subject to the Hatch Act. 16 The labor representative also testified about political etivity which is proscribed by the Hatch Act. By permit- t..g¢ this testimony, the court permitted the witness to in- vade its province by instructing the jury on the law. See United States v. McCullough, 427 F. Supp. 246 (D.C. Pa. 1977). In McCullough, the court was presented with a simi- lar problem, and the court held that only the court can instruct the jury on the law and that a witness invades the court’s province when he expresses an opinion on issues of law which are exclusively in the court’s domain. The trial court also permitted two other witnesses to testify about the defendant’s political activities (poltical sign making). However, the evidence should have been ex- cluded since it related to another crime, since there was no Hatch Act violation charged in the indictment and since defendant was not subject to the Hatch Act. The Court of Appeals also approved, sub silencio, the cross examination of the defendant about his political acti- vities. The trial court should have excluded this evidence because the cross examination of the accused exceeded the scope of direct examination and the accused was not charged with violating the Hatch Act in the indictment nor was he subject to it. Therefore, all the political evidence was inadmissible in a theft of services prosecution under 18 U.S.C. § 665. In conclusion, the Supreme Court will assist the lower courts in nullifying First Amendment Rights (the right to engage in political activities) if political evidence is ad- "mitted at trial when the defendant is neither charged with nor subject to the Hatch Act. 17 The Defendant’s Sixth Amendment Right To A Fair Trial Was Violated When The Jury Was Improperly Instructed By The Trial Judge. The Court of Appeals also approved the trial court’s in- structions in this case by holding that the defendant’s failure to tender specific instructions defining the words ‘‘wilfully misapplies’’, ‘‘steals’’ or ‘‘obtains by fraud”’ constituted a waiver. Appendix A, infra, p. 7-8. However, the Seventh Circuit erred because the defendant is not re- quired to tender instructions on the government’s theory of the case and the defendant preserved the issues for re- view by objecting to the instructions before the judge instructed the jury. The defendant submits that an exam- ination of instruction numbers 6, 7 and 8 reveals that the offenses ‘‘embezzle,” ‘‘willfully misapplies,’’ ‘‘steals,’’ or ‘‘obtains by fraud’’ are used together throughout the in- structions. Appendix B, Infra, p. 2-3. However, embezzle- ment is the only offense that was defined by the Court in instruction number 11. Appendix B, infra, p. 4. By so in- structing the jury and singling out embezzlement, the Court directed the jury to the offense it thought the de- fendant was guilty of committing since the other offenses were left undefined. Moreover, the jury was directed to the offense of embezzlement because this was the only offense the jury inquired about when they sent a note to the judge asking him about the exact meaning of what embezzlement curtails in this case. Appendix B, infra, p. 5. Defendant eon- tends that all the offenses should have been defined or they should have been left undefined otherwise you run into the problem of the jury only considering if the defendant em- bezzled the services of CETA employees which is a legal impossibility (ownership of property, herein services, ean’t be proved by the government). 18 Instruction number 8 required the jury to find five essen- tial elements in order to prove the defendant guilty of the crime beyond a reasonable doubt. The defendant submits that it is arguable as to whether or not he is connected in any capacity with an agency receiving financial assistance under CETA. However, the defendant submits that the law conclusively establishes that the services of the CETA participants were not the subject of a grant or contract of assistance. See 42 U.S.C. § 2706(3) (Supp. X, 1976). Therefore, the defendant submits that the court erred by asking the jury to make findings of fact which are incon- sistent with the evidence thereby making the court’s in- struction erroneous as a matter of law. The defendant also submits that the trial court also erred by giving instruction number 10 which defined the services of an employee paid by federal funds provided under a grant or contract of assistance as constituting ‘fassets or property” for the purposes of the violation. Appendix B, infra, p. 4. By defining services of an employee paid by federal funds as constituting ‘‘assets or property,”’ the court made it unnecessary for the jury to consider if the defendant received money, funds, assets or property which are the subject of a grant or contract of assistance as they were required to do in instruction number 8. As a result of the preceding, the trial court invaded the jury’s province and directed them to make findings of fact which are inconsistent with the law and culminated in a guilty verdict. The defendant submits that by defining the offense of - embezzlement and leaving the other offenses undefined, by asking the jury to make findings of fact which are incon- sistent with the law, and by defining services of federal employees paid under a grant as assets or property thereby 19 directing the jury to find the defendant guilty, the lower courts violated the rights of the accused because the in- structions, when considered as a whole, misled the jury. Finally, the evidence introduced during the trial and the instructions given at the conclusion of the trial was such a departure from the Federal Rules of Evidence and the Federal Rules of Criminal Procedure that the Supreme Court should exercise its supervisory power to effectuate the fair trial guarantees of the Sixth Amendment. CONCLUSION For the reasons set out above, Petitioner prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Seventh Circuit. Respectfully submitted, Curster SLAUGHTER, 188 West Randolph Street, Chicago, Illinois 60601, 312/236-5277, PHILaAnDer 8. NEVILLE, JR., 4320 Vincennes, Chicago, Illinois 60653, 312/373-5155, Attorneys for Petitioner Al APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 77-1844 Unrrep States or America, Plaintiff-Appellee, v. NATHANIEL CoLEMAN, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 76-Cr-118—Phil M. MeNagny, Jr., Judge. Arovep Sepremser 11, 1978—Derctpep December 18, 1978 Before FAIRCHILD, Chief Judge, NICHOLS, Associate Judge*, and WOOD, Circuit Judge. * Associate Judge Philip Nichols of the United States Court of Claims is sitting by designation. A2 FAIRCHILD, Chief Judge. Appellant Coleman was con- victed of an offense defined by 18 U.S.C. § 665." Count I of the indictment charged that: ‘*. . . Coleman, being the assistant director of the General Services Department of the City of Gary, Indiana, an agency receiving financial assistance under the Comprehensive Employment and Training Act of 1973, did embezzle, wilfully misapply, steal and obtain by fraud for his own personal use and enrichment for political purposes, moneys, funds, assets and property which were the subject of a grant under said Act, to wit: the services of employees participating in the Adult Work Experience Program of the Gary Man- power Administration, a prime sponsor under the Comprehensive Employment and Training Act of 1973 which services were a value of .. . $4,500... .” Defendant moved for dismissal, asserting among other things that services of employees are not ‘*moneys, funds, assets, or property’’ under 18 U.S.C. § 665. The district court denied the motion, concluding that the word ‘prop- erty’’ is broad enough to encompass services, and that the 1, 665. Theft or embezzlement from manpower funds— Improper inducement.—(a) Whoever being an officer, diree- tor, agent, or employee of, or connected in any capacity with, any agency receiving financial assistance under the Compre- hensive Employment and Training Act of 1973 embezzles, willfully misapplies, steals, or obtains by fraud any of the moneys, funds, assets, or prop§erty which are the subject of a grant or contract of assistance pursuant to this Act shall be fined not more than $10,000 or imprisoned for not more than two years, or both; but if the amount so embezzled, misapplied, stolen, or obtained by fraud does not exceed $100, he shall be fined not more than $1,000, or imprisoned not more than one year, or both. ° —— A3 theft, embezzlement or misapplication of ‘‘services’’ paid for by funds supplied under a CETA grant is an offense described in § 645. Count I was tried, with a verdict of guilty, the only other count being dismissed before trial. The proof reflected the theory of Count I, that a city employee’s use for private benefit of the services of train- ees, under a CETA program, compensated out of CETA funds, amounted to embezzlement or willful misapplieation of property which was the subject of the CETA grant. The evidence established that a special crew of five me», paid with CETA funds, was assigned by Gary Manpower (an agency of the City) to the General Services Department of the City, of which Coleman was Assistant Director. De- spite limitations imposed upon use of such employees by statute regulations® precluding their use for political pur- poses and personal enrichment, Coleman directed the crew to construct political signs for the mayoral primary cam- 2, 29 U.S.C. § 990 provides: $990. Political activities prohibited The Secretary shall not provide financial assistance for any program under this Act which involves political activities; and neither the program, the funds provided therefor, nor personnel employed in the administration thereof, shall be, in any way or to any or en gt in the conduct of political activities in contravention o chapter 15 of title 5, United States Code [5 USCS §§ 1501 et seq.]. 29 U.S.C. § 845(c)(3) requires assurances by the prime sponsor that ‘‘the public services provided by such jobs. . . be designed to benefit the residents of the area.” Ad paign, and to perform various tasks in his construction business and otherwise for private benefit.® To obtain a conviction under § 665 the government must prove two elements: (1) that the accused was an officer, director, agent or employee of, or connected in any capacity with an agency receiving financial assistance under CETA; ») 4 (2) that the accused embezzled, willfully misapplied, stole, or obtained by fraud “moneys, funds, assets, or prop- erty which are the subject of a grant or contract of assist- ance,”’ Defendant appears to argue that under the arrangements for the CETA grant,‘ Gary Manpower, rather than the City 3. During the summer of 1975 AWEP w ai y orkers painted houses, constructed a dog run and dog house, thea a residential foundation, built a fence, and fulfilled contracts Coleman had with the Veterans’ Administration (VA) to nari “orgie VA held homes and to clean the Coroner’s olfice, Menial chores around Colmen’s h hy AWEP personnel. Le techie rca 4. Department of Labor testimony at trial explained the funding arrangements as follows: CETA programs are funded by the Department of Labor and administered by state and local governments, (the prime sponsors). The prime sponsor either administers the program directly or uses subagencies working for it to carry out the program activities. In this case, the City of Gary, (the prime spon- sor), and the Department of Labor signed an agreement in P which, Gary Manpower was designated as the local agency with regulatory responsibilities over the funds. Gary Man- power administered two programs for the prime sponsor: the Adult Work Experience Program (AWEP) which pro. (Footnote continued on next page) A5 of Gary, was the ‘‘agency receiving financial assistance’ under CHTA, and that defendant, a city employee attached to a different department of the City, did not fulfill element (1) above. It may well be argued that the City itself was the ‘‘agency receiving financial assistance’’ under CETA, so that any employee of the City fulfills element (1). Even if a narrower view be taken, that Gary Manpower was the ‘‘agency,’’ there was an agreement that the City’s General Services Department would use some of the trainees, and defendant was Assistant Director of that Department. We think that defendant had sufficient responsibility for par- ticipation in the program so that he would be deemed *‘con- nected in any capacity’? with Gary Manpower for the pur- pose of § 665. Defendant further argues that services of persons com- pensated out of grant money are not ‘‘property . . . the subject of a grant’’ and that misappropriation of such services is not theft, embezzlement, or willful misapplica- tion of such property. (Footnote continued from preceding page) vided short-term employment (6 months to one year) in sub-professional jobs and the Public Service Employment Program (PSEP) which provided extended employment (one to two years) at the journeyman level. Administrative expenses and wages for program participants were paid directly by Gary Manpower from the Department of Labor grant funds. Because the primary purpose of CETA is to provide employment and training, Gary Manpower entered into subordinate agreements with other municipal agencies for the use of AWEP trainees. The General Services De- partment of which defendant-appellant Coleman was As- sistant Director had entered into such an agreement. The agreement involved no payment between the two municipal agencies, however. General Services was bonded to issue GMA checks during the employment period. A6 The decision of the Ninth Cireuit in Chappell v. United States, 270 F. 2d 274, 276-78 (1959) provides some support for defendant’s contention that § 665 should be construed narrowly and according to the more traditional meanings of its terms. In Chappell an Air Force sergeant was charged with converting to his own use the services of an airman in painting, during duty hours, property of the sergeant. The statute there considered provided a penalty for one who ‘‘knowingly converts to his use. . . any record, vouch- er, money, or thing of value of the United States... or any property made or being made under contract for the United States.’’ Applying strict construction, the court de- cided that the services misappropriated were not a thing of value subject to conversion, The Third Cirenit has recently suggested that Chappell had heen too narrowly decided, although in the present case the court found a technical larceny and thus did not need to reach a broader interpretation of § 641. United States v. Di Gilio, 588 F. 2d 972, 978 (3d Cir. 1976). These eases un- der § 641 are the closest cited to the situation at hand. Whatever the proper interpretation of § 641, we have a different statute before us. Congress was entrusting large sums of non-federal agencies to accomplish the purposes of CETA. A principal purpose was providing paying jobs to trainees. In § 665 Congress was exerting its power to pro- tect these funds from misuse at the hands of employees of these agencies. Concededly as to tangible property the pro- tection extended to that which was purchased by the funds as well as the funds themselves. Much of the funds, how- “i ever, were expected to be spent to compensate people for services; the programs are intended to generate jobs. 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Public record. Not legal advice.