Petition — Otterbein v. United States

e 8- 1226 “FILED

FEB y 1979

{

Supreme Court of the United States"

October Term, 1978

7§-J226

FREDERICK J. OTTERBEIN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

WiLu1AM JosepH RopcErs,

Suite 200,

1776 F Street, N.W.,

Washington, D. C. 20006

(202) 862-7500

Counsel for Petitioner,

Frederick J. Otterbein.

Of Counsel:

WituuaM A. DESTEFANO,

RicHarp M. BERNSTEIN,

2001 The Fidelity Building,

123 South Broad Street,

Philadelphia, PA 19109

(215) 883-3000

international Printing Co., 711 So. 60th St., Phila., Pa. 19143 -— Tel. (215) 727-8711

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REASONS FOR GRANTING THE WRIT ................eeeee0%

I. The Panel’s Opinion With Regard to the Expert's

Testimony and the Charge to the Jury Is in Conflict

With a Closely Analogous Case in Another Circuit. .

Il. The Panel's Opinion That the Government Sustained

Its Burden of Proof Is in Conflict With an Analogous

Case in Another Circuit and With Analogous Cases

sc enn beweedsabeeceusecs

III. The Panel’s Judgment That 18 U. S. C. § 664, as

Applied to the Facts of This Case, Is Not Void for

Vagueness Should Be Re-Examined in Light of Cola-

utti v. Franklin, 47 U. S. L. W. 4094 (U. S. Jan. 9,

ET ES EE ee

IV. The Panel’s Ruling With Respect to the Trial Court’s

Failure to Voir Dire the Jury After Learning of

Prejudicial Publicity During Trial Is in Conflict With

Other Cases in the Fourth Circuit Itself as Well as

TE sce seaciusiocdeescecssecé

V. The Judge’s Solicitation of Oral Questions From the

Jury and Response Thereto Without Prior Consulta-

tion With Counsel Conflicts With the Practices Sug-

gested by This Court and by Other Authorities ....

ESECE SERGE SDE Sen bP Sb nceeddosadeceevcceces

EE ES ES

I IE an Us cep ecicdcwecescctcvecs

EES ET

Court of Appeals Order Denying Rehearing ...........

13

15

18

21

TABLE OF CITATIONS.

Cases: Page

Brasfield v. United States, 272 U. S. 448 (1926) ............ 26

Colautti v. Franklin, 47 U. S. L. W. 4094 (U. S. Jan. 9, 1979)

18, 19, 20, 21

Garner v. Louisiana, 368 U. S. 157 (1961) ............005: 17

Johnson v. Florida, 391 U. S. 596 (1968) ............0005s 17

Mares v. United States, 383 F. 2d 805 (10th Cir. 1967), cert.

Gone, SO6 TW. B. GEG (ISTO) cv vesisc ci cmeccccsscccccs 24

Rogers v. United States, 422 U. S. 35 (1975) .............. 25

Silverthorne v. United States, 400 F. 2d 627 (9th Cir. 1968).. 24

Thompson v. City of Louisville, 362 U. S. 199 (1960) ....... 18

United States v. Guterma, 281 F. 2d 742 (2d Cir), cert. de-

ee 3 eo) eer eee 13, 14, 15, 16

United States v. Hankish, 502 F. 2d 71 (4th Cir. 1974) ..... 23

United States v. Herring, 568 F. 2d 1099 (5th Cir. 1978) .... 24

United States v. Jones, 542 F. 2d 186 (4th Cir. 1976) ...... 22

United States v. Lord, 565 F. 2d 831 (2d Cir. 1977) ....... 24

United States v. Perrotta, 553 F. 2d 247 (1st Cir. 1977)..... 22, 24

United States v. Pomponio, 517 F. 2d 460 (4th Cir.), cert.

A A EPPS T Te TT TPT ET ieee 23

United States v. Vento, 533 F. 2d 838 (3d Cir. 1976) ...... 24

Miscellaneous:

i Dots hav beer awash 6 edna bie becea’s 25

Pennsylvania Abortion Control Act, Section 5(a) .......... 19

a es oe es a AO CREED vicikccecsccccucuccnss 7, 20

ee RPTL TCT ee 2, 4, 7, 9, 12, 13, 14, 15, 18, 19, 21

Ss RE ov a ob eh edu Geiss weed eacnecetawen a 1

Oy Oe EE pass bs Co badevCC TAG have va 2, 7, 9, 10, 12, 19, 20

Authorities:

1 E. J. Devitt & C. B. Blackmar, Federal Jury Practice and

Instructions § 18.13 at 603 (1977) ...............008. 26

ERISA Proc. 76-1, 41 F. R. 36281-36283 (Aug. 27,1976) ... 7

7

IN THE

Supreme Court of the United States

October ‘Term, 1978

No.

FREDERICK J. OTTERBEIN,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

The Petitioner, Frederick J. Otterbein, respectfully

prays that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for the

Fourth Circuit, entered in this proceeding on December

8, 1978.

Petitioner,

OPINION BELOW.

The unpublished opinion of the United States Court

of Appeals for the Fourth Circuit appears in the Appendix

hereto.

JURISDICTION.

The judgment of the United States Court of Appeals

for the Fourth Circuit was entered on December 8, 1978.

A timely petition for rehearing was denied on January 9,

1979, and this petition for certiorari was filed within thirty

(30) days of that date. This Court’s jurisdiction is in-

voked under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED.

1. Whether it is plain error to permit expert opinion

testimony on and to charge the jury with the resolution of

the central question of law, namely whether the corporate

savings account from which the Petitioner made with-

drawals was an “employee benefit plan” or a “fund con-

2 ; Petition for Writ of Certiorari

nected therewith” within the meaning of 18 U. S. C.

§ 664 and 29 U. S. C. § 1002.

2. Whether, absent a proper legal determination that

the corporate savings account from which the Petitioner

made withdrawals was an “employee benefit plan” or a

“fund connected therewith”, there was any evidence to

support his conviction.

3. Whether 18 U. S. C. § 664, as applied to the facts

of this case, is void for vagueness.

4. Whether a trial judge must voir dire the jury to

determine whether it had been exposed to publicity dur-

ing trial which the judge himself finds erroneous and ~

inadmissible.

5. Whether it was plain error for the judge to solicit

oral questions from the jury and respond thereto without

prior consultation with counsel.

STATUTES INVOLVED.

18 U. S. C. § 664 provides:

Any person who embezzles, steals, or unlawfully

and willfully abstracts or converts to his own use or

to the use of another, any of the moneys, funds, securi-

ties, premiums, credits, property, or other assets of

any employee welfare benefit plan or employee pen-

sion benefit plan, or of any fund connected there-

with, shall be fined not more than $10,000, or

imprisoned not more than five years, or both.

As used in this section, the term “any employee

welfare benefit plan or employee pension benefit

plan” means any employee benefit plan subject to

any provision of title I of the Employee Retirement

Income Security Act of 1974.

29 U. S. C. § 1002(1)-(3) provide:

For purposes of this subchapter:

(1) The terms “employee welfare benefit plan”

and “welfare plan” mean any plan, fund, or program

Petition for Writ of Certiorari 3

which was heretofore or is hereafter established or

maintained by an employer or by an employee or-

ganization, or by both, to the extent that such plan,

fund, or program was established or is maintained for

the purpose of providing for its participants or their

beneficiaries, through the purchase of insurance or

otherwise, (A) medical, surgical, or hospital care or

benefits, or benefits in the event of sickness, accident,

disability, death or unemployment, or vacation bene-

fits, apprenticeship or other training programs, or day

care centers, scholarship funds, or prepaid legal serv-

ices, or (B) any benefit described in section 186(c)

of this title (other than pensions on retirement or

death, and insurance to provide such pensions ).

(2) The terms “employee pension benefit plan”

and “pension plan” mean any plan, fund, or program

which was heretofore or is hereafter established or

maintained by an employer or by an employee organi-

zation, or by both, to the extent that by its express

terms or as a result of surrounding circumstances such

plan, fund, or program—

(A) provides retirement income to em-

ployees, or

(B) results in a deferral of income by em-

ployees for periods extending to the termination

of covered employment or beyond,

regardless of the method of calculating the contribu-

tions made to the plan, the method of calculating the

benefits under the plan or the method of distributing

benefits from the plan.

(3) The term “employee benefit plan” or “plan”

means an employee welfare benefit plan or an em-

ployee pension benefit plan or a plan which is both

an employee welfare benefit plan and an employee

pension benefit plan.

4 Petition for Writ of Certiorari

STATEMENT OF THE CASE,

On June 22, 1977, the Petitioner was charged in an

eight-count superseding indictment with violations of 18

U. S. C. § 664. The indictment charged that the Peti-

tioner had made eight separate unlawful withdrawals from

a corporate savings account maintained by Universal En-

terprises, Inc. (“Universal”) at the First Federal Savings

& Loan Association of Charleston, South Carolina (“First

Federal Account”). This account was alleged to be an

“employee pension benefit plan and a fund connected

therewith.”

The case was tried in the United States District Court

for the District of South Carolina before the Hon. Charles

E. Simons, Jr., and a jury. The court denied the Peti-

tioner's motions for judgment of acquittal and submitted

the case to the jury which returned a verdict of guilty on

all eight counts of the indictment. The court denied Peti-

tioner's motions for judgment of acquittal notwithstanding

the verdict and, in the alternative, for a new trial. The

judgment of conviction was affirmed by a Panel of the

United States Court of Appeals for the Fourth Circuit.’

The record reveals the following facts which are ger-

mane to this petition:

Universal is a South Carolina corporation engaged

in the maintenance and repair of containers used to trans-

port containerized cargo. Initially, although a 51% share-

holder, Petitioner was employed by another company and

was not engaged in the day-to-day management of Uni-

versal’s business. In the spring of 1976, he became active

1. At the trial of the case, Petitioner was represented by coun-

sel from Charleston, South Carolina. On appeal, to the Court of

Appeals for the Fourth Circuit and on this petition, he is repre-

sented by William J. Rodgers, a member of the firm of Pepper,

Hamilton & Scheetz, 2001 The Fidelity Building, 123 South Broad

Street, Philadelphia, Pennsylvania 19109 and 1776 F Street, N. W.,

Washington, D. C. 20006.

Petition for Writ of Certiorari 5

in managing the company’s financial affairs and was

elected president, replacing John Bevon, who left Uni-

versal for other employment in the fall of 1976 (Tr. 680,

683, 684, 686).

In the spring of 1976, Universal was confronted with

competition on the Charleston docks from a company with

employees represented by the International Longshore-

men’s Association (“ILA”). The ILA also represented the

employees of many of Universal’s customers and, appre-

hending that Universal might lose business were it not to

become a union shop, Petitioner and Bevon sought to have

Universal’s employees represented as well by the ILA.

After inquiries with the president of Local 1422A in

Charleston and ILA officials in New York, Bevon was pre-

sented with a standard-form Collective Bargaining Agree-

ment by Robert L. Bateman, the president and business

representative of Local 1422A (Government Exhibit

[“GX”] 244). This Agreement, drafted by the union’s

lawyers in New York, was virtually identical to other ILA

collective bargaining agreements (Tr. 123).

The text of the Agreement provided, inter alia, that

Universal would become a party to the National Interna-

tional Longshoremen’s Association Employers’ Trust Fund,

a pension plan administered by the Prudential Insurance

Company (“Prudential Plan”) (Tr. 155). Before the

Agreement was executed, however, Local 1422A sought

but was denied admission to the Prudential Plan and was

required instead, along with other ILA locals in the south,

to establish a separate pension and welfare trust fund (Tr.

125, 126). Local 1422A then undertook negotiations with

the Travelers Insurance Company, as well as other steps

to establish a separate pension and welfare trust fund prior

to the execution of the agreement with Universal (Tr. 138-

146). It is uncontroverted, however, that a new pension

and welfare trust fund was not established as of the time

6 Petition for Writ of Certiorari

that Universal executed the Collective Bargaining Agree-

ment with Local 1422A, nor had such a fund been estab-

io as of the time of the trial of the Petitioner (Tr. 138-

146).

After learning that the Prudential Plan was not open

to Local 1422A and before executing the agreement,

Bevon asked Bateman how Universal should handle the

money for the pension and welfare contributions required

by the text of the agreement (Tr. 122, 123). Bateman,

in reply, stated that Universal should keep the money until

the union called for it (Tr..123) and that the union would

not call for it until the new pension and welfare trust fund

was established (Tr. 126).

Having thus received no definite advice for handling

the money (Tr. 195, 209) and having been advised that

the union did not want the money until the proposed trust

fund was established, Bevon took several steps with an eye

toward the day when a new pension and welfare plan

would be established and the union would call for Uni-

versal’s contributions. He instructed the payroll depart-

ment at Universal to calculate the amount of pension and

welfare contributions and to prepare so-called recap sheets

indicating the amount of such contributions as Universal

would be required to pay for each employee and also the

amount of union dues deducted from each employee’s pay-

check. The recap sheets were then sent to the appropriate

union offices along with a check for the appropriate union

dues (Tr. 195-197). The money which was set aside for

the proposed pension and welfare contributions was, of

course, not remitted to the union, because Universal had

been advised that the union did not want it. Instead,

Bevon directed that this money be deposited in a corporate

savings account which he opened at the First Federal

Savings and Loan Association of Charleston, the First Fed-

eral Account (Tr. 197-199).

Petition for Writ of Certiorari 7

Initially, Bevon and a clerical employee of Universal »

were the only persons authorized to make withdrawals

from the First Federal Account (Tr. 199), but in the

summer of 1976, as Bevon contemplated leaving Universal

and the Petitioner became actively involved in the com-

pany’s operations, the signature cards were changed, and

the Petitioner was designated as an authorized representa-

tive of Universal for purposes of that account (Tr. 201).

It was not disputed at trial that Universal recognized

an obligation to contribute to a multi-employer pension

and welfare trust fund at such time as the new fund was

established. Nor was it disputed at trial that the Petitioner

directed that eight withdrawals be made from the First

Federal Account. What was disputed, however, was the

characterization of the First Federal Account itself.

As the basis for its prosecution of the Petitioner, the

Government contended that the First Federal Account was

an “employee pension benefit plan” or a “fund connected

therewith” as defined in 18 U. S. C. § 664.2. The basis for

this contention, however, was the expert opinion of a De-

partment of Labor official, J. Vernon Ballard. Mr. Ballard

described ERISA at length and testified with respect to

its purpose (Tr. 305-314). He was then asked to make a

number of assumptions which were supported by evidence

in the record, much of it undisputed, and which described

the First Federal Account and the circumstances under

which it was established (Tr. 314-318). Finally, in re-

2. 18 U. S. C. § 664 incorporates by reference Title I of the

Employee Retirement Income Security Act of 1974 (“ERISA”).

Thus, proper construction of 18 U. S. C. § 664 requires reference to

Title I of ERISA, specifically § 3(1)-(3) (“Definitions”), 29 U. S. C.

§ 1002(1)-(3), set forth supra. In addition, the Department of

Labor has issued regulations, 29 C. F. R. §§ 2510.3-1, -2, -3 (1977),

in an effort to define the concept of Ma. gout benefit plan” and

has established an “information letter” and “advisory opinion

ro-

cedure, ERISA Proc. 76-1, 41 F. R. 36281-36283 (Aug. 27, 1976) to

lend further assistance by way of comprehending this legislation.

8 Petition for Writ of Certiorari

sponse to a hypothetical question based on those assump-

tions, Mr. Ballard testified that, in his expert opinion, the

First Federal Account was subject to ERISA (Tr. 318-

329).°

In addition to Mr. Ballard, one other Government wit-

ness, Thomas W. Messerby, a former employee of Uni-

versal, gave testimony which is relevant to the issues in

this petition. Mr. Messerby testified that he had made in-

quiries while employed by the company with respect to

the proposed pension plan and that he had been fired

after one year with the company (Tr. 348-357). At the

conclusion of redirect examination, and just before he left

the stand, the court inquired into the circumstances under

which he had been discharged:

The Court: Was this before or after you were

inquiring about your pension funds?

Answer: It was after.

The Court: All right, you may step down.

(Tr. 357)

Mr. Messerby’s testimony became the subject of tele-

vision and newspaper publicity which counsel for the Peti-

tioner brought immediately to the attention of the trial

judge (Tr. 363). He showed the judge an article in the

morning press to which the judge responded:

3. Mr. Ballard was asked to assume, for example, that the First

Federal Account was opened under the employer’s exclusive con-

trol; that the Collective oe ar Agreement required the em-

ployer to make pension contributions; that the employer considered

itself bound to the terms of the agreement; that money was de-

posited in the Account by the employer at the rate prescribed in

the a that the employer made reports to the union; and

that the employer claimed federal and state tax deductions.

Defense counsel objected to Mr. Ballard’s testimony in some

respects, but not in others, although it is difficult to see the differ-

ence between those to which he objected and those to which he

did not (Tr. 289-296). In addition, to combat the effects cf Mr.

Ballard’s testimony, Petitioner introduced his own expert testimony.

Petition for Writ of Certiorari 9

This is completely erroneous. “Longshoremen’s Asso-

ciation union member testified in the United States

District Court Tuesday that he was fired from his job

at Universal Enterprises after he inquired about pen-

sion fund which he believed had been depleted”.

That is completely erroneous. (Tr. 377)

oO oO 2

“The February 7th article in the New York Times re-

ported that the association’s Bateman, one of several

ILA officials under federal investigation for receiving

direct pay’ —this is all stuff that the jury shouldn't see

and there is no evidence in this case or . . . (Tr. 377)

(emphasis added )

At numerous points throughout a lengthy discussion

between counsel and the court, the judge openly regretted

having engaged in the colloquy with the witness, expressed

his gratitude to counsel for having brought the matter to

the court’s attention, promised to refrain from engaging in

further such exchanges with witnesses, and solicited the

advice of counsel respecting action which he might take to

correct possible harm generated by his colloquy with the

witness (Tr. 366, 368, 369, 370, 372, 378, 386). At no

time, however, did he suggest corrective action with re-

spect to the newspaper and television publicity nor did he

invite suggestions for such corrective action. Finally, he

did not voir dire the jury to ascertain the extent of prejudice

which may have been caused by the newspaper and tele-

vision publicity.

In his charge to the jury, the judge included explicit

instructions that it was for the jury to determine whether

the First Federal Account was an “employee benefit plan”

within the purview of Title I of ERISA or whether it was a

fund which was connected with such a plan (Tr. 793, 794,

796-797 ). The judge reviewed the language of 18 U. S. C.

§ 664 and 29 U. S. C. § 1002; he called the jury's attention

10 Petition for Writ of Certiorari

to the “surrounding circumstances”, 29 U. S. C. § 1002(2);

he listed, by way of illustration, a variety of factors which

the jury “may”, but was not required to consider in making

its determination; * and, adding to those factors suggested

by way of illustration, he called the jury’s attention to the

opinion testimony of the expert witnesses:

Ten, you may also consider the expert opinions and

conclusions of the expert witnesses as to the nature

anc character of the fund in question in determining

whether an ERISA plan was created or whether a

fund was set aside which was connected with such a

pension plan subject to ERISA. (Tr. 800) °

After the jurors had deliberated approximately five

hours, the judge recalled them to the courtroom and in-

quired whether they were making progress in arriving at a

verdict in the case (Tr. 841). When the foreman re-

sponded that the jury was in fact not making any progress

at all, the judge delivered a modified version of the Allen

charge as follows:

Now, while you are here, I'll just merely say this. This

case, of course, has taken the better part of the week

to actually try and with your deliberations it has been

a week, and this, of course, the trial is expensive in-

sofar as the prosecution is concerned and insofar as

the defendant is concerned. It’s time consuming and

expensive and what the situation would develop into

if you are unable to arrive at a verdict it simply means

that at some point in time after further deliberation, of

course, that it would be my duty to declare a mistrial.

4. These factors were closely parallel to the factual assump-

tions which the Government's expert witness Mr. Ballard had been

asked to make as a basis for his opinion that the First Federal

Account was subject to ERISA.

5. We note that counsel for the Petitioner did not object to

this part of the charge.

Petition for Writ of Certiorari ll

That would mean that at a later date the same case

with substantially the same type of evidence, probably

the same attorneys, with a different jury and hope-

fully with a different judge, this case would have to be

tried again. Now, I have every confidence in this

jury that you are just as capable, just as competent to

decide this case from the evidence presented to you

as any other twelve people that we might assemble to

try the case. So I do want you to go back into your

jury room and resume your deliberations and be sure

that you have made an earnest and determined effort

to arrive at a fair verdict in this case, and I would ask

you to continue on (Tr. 842).

At the very end of his delivery of the Allen-type

charge, the court took the unusual step of soliciting oral

questions from the jurors:

Before you go [back to the jury room] I would ask

you if any legal matter, any legal question is bother-

ing any of you. Of course, I can’t assist you insofar

as your factual determinations because that’s within

your sole province, but if any, if there is any help

that the Court could give you in reference to any legal

matter that may be worrying you I surely will be glad

to do that (Tr. 842-43).

In response to this solicitation, one juror requested

the opportunity to speak and was permitted to do so:

We are confronted with the difficulty of trying to

interpret whether the actual signing of the contract

between Universal and the Longshoremen’s auto-

matically constituted a binding, established, indis-

putable commitment on the part of Universal to

escrow its funds in the proper sense of the word

12 Petition for Writ of Certiorari

versus simply Universal’s taking the position that it

is responsible ultimately for payment of this money

at such time as it may be called for (Tr. 843).

I don't think, the confusion we keep thrashing is at

what point does ERISA automatically, according to

Title I, whatever that is, at what point does it auto-

matically ... (Tr. 845).

Well, I'm referring to ERISA as a complicated thing

and I'm simply saying that the thing we keep coming

back to is at what point does ERISA, does the juris-

diction of ERISA, does it... (Tr. 845).

Before counsel had any real opportunity, either to

object or to advise the court respecting the proper re-

sponse to the juror’s questions, the court immediately

engaged in a colloquy with the juror, repeating the charge

to the jury to make the determination whether the First

Federal Account was a plan or fund connected therewith,

within the meaning and protection of 18 U. S. C. § 664

and 29 U. S. C. § 1002 (Tr. 843-848), and, once again, the

judge called attention to the expert opinion testimony of

Mr. Ballard, describing its purpose as a clarification of

the law:

The prosecution brought an expert witness here to,

and qualified him as an expert, to express his opinion

and to answer or to at least try to clarify the law for

us and assist us in this matter (Tr. 847).

After further deliberation, the jury returned a verdict

of guilty on all eight counts of the indictment.

Petition for Writ of Certiorari 13

REASONS FOR GRANTING THE WRIT.

I. The Panel’s Opinion With Regard to the Expert's Testi-

mony and the Charge to the Jury Is in Conflict With

a Closely Analogous Case in Another Circuit.

In its Opinion, the Panel agreed with the Petitioner

that the Government's expert witness should not have

been permitted to opine whether the First Federal Ac-

count was a plan or fund protected by 18 U. S. C. § 664.

The Panel, however, did not find the error reversible. It

reasoned that there was no objection to Mr. Ballard’s opir-

ion testimony, that the Petitioner’s expert was permitted

to express a contrary conclusion, and that, in the Panel's

opinion, Mr. Ballard correctly stated the law. In addi-

tion, the Panel observed:

Certainly there was ample evidence, aside from the

expert’s testimony, from which the jury could find

that the withdrawals were made from a protected

fund and hence were in violation of § 664. Slip Op.

at 2.

The Panel's refusal to find plain error is in conflict

with the closely analogous case of United States v. Gu-

terma, 281 F. 2d 742 (2d Cir.), cert. denied, 364 U. S.

871 (1960) (Friendly, Cir. J.). There, the defendants

were charged with a knowing and willful failure to dis-

close information, pursuant to the Securities Exchange Act

of 1934, with respect to the disposition of a “significant

amount” of assets, which was defined in an SEC instruc-

tion by reference to the “‘nec book value’ of such assets’.

Id. at 750. The trial judge left it to the jury, as the ulti-

mate triers of fact, to interpret the concept of “net book

value”, and, in so doing, to take into account the testi-

mony of expert witnesses to which there was no objection.

14 Petition for Writ of Certiorari

On appeal, however, the Second Circuit ruled that the

trial judge had given to the jury “a task properly his own,

namely, the interpretation of the term ‘net book value’ in

SEC Instruction 4 as applied to a pledge of securities.”

Id. at 751-52. Guterma is directly apposite to the case at

hand. In both cases, there was a threshold legal issue of

statutory construction (there, whether the defendants

disposed of a “significant amount” of assets, defined by the

“net book value” thereof, and here, whether the First Fed-

eral Account could properly be defined as an employee

benefit plan subject to the provisions of ERISA or a fund

connected therewith ), and in each instance, the court gave

the jury a task which was properly his own.*

The admission of the improper expert testimony on

this important question of law was highly prejudicial for

several reasons. First, the question of whether the First

Federal Account was a plan or fund protected by 18

U. S. C. § 664 was a constant source of confusion and

ambiguity which tainted the trial of the Petitioner from

beginning to end. It was the source of a fundamental

error in the charge which the judge gave to the jury. It

complicated the jury’s deliberation, and set the stage for an

Allen-type charge. And it was the main topic of discourse

in a colloquy which the trial judge conducted with one

juror after delivery of the Allen-type charge.

Second, throughout the trial, both the judge and the

jury referred to Mr. Ballard’s testimony as authority for

a resolution of the paramount issue of law in the case.

For example, the judge stated:

6. The Panel’s opinion that the evidence sufficed to support a

jury finding of a protected fund is at odds with its opinion re-

specting the propriety of the expert's opinion testimony. If it was

improper for the es to testify that the First Federal Account

was a protected fund because, in the Panel's opinion, that testimony

encompassed a conclusion of law, it was simifarly improper for the

judge to charge the jury with a resolution of precisely the same

egal issue.

Petition for Writ of Certiorari 15

Frankly, to tell you the truth, I never heard of ERISA

before and they brought that man [Mr. Ballard] down

here and I thought he was a good witness, and I guess

he helped us all understand what the law is. (Tr.

382 )

And, during its deliberations, the jury sent a note to the

judge with two questions, one of which read:

No. 1, on signing the union contract whether or not an

official fund (plan) existed to which the pension con-

tributions should be sent, would an employer accord-

ing to the law as explained by Mr. Ballard have the

automatic fiduciary responsibility to maintain that

money physically intact? (Tr. 822-23)

By permitting expert opinion testimony on the cen-

tral issue of law in the case and charging that the jury

with its resolution, the trial judge committed plain error.

The refusal by the Panel of the Fourth Circuit to reverse is

in conflict with Judge Friendly’s opinion in the Guterma

case, and the prejudice which the Petitioner has suffered

justifies intervention by this Court.

II. The Panel’s Opinion That the Government Sustained

Its Burden of Proof Is in Conflict With an Analogous

Case in Another Circuit and With Analogous Cases

in This Court.

In holding that the evidence sufficed to support a

jury finding of a plan or fund protected by 18 U. S. C.

§ 664, the Panel rejected Petitioner's argument that, ab-

sent a proper legal determination that the First Federal

Account was such a protected plan or fund, the record was

devoid of evidence to support the conviction of the Peti-

tioner.

The Panel’s decision is again in conflict with Judge

Friendly’s Guterma decision. There, the Second Circuit

16 Petition for Writ of Certiorari

held that the Government had failed to carry its burden

of proving that the defendants had knowingly and will-

fully violated an SEC requirement that they report a dis-

position of assets whose “net book value . . . exceeded 15%

of the total assets of the registrant and its consolidated sub-

sidiaries, . . .”, United States v. Guterma, supra, 281 F. 2d

at 750 n. 4. Having first determined that the threshold

legal issue (whether the defendants had disposed of a

“significant amount” of assets as defined by the concept of

“net book value” thereof) was a matter of statutory con-

struction which should have been decided by the court,

rather than submitted to the jury, Judge Friendly pro-

ceeded to hold that the Government had failed to meet its

burden of proving a disposition of a “significant amount”

of assets, notwithstanding that the Government had intro-

duced “expert” testimony that a “significant amount” of

assets had been disposed of. He concluded:

There was thus no basis for a finding that the viola-

tion of the 8-K reporting requirement, if any there

were, was knowing and willful; Id. at 752.

In the case at hand, as in Guterma, the court im-

properly submitted to the jury the threshold legal issue

of whether the First Federal Account came within the

statutory definition of an employee benefit plan or a fund

connected therewith. Here, too, the Government failed

to meet its burden of proving the existence of a protected

plan or fund and merely assumed that the question would

be resolved by the introduction of its expert’s opinion testi-

mony. There is thus no basis for a finding that the Peti-

tioner embezzled, stole, or unlawfully and willfully ab-

stracted or converted from such a plan or fund connected

therewith.

The conviction of the Petitioner on the basis of a

record which, absent the self-serving testimony of one of

Petition for Writ of Certiorari 17

the Government’s own employees, is devoid of evidence

that he committed acts within the reach of the criminal

statute he is charged with violating, is a deprivation of

due process of law. This point is made clear in a series

of decisions in this Court in which criminal convictions,

unsupported by any evidence in the record except the

“opinion” of a particular law enforcement official, have

been overturned. In each instance, the Court made the

initial determination that, as a matter of law, the acts

which the defendants had committed were not proscribed

by the respective criminal statutes they had allegedly

violated. The Court then proceeded to a factual determi-

nation that the record was barren of evidence to support

a finding that the defendants had committed acts which

were within the coverage of the statutes.

In Johnson v. Florida, 391 U. S. 596 (1968), for ex-

ample, the defendant was charged with violating a Florida

vagrancy statute which made it a misdemeanor to be found

“ ‘wandering or strolling around from place to place with-

out any lawful purpose or object’”, id. at 596, notwith-

standing that the evidence on the record demonstrated

only that he had been sitting at a bus stop. Because, as a

matter of law, sitting was not within the prohibitions of

the Florida vagrancy statute, and because there was no

evidence to demonstrate that he was doing the acts which

were prohibited, namely, “wandering or strolling”, the

Court held that such a conviction was therefore in viola-

tion of due process of law. See Garner v. Louisiana, 368

U. S. 157 (1961) (record totally devoid of any evidence

that defendants had committed violent or boisterous acts

which would have violated Louisiana “disturbing the

peace” statute and revealed only that they were sitting

peacefully in a restaurant, conduct which, as a matter of

law, did not violate Louisiana statute—held, convictions

so devoid of evidentiary support violated due process of

18 Petition for Writ of Certiorari

law); Thompson v. City of Louisville, 362 U.S. 199 (1960)

(conviction on the basis of record which contained no

evidence that defendant was guilty of conduct proscribed

by Kentucky “loitering” and “disorderly conduct” statutes

and which revealed only that he had engaged in conduct

not within the reach of those statutes, violated due process

of law).

Because, in the instant case, there was never a proper

legal determination that the First Federal Account was a

plan or a fund within the meaning of the relevant legisla-

tion, there was no basis for a factual finding that the

Petitioner embezzled, stole, or willfully and unlawfully

abstracted or converted funds or assets which enjoyed the

protection of that legislation. His conviction, for violation

of 18 U. S. C. § 664, was therefore so totally devoid of

evidentiary support that it offends principles of due

process. .

III. The Panel’s Judgment That 18 U. S. C. § 664, as Ap-

plied to the Facts of This Case, Is Not Void for

Vagueness Should Be Re-Examined in Light of

Colautti v. Franklin, 47 U. S. L. W. 4094 (U. S. Jan. 9,

1979).

In its decision, the Panel ruled that 18 U. S. C. § 664

was not “void for vagueness” because it “does not fail to

give a person of ordinary intelligence fair notice of pro-

scribed conduct.” Slip Op. at 3. This Court’s decision

last month in Colautti v. Franklin, however, requires a re-

examination of the Panel’s ruling.

First, in Colautti, this Court added new clarity to the

test for “void for vagueness” and has now indicated that

the standard is two-pronged. Thus, “a criminal statute that

[1] ‘fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the

statute’ . . . or [2] is so indefinite that ‘it encourages

>

Petition for Writ of Certiorari 19

arbitrary and erratic arrests and convictions, . . . is void

for vagueness.” 47 U. S. L. W. at 4097. In its ruling,

therefore, the Panel considered only the first, but not the

second basis for a determination that 18 U. S. C. § 664, as

applied to the facts of this case, was sufficiently clear to

pass constitutional muster.’

Second, in Colautti, this Court held Section 5(a) of

the Pennsylvania Abortion Control Act unconstitutional.

Section 5(a) of that Act required every person who per-

formed or induced an abortion to make a determination,

“ ‘based on his experience, judgment or professional com-

petence’ ”, that the fetus was not viable. 47 U.S. L. W. at

4097. In holding Section 5(a) unconstitutional on the

ground that it was “void for vagueness’, this Court

reasoned, inter alia, that the viability determination was

itself a matter of uncertainty and that “even if agreement

may be reached on the probability of survival, different

physicians equate viability with different probabilities of

survival, and some physicians refuse to equate viability

with any numerical probability at all.” Id. at 4099.

The instant case is quite similar. Section 664 protects

“any employee welfare benefit plan or employee pension

benefit plan or . . . any fund connected therewith,”. It

then defines “‘any employee welfare benefit plan or em-

ployee pension benefit plan’” in rather circular fashion to

mean “any employee benefit plan subject to any provision

of Title I of the Employee Retirement Income Security

Act of 1974.” Section 3 of Title I of ERISA, 29 U. S. C.

§ 1002, which purports to define the relevant terminology

of ERISA, merely restates § 664, only in reverse, by pro-

viding that the “term ‘employee benefit plan’ or ‘plan’

means an employee welfare benefit plan or an employee

7. In his appeal to the Fourth Circuit Petitioner did in fact

contend that 18 U. S. C. § 664 encouraged arbitrary and erratic

prosecutions. Brief For Appellant at 25.

20 Petition for Writ of Certiorari

pension benefit plan or a plan which is both an employee

welfare benefit plan and an employee pension benefit

plan.” 29 U.S.C. § 1002(3).

Moreover, the “surrounding circumstances” language

of § 1002(2), which purports to define the terms “em-

ployee pension benefit plan” and “pension plan”, is a con-

cession, on the very face of the statute, that whether

certain funds come within the coverage of the Act will

depend on “surrounding circumstances” which are not

capable of sufficiently concrete identification to be incor-

porated into the language of the statute itself and whose

uncertainty is therefore fatal for purposes of a criminal

law. These definitional difficulties are illustrated yet fur-

ther by the regulations which the Department of Labor

has felt compelled to issue with respect to this very prob-

lem, 29 C. F. R. §§ 2510.3-1, -2, -3, and by the establish-

ment of an “information letter” and “advisory opinion”

procedure for the very purpose of clarifying precisely the

kind of question which has arisen in this case.

Mr. Ballard’s improper expert testimony illustrates the

problem well. First, Mr. Ballard was asked to make cer-

tain factual assumptions which purported to provide the

“surrounding circumstances” from which he drew his legal

conclusion that the First Federal Account was a protected

fund or plan. Nowhere, however, do these factual com-

ponents appear on the face of the legislation or in the

Department of Labor's regulations. In fact, they do no

more than suggest what, in Mr. Ballard’s judgment, are

the attributes or indicia of a protected plan or fund. Just

as in Colautti different physicians equate viability with

different probabilities of survival, in the instant case dif-

ferent legal and tax experts could equate a protected fund

or plan with different attributes or indicia. What Mr.

Ballard’s testimony attempted to accomplish, therefore,

was to read the attributes or indicia which he deems to be

Petition for Writ of Certiorari 21

relevant into 18 U. S. C. § 664 in a belated effort to provide

clarity to an otherwise impermissibly vague statute.

Second, Mr. Ballard was asked to construe the mean-

ing of ERISA in light of the attributes or indicia which he

had read into the statute in the course of his expert testi-

mony and to opine whether the First Federal Account was

a protected plan or fund within the meaning of the law.

A statute which requires this type of elucidation, namely

an opinion as to whether it is violated, is not sufficiently

definite to proscribe criminal conduct. Such a statute does

not provide a person of ordinary intelligence with fair

notice that, if he were to withdraw funds from an account

such as the First Federal Account, he is guilty of conduct

which may be punished criminally. Moreover, if the appli-

cation of 18 U. S. C. § 664 passes constitutional muster in

this case, the Government may be encouraged to bring

prosecutions, for violation of that statute, on an erratic

and arbitrary basis. A determination which depends on

“surrounding circumstances”, on a complex process of in-

terpretation and clarification through the Department of

Labor and ultimately on an opinion rendered by a Gov-

ernmental official, would provide fertile ground for the

Government to pick and choose its targets without any

necessarily discernible pattern or principle of selection.

For these reasons, Colautti v. Franklin requires a re-

appraisal of the Panel’s decision in the instant case.

IV. The Panel’s Ruling With Respect to the Trial Court’s

Failure to Voir Dire the Jury After Learning of Preju-

dicial Publicity During Trial Is in Conflict With Other

Cases in the Fourth Circuit Itself as Well as Several

Other Circuits.

The Panel ruled that the trial judge had not erred in

failing to voir dire the jury after prejudicial publicity was

brought to his attention during the trial. The Panel rea-

22 Petition for Writ of Certiorari

soned, first, that the publicity was not prejudicial because

“the newspaper article reported only what the jury had

heard in open court and it drew an inference that the jury

was entitled to draw.” Second, “despite repeated invita-

tions from the district court to counsel to make sugges-

tions as to corrective action, counsel declined to request

the court to do anything.” Slip Op. at 3. In so ruling,

however, the Panel premised its decision, first, on factual

assumptions directly contrary to the facts in the record

and, second, on a legal principle which departs from prior

decisions of its own circuit and conflicts with several other

circuits as well.

First, the trial judge himself determined that the

publicity encompassed material which was erroneous and

irrelevant, which had in fact not been introduced into evi-

dence in court, and which, in any event, the jury ought

not to see.* Thus, the material contained in the news-

paper article fell squarely within the definition of “sub-

stantial prejudicial material” set forth in a previous Fourth

Circuit decision, United States v. Jones, 542 F. 2d 186,

195 (4th Cir. 1976), i.e., “ ‘information about the defend-

ant that would not be admissible before the jury or that

was not in fact put before the jury in court.”° Id. Fur-

thermore, although the trial judge solicited suggestions for

corrective action with respect to the colloquy which he had

conducted with the witness, Mr. Messerby, and which

became the occasion for the publicity in question, the

record reveals that, at no time, did the trial judge solicit

suggestions for corrective action with respect to the news-

8. The judge’s statements on the record with respect to this

very point are set forth in our Statement Of The Case.

9. Accord, United States v. Perrotta, 553 F. 2d 247, 250 n. 7

(1st Cir. 1977) (“The cases distinguish between publicity which

reports fairly accurately on what took place in court before the

jury and publicity which deals with matters not brought to the

jury's attention in open court.” [citations omitted] )

Petition for Writ of Certiorari 23

paper publicity, contrary to the factual assumption made

by the Panel (Tr. 363-387).

Second, the ruling by the Panel is a departure from

prior decisions of the Fourth Circuit itself and is in con-

flict with authority in other circuits as well. In United

States v. Hankish, 502 F. 2d 71 (4th Cir. 1974), the court

stated, quoting with approval from a Seventh Circuit case

as follows:

“Thus, the procedure required by this Circuit where

prejudicial publicity is brought to the court's atten-

tion during a trial is that the court must ascertain if

any jurors who had been exposed to such publicity

had read or heard the same. Such jurors who respond

affirmatively must then be examined, individually and

outside the presence of the other jurors to determine

the effect of the publicity. However, if no juror indi-

cates, upon inquiry made to the jury collectively, that

he has read or heard any of the publicity in question,

the judge is not required to proceed further.” Id. at

77 [emphasis added by the Fourth Circuit to the quo-

tation from Margoles v. United States, 407 F. 2d 727,

735 (7th Cir.), cert. denied, 396 U. S. 833 (1969) ]

ao o *

We agree with the Seventh Circuit that when highly

prejudicial information may have been exposed to the

jury, the court must ascertain the extent and effect

of the infection and thereafter, in its sound discretion,

take appropriate measures to assure a fair trial. Id.

at 77.

The Fourth Circuit repeated the admonitions of

Hankish in United States v. Pomponio, 517 F. 2d 460, 463

(4th Cir.), cert. denied, 423 U. S. 1015 (1975). Simi-

larly, cases in six other circuits take the position that the

24 Petition for Writ of Certiorari

trial judge has an affirmative obligation to take positive

action to ascertain the existence of improper influences on —

the jury’s deliberations and to take whatever steps are

necessary to eradicate such improprieties. See United

States v. Herring, 568 F. 2d 1099, 1104-05 (5th Cir.

1978 ); United States v. Lord, 565 F. 2d 831, 838 (2d Cir.

1977); United States v. Perrotta, supra, 553 F. 2d at 249-

50; Silverthorne v. United States, 400 F. 2d 627, 641, 643

(9th Cir. 1968); Mares v. United States, 383 F. 2d 805,

808-09 (10th Cir. 1967), cert. denied, 394 U. S. 963

(1969). Cf. United States v. Vento, 533 F. 2d 838, 869

& n. 106 (3d Cir. 1976). The language in these decisions

insists that it is the judge’s duty to make the necessary

inquiry and that he must do it."®

Because the problem of prejudicial publicity is so

sensitive and because the Panel’s decision creates a con-

flict, not only with other circuits, but also within its own

circuit, the intervention of this Court is required.

V. The Judge’s Solicitation of Oral Questions From the

Jury and Response Thereto Without Prior Consulta-

tion With Counsel Conflicts With the Practices Sug-

gested by This Court and by Other Authorities.

The judge's solicitation of oral questions from the

jury and colloquy with the one juror which we set forth

in our Statement Of The Case was fraught with substan-

tial prejudice to the Petitioner. The solicitation of ques-

tions was an unusual departure from the normal practice

of waiting for the jury first to contact the court by means

10. In Silve v. United States, supra, counsel asked the

court to declare,a mistrial, but actually declined an offer to voir

dire the jury. Nevertheless, the Ninth Circuit ruled that the judge

should have made the necessary inquiry to determine what, if any,

at had been caused by the publicity. And in Mares v.

nited States, supra, counsel similarly asked for a mistrial, but did

not request a voir dire, and yet the Tenth Circuit reversed.

Petition for Writ of Certiorari 25

of a written note, as it had done earlier in its deliberations

(Tr. 822-823). The court did not give counsel a proper

opportunity to object, or to be heard with respect to a

proper response to the juror’s question, but proceeded di-

rectly to engage the juror in a colloquy, thus injecting

himself into the jury's deliberations as, so to speak, a

thirteenth juror; and, finally, the colloquy, in conjunction

with the Allen-type charge which had immediately pre-

ceded it, had the coercive effect of making an inquiry into

the numerical division of the jury, of isolating at least one

of the jurors whose uncertainties apparently stood in the

way of verdict, of attempting to dispel the reasonable

doubt that the juror apparently entertained, and of co-

ercing that juror into surrendering his reasonable doubt

and acquiescing in a verdict of guilty.

Authority in this Court suggests a strong disapproval

of these practices. Rogers v. United States, 422 U. S. 35

(1975) emphasized the importance of permitting the par-

ties to be present in person or by counsel at all proceedings

and sharply criticized the practice of giving a supple-

mentary instruction to the jury in the absence of the parties

and “ ‘without affording them an opportunity either to be

present or to make timely objection to the instruction ”.

Id. at 38 (emphasis added). The Court stated:

Cases interpreting the Rule [R. 43, Fed. R. Crim. P.]

make it clear, if our decisions prior to the promulga-

tion of the Rule left any doubt, that the jury’s message

should have been answered in open court and that the

petitioner's counsel should have been given an oppor-

tunity to be heard before the trial judge responded.

Id. at 39.

The Court rejected the Government's contention that

the error was harmless under Fed. R. Crim. P. 52(a), be-

cause the judge’s indication of his willingness to accept a

26 Petition for Writ of Certiorari

guilty verdict with a recommendation of “extreme

mercy ”, combined with a return of a verdict of guilty

within five minutes, strongly suggested that:

[T]he trial judge’s response may have induced

unanimity by giving members of the jury who had

previously hesitated about reaching a guilty verdict

the impression that the recommendation might be an

acceptable compromise. Id. at 40.

No less a respected authority than Devitt & Blackmar

indicates that, after giving supplemental instructions, the

trial judge should not receive oral questions, but that the

normal practice is to instruct the jury to put further ques-

tions in writing and that a continuing dialogue between

the court and the jury is not desirable. The purpose of

this practice is precisely to allow counsel an opportunity to

object and advise the court appropriately regarding further

instructions. 1 E. J. Devitt & C. B. Blackmar, Federal

Jury Practice And Instructions § 18.13 at 603 (1977).

Finally, the solicitation of questions from the jury,

after the judge had been informed that the jury was mak-

ing no progress, was an open invitation to the jurors whose

conscientious convictions prevented them from acquiescing

in a verdict, to reveal their identity to the judge, and, be-

cause this invitation came immediately after the delivery

of the Allen-type charge, it may well have been perceived

as an order to do so. The effect of the unsolicited invita-

tion by the judge, therefore, was to inquire into the

numerical division of the jury, a practice long condemned

under the authority of Brasfield v. United States, 272 U. S.

448 (1926).

The coercive effects of the Allen-type charge given by

the trial judge, coupled with the coercive effects of his

solicitation of oral questions and response thereto, so com-

Petition for Writ of Certiorari 27

bined to taint and impair the integrity of the verdict that

this Court should intervene and express its disapproval of

that practice.

CONCLUSION.

For these reasons, a Writ of Certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the Fourth Circuit on the questions

presented herein.

Respectfully submitted,

WILLIAM JOsEPH RODGERS,

Counsel for Petitioner,

Frederick J. Otterbein.

Of Counsel:

WiLuuaM A. DESTEFANO,

RicHARD M. BERNSTEIN.

Appendix.

UNITED STATES DISTRICT COURT

For District or SourH CAROLINA

CHARLESTON DIVISION

Docket No. 77-0119

(Superseding Indictment )

UNITED STATES OF AMERICA

v.

FREDERICK J. OTTERBEIN,

Defendant.

JUDGMENT AND PROBATION/COMMITMENT

ORDER.

(Filed August 18, 1977)

In the presence of the attorney for the government

the defendant appeared in person on August 17, 1977 with

counsel Falcon B. Hawkins, Esq. and P. Michael Duffy,

Esq., retained.

Plea—Not guilty.

There being a verdict of guilty returned July 1, 1977

on jury verdict as to Counts 1 thru 8, defendant has been

convicted as charged of the offense of violation of Title

18, United States Code, Section 664.

The court asked whether defendant had anything to

say why judgment should not be pronounced. Because

(Al)

A2 District Court Judgment Order

no sufficient cause to the contrary was shown, or appeared

to the court, the court adjudged the defendant guilty as

charged and convicted and ordered that: The defendant

is hereby commited to the custody of the Attorney General

or his authorized representative for imprisonment for a

period of one (1) year and one (1) day as to Count 1; as

to Counts 2, 3, 4, 5, 6, 7 & 8, imposition of institutional

sentence is suspended and the defendant placed on pro-

bation for a period of two (2) years. Said probation sen-

tence to commence upon release from committed sentence.

The Indictment filed April 19, 1977, is hereby dis-

missed.

/s/ CHares E. Simons, Jr.,

U. S. District Judge.

Date: 8-18-77

Court of Appeals Opinion A3

UNITED STATES COURT OF APPEALS

For THE FourtH Circuit

No. 77-2287

UNITED STATES OF AMERICA,

Appellee,

v~.

FREDERICK J. OTTERBEIN,

Appellant.

APPEAL FROM THE UNITED STATES District COURT FOR THE

District OF SouTH CAROLINA, AT CHARLESTON.

Cuar.es E. Srmons, Jr., District JUDGE.

Argued November 16, 1973 Decided December 8, 1978

Before WinTER, Circuit Judge, FreLp, Senior Circuit Judge,

and Pups, Circuit Judge.

William J. Rodgers (William A. DeStefano, Richard

M. Bernstein, Pepper, Hamilton & Scheetz on brief) for

Appellant; David W. Elabor, Attorney, Dept. of Justice

(Thomas E. Lydon, Jr., United States Attorney, Philip

Wilens, Chief; Government Regulations and Labor Sec-

tion, Criminal Division on brief) for Appellee.

Per CurriAM:

Convicted on eight counts of embezzling assets of an

employee benefit plan, or a fund connected therewith, in

A4 Court of Appeals Opinion

violation of 18 U. S. C. § 664, defendant appeals. We see

no reversible error and we affirm.

While we think that the government’s expert witness

should not have been permitted to testify to his legal con-

clusion that the fund from which defendant made with-

drawals was one which fell within the definition of the Em-

ployee Retirement Income Security Act of 1974, 29 U.S. C.

§ 1002, and hence was protected by 18 U. S. C. § 664, no

objection was lodged to the testimony and we do not per-

ceive its receipt as plain error.” Moreover, defendant's

expert was permitted to express a contrary conclusion,

again without objection.

We conclude that 18 U. S. C. § 664 does not fail to

give a person of ordinary intelligence fair notice of pro-

scribed conduct. It is not, therefore, void for vagueness.

We do not think that there was any error on the part

of the district court in not putting the jury on voir dire

with respect to allegedly prejudicial publicity. First, we

do not think that the publicity was prejudicial. The news-

paper article reported only what the jury had heard in

open court and it drew an inference that the jury was en-

titled to draw. Second, despite repeated invitations from

the district court to counsel to make suggestions as to

corrective action, counsel declined to request the court to

do anything. We do not think that counsel may now com-

plain of inaction.

Finally, we see no reversible error in the district

court’s charge to the jury. Nor was the modified Allen

charge, given after substantial deliberation by the jury,

coercive even though it was not in the form recommended

* To the extent that the testimony of the government’s expert

embodied legal conclusions, we think that the expert correctly

stated the law. Certainly there was ample evidence, aside from the

expert’s testimony, from which the jury could find that the with-

drawals were made from a protected fund and hence were in vio-

lation of § 664.

SY)

Court of Appeals Opinion A5

in United States v. Sawyers, 423 F. 2d 1335 (4 Cir. 1970).

See also United States v. Stollings, 501 F. 2d 954 (4 Cir.

1974). It was not improper for the district court to offer

to answer the jury’s inquiries about legal instructions and

to give that assistance when requested.

AFFIRMED.

A6 Court of Appeals Judgment

UNITED STATES COURT OF APPEALS

For THE FourtH Circuit

No. 77-2287

UNITED STATES OF AMERICA,

Appellee,

v.

FREDERICK J. OTTERBEIN,

Appellant.

APPEAL FROM THE UNITED STATES District Court

FOR THE DisTRICT OF SOUTH CAROLINA

JUDGMENT.

Filed December 8, 1978

This cause came on to be heard on the record from

the United States District Court for the District of South

Carolina, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court appealed from, in this cause, be, and the

same is hereby, affirmed.

WiLuuaM K. State, II

Clerk

Court of Appeals Order Denying Rehearing A7

UNITED STATES COURT OF APPEALS

For THE FourtH Circuit

No. 77-2287

UNITED STATES OF AMERICA,

Appellee,

v.

FREDERICK J. OTTERBEIN,

Appellant.

ORDER.

FiLep JANuARY 9, 1979

Upon consideration of the appellant’s petition for re-

hearing and suggestion for rehearing en banc, and no judge

having requested a poll on the suggestion for rehearing

en banc,

It is ApyUDGED and Orperep that the petition for re-

hearing is denied.

Entered at the direction of Judge Winter for a panel

consisting of Judge Winter, Judge Field, and Judge

Phillips.

FOR THE COURT,

WiLuuM K. Suate, Il

Clerk

A True Copy, Teste:

Wituu K. Sate, II, Clerk

By Emity RUEGER

Deputy Clerk