Petition — Michael v. United States

Supreme Cou T

sie rp ourt, U. SB A

Pid E D

OCT 11 1979

‘Miia nonin ia ts

IN THE [mice DAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

79-598

MURRAY H. MICHAEL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE THIRD CIRCUIT

TANYA M. PLAUT

112 South Lake Avenue

Orlando, Florida 32801

Telephone: (305) 423-2100

Attorney for Petitioner

INDEX

Page

Petition for Writ of Certiorari

to the United States Circuit

Court of Appeals for the

eR ee 1

ee ee ee ee Sr

ee ee ee ee ee ee ee 2

Questions Presented ...... 2

Bteeweee BNVOLVOG «.« 2« « 2 «© ec 2

(Cir Gi'E So 5 6 6 5 6 « « oud

Reasons For Granting This Writ . 4-8

ee ae ee ee ee 8

Certificate Of Service ..... 9

Certificate of Attorney .... 10

APPENDIX:

Opinion of the United States Court

of Appeals, Third Circuit, United

States v. Michael, No. 78-2545

oer. es eis s.¢.e« « -al-3

Judgment of the United States Court

of Appeals, Third Circuit, United

States v. Michael, No. 78-2545

ee ee ee ee |

Judgment of the United States Dis-

trict Court for District of New

Jersey, United States v. Michael,

No. CR 77-00455(Nov., 1978)... a5

ii | iii

INDEX CONTINUED INDEX CONTINUED

APPENDIX CONTINUED: Page CASES CONTINUED: Pace

Statutes Involved ........ a6-8 United States v. Dansker, 537

F.aG@ @0 {ora Cit. 2956) . 2's « 6

Redacted Indictment, United States

v. Michael, No. CR 77-00455 ... a9-44 United States v. Knox Coal Co., 347

Figo ae £308 Cit. i965) s «a we 8

Jury Request No. 15 .. 5s « « « -« a45

United States v. Tornabene, 222

Excerpt of Trial Transcript ... a46 F.26 875 (326 Cir. 1955)... . 5

Certificate Of Service ..... a47 United States v. Weitzel, 246 U.S.

533 (1918) ie ae ae ere

TABLE OF CASES AND STATUTES CITED

Williams v. North Carolina, 317

CASES: Wis Oe? CeO SS eke on“ 8k. aE

Benton v. Maryland, 395 U.S. 784, STATUTES:

(2968) « « « 6 ow oe we ee C8 7

CS a A a oe a ee ee ie

Cramer v. United States, 325 U.S.

iA, Bie Saeeee .& se 6 ce «ek 6 ae. Gawees. 6 Ore * ee a ae Se

LaFont v. United States, No. 78- CRS Ae oe ee ee oe ae eee.

5930 ee ae ee ay ae eg eee ee 4, 7 SG, Be Ge Fa

Levy v. United States, No. 78- Cee ee oe): a ere ee ee

5855 ae ter kes Me ees et ee oe ee ae 4, 7

au U.8,C,. § A250 (a). 6 10 eh es es 2

Perrin v. United States, No. 78-

959 . . ° ° ° . ° ° ° ° 7 ° 4, 7

Pinkerton v. United States, 328

3.8. Gee tives, 4°54 © & es 3, 6

Stromberg v. California, 283 U.S.

359 (1931) e - e * e ° * e ° ° 6

United States v. Britton, 108 U.S.

ie 4a sone tee a 8

Ow

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

MURRAY H. MICHAEL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE THIRD CIRCUIT

To the Honorable, the Chief Justice and

Associate Justices of the Supreme

Court of the United States.

Murray H. Michael, the petitioner

herein, prays that a writ of certiorari

issue to review the judgment of the

United States Court of Appeals for the

Third Circuit entered in the above-

entitled case on August 17, 1979.

OPINIONS BELOW

The opinion of the United States

Court of Appeals, Third Circuit is un-

reported and is included in the Appen-

dix hereto, infra, pages al-3.

The judgment of the United States Cir-

cuit Court of Appeals, Third Circuit,

is included in the Appendix hereto,

infra, page a4. The judgment of the

United States District Court for New

2

Jersey is included in the Appendix here-

to, infra, page a5.

JURISDICTION

The judgment of the Ccurt of Appeals

sought to be reviewed was entered on

August 17, 1979. A petition for re-

hearing was denied on September 12, 1979.

The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the District Court erred

in instructing the jury that the peti-

tioner could be convicted as a principal

of violating 18 U.S.C. § 656.

2. Whether the Court of Appeals

abused its discretion by invoking the

concurrent sentence rule.

3. Whether the conspiratorial ob-

jective alleged by the respondent set

forth a criminal misapplication of bank

funds.

STATUTES INVOLVED

18 U.S.C. § 2 (App. 6).

i8 U.8.€. § 372 Capp. 6).

18 U.S.C. § 656 (App. 7).

18 U.S.C. § 1952 (App. 8).

3

STATEMENT

Following a jury trial in the United

States District Court for the District

of New Jersey, petitioner was convicted

on all counts of a seventeen count

indictment (App. 9-44). These seventeen

counts involved three different crimes,

more particularly described as follows:

(a) COUNT 1: This single count

charged the petitioner with conspiracy

to misapply bank funds in violation of

18 U.S.C. § 371 (App. 9-15).

(b) COUNTS 2-14: These thirteen

counts charged the petitioner with aid-

ing and abetting a bank officer in the

misapplication of bank funds in viola-

tion of 18 U.S.C. §§ 656 and 2 (App. 16-

41).

(c) COUNTS 15-17: These final three

counts charged the petitioner with cross-

ing state lines with intent to commit

commercial bribery in violation of the

Travel Act, 18 U.S.C. § 1952 (App. 42-44).

At the close of all the evidence, the

District Court, under the authority of

Pinkerton v. United States, 328 U.S.

640 (1946), gave the jury a "derivative

liability" instruction, thereby allow-

ing the jury to convict the petitioner

of violating 18 U.S.C. § 656 as a

principal.

The petitioner was sentenced to

seventeen concurrent five-year terms of

imprisonment (App. 5). The Court of

Appeals affirmed the petitioner's

4

conviction on Count 1, the conspiracy

count, and Counts 2-14, the thirteen

aiding and abetting misapplication of

bank funds counts (App. 1-3).

With regard to Counts 15-17, the Travel

Act convictions, the Court of Appeals

invoked the concurrent sentence rule

and refused to pass upon these three

convictions (App. 2-3). The issue

involved in these three Travel Act

counts, i.e., whether commercial brib-

ery is proscribed by the Travel Act,

is presently before this Court on

certiorari in the cases of Perrin v.

United States, No. 78-959; Levy v.

United States, No. 78-5855; and LaFont

v. United States, No. 78-5930.

REASONS FOR GRANTING THIS WRIT

1. The petitioner, who is not now,

nor has he ever been, a bank officer,

was charged in Counts 2-14 of the re-

dacted indictment with aiding and abet-

ting a bank officer in the misapplica-

tion of bank funds in violation of 18

u.S.C. § 656 (App. 16-41). By its

terms, 18 U.S.C. § 656 may only be vio-

lated by the following individuals:

. . . an officer, director, agent

or employee of, or connected in

any capacity with any Federal

Reserve bank, member bank,

national bank or insured bank,

or a receiver of a national

bank, or any agent or employee

of the receiver, or a Federal

Reserve Agent, or an agent or

employee of a Federal Reserve

.—_ eA

— -—-

5

Agent or of the Board of

Governors of the Federal

Reserve System...

(App. 7).

A non-bank officer may be validly con-

victed of conspiring to violate 18 U.S.

C. § 656 and/or aiates and abetting

the violation of 18 U.S.C. § 656, but

this Court and the United States Circuit

Court of Appeals for the Third Circuit

have held that only a bank officer may

be validly convicted of violating 18

U.S.C. § 656 as a principal. United

States v. Weitzel, 246 U.S. 533 (1918)

and United States v. Tornabene, 222

F.2d 875 (3rd Cir. 1955).

Nonetheless, in the instant case, the

trial court gave the jury an instruction

which allowed the petitioner to be con-

victed of violating 18 U.S.C. § 656 as

a principal. This instruction was as

follows:

If you find that the conspiracy

alleged in Count 1 has been proven,

and you find that in furtherance

of that conspiracy any co-conspira-

tor committed one or more of the sub-

stantive crimes charged in Counts

2-14, then you may find the defen-

dant, Murray H. Michael, guilty of

those substantive crimes even if

he did not commit them directly.

This is so because a conspiracy

can be viewed as a partnership

in crime and each partner is re-

sponsible for the criminal acts

of his co-conspirators which were

committed in furtherance of the

conspiracy (App. 45).

6

It is not unusual for this instruction

to be given in multi-count indictments

which contain a conspiracy count alleg-

ing that the defendants conspired to

commit certain substantive crimes which

are also charged in other counts of the

same indictment. The instruction orig-

inated in Pinkerton v. United States,

328 U.S. 640 (1946), and is based

upon the premise that the acts of one

conspirator committed in furtherance of

the conspiracy are the acts of all

conspirators. However, in the instant

case, the substantive offenses which the

conspirators allegedly conspired to

commit are violations of 18 U.S.C.

§ 656, which may only be violated by a

bank officer. Thus, the petitioner may

have been convicted of a crime which it

is legally impossible for him to commit.

After deliberations, the jury foreman

Simply stated: "Your Honor, we have

found the Defendant guilty on all seven-

teen charges" (App. 46). Thus, the re-

cord of this case does not reveal wheth-

er the petitioner was validly convicted

of violating 18 U.S.C. § 656 as an

aider and abettor or invalidly convicted

as a principal. This Court and the

United States Circuit Court of Appeals

for the Third Circuit have ruled that

a verdict must be set aside where it is

supportable on one ground but not on

another, and it is impossible to tell

which ground the jury selected.

Stromberg v. California, 283 U.S. 359,

367-8 (1931); Cramer v. United States,

325 U.S. 1, 36 n.45 (1945); United

States v. Dansker, 537 F.2d 40, 51

7

(3rd Cir. 1956); and Williams v. North

Carolina, 317 U.S. 287, 291-2 (1942).

Accordingly, this Court should grant

petitioner's writ in order to decide the

important federal question of whether

a non-bank officer may be convicted of

violating 18 U.S.C. § 656 under the

derivative liability doctrine.

2. As stated above, the Court of

Appeals affirmed the petitioner's con-

victions of the single conspiracy count

and the thirteen aiding and abetting

misapplication of bank funds counts,

but invoked the concurrent sentence

rule and refused to pass upon Counts 15-

17, the Travel Act counts (App. 1-3).

Although the invocation of the concur-

rent sentence rule is a matter of dis-

cretion with appellate courts, this

Court has stated that a review of con-

victions is always desirable where

“adverse collateral consequences" may

flow from an unreviewed conviction.

Benton v. Mar,land, 395 U.S. 784, 790

(1969).

The issue raised by petitioner in the

three Travel Act counts, i.e., whether

commercial bribery is proscribed by the

Travel Act, is presently being consider-

ed by this Court in Perrin v. United

States, No. 78-959; Levy v. United

States, No. 78-5855; and LaFont v.

United States, No. 78-5930. Thus, the

likelihood of adverse collateral effects

flowing from the petitioner's three un-

reviewed Travel Act convictions is cer-

tainly a possibility since this Court

may well rule that commercial bribery

8

is not proscribed by the Travel Act.

Accordingly, the Court of Appeals, know-

ing that the issue raised by petitioner

was already before this Court on certio-

rari, abused its discretion in invoking

the concurrent sentence rule and refus-

ing to pass upon the petitioner's three

counts of Travel Act convictions.

3. The conspiratorial objective

alleged by the government in Count l,

the conspiracy count, does not set forth

a criminal misapplication of bank funds

except insofar as it tracks the statu-

tory language of 18 U.S.C. § 656. This

Court and the United States Circuit

Court of Appeals for the Third Circuit

have stated that a factual description

of the conspiratorial objective of a

given conspiracy is not satisfied mere-

ly by tracking the statutory language.

United States v. Britton, 108 U.S. 199

(1883) and United States v. Knox Coal

Co., 347 F.2d 33 (3rd Cir. 1965).

Thus, this portion of the decision

sought to be reviewed is in conflict

with decisions of this Court and the

Third Circuit Court of Appeals.

CONCLUSION

In view of the vital importance of

the question of federal law presented

ana the other considerations set forth

above, it is respectfully submitted

that this petition for writ of certio-

rari be granted.

Respectfully submitted,

TANYA M. PLAUT

112 South Lake Avenue

Orlando, Florida 32801

Telephone: (305) 423-2100

Attorney for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th

day of October, 1979, copies of this

Petition for Writ of Certiorari were

mailed, air mail postage prepaid to the

Solicitor General, Department of Justice,

Washington, D.C. 20530. I further

certify that all parties required to be

served have been served.

TANYA M. PLAUT

10

CERTIFICATE OF ATTORNEY

I, TANYA M. PLAUT, hereby certify

that I am a member of the Bar of the

United States Suvreme Court in good

standing and was admitted to practice

by the Court on November 6, 1972.

TANYA M. PLAUT

Attorney